The “Next” Pandemic : How States Can Avert It.

Posted on July 10, 2020 by Nicholas Robinson

The “next” pandemic in the USA is not a question of “if” but of “when.” Just as States scramble to win or shore up their victories against  COVID-19, a second front appears. Can the USA win a two-front war with microbes?

Two parallel infections now afflict separately humans and pigs. A new strain of the H1N1 swine flu virus, which killed 285,000 people when it merged in 2009, is now spreading among humans working on pig farms in China. The National Academy of Science reported this new threat in June  ( https://www.pnas.org/content/early/2020/06/23/1921186117). How can the risks to humans from this new virus, G4 EA H1N1, be contained? This human infection is emerging at the same time that  the world experiences the raging animal pandemic of African swine fever virus (AFS). AFS is forcing Asians to kill their domestic pig herds. AFS is now in 17 European nations and threatens to spread across all continents. No one knows now how to contain the AFS Pandemic among animals.

Once early surveillance detects such threats, what  precautions are essential to avert the “next” pandemic? Much is at stake. Since February 18, 2020, when ACOEL published its first Blog on COVID-19, (at http://www.acoel.org/post/2020/02/18/CORONAVIRUS-We-Thought-We-Knew-Ye!-The-Wuhan-Potential-Pandemic.aspx ), the virus SARS-CoV-2  has stolen lives and livelihoods. Its impact has vastly exceeded that of the costly HIV-1/AIDs pandemic, or the 2009 H1N1 epidemic. 

Like the plague, these diseases, along with SARS, EBOLA or West Nile virus, are the result of infections  that spill over from the wild animal kingdom, transmitting disease to  humans. This is known as zoonosis. HIV-1/AIDS came from primates in Africa, and since 1983 has killed 38 million humans, and currently sickens 36.9 million persons.  When COVID-19 first appeared, it was thought to have come via Pangolins, but now is linked to bats (Rhinolophus), which live in habitats across SE Asia and China. Earth holds perhaps 700,000 different viruses, most not yet discovered.  Of the 335 human diseases identified between 1960 and 2004, 61% are of zoonotic origin, and 72 % of all recent diseases are zoonotic.

The frequency of human infections from zoonotic diseases is increasing. Illnesses like Denge, chikungunya, or Zika have shown up in the Americas, and will be joined by others in the future. In 1999, West Nile virus, transmitted to humans by mosquitoes, made its first appearance in the Western Hemisphere in New York, after a drought followed by heavy rains. Since then, over 1,600 people have died of the disease.

Simultaneously while coping with COVID-19, it is evident that governments need to organize to avert a new zoonotic infections. Some are already here, others are coming. For example, Lyme Disease is a continuing threat. Other novel microbes can arrive quickly. Locally infected people travel, and airplanes bring the diseases to distant lands. It took months for rats to bring Bubonic Plague, the medieval “Black Death,” to Europe on sailing ships. Today a virus jumps continents in a few hours. As the economy restarts after COVID-19, governments will need new regimes of phyto-sanitary measures for trade, transportation, and tourism. 

Zoonotic diseases are on the rise for several reasons. Escalating declines in  biodiversity are the root cause. Biodiversity loss is a health risk multiplier.  As populations of species thin, many to the point of extinction, the viruses and bacteria that they host spread out looking for new hosts. Deforestation, and other unsustainable developments, disrupt habitats for many species, which in turn shed their viruses. A zoonotic disease, whether bacteria like Lyme Disease, or a novel coronavirus like SARS, then finds new animal hosts, including eventually human beings. Building new roads or suburban subdivisions fragment the landscape,  severs  migration corridors, and disrupt ecosystems, thereby exposing more humans to zoonotic microbes. Since humans interface with these disturbed natural  habitats,  their likelihood of being infected increases. 

Climate Change impacts are exacerbating biodiversity loss and augment humanity’s interface with zoonotic infections. Extreme weather events cause a cascade of other effects that influence disease. Heat and droughts create dry conditions, providing fuel for forest fires that end up fragmenting forests and driving wildlife closer to humans. Increased rainfall and humidity provide favorable conditions for mosquitoes to breed and for adult mosquitoes to survive.

If society waits for hospitals and health departments to cope with a zoonotic disease, it is too late. The most effective way to prevent or minimize zoonotic spillovers from animals to humans is to keep all animals healthy. Doing so requires greater attention to veterinary science and the health of domesticated animals and agriculture.  For environmental law, it means enhancing nature conservation programs that sustain ecosystem health, everywhere. We reduce the likelihood of zoonotic spillovers by sustaining resilient ecosystems in wetlands, in suburbs, in rural countryside, as well as in parks and wilderness. 

An inter-agency, or “whole of government” collaboration, is required. Such collaboration runs against the grain. We promote agriculture as commerce, with insufficient attention to veterinary health of farmed  animals. The pandemic of AFS has destroyed the pork industry in China and impacts food supplies worldwide. Animal health is treated apart from human health. Humans and animals exchange TB, zoonotic tuberculosis. Developed economies tend to forget that the well-being of all plants, animals and humans is intrinsically connected, and profoundly affect by human activity. The reality is that there is only “One Health.”

The World Health Organization (WHO) and Food & Agricultural Organization (FAO) endorse a “One Health” approach. The US Centers for Disease Control does too. Consensus favoring a “One Heath” approach has grown, but has been too marginal to make much of a difference. The  Wildlife Conservation Society and German government’s  2019 “Berlin Principles,”  or the 2017 UN Environment Assembly recommendations, and proposals from the EcoHealth Alliance, have all proposed  the “One Health” approach as essential to successfully manage risks of zoonosis.

To date, however, none of the “One Health” advocates  translate this policy construct  into meaningful action. At most they urge that veterinarians and public health  agencies should cooperate. In truth, cooperation between veterinarians, public health agencies, and nature conservation authorities, whether locally or globally through the International Union for the Conservation of Nature (IUCN), today does not exist. All these entities largely ignore the tools that environmental law offers to effectuate the “One Health” approach.

To avert the spillover of viruses or bacteria from wild animals, it is essential to keep natural habitats healthy.  At the outset, “One Health” should formally recognize the conservation of wild nature as its foundation. Conservation is too often discounted or deemed merely an amenity. Yet if governments at all levels fail to maintain healthy wild habitats, they invite spillovers of virus and bacteria seeking human hosts. Human incursions are increasing disrupting habitat in the forests of Africa, Southeast Asia the Amazon, or the woods of suburban North America. Disease spillovers increase in turn.

Sustaining biodiversity requires maintaining intact and functional ecosystems. These are the fundamental infrastructure for all of life, our health and our socio-economic well-being. Stemming current losses in biodiversity is the front line for protecting human health. Governments need to mainline biodiversity conservation to manage zoonotic disease risks.  

Virtually all governments neglect these tasks. Government budgets reflect an ignorance about the measures that prevent zoonotic spillovers. Budgets invariably assign to Departments of Health more than twice the resources provided for nature conservation and they allocate exponentially more when funding  military or police security.  COVID-19 reveals the folly of this imbalance.  Zoonotic diseases are non-traditional security threats, causing incalculable human and economic loss. The upshot: “Pay me now or pay me later.”

To avert the “next” pandemic, governments can deploy  a number of environmental laws to implement  a “One Health” approach. Environmental laws provide a suite of policies and best practices exists to avert the “next” pandemic. Given what COVID-19 has taught us, there is some urgency in deploying these tools. Would it not be irresponsible to fail to do so?” Will we? The war on COVID-19 has so far precluded debate about preparing to avert the “next” pandemic.  We face  the risk of “business as usual,” and choosing not to learn, as happened after the experience of SARS in 2003-2004. 

Since the “next” zoonotic spillover is underway, it is essential to actively manage the interface between humans and animals. Surveillance of emerging diseases requires collecting data constantly, as a priority. To ensure that warnings from this surveillance are  acted upon,  each level of government needs to provide a strategic, high level coordinating council or executive body to oversee these efforts. Many governments do so now (See the 2019 Trilateral Guidance by WHO, FAO, OiE, at http://www.fao.org/3/ca2942en/ca2942en.pdf).  The USA briefly had such a strategic unit, begun after the Ebola crisis by the Obama Administration. The White House Directorate for Global Heath and Security in the National Security Council addressed these non-traditional security issues.  President Trump discontinued this unit. While the President’s Council on Environmental Quality (CEQ) could be tasked with these coordinating roles, CEQ’s weakened capacity means that Congress and future Presidents will need to do even more in order to coordinate all federal agencies to protect domestic health. 

Every State government should have a gubernatorial body to prepare for and coordinate zoonotic risk management. Such bodies exist already in some cases. For example, New York State can and should activate the Governor’s Council of Environmental Advisors, as is authorized under Article 7 of the Environmental Conservation Law. A statutory body is needed to prevent a future executive from neglecting this strategic cockpit for “One Health.” Where no such authority exists, the legislature should provide for one.  

A top priority for any executive coordinating body will be to address how to manage zoonotic risks while addressing the impacts climate change. For example, New York’s Climate Leadership & Community Protection Act of June 2019 provides tools that could be used to provide “One Heath” safeguards. In §75-0109 of the Environmental Conservation Law, this Act provides for off-setting carbon emissions through extending forests and other ecosystems to enhance the photosynthesis that removes carbon dioxide from the atmosphere. The same healthy habitats serve to avert zoonosis spillover. 

The same Act amended New York State’s Community Risk And Resilience Act in ways that directly also could be deployed to protect against zoonotic diseases.  § 17-A mandates that the Department of Environmental Conservation (DEC)  address impacts on public health and species and to identify the most ”significant climate-related risks,” along with measures to mitigate those risks. § 17-B requires applicants for all permits to identify physical climate-risks and how to handle them and authorizes DEC to mandate mitigation measures. Increased disease spillovers are climate risks. 

Environmental Impact Assessment (EIA) is another readily available tool. The data from environmental assessments can be harvested to identify zoonotic risks. Although President Trump is currently seeking to limit the role of the National Environmental Policy Act, the NEPA Regulations can and should address potential environmental impacts from zoonotic risks. Half the States also have their “little NEPAs” and assess zoonotic risks. The California Environmental Quality Act (CEQA) and the New York State Environmental Quality Review Act (SEQRA) are prime examples. They require all state and local governmental agencies to make a holistic evaluation of potential environmental impacts and risks. EIA effectively enables a “One Health” approach. Beyond collecting data on ecological zoonotic risks, EIA can identify options for sustaining health of ecosystems to contain spillovers of bacteria and viruses, identify the cumulative impacts exacerbating biodiversity loss, and identify how to fragmentation of intact ecosystems and restore migration corridors for species.

State building codes also serve a role to contain the spread of viruses within buildings.  Codes can be revised to mandate “healthy buildings.” For example, ventilation and filtration systems should be retrofitted to reduce risk of airborne exposures to communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020).  

Ultimately, “One Health” is all about sustaining biodiversity. The federal systems of National Parks, Wildlife Refuges and National Forests provide opportunities to enhance stewardship of natural areas. State park systems, and state wetlands laws, do the same. Zoning and land use laws at the state and local level also can provide for care of natural systems to manage zoonotic risks. Municipal land use laws can provide, for example, for migration corridors through overlay zones, or obliging property owners to control mosquito breeding, all to minimize infection risks. When ecological habitats remain undisturbed, the bacteria and viruses in wild nature tend to remain relatively stable in their natural hosts, which dilutes the chances of spillovers to humans.

Finally, the federal government and the states can establish and enhance phyto-sanitary safeguards for their agricultural sectors, and control animal products  imported into or through the states. Since 1947, the General Agreement on Tariffs and Trade (GATT) has respected the rights of countries to impose such safeguards. California has done so for many years to protect its agricultural sector. Theses phyto-sanitary norms need to be expanded robustly to address zoonotic risks. Precautions to prevent microbes entering in our airports and at State borders can be established.   

Once a “One Health” approach is made operational, many state agencies will discover how they help  avert the “next” pandemic. There are key roles for agencies regulating agriculture, produce markets, public health, environmental protection, forestry, wildlife conservation, transportation, and other State agencies are key parts of the “One Health” approach. States have substantial expertise in their universities, organizations like the Wildlife Conservation Society, as well as across their public health sectors. Each state and local agency needs to undertake continuous biodiversity-related heath surveillance in order to detect and manage emerging zoonotic disease spillovers to avert health emergencies. Each can be alert to end habitat fragmentation, and can provide buffer zones that manage disease-risk from human interfaces with animals in shared ecosystems.

Even in the middle of this COVID-19 Pandemic, governments need to be building back better, to be anticipating and preparing for the “next” pandemic. As Ben Franklin said in 1736, “An Ounce of Prevention Is Worth A Pound of Cure.” States cannot wait for Washington, D.C. They each must build their own resilience. Leadership from the States can pilot the nation toward the security of “One Health.”

JUST PLAIN NUTS REDUX

Posted on July 2, 2020 by Dick Stoll

In my ACOEL post of June 10, 2019, I led with this:

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is ‘just plain nuts.’  He points to two recent conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.”

I reinforced the situational nuttiness by noting that after several federal district courts had issued opinions, the Obama WOTUS rule continued to apply in 23 states, but was blocked in 26 states.  (New Mexico was split by counties!)  And to make the situation even crazier, the 23 states where the rule remained in place were hardly contiguous – looking at a map, it would appear someone threw darts.

My 2019 post pleaded with Congress to add “just a few words” to the Clean Water Act to bring it into accord with all the other major federal environmental statutes – by simply providing for direct Court of Appeals review of all nationally applicable CWA rules.  Even if parties filed in several Circuits under such a regime, federal statutes provide a procedure assuring that all filings would be consolidated in a single Court.

Well guess what?  Congress somehow ignored my 2019 post, and the new Trump WOTUS rule became effective recently.  So now we are all set for another round of total craziness. 

To wit, Seth just posted a report of one district court allowing the Trump rule to remain in effect, and another court enjoining the new rule. More rulings from various district courts are almost certain to follow, and they again are almost certain to be inconsistent.

My 2019 post concluded by recognizing the polarized political times we live in.  But I questioned why it should be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid this crazy patchwork of inconsistencies throughout the nation. 

Come on now!  Direct Court of Appeals review for national rules has for decades been the heavy norm in federal environmental statutes.  Should this be considered a liberal vs. conservative, or Democrat vs. Republican, or pro-business vs. pro-environmental issue?  I sure don’t understand how.  Can’t Congress please just do something rational here?

A New Map of Climate Resilient Landscapes

Posted on July 1, 2020 by Philip Tabas

After 12 years of work by more than 150 Nature Conservancy scientists we now have an interactive map of resilient lands that can withstand climate impacts AND protect biodiversity. Using ground-breaking science, conservationists identified a network of special places across the U.S. that have unique topographies, geologies, soils, temperatures and other characteristics that, if properly protected, could provide safe havens for species migrating away from growing climate threats.

We know that plant and animal species are disappearing at an alarming rate as their habitats are altered or destroyed by warmer temperatures, increased flooding and other impacts from the changing climate. One-third of animal and plant species could face extinction in the next 50 years due to climate change, according to a study from scientists at the University of Arizona. We know too that nature is on the move to escape these climate impacts. For example, in North America, studies show that species are shifting their ranges an average of 11 miles north and 36 feet in elevation each decade. Many species are approaching – or have already reached – the limit of where they can go to find hospitable climates. Research has also shown that more than half – nearly 60% – of US lands and waters are fragmented by human development, blocking species movement and preventing species from finding new and more hospitable habitat. 

The Resilient and Connected Network Map (see: http://maps.tnc.org/resilientland/) for the contiguous U.S. provides a new way to prioritize lands for land conservation action. This model offers a roadmap for preserving a network of resilient sites and connecting corridors that could sustain North America's natural diversity by allowing species to adapt to and thrive in the face of climate impacts. By protecting the most resilient landscapes, conservationists hope to double their environmental impact by 2050.

By providing safe havens for diverse species, this network of lands could also protect important sources of fertile soils, clean drinking water, economic resources and other vital services people rely on for survival. Conserving such a resilient network has large benefits for both people as well as nature. For example, resilient areas identified in Eastern North America not only serve as home to more than 30,000 species of plants and animals but also support a $25 billion outdoor recreation industry.  Additionally, protecting these resilient areas would secure over 66 million acres of high-value source water supply land, provide 1.8 billion tons of oxygen annually, and mitigate over 1.3 million tons of air pollution avoiding $913 million in human health costs. Resilient lands could also capture and store higher amounts of carbon than other areas and thus help offset greenhouse gas emissions; in the Eastern US, these lands could store an estimated 3.9 billion tons of carbon.

Of the total acreage represented in the network, approximately 301 million acres are already in some form of protected status. To protect the remainder, we will have to protect as much land as we have protected in the last 100 years of previous land conservation action. Although challenging, if government agencies, land trusts, the private sector and others can be persuaded to use this new science to direct conservation action and resources to these most important lands, it can maximize the impact of conservation funding and actions. Recent Senate passage of the Great American Outdoors Act or "GAOA” which would fully and permanently fund the Land and Water Conservation Fund with $900 million annually for the first time since the program's creation in 1964, gives some hope that we will be able to meet this challenge.

By conserving these environmental strongholds, we can protect the lands best-equipped to sustain threatened species -- and mitigate the adverse effects of climate change in the process. Saving nature from the effects of climate change might seem to be a daunting task. But, by focusing on conserving naturally resilient lands, we can keep the planet habitable for a vast array of species, including our own.

Surprise! New WOTUS Rule Leads to Conflicting Rulings

Posted on June 30, 2020 by Rick Glick

It was clear to everyone, including this humble blogger, that EPA’s new rule defining Waters of the United States (WOTUS) would bring little clarity to this fraught area of law.  The rule took effect June 22, but court challenges were already underway, and already we have conflicting rulings, described in this space by Seth Jaffe with his usual alacrity. 

Regardless of what ultimately emerges from this morass, recall that the states have authority of their own and that is probably where practitioners should be focusing in advising clients.  On the same day the WOTUS rule came into effect, the Oregon Department of Environmental Quality (ODEQ) issued a statement including a not too subtle warning about discharging pollutants into state waters without benefit of a permit. 

The ODEQ statement also speaks to state authority under CWA section 401, the subject of another recent EPA rulemaking, and a continuing source of litigation and uncertainty.  As Seth notes, the new WOTUS and 401 rules are complementary.  In its statement, ODEQ encourages project proponents to meet with the agency early for an evaluation of a “project plan.”  Such pre-application meetings are always a good idea—better to anticipate and address issues before they become controversial. 

All of this is pretty interesting for lawyers, but frustrating, time consuming and expensive for clients trying to discern a critical path for development projects.  Surely there is a better approach to ensuring clean water, but it is hard to see one emerging soon.

 

Woe Is WOTUS, Redux

Posted on June 30, 2020 by Seth Jaffe

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts.  The text of the statute made pretty clear that such challenges did belong in district courts, and the Supreme Court felt no need to address concerns that it was just plain nuts to have multiple courts reviewing this issue, leading to a patchwork of different rulings.  That’s Congress’s problem!

As anyone who remembers those halcyon days can attest, chaos did indeed result, with roughly half the states ending up subject to the Obama rule and half subject to the prior rule and the post-Rapanos guidance.

Now comes the Trump WOTUS rule, which became effective yesterday.  It looks like déjà vu all over again.  On Friday, two courts weighed in, with a judge in California declining to enjoin the rule and suggesting very strongly that EPA would prevail with its argument that the rule is entitled to Chevron deference, while a judge in Colorado enjoined the new rule, concluding that five justices in Rapanos precluded the new rule’s interpretation of WOTUS, thus barring any reliance on Chevron.

Other than saying “I told you so,” I think that the biggest takeaway so far is that, to the extent that the California decision carries the day, it’s also good news for fans of EPA’s recently released rule on section 401 water quality certifications.  It basically adopts lock, stock, and barrel EPA’s rationale for why it can ignore a seemingly contrary Supreme Court decision.  The short version is that the Supreme Court Brand X decision holds that, where the Supreme Court upholds an agency interpretation of an ambiguous statutory provision, that does not preclude the same agency from later adopting a contrary interpretation, so long as the new interpretation is also permissible under Chevron.

Time will tell which position prevails, at least in the lower courts.  This one does seem likely to make it back to SCOTUS.  For better or worse – likely worse – we might finally get some clarity on the definition of the waters of the United States.  Until then, I am confident that chaos will reign.

Welcoming Our New Honorary Member: John Echohawk

Posted on June 29, 2020 by Andrea Field

One of the perquisites of serving as President of the ACOEL is being able to select this year’s Honorary Fellow of the College.  When faced with a stack of nominating papers, I asked my predecessor, Allan Gates, for guidance on how to make my choice.  Our conversation was roughly as follows.

Me:  What are the criteria for choosing an Honorary Member? 

Allan:  You’ll know it when you see it.

Me:  That’s the standard Justice Stewart applied when determining whether certain material was obscene.  As I recall it, his reference point was something he had seen in Casablanca.  Could you be a bit more helpful in explaining how that standard applies here?

Allan:  You’ll know it when you see it.

It turns out that Allan’s advice was spot on.  When I saw the nomination papers for John Echohawk, I knew without a doubt that he was the person who should become an Honorary Fellow of the College this year.  Let me here share with you some of the information that I received from College members about John Echohawk, information that made it very easy for me to choose John as this year’s ACOEL Honorary Fellow. 

John Echohawk – the Executive Director of the Native American Rights Fund – is a giant in the field of Native-American sovereignty, Tribal natural resources and environmental rights, and Tribal water rights.  He was the first graduate of the University of New Mexico’s special program to train Indian lawyers and was a founding member of the American Indian Law Students Association while in law school.  John helped found NARF in 1970 (barely a year after he graduated from law school), and he has served continuously as NARF’s Executive Director since 1977.  Under John’s leadership, NARF has represented Tribal interests in numerous high-profile cases in which his clients have sought, among other things, to protect the Badger-Two Medicine Area, prevent the shrinkage of Bears Ears National Monument, challenge the Trump administration’s plan to open up the Arctic National Wildlife Refuge, and halt the Dakota Access pipeline and the Keystone XL pipeline.

John is now widely recognized as having distinctly shaped and enforced Tribal sovereign rights through his organization’s legal advocacy.  The National Law Journal has listed John as one of the 100 most influential lawyers in America, and he has received numerous service awards and other recognition for his leadership in the Indian law field.  According to a June 24, 1988 profile in the New York Times, John’s success in asserting Tribal interests is so well known that “many public and private interests now seek to negotiate disputes with tribes over energy, water and sovereignty rather than face off in court against [Mr. Echohawk and his NARF colleagues].”  Noting that John is more than just a skilled attorney, the Times quoted from several governors who had been on the opposite side of the negotiating table from him in contentious matters and who came away from their experiences praising John’s collaborative style.  Said former South Dakota Governor Bill Janklow, John “genuinely wants to seek a solution where everyone can live together afterwards.”  And former Arizona Governor Bruce Babbitt then added that “if there is a charisma that emanates from silence, [John Echohawk’s] got it.”

Having started this article with a reference to one Supreme Court Justice, let me close with a reference to another.  I do so with an anecdote shared by Ken Salazar, who – over three decades – worked directly with John Echohawk on environmental and natural resources matters.  “We were both active Presidential appointees to the National Water Policy Commission in the 1990s.  During my time as Secretary of the Interior, I often sought Mr. Echohawk’s advice as we resolved the most complex and significant water rights Tribal cases in the United States and resolved seminal land trust management litigation. . . . John Echohawk is the Thurgood Marshall of Native American law.”

When told about his election as an Honorary Member of the College, John expressed thanks for the recognition and noted that the “Native American Rights Fund has always believed that environmentalists have the same values as traditional Native Americans.”  He said he looks forward to joining us “virtually” at our October 2, 2020 Annual Meeting. 

In addition to asking John to join us for our virtual meeting in 2020, we plan to invite him to join us for our next in-person Annual Meeting program, which is being planned for 2021.  It is a great honor to have John Echohawk become part of the American College of Environmental Lawyers.    

Texas’ Affirmative Defense SIP Provisions: National Policy or Regional Action

Posted on June 23, 2020 by Paul Seals

Why is the legal challenge of EPA’s approval of the affirmative defense provisions in Texas’ state implementation plan (SIP) the subject of a venue battle?  Why did the Sierra Club and eight other environmental groups (Petitioners) sue EPA in the D.C. Circuit when they filed their lawsuit on April 7, 2020?  Why are EPA, Texas and industry intervenors fighting to dismiss the suit or have it transferred to the 5th Circuit?  The answers depend on the construction of the Clean Air Act (CAA) judicial review provisions.  Did EPA’s decision constitute a policy of national applicability or is the decision of local or regional applicability?

On February 7, 2020, EPA approved the withdrawal of Texas from EPA’s 2015 SIP call, which was related to the affirmative defense provisions in Texas’ SIP applicable to excess emissions that occur during startup, shutdown or malfunction.  EPA determined that affirmative defense provisions made the SIP substantially inadequate to meet the CAA requirements.  Texas was one of 17 states subject to the 2015 SIP call, which was based on EPA’s 2015 interpretation of the a 2014 D.C. Circuit decision in NRDC v. EPA, 749 F.3rd 1055, holding that affirmative defenses are unlawful in emission standards established under CAA Section 112.   

EPA’s approval of the withdrawal reinstates Texas’ affirmative defense provisions of the Texas SIP, which had been approved by EPA in 2010 and upheld by the 5th Circuit in 2013.  See Luminant Generation Co. v.  EPA, 714 F.3d 841.  The Court found that EPA’s interpretation of the Clean Air Act (CAA) to allow affirmative defenses in CAA Section 110 SIPs was a permissible interpretation.

In their lawsuit, the Petitioners claim that EPA is setting national policy regarding affirmative defenses and the EPA’s action regarding Texas’ SIP should be reviewed by the D.C. Circuit.  Texas responds that EPA’s action to withdraw of a single state from a SIP call issued to multiple states is locally or regionally applicable.  Accordingly, the D.C. Circuit should have no jurisdiction to review EPA’s action.

Is the Texas SIP decision nationwide in scope or effect?  Alternatively, does the EPA action reflect Texas-specific circumstances – a prior approval by EPA, which was upheld by the 5th Circuit?  Will the D.C. Circuit dismiss or transfer the litigation to the 5th Circuit?

The American College of Environmental Lawyers Announces Newly-Elected Fellows for 2020

Posted on June 22, 2020 by Blogmaster

The American College of Environmental Lawyers is proud to announce the election of twenty-seven new Fellows and one Honorary Fellow to membership in the College. These highly accomplished individuals were selected for their many years of substantial contributions to the field of environmental law and their high standards of practice.

ACOEL President, Andrea Field of Hunton Andrews Kurth LLP, stated, "The twenty-eight lawyers elected as Fellows to the College this year have earned this recognition based on the numerous contributions that – over many years – they have made in diverse areas of environmental law and policy.  Drawn from all parts of the country, they represent the very best environmental lawyers in government service, public interest, academia, and private practice.  I am delighted to welcome each and every one of them to the College.” 

Our newly elected Honorary Fellow – a designation bestowed by the President of the College for sustained leadership - is John Echohawk, Executive Director and founder of the Native American Rights Fund in Boulder, Colorado and a luminary in the development of law at the intersection of environmental and tribal rights.

The newly elected Active Fellows are:

Susan Amron, General Counsel, New York City Dept. of City Planning (NY)
Michael Burger, Executive Director, Columbia University Law School Sabin Center (NY)
Lisa Carlson, Deputy Attorney General, Environmental Quality Section Chief, Idaho Office of the Attorney General (ID)
Steve Chester, Attorney and Counselor at Law, Miller, Canfield, Paddock and Stone (MI)
Nadira Clarke, Partner, Baker Botts (DC)
Stacey Geis, Managing Attorney, CA Regional Office, Earthjustice (CA)
Vinette Godelia, Shareholder, Hopping, Greens & Sams (FL)
Monique Harden, Assistant Director of Law and Public Policy, Deep South Center for Environmental Justice (LA)
Sean Hecht, Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law (CA)
Melissa Hoffer, Chief, Energy and Environment Bureau, MA Office of Attorney General (MA)
Rachel Jacobson, Special Counsel, WilmerHale (DC)
Robin Main, Partner, Hinckley Allen (RI)
David Mandelbaum, Shareholder, Greenberg Traurig LLP (PA)
Deborah Mans, Deputy Commissioner, NJ Department of Environmental Protection (NJ)
Jessica Merrigan, Partner, Spencer Fane (MO)
Jonathan Niermann, Chairman, TX Commission on Environmental Quality (TX)
Jennifer Nijman, a Founding Partner, Nijman & Franzetti (IL)
Hari Osofsky, Dean, Penn State Law and the School of International Affairs, Pennsylvania State University (PA)
Peggy Otum, Partner, WilmerHale (CA)
Gerald Reid, Commissioner, ME Department of Environmental Protection (ME)
David Shorr, Partner, Lathrop GPM (MO)
Bob Stokes, Executive Director, Galveston Bay Foundation (TX)
Timothy Webster, Partner, Sidley Austin (DC)
Dan Whittle, Senior Attorney and Senior Director, Environmental Defense Fund (NC)
LaJuana Wilcher, Partner, English, Lucas, Priest, & Owsley LLP (KY)
Ezekiel Williams, Director, Lewis Bess Williams & Weese (CO)
Sandi Zellmer, Professor and Director of Natural Resources Clinics, University of Montana Law of School (MT)

The Future Is As We Now See It – Environmental Development Resiliency and Disaster Planning

Posted on June 17, 2020 by Kevin Murray

Successful real estate developers and development attorneys must effectively anticipate and manage risk. Management of visible and known risks seem simple; what separates the great from the good is the ability to anticipate, plan for, and develop contingencies for unknown risk scenarios. I have previously written about the importance of resilient development planning for extreme weather conditions and regional/national disasters. It is clear that extreme weather events affect the way we live and must be taken into consideration if we are to plan and develop our environmentally sustainable and resilient communities. Pandemic planning now finds itself a critical part of disaster planning and is likely to have a profound and lasting influence on environmental resiliency.

These environmental conditions affect physical, transactional, and legal aspects of real estate. Physical impacts appear as structural, corporeal, or earthly damages or modifications. Physical impacts present very real safety risks to site occupants such as failing structures and, exposure to life- threatening elements and hazardous substances. The recent pandemic has highlighted what was a subset of physical impacts, that is the health of the occupants as they live, work and occupy spaces.

Over the course of recent decades, mixed use developments became extremely popular with developers, municipal jurisdictions, and users. The notion of sustainable walkable communities has seen a proliferation of “self-contained communities” to support the growing desire for a more compact lifestyle where living, work and recreation coexist. The COVID Pandemic will result in the development of new regulation and a fresh look at development as a whole, but clearly with self-contained walkable communities and mixed use. Especially where users live on top of the commercial, retail, restaurant and recreational spaces they frequent.

Energy efficiency through sealed buildings had already begun to fade, air flow and fresh sources of filtered air will see increased interest and likely regulatory focus. The need to regulate how people congregate and the general flow through space may take on a regulatory aspect. Occupancy limits already exist for general safety, perhaps viral exposure may now factor into those calculations, and the imposition of formal requirements for table and general distancing in floor space. A demand for (and likely regulatory requirements), may extend into amenities that feature no touch surfaces, doors, toilets, sinks, retail checkout, retail goods selection, shelving, clothing racks, elevators, windows. Internet orders and drive up pickup may see a continued demand for convenience and safety. Ever-present hand sanitizer and disinfecting wipes will become required and as common place as a box of tissue.

The importance of all this however is to note that management of risk means mitigation. The traditional legal defenses like force majeure and impractability continue to erode in favor of reasonable foreseeability of extreme events. Successful developers and their attorneys will plan for these contingencies both to protect their uses and themselves in an ever changing regulatory environment. Proper engineering and design are necessary to protect the people that live and work in these communities and the companies and contractors that establish them. Resilient real estate development must adapt and engineer buildings and communities sustainable under foreseeable extreme conditions.

Return to Maui and Upstate Forever

Posted on June 16, 2020 by Patrick A. Parenteau

Despite losing his bid to have the U.S. Supreme Court declare that wastewater  discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino, Law 360 reports,  has vowed to keep fighting . The Court did not rule on the merits of whether Maui’s injection wells do in fact require a permit, but instead remanded the case to the Ninth Circuit, which sent it back to the district court, for it to apply a newly announced test--make that determination applying its new test--whether Maui’s indirect discharge to the ocean is the “functional equivalent” of a direct discharge.

Justice Breyer explained that the “functional equivalent” test comprises  7+ factors. After shelling out a reported $4 M in legal fees (with little to show for it),  Mayor Victorino might have wanted to spare the taxpayers the additional expense of a trial and further appeals and agreed to the settlement that the County Council had approved last year.  But Apparently not.  Perhaps cooler heads may prevail at some point but meanwhile attention shifts to the remand to the Fourth Circuit of the other groundwater discharge case-- Upstate Forever v Kinder Morgan.

Followers of this blog may recall that this case involved a 2014 incident in which a ruptured pipeline owned by a subsidiary of Kinder Morgan Energy Partners spilled 369,000 gallons of gasoline into the soil and groundwater near Belton, South Carolina. Kinder Morgan repaired the pipeline and managed to recover some of the spill but not before it traveled through the groundwater and was detected in nearby wetlands and streams. The plume of gasoline has continued to contaminate surface waters despite implementation of a cleanup plan ordered by the South Carolina Department of Health and Environmental Control.

The Kinder Morgan litigation involved a federal Clean Water Act  citizen suit brought by the plaintiffs--Upstate Forever and Savannah Riverkeeper--alleging that the spill is polluting two tributaries of the Savannah River-- Browns Creek and Cupboard Creek-- and their adjacent wetlands. The pipeline ruptured less than 1000 feet from Browns Creek and 400 feet from Cupboard Creek. Plaintiffs asserted that the resulting spill constituted the unlawful discharge of pollutants from a point source in violation of section 301 (a) of the act.

In a split decision the Fourth Circuit panel ruled in plaintiffs’ favor. Over a stinging dissent by Judge Floyd the panel majority rejected Kinder Morgan’s argument that since the leak had been fixed there was no “ongoing violation,” a prerequisite to a citizen suit under the Supreme court’s Gwaltney decision.. The panel declined to adopt the Ninth Circuit’s “fairly traceable” test in the Maui case and acknowledged the contrary rulings of the Sixth Circuit in Kentucky Waterways Alliance et al v. Kentucky Utilities Co. and Tennessee Clean Water Network v. Tennessee Valley Authority--that leachate from coal ash pits did not constitute discharges from a point source. Instead the 4th Circuit panel cited EPA’s longstanding position (since disavowed by the Trump administration) that discharges from a point source via ground water having a “direct hydrologic connection” to surface water are subject to CWA permit requirements.

The Fourth Circuit is likely to send the case back to the South Carolina district court, which will have the unenviable task of trying to decipher Justice Breyer’s multi-factor test. Justice Breyer provided this not terribly helpful guidance:

Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.

If time and distance are controlling, the Belton pipeline leak would presumably qualify as the functional equivalent of a direct discharge. The leak occurred within 400’ of one stream and 1000’ of another. It reached the first one within two months. The gasoline did not undergo any chemical change and was not diluted to any substantial degree. More than half of the spill was not recovered and is continuing to pollute the surface waters So, it clearly meets the test, right?

And yet it does seem odd that an accidental spill from a broken pipeline that has since been plugged and is undergoing cleanup--albeit not at the pace the plaintiffs would prefer-- would be the functional equivalent of a direct discharge requiring a permit. Frankly the NPDES program seems a poor fit for a release resulting from an accident rather than one resulting from routine and periodic releases from routine operations.

The Maui injection wells, on the other hand, were used as an alternative to a direct ocean discharge via an outfall, which, legend has it, were opposed by the surfers at Kahekili Beach.  The facts of Maui do seem to easily fit within Breyer’s functional equivalent construct. So why didn’t the Court so rule?

EPA Finalizes New Clean Water Act Section 401 Certification Rules—Will States Bite Back?

Posted on June 10, 2020 by Rick Glick

On June 1, 2020, the Environmental Protection Agency released its new rules implementing section 401 of the Clean Water Act (CWA). Section 401 provides that before a federal agency can approve a project that may result in a “discharge to the navigable waters” the applicant must obtain water quality certifications from the affected state. The certification encompasses compliance with water quality standards and “any other appropriate requirement of State law.”

However, the state is deemed to have waived its delegated authority under section 401 if it "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." The rules adopt the D.C. Circuit’s view in Hoopa Valley Tribe v. FERC that one year means one year, and they narrow the scope of conditions that states can impose on a project as part of the certification.

One Year Means One Year

The section 401 process has been controversial in the context of energy infrastructure projects requiring federal approvals, such as natural gas pipelines, LNG terminals and hydroelectric facilities. Historically, states have commonly avoided the one-year limit by allowing multiple cycles of withdrawal-and-resubmittal of 401 certification applications, stretching the review period over many years.

This in part was thought necessary to allow adequate time to assess the water quality effects and appropriate mitigation measures for complex facilities, which would often draw comments from many stakeholders seeking to influence the terms of a new certification. However, in Hoopa Valley the court rejected this workaround and denounced the withdrawal-and-resubmittal practice as a tool “for states to use Section 401 to hold federal licensing hostage.”

Shortly after Hoopa Valley, President Trump issued an Executive Order “Promoting Energy Infrastructure and Economic Growth,” for the stated purpose of making the regulatory process more efficient and creating “increased regulatory certainty.” Among other things, the Executive Order directed EPA to review federal policy and regulations on section 401 implementation in light of the Hoopa Valley decision.

With the new rules, EPA has adopted Hoopa Valley’s position that the one-year limit of section 401 actually means one year, and explicitly rejected state practices resulting in certification processes extending to several years. The rules make clear that upon receiving a complete 401 certification application, a state has one year to grant, grant with conditions, or deny the certification. Failure to do so will result in the state having waived its delegated authority with respect to the project under consideration.

Scope of 401 Certification Conditions

The Supreme Court has ruled that section 401 confers on a state broad authority to impose conditions on a water quality certification. In the 1994 case of PUD No. 1 v. Wash. Dep’t of Ecology, the Court found that water quality certifications could include conditions related to quantity of water flow, holding that a state could require minimum stream flows as part of the section 401 certification. Twelve years later, the Court found in S.D. Warren Co. v. Me. Bd. Of Envtl. Prot. that states have broad latitude in imposing conditions that are not directly water quality-related, such as provision for fish passage or recreation.

However, in the preamble to the rules, EPA found that nothing in the CWA nor section 401 contains any statement suggesting that section 401 “authorize[s] consideration or the imposition of certification conditions based on air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts.”

EPA reasoned that the phrase “any other appropriate requirement of State law,” often used to justify broad state authority, only included “those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States.” The rejection of conditions not directly related to water quality seems to ignore Supreme Court guidance in PUD No.1 and S.D. Warren.

The Rules’ Prospects in Court

The new rules are certain to draw legal challenges from environmental groups and from states concerned that EPA’s interpretation denies them the full authority conferred under the statute.

EPA’s interpretation that one year means one year is consistent with Hoopa Valley and with subsequent decisions and may fare well in court.  However, narrowing the scope of the states’ authority to impose conditions on a certification will face serious judicial scrutiny in light of PUD No. 1 and S.D. Warren. In addition, opponents of the new rules may take issue with EPA’s authority, or lack thereof, to make rules governing how a program delegated to states should be administered.

Remembering that BLM Stands for Black Lives Matter, Not That Government Agency

Posted on June 8, 2020 by Andrea Field

Saying nothing about racial injustice should never have been an option.  And it is not an option now.  Saying I lack the right words should never have been a reason not to try to find those words.  And it is not a reason now.  Fearing I, a white woman, will say the wrong words and make myself vulnerable to criticism should never have been – and is not now – an option.

What finally pushed me past such concerns and fears was the willingness of a colleague of mine, Wendell Taylor, to make himself vulnerable.  Wendell – a black man – is my office managing partner.  In a recent virtual meeting with over 100 lawyers and non-lawyers in our office, he talked directly and personally about the unrest in the nation.  Pointing out the lack of basic human empathy in the officers involved in the killing of George Floyd, Wendell chose to promote more open discussions and empathy by sharing examples of his own negative encounters with law enforcement.  He said he’d always “had the mindset that the adversity you face might shape you but you can’t let it define you.  I’m not defined by these stories but they certainly helped shape me.  So when I’m asked to talk with groups – particularly about leadership – I usually focus on how overcoming adversity has helped me to become an effective leader.  Inevitably, I turn to my negative encounters with law enforcement for examples.”  And then Wendell told of instances when he was in middle school, college and law school – instances when he was doing nothing wrong (indeed, when he was being exceptionally careful not to do anything wrong) – which led to threatening encounters with police officers.

The stories Wendell shared are his and I will not repeat them here.  But his stories are not unique.  Indeed, immediately after he spoke, colleagues of color shared some of their own stories.  And all of you have certainly heard (or experienced) similar things.  You’ve seen similar things in the news.  You’ve read (or, if you have not, you should read) Brenda Mallory’s blog post from August 7, 2019. 

After sharing his stories, Wendell chose to say something more.  He chose to respond to his white colleagues, who have asked what they can do in their daily lives to make a difference in the fight to address such longstanding injustices.  Believing that his response helped me and others, I have summarized it below, adding a few thoughts of my own.  I am confident you will be able to figure out which thoughts were added by the white woman.

  • Resist the urge to turn away.  If you resisted watching the 9-minute recording of George Floyd being slowly murdered, watch it.  It is difficult to watch.  It is gut-wrenching.  But seeing the recording helps foster the empathy that is needed in these times.  Empathy is what others feel.  Allow yourselves to feel the pain.  Make it your pain.  Empathy is not a cure for the structural racism that exists in this country, but it’s a start. 
  • Don’t make the mistake that a conviction of those who killed George Floyd ends the fight against structural racism.  Find ways to keep fighting against injustice.  Contribute your time and/or money to worthy causes.  You’re good researchers:  you can find the cause(s) worthy of your support.
  • Challenge divisive views from people in your circles.  Challenge people to think critically about the issues. Silence is no longer an option.  Silence is complicity.
  • Don’t get discouraged if black people or other people of color are critical of your attempts to lend a hand or otherwise resist your efforts to get from them a comprehensive game plan for what you should do next to show your support.  It’s been a rough time for us all, and it doesn’t have to be the job of black people to help you understand what they’ve lived with all their lives.  Want to read a book?  Try “White Fragility” by Robin Diangelo.  Parts of it are a slog, but after reading it, you will (I hope) never again blithely claim to be “color blind.”  Nor will you resort to “white women’s tears” (or the male equivalent) if your longstanding views on racial justice are challenged.  Instead, perhaps, you will be able to open your heart to feeling the pain of those who’ve felt the brunt of racism their entire lives and be able to open your mind to constructive ways to doing the next right thing to help address that pain.  That’s empathy, and as Wendell pointed out, even if that’s not a cure-all, it’s a start. 

Note:  Andrea Field is the current President of the American College of Environmental Lawyers.  The views expressed in this articles are her own.  She encourages other Fellows to express their views in whatever ways they feel are appropriate.

EPA Is The CERCLA Gatekeeper: Plaintiffs Need EPA Approval To Seek State Court Damages For Restoration

Posted on June 3, 2020 by Theodore Garrett

Landowners seeking restoration damages in state courts, at sites where there is a cleanup remedy previously selected by EPA, may pursue such claims only if they first obtain EPA approval for the proposed restoration work.  Atlantic Richfield Co. v. Christian (No. 17–1498, April 20, 2020). https://www.supremecourt.gov/opinions/19pdf/17-1498_8mjp.pdf

The Atlantic Richfield decision may have the effect of  avoiding collateral attacks on EPA cleanup decisions by placing EPA in the role of gatekeeper for state lawsuits seeking restoration damages.  In the present case, EPA stated that the landowners’ restoration plan, if implemented, would interfere with EPA’s approved cleanup by, for example, digging up soil that has been deliberately capped in place.  The court’s decision in Atlantic Richfield may also have the effect of avoiding the award of windfall profits in cases where plaintiffs seek huge “restoration damages” that go well beyond actual compensatory damages they have suffered.

For many years EPA worked with , the current owner of a former smelter, to implement a cleanup plan expected to continue through 2025 for remediation of contaminated soil.  A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages. The damages sought by plaintiffs were based on a proposed restoration plan that went beyond the measures that EPA found appropriate to protect human health and the environment.  The trial court granted summary judgment to the landowners on the issue of whether CERCLA precluded their restoration damages claim, and the Montana Supreme Court affirmed.  The US Supreme Court reversed and remanded. 

The Supreme Court first needed to decide whether CERCLA deprived the Montana courts of jurisdiction.  The landowner’s claims for trespass and nuisance arise under Montana law not CERCLA, the Court held, and thus are not barred by Section 113(b) of the Act, which provides that federal District Courts have exclusive original jurisdiction “over all controversies arising under this chapter.”  Similarly, the Court held that a suit in Montana state court is not precluded by CERCLA §113(h), which states that “[n]o Federal court shall have jurisdiction under Federal law . . .to review any challenges to removal or remedial action” selected under CERCLA.  In short,  §113(b) deprives state courts of jurisdiction over cases arising under CERCLA, while §113(h) deprives federal courts of jurisdiction over certain challenges to Superfund remedial actions.

The parties conceded that under  §122(e)(6) of CERCLA, when EPA or a responsible party has initiated a remedial investigation and feasibility study for a particular facility, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by EPA.  The court in Atlantic Richfield held that because arsenic and lead are hazardous substances that have “come to be located” on the plaintiffs’ properties, the plaintiffs are potentially responsible parties under  §107(a) of CERCLA.   Therefore, under the statute, the plaintiffs claim for restoration damages may proceed only if the landowners first obtain EPA approval for the restoration work they seek to implement. 

What are the implications of the Court’s ruling?  Justice Gorsuch, joined by Justice Thomas dissented, stating that the Court’s reading of the Act endorses “paternalistic central planning” and turns a cold shoulder to “state law efforts to restore state lands.”  This argument was not compelling to the majority because, as the Court’s opinion notes, cleanup plans generally must comply with applicable or relevant and appropriate state environmental standards and, moreover, states have opportunities for involvement in developing and selecting cleanup plans.  The court’s ruling in Atlantic Richfield may also head off what are, in effect, collateral attacks on EPA’s remedial decisions and the confusion and delay threatened by such lawsuits.  

The Atlantic Richfield decision may serve to avoid unjust awards of windfall profits to plaintiffs who seek so-called restoration damages that go beyond any actual damages.  Indeed, litigation in Montana illustrates the basis for such concern.  In Sunburst School District No.2 v. Texaco, 165 P.3d 1079 (2007), the  Montana Supreme Court approved an award of damages that Texaco claimed would exceed the value of the property allegedly damaged and thus would result in a windfall.  The Court recognized the problem identified by Texaco, citing Montana law that an injured party should be made whole but not profit.  However, the court in Sunburst found that the general rule in favor of diminution in value as the appropriate measure of damages can be overcome where the record shows that an award of restoration damages will actually be used to repair the damaged property rather than simply paid to plaintiffs. 

The Supreme Court’s decision in Atlantic Richfield  may avoid the need for a trial court to deal with “windfall profit” issues in cases where plaintiffs are responsible parties, EPA has selected a CERCLA remedy, and EPA has not authorized the restoration plan.  In Atlantic Richfield, EPA represented that the landowners’ restoration plan would dig up soil that has been deliberately capped in place under the EPA approved remedy found to be protective.  In such a case, one can understand why EPA would not authorize the restoration plan.

The Court’s decision in Atlantic Richfield does not address “restoration damage” claims where the plaintiffs are not potentially responsible parties, e.g. parties owning property that is not contaminated but present common law claims such as diminution of value.  Although “restoration damage” suits were infrequent in the past, the Atlantic Richfield decision may serve to prompt an increase in such claims under state law.  Adjacent landowners could sue for “cleaner than clean” restoration damages, i.e. providing more (and much more expensive) remediation than required under state environmental requirements.  Trial courts in such cases will presumably be mindful of the fact that plaintiffs have other remedies under state law for compensatory damages measured by diminution of value.  Moreover, defendants, aware of  potential “windfall profit” concerns, may ask the trial court to require periodic reimbursement by defendants of actual restoration costs -- instead of a lump sum -- to deal with concerns that plaintiffs may decide to pocket the damage award rather than implement all or most of the restoration plan presented to the court.  

Pandemic Snapshot: Injustice in Salmon Country

Posted on May 29, 2020 by Peter Van Tuyn

Faced with the global pandemic, Bristol Bay’s people, tribes and communities sprung quickly into action.  Bristol Bay, Alaska, has roughly 7,000 year-round residents in 31 villages and communities spread over an area larger than the State of Georgia, with a small hospital in the City of Dillingham and only health clinics elsewhere.  The population of Bristol Bay can triple as people come by plane and boat to work in the largest remaining wild salmon fishery on the planet.  Salmon, of course, know nothing about social distancing, and they are on their way. 

One thing the tribes and communities of Bristol Bay didn’t want or need was distraction from their pandemic preparations.  Many elders in Bristol Bay are children or grandchildren of those who were orphaned in the Spring of 1919, when the Spanish Flu hit Bristol Bay with devastating force.  Bristol Bay lost approximately 40% of its Alaska Native population in the Spanish Flu pandemic, which was the highest rate of death in the Americas.  The people of Bristol Bay know in an intimate way to take the threat of the coronavirus seriously. 

To allow room to undertake critical pandemic-related work, tribes asked the Alaska District of the U.S. Army Corps of Engineers to extend deadlines for expert input on the Corps’ permitting process for a massive hardrock mine proposal.  The proposed mine targets a low-grade, potentially acid-generating ore body, located in the headwaters of Bristol Bay.  In the early 2010s, the Environmental Protection Agency studied the matter and found that the mining of the Pebble ore deposit could have unacceptable adverse impacts on Bristol Bay salmon, and it started a regulatory process using its Clean Water Act Section 404(c) authority to protect the salmon from the proposed mine.  The Trump EPA reversed course, and the Alaska District of the Corps, which has the direct decision authority for the necessary Section 404 permit, is in the midst of a fast-tracked permitting process, with the goal of finishing it up this year. 

The tribal requests for an extension of time concerned cooperating agency comments on a preliminary final Environmental Impact Statement (EIS) for the project.  Cooperating agencies include two local tribes, as well as state and federal expert agencies, and they were under a tight deadline to provide input on the integrity of the EIS.  A previous version of the EIS had been intensely criticized by tribal and government cooperating agencies, with the Department of the Interior stating, for example, that “the [draft] EIS is so inadequate that it precludes meaningful analysis.”  Indeed, the fishery experts commenting on the draft EIS raised concerns about the limitations of the salmon impact analysis in the draft EIS and other permitting documents. 

To say that the stakes are high is an understatement, as the uniquely huge and healthy wild salmon population forms the cultural, subsistence, and economic foundation of Bristol Bay.  The commercial fishery alone supports 14,000 jobs and results in about $1.5 billion in annual economic activity.  Expert input into the preliminary final EIS is thus critical to ensuring a thorough analysis and, ultimately, the protection of the fishery.

A sample of Bristol Bay tribal and government pandemic-related actions underscores the intensity of pandemic response in Bristol Bay.  The complexity of the pandemic response effort in Bristol Bay is also evident from the Bristol Bay Native Corporation COVID-19 Response website, which addresses impacts, risks, resources, and much more.    

In the heat of the early days of the pandemic emergency, tribes and other Bristol Bay leaders sought an extension of a Monday March 23 cooperating agency input deadline.  The Alaska District responded by baldly emphasizing that cooperating agency input on the document remained due on Monday March 23.  Tribes and other cooperating agencies thus submitted what they could by the close of business deadline on that day, with one tribal cooperating agency stating the following: 

… 45 days was not sufficient time to review and provide meaningful feedback on the [preliminary final] EIS given the breadth of changes to the project proposal and EIS analysis, which has been compounded in the last two weeks by the outbreak of COVID-19 limiting tribal resources, as well as distracting from the tribe’s role in important and urgent COVID-19 response measures for our community.  In this time, we have been on multiple teleconferences with the Federal Emergency Management Agency, Health and Human Services, Indian Health Services, Bureau of Indian Affairs, state, military and municipal partners, tribal health care organizations, and others. We have crafted and adopted emergency plans and issued important disaster declarations that open the door to critical aid for our tribal members. In fact, Pebble is the only issue that we work on where deadlines have not been adjusted out of a sensitivity to the current National Emergency; a fact that is inexplicable to us.

An hour or so after close of business on March 23, the Corps announced a one-week extension of the comment period.  As a different tribal cooperating agency stated in yet another request to extend the EIS and other Pebble-related deadlines,

[t]his meaningless one-week extension provided inadequate time for cooperating agencies facing significant obstacles related to COVID-19.

The Corps rejected extension requests, stating that the “Alaska District remains fully operational at this time” and not acknowledging in any way the burden on the tribes and other cooperating agencies. 

A few days later, the Corps sought input from Bristol Bay tribes and others on a draft Cultural Resources Management Plan for the proposed mine, which is required by the National Historic Preservation Act (NHPA), with a deadline of April 27, 2020.  The Corps did this despite the fact that the Advisory Council on Historic Preservation “has encouraged federal agencies to be flexible with [NHPA] deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the [pandemic].”

As one tribe said in response to the comment period,

The Alaska District [of the Corps of Engineers] is making us choose between protecting our cultural resources on one hand and protecting our community from COVID-19 on the other.

In an understatement, the tribe concluded by stating “[t]his is unacceptable.”   One would think that the Corps would acknowledge the challenges that exist in this situation, but the deadline passed without response from the Corps.  

 

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.   

When States Get Serious About Phasing Out Natural Gas

Posted on May 27, 2020 by Michael Gerrard

A decision issued on May 15 by the New York Department of Environmental Conservation (DEC) denying approvals for a new natural gas pipeline is sending shivers through the energy industry.  Though the decision was based primarily on water quality and wetlands impacts, it also demonstrated the force of New York’s new Climate Leadership and Community Protection Act (CLCPA), and New York’s resolve to phase out the use of natural gas.

Transco, a subsidiary of the Williams Companies, proposed to build a pipeline carrying natural gas (mostly from hydraulic fracturing in Pennsylvania) under wetlands and Raritan Bay in New Jersey, then under lower New York Bay, and connecting with an existing pipeline to serve National Grid customers in Brooklyn, Queens and Long Island.

In the bays the pipeline would have been built in a trench four feet under the water bottom in sediments that are contaminated with mercury, copper and other pollutants.   The construction would have stirred up the sediments and released the pollutants.

The Federal Energy Regulatory Commission approved this pipeline on May 3, 2019.  However, under Section 401 of the Clean Water Act the project needed a state certification that it would not  impair the state’s waters.

In its May 15 decision, DEC denied this certification, relying primarily on the impacts that the dispersed chemicals would have on a 1,000-foot wide corridor that included a critical resource area for hard clams..

DEC did not stop there, however.  It also looked at the pipeline’s impact on greenhouse gas emissions, which “cause climate change and thus indirectly impact water and coastal resources.”  DEC found, “GHG emissions associated with the Project include those from the full lifecycle of natural gas that will be transported through the Project. This includes upstream emissions, GHG emissions associated with the construction and operation of the Project, and downstream emissions.”  DEC explicitly stated that its analysis considered leakage of methane at the fracking sites in Pennsylvania, emissions where the gas is burned in power plants and buildings, and any emissions in between.  The look at out-of-state upstream emissions is especially interesting, as these are not usually considered in a state’s GHG emissions inventories.

DEC then stated, “In order to achieve the State’s critical and ambitious climate change and clean energy policies, the State needs to continue its ongoing transition away from natural gas and other fossil fuels. While the Department recognizes that many building assets in the State currently rely on natural gas for heating and other energy uses, the continued long-term use of fossil fuels is inconsistent with the State’s laws and objectives and with the actions necessary to prevent the most severe impacts from climate change. Therefore, the State must continue to support the ongoing transition to renewable and other clean sources of energy, as it works to ultimately eliminate all fossil fuel combustion sources that cannot be counterbalanced by guaranteed permanent carbon sequestration. Without appropriate alternatives or GHG mitigation measures, the Project could extend the amount of time that natural gas may be relied upon to produce energy, which could in turn delay, frustrate, or increase the cost of the necessary transition away from natural gas and other fossil fuels.”

In short, DEC said, “”[t]he use of natural gas … to produce electricity would be inconsistent with” the requirements of CLCPA, which “will ultimately require a transition away from natural gas and other fossil fuels to produce energy.”

The pipeline at issue here is a key part of a larger controversy.  In May 2019 National Grid imposed a moratorium on new natural gas connections.  Many observers felt this was a tactic to pressure New York to approve the pipeline. That led to an uproar, Governor Andrew Cuomo threatened to revoke the company’s franchise, and the Public Service Commission launched an enforcement action related to the moratorium. Pursuant to the resulting settlement agreement, National Grid issued a report on May 8, 2020 that identified energy efficiency, demand response and other measures as a way to meet the need for gas even without the pipeline.  DEC declared, “Critically, as compared to the project, National Grid concludes that this alternative is less environmentally impactful, in terms of water quality, GHG emissions and otherwise, and more consistent with the requirements” of CLCPA.

We will soon see if Transco challenges the New York decisions (and one issued the same day by New Jersey) in court.  Whatever happens, DEC has signaled that it is serious about phasing out most or all use of natural gas in the state, blocking the construction of new natural gas infrastructure, and reducing GHG emissions in accord with the mandates of the CLCPA.  

Has President Trump Just Limited Enforcement To Willful Violations?

Posted on May 22, 2020 by Seth Jaffe

On Tuesday, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery.  I’ll leave to others a discussion of the provisions telling agencies to look for more regulations to roll back.  I’m in general agreement with commenters who have said that those provisions don’t add much to Trump’s prior deregulatory efforts and are likely to face mostly the same reception in the courts as prior efforts.

Instead, I want to focus on this provision:

"The heads of all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law and as appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order, decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling."

I hate to give the President too much credit, but this may be the most significant deregulatory measure he’s taken.  As far as I can tell, Trump is telling agencies that they should only take enforcement action against persons who willfully violate environmental laws.  It is true that the President only tells agencies to “consider” policies “consistent with law,” but I think we all know what President Trump means when he tells agencies to consider cutting regulated entities a break.

Because this provision involves the exercise of agency enforcement discretion, it will be much harder to challenge in court.  Certainly, written policies saying that an entire agency will always exercise enforcement discretion to prosecute only willful violations, even in the case of statutes that plainly provide for strict liability, might cause raised eyebrows among judges, but if the agencies actually care about the outcome and draft the policies carefully, they might well withstand judicial review.

My advice to my clients, and I mean this in all seriousness, is pretty simple.  Take steps to carefully document your good faith efforts at compliance – and keep a copy of this EO in your back pocket at all times.

Not So Fast! Oregon DEQ Objects to EPA’s Draft NPDES Permits for Lower Columbia River Dams

Posted on May 21, 2020 by Rick Glick

On May 15, 2020, the Oregon Department of Environmental Quality (“DEQ”) submitted a letter to the Environmental Protection Agency (“EPA”) in which it objected to EPA’s draft water quality discharge permits (“NPDES permits”) relating to four federal dams on the Lower Columbia River. The dams in question are Bonneville, The Dalles, John Day, and McNary. The U. S. Army Corps of Engineers (“USACE”) operates the dams, which are key elements of the Federal Columbia River Power System (“FCRPS”).

Section 402 of the Clean Water Act (“CWA”) requires a NPDES permit for discharges of pollutants from “point sources.” A point source is a defined conveyance for direct discharges of pollutants, like a pipe. Courts have considered dams to be nonpoint sources that do not require permits, as dams typically do not add pollutants, but merely pass upstream pollutants through their spillways. However, dams with hydroelectric facilities often discharge oily waste from onsite transformers, which could include PCBs.

On that basis, EPA has determined that each of the four Lower Columbia dams require a NPDES permit to cover the direct discharges resulting from power operations. EPA specifically did not address indirect discharges through the spillways or turbines.

Section 401(a)(2) requires that EPA notify states whose water quality may be affected by the permits, including Oregon. In its letter, DEQ notes that although the NPDES permits do not address pass-through pollutants, section 401 allows DEQ to consider potential violations of any water quality parameter resulting from total dam operations. DEQ therefore objects to the permits and requests imposition of certain conditions to meet numeric and narrative temperature criteria, total dissolved gas (“TDG”) levels, biocriteria, and toxics substances criteria.

For temperature, DEQ would require a temperature management plan with adaptive management elements to address a yet-to-be-developed Total Maximum Daily Load (“TMDL”). As expected, on May 18, EPA initiated the process for establishing a TMDL for temperature in the Columbia and Lower Snake Rivers. We will be tracking this process and reporting in future posts.

For total dissolved gas, DEQ requests that EPA require the USACE to implement additional monitoring measures to increase compliance with the existing TDG TMDL through adaptive management. With regard to biocriteria, DEQ is asking USACE to allow the use of best technology available (“BTA”) or Oregon Department of Fish and Wildlife (“ODFW”) recommended technology to reduce fish entrainment and impingement. If the technology implemented does not reduce impingement, USACE would be required to develop an adaptive management plan and submit it to DEQ for approval. Finally, DEQ would require additional measures to reduce PCB discharges from each project to ensure compliance with Oregon toxics substances criteria.

DEQ’s objection letter is the latest development in a long-running dispute involving the effects of FCRPS operations on salmonid species listed under the Endangered Species Act (“ESA”). Oregon is an intervenor plaintiff in a lawsuit brought by the National Wildlife Federation alleging that the 2014 Biological Opinion, and later iterations, violated the ESA.

Under the Clean Water Act, EPA will now be required to hold a hearing to address DEQ’s objections and requests. By extending its section 401 authority to the FCRPS saga, DEQ has raised the bar for the seemingly endless tension between the benefits and consequences of this massive public power system, which was established in an era preceding our organic conservation statutes. It has been a bumpy ride and will continue to be for the foreseeable future.

Will Federal Rollbacks Lead to the Rise of Localism?

Posted on May 19, 2020 by Jerry L. Anderson

Based on research from law professors at Harvard and Columbia, the New York Times reported this month that the Trump administration has reversed, or is in the process of reversing, almost 100 federal environmental regulations. The changes weaken federal protection across virtually every sector of environmental, energy, wildlife, and public lands law. While legal challenges to these rollbacks may lessen their impact, the Trump administration will at the very least have begun to turn the tide of federal environmental regulation.

Much commentary has centered around the negative implications of this federal regulatory contraction for the environment. The New York Times article, for example, quotes experts as predicting that the changes will “increase greenhouse gas emissions and lead to thousands of extra deaths from poor air quality each year.”

But could there be a more optimistic view of this tidal change in federal regulation, or at least a silver lining? One possibility is that the clear signals of federal retreat on environmental control could lead to a return to local responsibility for environmental quality tradeoffs.

The theory runs this way: Since the late 1960s, citizens have turned to the federal government to solve all of our environmental problems.  The “environmental decade” of the 1970s ushered in an era of federal control over every type of environmental problem, e.g., water, air, wildlife, and waste disposal.  In this area, as in many others, federal control has been virtually plenary, despite the retention of state agencies’ authority to enforce the federal mandates. Although many environmental acts reserve to the states the authority to enact stricter regulations, in many states federal regulation has become the ceiling, not the floor. See, e.g., Iowa Code Section 455.B.173(2)b, providing that state effluent limitations shall not be more stringent than those established by the EPA.

We know there were good reasons for introducing national level regulation.  For one thing, states fighting for economic growth seemed unable, or unwilling, to impose the cost of environmental controls on the providers of jobs and taxes, engaging in a “race to the bottom.” But the unfortunate downside of 50 years of federal control has been that, at least in some jurisdictions, local users now feel a diminished (or nonexistent) sense of responsibility for those natural resources.  Any environmental problem is now a federal problem, one the local community has little power to affect.  Worse still, for many the EPA has become the bogeyman, the bad guy in Washington imposing onerous regulations on us poor locals.

So what if the bogeyman is gone?  What if we view the rollback of federal authority as an effective invitation to turn back to those locals and say – “we’re giving this responsibility back to you.”  Like the teenager going off to college – how will they respond when the parents are no longer looking over their shoulders?

Of course, I am painting with a broad brush here – I know there are many examples in which states have taken back the reins or acted to augment federal regulations.  For example, some states moved quickly to protect wetlands left behind by limitations on federal control or enacted more expansive state versions of NEPA. Over the last couple of decades, state and local governments have taken the lead on issues such as climate change, when meaningful federal action was absent. Certainly, greater local control may be prevented or at least limited by preemption issues (either federal-state, or state-local). Moreover, for some environmental issues, spillover effects on other states absolutely cry out for federal intervention. 

Nevertheless, it’s worth considering whether the extraordinary campaign of federal deregulation we are witnessing might cause a broader shift in our attitude about environmental issues. If federal control is pared back, to those areas where it’s absolutely necessary, is it possible that will we empower locals to come together once again, to start making their own decisions about how clean they want their air, water, and land to be?

Schrödinger’s Climate

Posted on May 18, 2020 by JB Ruhl

Question: Will we meet the goal of holding the rise of mean global temperature to below 2°C?

Answer: Yes and no, simultaneously.

Welcome to Schrödinger’s climate, a paradox in which commentary on climate change policy assumes we will meet the 2°C goal, for that is the motivation behind aggressive emission controls and other mitigation measures, but at the same time assumes we will not meet the 2°C goal, for that is the motivation behind aggressive measures to adapt to the impacts of climate change.

Austrian physicist Erwin Schrödinger famously described a paradox that follows from quantum physics theory, which posits that particles in a quantum system exist in multiple states at the same time, assuming a final position only when observed from the external world. In his scenario, a cat is placed in a sealed box with a quantum particle and, through a contraption that reacts to the state of the particle, will either live or die depending on the state of the particle. Under quantum theory, Schrödinger argued, the cat would be simultaneously alive and dead until the lid of the box was unsealed and lifted off, at which point the observer would see the cat as either alive or dead.

It is important for climate change mitigation policy to have a goal. Whether expressed as parts per million of atmospheric carbon dioxide or average global temperature rise, the goal is used by mitigation policy commenters to rally support for emission controls. The goals used to be 350ppm and 1.5°C. Those are history now. The Paris accord moved the upper limit to 2°C. “We will hold the rise to below 2.0°C!”

At the same time, climate change adaptation policy commenters use scenarios built around different temperature rises to motivate action. While it is not as if no adaptation will be necessary in a 1.5°C or 2.0°C scenario, things start looking really messy above 2.0°C. If we are honest, 2.0°C may be a best-case scenario, so adaptation policy needs to get rolling. “We will not hold the rise to below 2.0°C!”

The Schrödinger’s climate paradox arises from the necessity of pursuing both mitigation policy and adaptation policy at the same time. There was a time when talk of adaptation was frowned upon, lest it lead to complacency on mitigation policy. Even modest sea level rise, however, threatens island nations and developing nations with large coastal populations, pushing adaptation into the international climate policy discourse. As it became clearer and clearer that climate change will have a wide range of nasty effects in many parts of the world—developed and developing—the need for adaptation policy became increasingly apparent. The urgency of mitigation policy depends on meeting the 2°C goal. The urgency of adaptation policy becomes more salient above the 2°C goal. To engage in the broad climate policy discourse these days—to advocate action across the board—one must enter the box of Schrödinger’s climate. 

Yet this leads to awkward conversations between those focused on mitigation and those focused on adaptation. “We need to prepare for massive human migration,” says the adaptationist. “Oh my,” says the mitigationist, “But we’re going to hold it to below 2.0°C, right?”  “Uh, sure,” says the adaptationist, “But we really need to prepare for bad stuff happening.” “Um, right,” says the mitigationist, then changes the topic. Tension between mitigationists and adaptationists remains in the air inside the Schrödinger climate box.

We do not have the luxury of lifting the lid off the box to observe whether the future is above or below 2°C. We are a world in dire and present need of aggressive mitigation and adaptation policies. Adaptation cannot be portrayed as a contingent policy for mitigation failure. Acting as if adaptation policy need only prepare us for the worst if we don’t meet the 2°C goal means we won’t be prepared for the worst. We need to shape mitigation policy around the idea that we will attain 2°C, and we need to shape adaptation policy around the idea that we will not. Ironically, this means climate policy must behave as if 2°C is both alive and dead.  This conundrum should no longer be cause for uncomfortable conversations.  “Embrace the paradox of Schrödinger’s climate!”

NASA Satellite Data May Provide A Glimpse into the Future

Posted on May 12, 2020 by Todd E. Palmer

NASA's Earth Observing System Project gathers data from a fleet of satellites orbiting the planet.  This system of satellites is playing an increasingly important role in measuring air pollution and informing regulatory policy on a global scale. Dr. Tracey Halloway at the University of Wisconsin – Madison leads the NASA Health and Air Quality Applied Sciences Team (HAQST) which is doing extensive research in this area.   HAQST is staffed by air quality and public health scientists from government offices and universities across the country. Their wide-ranging projects include measuring and tracking global pollution levels, climate change indicators, and regional haze.  HAQST has created a website summarizing available satellite resources which can be accessed by stakeholders and the general public for making better informed air pollution policy decisions. I encourage those of you with an interest in this area to explore the research being undertaken by this group.

Most recently, NASA released satellite data documenting the dramatic reduction in nitrogen dioxide (NO2) emissions measured in the United States since shelter-in-place orders went into effect to quell the COVID-19 pandemic.  This data was collected from instruments on NASA's Aura and the European Space Agency's Sentinel-5 satellites. NASA has compared the average levels of ambient NO2 experienced in the United States between March 2015 through 2019 with those experienced in March 2020.  The comparison is striking:

These reductions, ranging from 30% to 50%, correlate with the significant decline in the combustion of fossil fuels during the pandemic, primary in mobile sources. Similar reductions where observed in China when it cracked down on combustion sources in advance of the 2008 Olympics.  This data provides a glimpse into what might be achieved if the United States were to adopt more aggressive policies encouraging alternative fueled vehicles and expanded renewable energy generation. However, the dire financial impacts associated with these reductions must also be considered as we contemplate the implications of the emission data gathered during this unusual situation. 

EPA’s War on Science

Posted on May 6, 2020 by Robert B. McKinstry, Jr.

Since its creation under President Nixon five decades ago, EPA has, for the most part, been an independent agency utilizing the best science available, even where the science led it to policy results contrary to the predilections of the party in power – that is until the Trump Administration.  Two recent actions by the Trump EPA, one final and the other proposed, exemplify the sad and stark departure by the Agency from this prior practice.

An example of the agency’s prior practice is the Advance Notice of Proposed Rulemaking issued following the Bush Administration’s defeat in Massachusetts v. EPA.  In that case, the agency staff drafted a lengthy and well-reasoned analysis indicating how greenhouse gases might be regulated under the Clean Air Act governed by the law and science.  The Bush Administration published that analysis, prefacing it with a number of letters by appointed officials presenting alternative views consistent with the Administration position rejected by the Supreme Court - - but the Agency’s well-reasoned analysis constituting the bulk of the notice was nevertheless published.

As noted, two recent actions by the Trump EPA represent a departure from this science-driven regulatory approach; they also share the distinction of being roundly condemned by EPA’s Science Advisory Board and the relevant scientific community.  Both have the transparent objective of preventing the adoption of regulations whose health benefits clearly outweigh their costs.  The two actions are: (1) the final rule reversing the necessary and appropriate finding underlying the Mercury and Air Toxics Rule (“MATS”), National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, Docket No. EPA-HQ-OAR-2018-0794 (“Revised Necessary and Appropriate Finding”); and (2) the proposal cynically entitled Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18768 (Apr. 30, 2018); Supplemental Notice, 85 Fed. Reg. 15396 (Apr. 17, 2020), Supplemental Notice, 85 Fed. Reg.21340 (Apr. 17, 2020) (extending comment period to May 18, 2020), proposing 40 C.F.R. pt. 30 (“Transparency Proposal”). 

Over the unanimous objection of the regulated industry and environmental groups, the Revised Necessary and Appropriate Finding reversed the Obama EPA’s finding that it was necessary and appropriate to regulate hazardous air pollutant emissions from the utility industry under section 112 of the Clean Air Act.  The finding that was reversed was made by the Obama EMA on remand from the Supreme Court’s decision in Michigan v. EPA, holding that EPA needed to consider cost in making a necessary and appropriate finding.  On remand, the Obama Administration EPA considered cost in several ways and renewed its finding that it was necessary and appropriate to regulate hazardous air emissions from the utility industry. 

After the change of administrations, the Trump EPA decided to revisit the necessary and appropriate finding and, in its Revised Necessary and Appropriate Finding, found that it was not necessary and appropriate to regulated hazardous air pollutant emissions from the utility industry (this was the fourth flip over four administrations on this issue).  The Revised Necessary and Appropriate Finding ostensibly left the substantive requirements of the MATS rule in place.  Indeed, the utility industry had already complied with those substantive requirements by either closing plants or installing control equipment. However, under the Clean Air Act, a necessary and appropriate finding is a prerequisite to regulating hazardous air pollutants from the utility industry.  EPA’s reversal of the finding therefore has the potential to increase its chance of success in the on-going challenges to the MATS rule.  Reversal of the rule could undermine the ability of regulated utilities to recover sunk capital costs.

In issuing the Revised Finding, EPA decided not to consider “co-benefits.” The vast majority of the monetized benefits arising from regulating air toxics from the utility industry arise from the fact that most of the toxic acid gases and fine particulates are a mixture of listed hazardous air pollutants and conventional pollutants.  It is, therefore, impossible in epidemiological surveys in most cases to segregate the impacts of the components that are listed hazardous pollutants from the impacts of the components that are conventional pollutants.  Moreover, the same pollution control equipment that removes the hazardous air pollutants will also remove the conventional air pollutants.  Thus, for example, hazardous hydrochloric acid, hydrofluoric acid and hydrocyanic acid all form acid aerosols having the same impact on the lungs as the nitric, nitrous, sulfuric and sulfurous acid aerosols formed from “conventional” NOx and SOx air pollutants; and the same treatment technologies will remove hazardous and “conventional” acid gases.  For that reason, the direct health benefits of controlling these pollutants are labeled as co-benefits, and, according to economists, can also be considered negative costs. 

In the Revised Finding, EPA, contrary to the recommendations of the Science Advisory Board, would exclude these benefits/negative costs, as well as non-monetized benefits, from its consideration.  Instead, EPA would consider only costs to benefits relating to control of a hazardous air pollutant whose impacts can be segregated from other pollutants that are not listed as hazardous and can be monetized.   

Because EPA did not reverse the requirements of the MATS rule, the only apparent reason for proceeding with the revised finding appears to be an intent to advance a rule for the consideration of costs that will make it more difficult to regulate pollutants in the future.  Most pollutants have a variety of impacts, are emitted into the atmosphere as a mixture of pollutants, mix with other pollutants in the environment, and have impacts on receptors that cannot be segregated.  For example, most of us have observed the blue skies and clear air resulting from the reduction in automobile, truck, and air traffic as a result of COVID-19 restrictions.  Under the rationale underlying the Revised Necessary and Appropriate Finding, proposals to reduce greenhouse gas emissions from these sources could not consider the many health, environmental and welfare benefits arising from reductions in NOx and fine particulates.  While perhaps that is the underlying intent, the rationale could also be extended to water pollution, hazardous and solid waste, and other regulations in the future.

The Transparency Proposal might seem to be a proposal that would promote sound science and good government procedure; it provides:

…when EPA develops regulations, including regulations for which the public is likely to bear the cost of compliance, with regard to those scientific studies that are pivotal to the action being taken, EPA should ensure that the data underlying those are publicly available in a manner sufficient for independent validation.

83 Fed. Reg. 18768.  In fact, the proposed regulation is an all too transparent attempt to preclude reliance on results that are crucial for the promulgation of regulations to protect health and the environment, even where those results have met the rigorous requirements of scientific peer review.

Most notably the proposal applies specifically to “dose response data and models” supporting a regulation, requiring that they be “publicly available in a manner sufficient for independent validation. . . in a fashion that is consistent with law, protects privacy, confidentiality, confidential business information, and is sensitive to national and homeland security.  40 C.F.R. § 30.5, proposed 83 Fed. Reg; 18773.  In fact, this qualification makes most data and studies critical to support regulations out of reach for agency reliance.  The underlying data in human health studies is invariably private information that, by the words of the proposal, would be unavailable, for example, many dose response animal studies are business confidential.  Additionally, most models upon which EPA relies are proprietary and are available only for a significant price.  The proposal would also seemingly preclude reliance upon metadata and review articles appearing in peer reviewed publications, since the proposal would require that the underlying data be available. 

In recognition of these fatal flaws, the proposal has been criticized by EPA’s Science Advisory Board and major scientific organizations.  Moreover, there has not been a showing of any need for the proposed regulation.  The only reasonable conclusion is that this proposed regulation, like the Revised Necessary and Appropriate Finding, is an effort to promote the Trump Administration’s anti-regulatory agenda contrary to the dictates of sound science, in short, a war against science.  There is still an opportunity to comment.  The comment period has been extended to May 18, 2020.

What Judges Are Saying About Climate Science

Posted on May 4, 2020 by Scott Fulton

It’s amazing how quickly humanity’s concern can shift when circumstanc­es demand it, and the coronavirus pandemic has riveted our attention. In this hour, talking about anything else risks seeming detached or indifferent to the enormous suffering, disruption, and dislocation that the COVID-19 vi­rus has unleashed on the world. But I need to alert you to a new ELI report analyzing the other major challenge that will be waiting for us on the other side of our current crisis, one that, like the pandemic, is deeply informed by science.

Climate Science in the Courts: A Review of U.S. and International Ju­dicial Pronouncements” looks at the question of judges’ treatment of the basics of climate science. We had noticed that even in cases like the 9th Circuit’s recent decision in Juliana, where the court tossed the case out on standing grounds, essentially defer­ring to Congress to solve the climate problem, the judges expressed rather grave concerns about the climate phe­nomenon.

Similarly, in the City of Oakland case, U.S. District Judge William Alsup, while dismissing the case on political-question grounds, likewise reflected deep concern about the implications of inaction in the face of climate science. This led us to wonder whether judicial concern about climate change had become a consistent thread in case dispositions, whether this reflected broader embrace of the basic science at issue, and, if so, whether judicial acceptance of the science should be more influential in the public debate.

With material and moral support from the ELI Board, we commissioned a review that considered these ques­tions. “Climate Science in the Courts” answers the two questions posed above rather definitively. With remark­able consistency, in the time since the 2007 Supreme Court decision in Mas­sachusetts v. EPA, federal courts in the United States — and for that matter foreign courts — have been treating as valid and authoritative the science that says that the climate is warming and that human activity is driving the observed and anticipated change.

According to the report, despite the fact that advocates and courts have had the opportunity to entertain or advance skeptics’ views challenging these climate science basics, there have been very few instances in which skeptics’ arguments have been made in court and not a single instance in this time horizon in which a court has given credence to such arguments. Rather, the judicial pronouncements since Massachusetts have consistently treated basic climate science as being beyond reasonable dispute.

This judicial acceptance of basic climate science has not necessar­ily translated into intervention by the courts. Indeed, at least in the United States, particularly at the appellate level, the judiciary has been reticent, largely deferring to the representative branches of government to bring for­ward solutions.

But should judicial views on climate science be more influential in the pub­lic conversation? This report posits that the answer to this question should be “yes.” The courts remain among the most respected of public institutions and operate in a setting that demands fidelity to facts and truth, and where there is meaningful accountability for veracity. If, in this setting, conclusions about climate science are being ren­dered, this should be important to the public debate for two main reasons.

First, ideas that have secured no traction in court should presumably be less deserving of credit in the public realm; conversely, conclusions consis­tently derived by the part of our institu­tional structure charged to crunch truth should be deserving of considerable weight. Indeed, greater understand­ing of judicial treatment of climate science might move public thought to align more fully with considered judicial views.

Second, U.S. courts, while alarmed by what the science is saying, have largely been deferential to the rep­resentative branches of government for purposes of fashioning solutions. Greater understanding of how the courts are evaluating climate facts might help break political logjams and overcome misconceptions or misrepre­sentations that impede the sense of ur­gency needed for the very political solu­tions for which the courts are waiting.

Science is of course playing a major role in the sorting of the issue most immediately before us — the coronavi­rus pandemic. And we are seeing broad societal acceptance of fairly dramatic changes based on what the data are telling us about the COVID-19 threat. It will be interesting to see whether this experience will leave society any better able to come together around climate science. The courts are already there it seems.

SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Posted on May 1, 2020 by Theodore Garrett

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.

The Court’s opinion in Maui reflects an effort to find a “middle ground” that avoids the consequences of an overly broad or overly narrow interpretation of the statute.  But what is a “functional equivalent”?  It’s kinda sorta like a direct discharge.  Its meaning will evolve as applied in particular cases or, as characterized thusly in Justice Alito’s dissent: “That’s your problem. Muddle through as best you can.”  But muddling through is problematic because affected industrial and municipal dischargers, subject to enforcement, need to know whether or not they need Clean Water Act permits.  Unless or until more guidance is provided by EPA, the lower courts or Congress, affected parties will be left to wrestle with the Court’s new “functional equivalent” standard. 

The majority felt compelled to reach a “middle ground” because it found other positions too extreme.  The court rejected the view of the County and the Solicitor General (as amicus) that discharges through groundwater should be excluded, stating that it would open a loophole allowing easy evasion of the statutory provision’s basic purposes (for example by locating a pipe a few yards from a surface water) and was not reasonable in light of the statute’s inclusion of “wells” in the “point source” definition.  The Court also was not satisfied with the Ninth Circuit’s “fairly traceable” criterion, concluding that it might require permits in unexpected circumstances not readily foreseen, such as discharges that reach navigable waters many years after their release and in highly diluted forms. 

So when is a discharge “functionally equivalent”?  Justice Breyer’s opinion states that time and distance will likely be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. How much time?  How far?  What underground material or dilution might defeat a permit requirement?  The Court is not in a position to say because “there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.” 

Where does that leave us?  The lower courts will need to wrestle with this issue and “provide additional guidance through decisions in individual cases” Justice Bryer states, referring to the “traditional common-law method" as useful even in an era of statutes.  In the meantime, affected parties face uncertainty. 

In a dissent, Justice Thomas (joined by Justice Gorsuch) concludes that the statute excludes anything other than a direct discharge.  Justice Thomas also states that the Court’s opinion “gives almost no guidance, save for a list of seven factors” but does not “commit to whether those factors are the only relevant ones, whether those factors are always relevant, or which factors are the most important.”  Justice Alito also dissented, stating that the Court “makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”

One cannot be sanguine that Congress will address this issue.  Interested parties will thus need to monitor how the lower courts and EPA apply the Supreme Court’s new “functional equivalent” standard.

A Ray of Regulatory Sunshine

Posted on April 30, 2020 by Lynn L. Bergeson

We are all desperate for good news.  In my continuing efforts not to become further mired in the quiet despair we are all experiencing, I thought I would pass along some good news, ironically occasioned by the pandemic.

To help alleviate supply chain disruptions by pesticide registrants that manufacture disinfectant products included on List N, the U.S. Environmental Protection Agency (EPA), in March, announced it was taking action to help hasten the availability of EPA-registered disinfectants.  EPA explained that it is temporarily allowing manufacturers of select already-registered EPA disinfectant products to obtain certain active ingredients from any source without obtaining prior EPA approval. The action only applies to products listed on EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (List N). For List N disinfectant manufacturers, EPA’s decision was very good news, and EPA has moved with extraordinary speed in qualifying products to be effective against the virus that causes COVID-19.  As of April 23, EPA now has over 400 such products, up from less than 100 such products pre-pandemic.

Typically, EPA requires disinfectant manufacturers to apply for and receive EPA approval prior to making a change in the source of the active ingredient.  Under EPA’s action, however, manufacturers can source certain active ingredients from alternate suppliers by simply informing EPA of the change.  Once EPA has been notified, the registrant can immediately distribute or sell a product modified according to this temporary amendment, provided that the resulting formulation is chemically similar to the current formulation.  Presumably after the crisis subsides, the program would revert back to the standard approval process.  Registrants would then be disallowed from releasing for shipment new registered product unless that product is produced using a source of active ingredient identified in the product’s approved Confidential Statement of Formula, or otherwise would have complied with relevant requirements in the absence of this temporary amendment.

When announcing its temporary action in March, EPA stated that it intended to assess the continued need for the temporary amendment on a regular basis.  More recently, EPA has done one better, resulting in yet more good news.  EPA Assistant Administrator Alexandra Dunn, our esteemed ACOEL colleague, announced on April 22, 2020, that EPA may well consider permanently dropping certain “administrative hoops” based on a review of the temporary policy after the coronavirus crisis subsides.  EPA’s commitment to review the “value added” of these and perhaps other administrative requirements, consider eliminating them, and possibly institutionalize the streamlined temporary approach could be a great take-away from the crisis and an unexpected benefit.  Any such decision would, of course, be firmly premised on the conclusion that in eliminating these administrative hurdles, there would be no risk to human health or the environment.

Crises have a tendency to sharpen focus and realign priorities.  Maybe this crisis will help distinguish essential requirements to protect health and the environment from non-essential, vestigial ones that we can all live without.

County of Maui Decided: Groundwater Discharges Require Permit . . . Sometimes

Posted on April 27, 2020 by Rick Glick

On April 23, in a 6-3 opinion, the U. S. Supreme Court decided one of the more closely followed environmental disputes of recent years.  In County of Maui v. Hawaii Wildlife Fund, the issue was whether injecting municipal sewage effluent into groundwater, which then travels about half a mile before discharging to the ocean, requires a permit under the Clean Water Act (CWA).  The Court found that it did.

The purpose of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”  The principal tool for achieving this lofty goal is a permit system for discharges from “point sources”, meaning a “discrete conveyance.”  The most obvious example of a regulated discharge is that from the end of a pipe directly to a navigable waterway.  In the Maui case, the discharge passed through groundwater before entering the ocean, but data showed the ocean discharge contained the same pollutants as were pumped underground. 

Is such a discharge “from” the point source, i.e. municipal treatment plant, or from the groundwater?  Writing for the majority, Justice Breyer announced a new test for deciding such a case.  A permit is required for a point source discharge or the “functional equivalent.”  That is, a direct discharge and a discharge through groundwater are functionally equivalent when “the discharge reaches the same result through roughly similar means.”  He likened the situation to a recipe that calls for adding drippings from the meat into the gravy; no one would question that “from” in that context includes conveyance through a pan or cutting board. 

The majority rejected arguments from the County, EPA and Justices Alito and Thomas in dissenting opinions, that there should be a bright line test—no discharges through groundwater should ever be subject to federal regulation.  Justice Breyer reasoned that approach would create gaping “loopholes” that would prevent attainment of the CWA’s conservation goals.  For example, a facility could terminate a discharge pipe on the beach a few feet from the navigable receiving water, and then maintain that a permit is not necessary because the pollutants came from the soils between the pipe and waterway. 

Justice Breyer acknowledged that functional equivalence will not always be easy to discern, as groundwater always eventually finds its way to navigable waters.  There will be times when the presence of pollutants in navigable waters is too attenuated from the discharge to justify a permit.  In Maui’s situation, the injected pollutants had to travel about half a mile to the ocean.  What if they had to travel 250 miles and did not emerge in the receiving waters for 100 years?  The majority is content to allow future courts and agencies to refine the new test.

This decision, and the unwillingness to adopt an easy to apply test, reflects a recognition by the Court of the complexities that underlie jurisdictional determinations under the CWA.  As noted here, the Trump Administration’s attempt at rewriting the definition of “waters of the United States,” which is the basis for CWA jurisdiction, goes the other direction.  The proposed WOTUS rule seeks to establish a simple definition based on observable, running water.  In doing so it follows Justice Scalia’s plurality opinion in the Rapanos case and rejects Justice Kennedy’s “significant nexus” test.  The latter is nuanced and involves professional judgment about the interconnectedness of natural systems.  The Maui Court’s “functional equivalent” test is of a kind with “significant nexus” in its focus on achieving the purpose of the CWA.

While the Court’s decision is sensible and promotes science-based jurisdictional determinations, it leaves a great deal of uncertainty in place.  The Court expects, and we can too, that there will be many cases and administrative processes considering when discharges to groundwater require permits.