COAL

Posted on October 8, 2019 by Donald Stever

My blog posts have, in the past, largely focused on this or that regulation or some legal development or other dealing with chemical regulation or environmental statutes or rules in general. This one is different.

I grew up in Pennsylvania coal country. Well, actually on the border between the coal mines on the Piedmont Plateau (CO2 precursors) and the big dairy farm (methane emitters) region in the wide valleys that stretched along the Allegheny Mountains. My father was a veterinarian. As a kid I was his unpaid assistant. One vivid childhood memory I have is of going down into a deep shaft coal mine with my father; I lay on my back in an electric rail car, traveling nearly a mile into the earth where my father was called to treat an injured mule. You see, mules pulled the coal cars from the active extraction shafts to the main mine shaft. Oh, and the mules were blind. They were blinded intentionally because (a) there was no light anyway and (b) they learned to know the labyrinth by senses other than sight. Then there was the coughing. The mules coughed. The miners coughed. All were covered with coal dust. My father returned to the mine from time to time. I demurred.

Which brings me to my point. When I retired from my full-time litigation-heavy law practice I started to read books, a pastime that I had largely been denied for lack of time during the fifty-odd years of environmental law practice. Not pulp novels. Mostly not “best sellers.” Nope. I read science-based books, many of which address the environment. Two of these dealt in part with the subject of coal.  Peter Brannen, in The Ends of the World: Volcanic Apocalypses, Lethal Oceans, and Our Quest to Understand Earth's Past Mass Extinctions, neatly explains the primary cause of the last five extinctions of nearly all life on Earth, discernable from analyses of geologic strata. The culprit? Carbon dioxide emitted by the combustion of coal (fossil vegetable matter accumulated over eons of time) caused by massive flows of volcanic magma which ignited enormous coal deposits, which in turn heated up the atmosphere, which in turn heated up and acidified the oceans. So, burning coal pushes carbon dioxide into the atmosphere, which traps solar heat, heats up the earth and oceans and every complex living thing (or almost every living thing) dies.

Sound familiar? In his most recent book, Falter, Bill McKibben points to irrefutable scientific analyses concluding that human combustion of coal and its cousin oil, abetted by human agricultural emissions of methane, is on track to raise carbon dioxide levels in the  atmosphere to a concentration that is higher than the carbon dioxide levels that triggered all of the prior mass extinctions.

I have to ask: are the Trumps and the Wheelers and the McConnells and their counterparts in Asia and South America who simply deny the obvious consequences of their refusal to deal with the issue of runaway combustion of fossil carbon unable to read? Obviously, they can read, but I dare say that inability to read would at least give them an excuse for denying my three-year-old granddaughter a habitable planet on which to live.

Singer-songwriter and distinguished member of the New Hampshire Bar John Perrault perhaps says it best in his song, Carbon the Garden:

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

Oh, the oceans in the kitchen and the desert’s at the garden gate.

Song lyrics by John Perrault © 2013 John Perrault

The ACOEL Foundation - An Exciting ACOEL Relationship

Posted on October 4, 2019 by John Cruden

Co-authored by Jim Bruen

As you likely know, ACOEL has created a related but separate entity known as the ACOEL Foundation. This charitable, non-profit, tax-exempt foundation was inspired by ACOEL Fellows who saw a need for a non-political foundation to advance environmental and natural resource goals and objectives consistent with the mission and vision of the College.  Through the work of many, the Foundation has gone through the laborious but important transformation from inspiration to creation, to legal authorizations and finally, to implementation.  The Foundation was first incorporated in Delaware and by-laws were approved. Then, just last year the Internal Revenue Service approved our status as a 501c (3) organization. Because the home of the Foundation is the District of Columbia, we next had to gain the District’s approval to locate there and achieve tax exempt status.  Approval came this Summer. 

Once the Foundation attained the status of an approved charitable, non-profit ,tax-exempt organization, it proceeded to apply for written permissions from each of the thirty-eight states which require such approval before allowing charitable solicitations within their borders. Much of this year has been doing the laborious process of gaining such permissions.  Multiple forms had to be submitted, responses notarized, and explanations given.  As the current President,  John is pleased to report that we have the required permissions from all but one state (Virginia), and anticipate its approval in the near future.  We are therefore ready to proceed with the Foundation’s work. We will now be able to receive and utilize volunteer labor, such as law students, support overseas environment and wildlife programs, partner with other organizations to improve the environment, or fund studies of use to the profession.

The ACOEL Foundation is, of course, linked to the College.  The only member of the Foundation is the College, and they share most of the same leadership.  The President, however, is the immediate past president of the College.  John became the President at the annual conference in the Grand Tetons last October, and Allan Gates will become the President at the Williamsburg conference this October.  And, our first President, Jim Bruen, who set all of this in motion, remains an important part of the life of the Foundation.

Thus far the Foundation operates through grants from the College and a few significant donations by past and current Foundation leadership.  That money was vital to get us to where we are now, but we will clearly need more help in the future. We will soon be initiating a limited donor campaign, to obtain the resources necessary to give the Foundation the financial support so that it can operate effectively.

Our vision is that the Foundation will be initiating, supporting, encouraging, or partnering on environmentally significant projects in the future.  We will be able to do so independently, or in partnership with others.  While there are limitations on what we can do, either by the IRS, state laws or by our own desire to avoid any significant administrative overhead, we strongly believe that there is a great array of projects that we can do which will benefit the environment and natural resources.  The projects will be proposed by ACOEL Fellows,  will be reviewed in detail, and then submitted for approval to the Foundation leadership. At the annual conference John Cruden and Jim Bruen will provide a comprehensive update of the Foundation’s status and preview the type of projects that can be considered in the future.   We fully expect they will make a real-world difference.

If You Need the Money I’ve Got the Fine

Posted on October 3, 2019 by Kevin Finto

With apologies to Lefty Frizell, that is a terrible suggestion on how to fund environmental programs.  But, we need to figure something out.  As environmental lawyers, we spend a lot of effort discussing the substantive and procedure aspects of the statues and regulations that protect the environment, but little time on the appropriations bills that make them work.  We are all familiar with environmental regulations that have wide-scope, strict requirements, but inadequate funding for their implementation.  This deficiency results in the unintended consequences of providing a false sense of protection to the public and frustration to the regulated community. 

The problem is becoming more acute as political-based belt-tightening on environmental issues continues at the Federal level and directly affects budgets of the state environmental agencies, where most of the implementation occurs.  The Environmental Council of the States (“ECOS”) reported in 2017 that federal funding of state government programs declined by 2.5 percent between 2013 and 2015.  While some states were able to meet the short fall, many states, faced with ever-increasing demands for education, security and social welfare are not keeping up with environmental funding as their economies grow out of the great recession.  For FY 2020, EPA proposed a budget decrease of 31 percent.  Where this ends up is yet to be seen.  On September 26, ECOS sent a letter to EPA Administrator Wheeler, which did not expressly identify budget issues, but demanded a meeting to discuss “serious[] concern[s] about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.”

So what do we do?  I think three steps might be helpful.  First, there needs to be greater focus and participation on the budgetary process to evaluate the need, priority and allocation of available resources rather than simply updating a prior year’s budget.  I am suggesting reevaluation from the bottom up of many agency budgets by the regulators, lawmakers, the regulated community and environmental non-governmental organizations.  Of  particular concern is how agencies can meet basic long-existing requirements such as monitoring environmental quality and training of personnel while dealing with expenses of new requirements related to communicating through social media, data storage and cyber security.  The second is to evaluate the efficiency with which the agencies operate and to share best practices.  As documented by ECOS, in many instances, state agencies, in particular, have become increasingly efficient as they have had their budgets repeatedly slashed and cuts have been necessary in order to provide the essential services.  Third, there needs to be advocacy in Congress and our state legislatures, from relevant stakeholders –government agencies, the regulated community, and environmental non-governmental organizations. 

In some states, the latter has already occurred.  A good example is VIRGINIAforever, a unique, diverse coalition of businesses, environmental organizations, and outdoor enthusiasts that advocates for increased government funding for water quality improvements, land conservation and improved agency performance and funding across the Commonwealth.  It is the only statewide organization that has a primary focus on increasing funding for natural resources protection.  This has taken the form of collaborative and very active lobbying for adequate funds in the Virginia General Assembly to promote land conservation and water quality.

VIRGINIAforever representatives meet regularly with agency heads to discuss budgets.  It promotes activities to educate lawmakers on the importance of environmental protection and it lobbies for adequate funding.  It is in the process of releasing its latest five-year plan to obtain those resources.  The group also recognizes those who promote its goals.  For example, each year it holds a Bridge Builder dinner honoring those who work with both environmental groups, government agencies and the business community to promote land conservation and water quality.  By design, VIRGINIAforever also provides a forum for fostering relationships among those with diverse perspectives on environmental issues. In sum, if we want to promote sound and efficient environmental programs, we need to think not only about the substance and the procedure, but also identify and advocate for the sources of adequate funding.

CARB Continues Global Leadership Role on Climate with Adoption of Tropical Forest Standard

Posted on October 2, 2019 by Kevin Poloncarz

After nearly a decade of work, on September 19, 2019, the California Air Resources Board (CARB) endorsed its much anticipated Tropical Forest Standard (TFS). The TFS is a first-of-its-kind framework for assessing jurisdiction-scale offset credit programs that reduce emissions from tropical deforestation and degradation. It is widely expected to serve as a replicable model for adoption by other international greenhouse gas mitigation programs that utilize tropical forest reductions as offsets, including the International Civil Aviation Organization (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

The TFS framework ensures that reductions produced by a subnational jurisdiction’s systemic efforts to conserve its tropical forests are real, quantifiable, permanent, additional and enforceable – the hallmark criteria to ensure the environmental integrity of offset credits within emissions trading schemes, such as California’s Cap-and-Trade Program. It requires rigorous, independent third-party verification of both the emissions avoided by the jurisdictional plan and the jurisdiction’s adherence to social and environmental safeguards designed to protect indigenous communities.

Under the TFS, subnational jurisdictions wanting to issue offset credits for their overall forest conservation efforts must adhere to guiding principles endorsed by indigenous community leaders and state and regional governments whose territories include more than one-third of the world’s tropical forests. These principles mandate that indigenous communities are involved in plan development and implementation and share in the resulting economic benefits.

CARB’s endorsement of the TFS does not authorize emitters to use tropical forest offsets for compliance with its Cap-and-Trade Program at this time; CARB would need to amend its regulation to authorize such use and has no immediate plan to do so. Advocates for indigenous communities and environmental justice nevertheless opposed CARB’s action, arguing that it made it all but inevitable that CARB would soon adopt such an amendment and that doing so would allow emitters to continue emitting and consuming fossil fuels in California.

Against such opposition, leading scientists and environmental groups strongly supported CARB’s endorsement of the TFS as a critical near-term step to slow the loss of tropical forests and limit global warming to no more than two degrees Celsius. According to recent estimates, tropical deforestation now amounts to more emissions each year than 85 million cars over their entire lifetime, dwarfing California’s own anthropogenic emissions and those of all nations but the U.S. and China. As a consequence, no serious effort to mitigate climate change can exclude measures to avoid continued deforestation and degradation of tropical forests.

CARB’s action comes at a timely moment, as the impacts of climate change and slash-and-burn agriculture are resulting in an unprecedented surge in uncontrolled fires throughout the Amazon rainforest. Although the political situation in Brazil may make it difficult to crack down on illegal burning and deforestation, CARB’s adoption of the TFS may amount to one small step towards counterbalancing the incentives that promote deforestation.

Extending Fundamental Rights to Lake Erie?

Posted on October 1, 2019 by Steve Miano

An interesting legal battle is playing out in the United States District Court for the Northern District of Ohio over whether the City of Toledo’s establishment of a “Lake Erie Bill of Rights” passes constitutional muster.  On one side are the citizens of Toledo and environmental groups.  On the other, the State of Ohio and farming interests. 

Backdrop:

A recent amendment to the City of Toledo’s city charter, approved by 61% of its citizens, established the Lake Erie Bill of Rights (“LEBOR”). https://beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf  The LEBOR sets out several fundamental rights of Lake Erie, including the “right to exist, flourish and naturally evolve.”  The LEBOR also establishes the right of the citizens of Toledo to a clean and healthy lake and lake ecosystem, and authorizes citizens to enforce this right through an action against dischargers to the lake brought in the name of the Lake Erie Ecosystem. 

The LEBOR was enacted in the context of algal blooms and other threats to drinking water supplies and the lake’s ecosystem from chemical and nutrient discharges.  Proponents of LEBOR describe these discharges as assaults which continue to occur in spite of state and federal environmental laws.  The City claims that both the state and federal governments have failed to protect the lake.

Interestingly, the provisions of LEBOR conferring fundamental rights on Lake Erie and the citizens of Toledo are based on two broadly worded articles of the Ohio constitution, Articles 1 and 2, which provide: (1) “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which [include]… seeking and obtaining happiness and safety” and (2) “[a]ll political power is inherent in the people … and they have the right to alter, reform, or abolish the same, whenever they deem it necessary…”  These articles do not expressly address environmental rights, in contrast to the constitutions of states that have adopted environmental rights amendments.

The LEBOR further provides that “it shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,” and “[n]o permit, license … issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.”  The law also provides for strict liability for civil and criminal penalties against dischargers, and the recovery of legal fees and expenses of those citizens bringing suits to enforce LEBOR.

Perhaps most significantly, the LEBOR states that corporations that violate the law “shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law.”  Perhaps going beyond what a municipality is empowered to adopt, it provides that such violators shall not have the right to assert that federal or state laws preempt the LEBOR or that the City lacks the authority to adopt the law.  Finally, it provides that laws enacted by the State of Ohio or any agency will not apply in the City of Toledo if they violate the LEBOR.

Unsurprisingly, the LEBOR is being challenged by the State of Ohio and farming interests.  The challenges include claims that the law violates the US Constitution, including:  (1) the right to freedom of speech and the right to petition the courts under the First Amendment; (2) the right of equal protection; (3) Fifth Amendment protections against vagueness, and (4) the right of due process.  Moreover, the challengers argue the law exceeds the City’s authority and intrudes on powers entrusted to state and federal governments by, inter alia, invalidating state and federal laws and permits.  Interestingly, the petitioners also argue that since Lake Erie borders Canada, the law impermissibly interferes with international relations.  (See, e,g., https://www.courthousenews.com/wp-content/uploads/2019/02/DrewesErie.pdf)

The State of Ohio, in response to the LEBOR, also enacted legislation that bans “legal actions on behalf of or by nature or ecosystems.”  The bill, signed by the governor, states: “[n]ature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas. No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.” https://www.nationalreview.com/corner/ohio-bans-nature-rights/

The legal challenges are playing out in the US District Court for the Northern District of Ohio. Drewes Farm Partnership v. City of Toledo, Ohio, No. 3:19-cv-00434-JZ.

Many legal observers believe the LEBOR is unlikely to survive the constitutional challenges.  Nevertheless, it is an interesting case to watch.  This law is part of a trend to try to impart legal rights to nature. 

Good Sam: A Base Hit Not a Grand Slam

Posted on September 30, 2019 by Kevin Murray

Depending on your source, abandoned mine lands across the United States number over 100,000 sites. Some, but not all, pose a threat to human health and the environment. The magnitude of the issue engulfs the resources of federal and state agencies. Moreover, responsible parties are most often dead and buried companies, leaving the need for options outside of routine scenarios and traditional regulatory programs relying on viable responsible parties.

The need for otherwise non-liable parties to voluntarily agree to study and remediate troubled sites seems the most likely path to success. Industry and public interest groups alike are needed if the issue of abandoned mine lands is to be addressed. The Good Samaritan program was intended to encourage private voluntary action. While there are some successes to date, the program has not received a robust welcome but has struck-out for several reasons—most significantly the lack of statutory authority to legalize the program and the inability of current agreements to protect well-meaning Good Samaritans from increased environmental liability.

Recently legislation was proposed that attempts to address deficiencies in the program, starting from shoring up statutory authority under CERCLA and the CWA and continuing with the proposal of some new structural elements. In short, the new Act would create a Good Samaritan permitting structure. Good intentioned citizens, groups, and companies would apply for and obtain a Good Samaritan permit. The permit would outline the activities to take place with certain protections written into the permit. While the effort is not a home run, the Act goes a long way toward improving the program; however, many are fearful that several issues may still impede successful implementation of a robust program. To encourage Good Samaritans to step up and address abandoned mines without fear of uncertain liability, the Act would benefit from the following revisions:

  • To address liability concerns, a Good Samaritan willing to undertake remedial activities under a permit is pronounced via the permit to be in compliance with all requirements under CERCLA and the CWA. This is probably not enough. The Act will need to state that a party will not be considered a Potentially Responsible Party (PRP) under CERCLA nor will the party be subject to long term obligations under the CWA.
  • The mechanism for discontinuing operations in the event circumstances or facts are discovered that reduces the feasibility of the project or significantly increases costs is a positive development; however, it is unclear whether the permit will contain language similar to the current EPA Good Samaritan model Administrative Order on Consent (AOC) that empowers the EPA to expand or modify the scope of work. The historic AOC provision has been a significant impediment for industry participation. Simply put, many will remain unwilling to accept a permit that allows EPA to expand the permit scope of work. Certainty with regard to the nature of the work and a defined end point are critical.
  • The Act contemplates judicial challenge prior to permit approval. While this sounds like a good idea, it will serve to chill many from engaging in the process. The prospect by a Good Sam of investing significant administrative expenses that may then be met (or have the potential to be met) with significant legal and administrative costs and delays will discourage parties from engaging in the first instance.
  • The Act still contemplates long-term involvement through operation, maintenance and sampling.  While this might work on select parties, for most the perpetual involvement will signal the inning is over.

The success of the effort will depend on the language of the permit. If the permit borrows from or is based on the current Good Samaritan model AOC, the program will languish. The permit must offer clear and unambiguous liability protection, a thoroughly and accurately defined scope of work, and an exit point for a robust program. The private sector requires certainty of entry and exit, and the assurance that by engaging in a Good Samaritan activity, they will not be drug into decades of CERCLA actions.

Reflections on Becoming an Environmental Lawyer

Posted on September 27, 2019 by Robert Falk

Thirty years ago, I began practicing law and landed in the environmental field mostly by happenstance.  I had previously served as a manager with the federal government in the area of commerce and economic development.  I knew that my ability to tolerate a potential life in the law depended on finding a niche with a lot of interaction between government and businesses. 

Many environmental lawyers chose the profession because they were called to “the cause.”  I have found this to be true even if they ultimately practiced on the business/defense side.  Not so with me.  My field of choice within the law originally had nothing to do with the substance; it was all about the process and, more specifically, the intersections between law and policy, politics and economics, and legislation and adjudication. 

After finding my summer associate experience in traditional litigation and transactional work boring, I searched for a position in a “land use” practice.  I found a firm that had recently put its small land use practice together with a federal and state environmental law practice that it acquired from a local competitor.  I got an interview, tried to impress the attorneys with whom I met, got lucky, and received a job offer.

As I knew literally nothing about environmental law and, out of fear of starting my position with no relevant background, I enrolled in the only potentially relevant course offered in my then final semester at law school.  It was a seminar focused exclusively on the federal Clean Water Act.  It was there, largely at the hand of the late Joe Sax, with whom I argued incessantly about policy and politics while being taught how to read and understand the totality of an environmental statute, that I was first bitten. 

My appetite for this field only increased when I started working with two of the firm’s environmental law partners, Michele Corash and Barry Sandals.  I quickly came to appreciate their skill sets, reputations and prior experience at U.S. EPA and the Environment and Natural Resources Division of the Department of Justice. 

Michele and Barry took this unshaped lawyer mound of clay and began to mold me and fill the vessel.  While Sandals schooled me in the worlds of CERCLA and the litigation process, Corash took charge of the more general environmental education mission and opened multiple doors of opportunity.  (Brad Marten came into the mix a few years later as an officially-assigned mentor and proceeded to ply me with food and drink while indoctrinating me in his unique take on the world.)

One of the opportunities Michele gave me in 1991 was to assist her in organizing a conference focused on Asia for the ABA Standing Committee on Environmental Law.  Citing my pre-law experience in putting together such events for the federal government, Michele anointed me the “general manager” of the effort working with the ABA staff.  Environmental law thought leaders from a dozen Asian countries and a healthy gaggle of U.S. environmental lawyers came together for a few delightful days in then British-held Hong Kong where they started a dialogue about the importance of environmental law and enforcement in those emerging economies. 

At this conference, the parties recognized as a matter of stipulation that the United States was the primary inventor of the field of environmental law and its unparalleled leader and innovator.  The American environmental lawyers in attendance acknowledged their collective responsibility to continue to lead in the field.  And so we did, or attempted to do, if not for the love of our profession or country, for the love of our neighbors, our children and our planet.

I eventually became a “real” environmental lawyer thanks to the encouragement of leaders in the profession who taught me that through our work we could improve the planet.  Given how my journey started, I am saddened to see the United States retreat from its leadership position in the field.  But this trend can be reversed.  I look to the next generation of environmental lawyers to lead the way, and I ask my ACOEL fellows to join me in inspiring and mentoring these young lawyers.

A Green New York State of Mind

Posted on September 26, 2019 by Gail Port

In what has been heralded as a banner year in New York State for environmental legislation, the icing on the cake was the recent passage of the most groundbreaking climate action plan in the nation to date.  On July 22, 2019, Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA) into law.  The CLCPA sets an admirable, albeit aggressive, statewide framework to reduce net greenhouse gas emissions to zero by 2050. Notably, while setting ambitious goals to reduce greenhouse gas emissions from all anthropogenic sources, the Act also recognized that improvements to the State’s resiliency—that is, adaptation, to address those impacts and risks of climate change that cannot be avoided ( e.g., infrastructure hardening to withstand climate induced disasters) was also necessary.

In enacting the CLCPA, the State legislature touted New York as a leader, and the CLCPA as a legislative model, in the climate change arena:  “Actions undertaken by New York to reduce greenhouse emissions will have an impact on global greenhouse gas emissions and the rate of climate change.  In addition, such action will encourage other jurisdictions to implement complementary greenhouse gas reduction strategies and provide an example of how such strategies can be implemented.”  The CLCPA’s legislative findings proclaim that “[b]y exercising a global leadership role on greenhouse gas mitigation and adaptation, New York will position its economy, technology centers, financial institutions and businesses to benefit from national and international efforts to address climate change.”  Clearly, the CLCPA is viewed as a potential economic development engine that can “advance the development of green technologies and sustainable practices within the private sector, which can have far-reaching impacts such as a reduction in the cost of renewable energy components, and the creation of jobs and tax revenues in New York.”      

Recognizing that climate change “especially heightens the vulnerability of disadvantaged communities”, the legislature made environmental justice a cornerstone of the CLCPA by providing that State actions to reduce greenhouse gas emissions “should prioritize the safety and health of disadvantaged communities, control potential regressive impacts of future climate change mitigation and adaptation policies on these communities and prioritize the allocation of public investments” in those areas.  The CLCPA calls for the formation of a twenty-two member state panel, the New York State Climate Action Council, to guide the State in meeting its progressive goals.  The Commissioner of the New York State Department of Conservation and the President of the New York State Energy Research and Development Authority (NYSERDA) are to be the Co-Chairs of the Council, and the remaining members will be the heads of certain state agencies and appointees from the Governor (two “non-agency” expert members), and the leaders of the State legislature (a total of 8 members).

In essence, the details for putting in place the plan and to propose regulations and other actions required to implement the new law will be left to the Council. Once the Council is formed, it will have three years to come up with a final scoping plan--a specific proposal to recommend mandates, regulations, incentives, and other measures to ensure New York meets the lofty carbon neutral goals outlined in the CLCPA. To fulfill its legislative mandates, the Council will receive input from to be-created subject-specific Advisory Panels, comprised of experts on transportation, energy intensive and trade-exposed industries, local government, energy efficiency and housing, power generation, and agriculture and forestry, a Climate Justice Working Group, with representatives from communities bearing disproportionate pollution and climate change burdens and a Just Transition Working Group (chaired by the State Labor Commissioner and the President of NYSERDA) giving business leaders a seat at the table to advise on workforce development and training issues and business impacts arising from New York’s “new energy economy.” Time will tell whether this structure will result in “too many cooks in the kitchen” or will function as a “well-oiled machine”.

Here are some of the highlights of the CLCPA benchmarks:

·      By 2030, 70% of New York’s electric generation has to come from renewable sources such as wind, solar or hydropower and must reach 100% by 2040. (According to the New York State Department of Environmental Conservation, 23% of New York’s electric power currently comes from renewable sources—chiefly hydroelectric).  The CLCPA incorporates Governor Cuomo’s renewable energy goals for offshore wind, distributed solar, storage and energy efficiency.

·       New York will have to cut its total green-house gas emissions—from 1990 levels—by 40% by 2030 and 85% by 2050. The remaining 15% will have to be offset by reforestation, restoring wetlands, carbon capture or certain other green projects which will make the state carbon neutral by 2050.

·       The State’s load serving entities will have to procure at least 6 gigawatts of photovoltaic solar energy by 2025 and 9 gigawatts of offshore wind energy by 2035, and to support 3 gigawatts of statewide energy storage capacity by 2030.

·     To the extent practicable, disadvantaged communities are to receive 40% of the overall benefits of State spending on clean energy and energy efficiency programs, projects and investments in the areas of housing, workforce development, pollution reduction, low income energy assistance, transportation and economic development, with a floor of receiving at least 35% of those benefits. (The CLCPA defines disadvantaged communities as “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”)

In recognition of the fact that climate change presents an existential crisis that must be addressed without delay, the CLCPA sets an implementation timeline that also is very aggressive.

The most significant challenge to achieving the CLCPA’s bold directives is figuring out how it will be accomplished in practice. By establishing the Council, the State, prudently, will be engaging a wide-pool of talent tasked to come up with novel and practical approaches. Nonetheless, there are significant questions that, at least as of now, are unanswered. Investments in renewables, energy storage and power generation will be necessary and costly, especially considering the projected retirements of the New York nuclear fleet.  Where will those funds come from?  Powerful incentives will be required to push the private sector towards electrifying the transportation, residential, and commercial sectors—what will those incentives look like? Is the establishment of a State-wide carbon marketplace necessary and, if so, how will it affect the pocket book of New Yorkers?  And how will New York ensure that greening its economy will be good for its business community and not scare them off? Does the statute inadvertently inject too much uncertainty into the State’s economy?

With the Trump administration on a mad dash to roll back a number of regulations designed to address and mitigate climate change, New York has embarked on a praiseworthy plan to achieve aggressive goals to address the existential crisis of climate change. Sure, there are innumerable obstacles that need to be overcome and, yes, the specific action plans have not yet been conceived, but setting these goals—and ultimately making them enforceable—is certainly a giant leap in the right direction.  Kermit the Frog once said, “it’s not easy being green” —but sometimes doing what is hard is what is necessary.

NSR Regulatory Reform—the saga continues

Posted on September 18, 2019 by William Brownell

In 2002, EPA promulgated a Clean Air Act new source review (NSR) “reform rule” to clarify the confusion created by inconsistent guidance and judicial decisions on NSR applicability.  That clarification effort had only limited success, as inconsistent interpretations of the NSR applicability rules continued to emerge as those rules were applied by state regulators and courts.  In perhaps the most extreme example of regulatory confusion, a three judge panel of the Sixth Circuit issued five opinions with three different interpretation of the same regulatory language.  DTE I, http://www.opn.ca6.uscourts.gov/opinions.pdf/13a0080p-06.pdf.  DTE II, http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0006p-06.pdf.

The Trump Administration has embarked on a new clarification effort.  In what EPA’s Office of Air and Radiation dubbed a “singles and doubles” approach, EPA issued guidance and undertook rulemaking on key applicability issues, including emissions projections, emissions accounting, and project aggregation.  In conjunction with the Affordable Clean Energy rule, EPA then proposed a more fundamental change to the NSR applicability rules under which a project would trigger NSR only if it resulted in both an hourly and annual emissions increase.

That EPA is still struggling with clarification of its NSR rules two decades after it began a series of significant NSR enforcement initiatives illustrates how controversial this program has been and continues to be.  From an environmental standpoint, however, the NSR program has become less significant. Industrial sources are largely well-controlled for a variety of reasons other than NSR.  And in the electric utility sector, the steep drop in the price of natural gas has resulted in current or planned retirement of many coal-fired generating units.  As a result, there is little to be gained from injunctive relief even in a successful NSR enforcement action.

All of this says that there should be wide-spread support for EPA completing its NSR clarification efforts.  Regulated entities have every incentive to comply with NSR.  From the regulators standpoint, the limitations the Supreme Court put on regulatory re-interpretation in Kisor v. Wilkie, should create its own incentives for regulatory clarity.

Environmental Protection Is an Afterthought at the Environmental Protection Agency

Posted on September 17, 2019 by Seth Jaffe

Last week, EPA and the Army Corps of Engineers promulgated the final rule repealing the 2015 rule defining the Waters of the United States. The repeal rule is 172 pages in its pre-publication version.  The word “science” is used 18 times in those 172 pages.  Almost all of them are used in quotes from the 2015 rule or characterizations of the intent of the 2015 rule.

I did not find a single sentence in the repeal rule stating that the science does not support the 2015 rule.  As I noted when the Supplemental Notice of Proposed Rulemaking was issued, the mission of EPA and the Corps is to protect the Waters of the United States.  If they’ve concluded that the text of the Clean Water Act doesn’t give them the authority needed to do so, the Administration could certainly propose amendments to the CWA to give them that authority.

That’s what used to be called “governing.”

Vaped and Confused

Posted on September 16, 2019 by Tracy Hester

E-cigarettes have vaulted to the front pages lately, and for tragic reasons.  To date, at least six users have died from severe lung disease tied to vaping, and nearly 400 others have reported serious medical symptoms in 36 states and the Virgin Islands.  The reasons for the outbreak remain murky:  some investigators link the victims’ illnesses to bootleg or counterfeit nicotine cartridges, while others have focused on the addition of “thickeners” or THC and marijuana components.  Heavy abusive use of the devices has also come under suspicion.  But regardless of the explanation, e-cigarettes will likely remain in the spotlight until researchers either identify the cause or the pace of the illness starts to slow.

The furor, however, has distracted attention from another growing regulatory issue with e-cigarettes.  As vaping continues to expand into the workforce, employers have discovered that they now have to manage growing volumes of discarded vaping cartridges.  These cartridges contain residual amounts of nicotine – a deadly substance that figured prominently as a poison in Agatha Christie’s murder mystery Three Act Tragedy.  Nicotine is so hazardous, in fact, that EPA accorded it the dubious distinction of an acute hazardous waste (P075) listing under the Resource Conservation Recovery Act.  EPA listed nicotine originally in 1980, and EPA confirmed on Feb. 22, 2019 that unspent nicotine in discarded e-cigarette cartridges can constitute hazardous waste under its pharmaceutical waste rules.  While EPA exempted used nicotine patches and gums from the listing, e-cigarette cartridges containing unused nicotine failed to earn the same exemption.  And cigarette butts don’t pose the same challenges because their nicotine isn’t the sole active ingredient and isn’t pharmaceutical grade.

Home users, of course, needn’t worry because their discarded vaping cartridges are household hazardous wastes exempt from hazardous waste regulation.  But commercial facilities and industrial operators don’t enjoy that exemption, and as a result accumulated spent cartridges from their employees’ vaping can create big problems.  Because nicotine is a P-listed acute hazardous waste, facilities can quickly become large quantity generators if they accumulate more than 1 kilogram (2.2 pounds) of spent cartridges in a month (although they may argue that only the residual liquid nicotine itself counts towards the waste tally).  Rinsing the cartridges may simply magnify the problem because the rinsate itself counts as a listed hazardous waste under the derived-from rule.  And other possible strategies, such as reverse distribution or reclamation, may not cleanly apply.

Many facility operators are only now realizing the scale of the problem.  Possible compliance strategies may not require any RCRA wizardry at all – for example, some facilities can simply ban on-site employee vaping, while others can require that employees take their spent cartridges home for disposal.  With the Trump Administration’s call to ban flavored e-cigarette cartridges and similar initiatives by Michigan and New York, the problem also may retreat if more states and agencies demand withdrawal of e-cigarettes from the market.  But facilities that can’t rely on these fixes may find themselves struggling for answers in a hazy and confused regulatory environment.

Calling Off the NEPA Hounds – The CEQ’s 2019 Draft Guidance on GHG Emissions

Posted on September 12, 2019 by JB Ruhl

On June 26, 2019, the Council on Environmental Quality (CEQ) published a Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 Fed. Reg. 30097). This new guidance would replace the guidance on that theme CEQ published in August 2016 (2016 Guidance) and which President Trump extinguished by executive order, and CEQ immediately withdrew, early in April 2017 (E.O. 13783 and 82 Fed. Reg. 16576). The much shorter 2019 Draft Guidance bears some similarities to the 2016 Guidance:

  • Both advise agencies to use GHG emissions as a proxy for climate effects.    
  • Both emphasize that agencies should follow the NEPA “rule of reason” for identifying direct and indirect effects and for keeping the depth of analysis proportionate to the scale of the effects.
  • Both allow agencies to use available emission quantification tools, but also to refrain from quantification if the available information is of poor quality or if the analysis would be too complicated, provided they explain why.
  • Both advise agencies not to engage in overly speculative analysis.
  • Both emphasize that NEPA does not require cost-benefit monetization analysis.

From there, however, the two guidances look nothing alike. To begin with, the 2016 Guidance declared that “climate change is a fundamental environmental issue, and its effects fall squarely within NEPA’s purview,” and that “it is now well established that rising global atmospheric GHG emission concentrations are significantly affecting the Earth’s environment.” In short, climate change was the core focus throughout the 2016 Guidance. By contrast, the 2019 Draft Guidance refers only to “potential climate effects” of GHG emissions, and does so only twice in the document. It is perhaps remarkable that any Trump administration guidance actually recognizes that GHG emissions could have “potential climate effects,” but the CEQ skirts the issue so much that one might easily miss the point of why agencies are being asked to conduct GHG emissions analyses in the first place.

More substantively, the 2019 Draft Guidance omits three key features (among others) of the 2016 Guidance. First, there is no mention of mitigation in the 2019 Draft Guidance, whereas that was a focus of the 2016 Guidance. Under the 2019 Draft Guidance, in other words, agencies would estimate GHG emissions of the proposed action but not need to consider action alternatives that generate lower emissions or higher sequestration.

Second, the 2016 Guidance included a section on scope of the action that advised agencies to consider predicate and consequential effects of the action. For example, proposed resource extraction actions should consider GHG emissions from reasonably foreseeable predicates such as clearing land and building access roads, and from reasonably foreseeable consequences such as transportation, refining, and use of the resource. The 2019 Draft Guidance makes no mention of such analyses.

Most glaringly of all, the 2019 Draft Guidance completely ignores the need to assess the impacts of climate change on the proposed action. Recognizing that “GHGs already in the atmosphere will continue altering the climate system into the future” and that “NEPA review should consider an action in the context of the future state of the environment,” the 2016 Guidance included an extensive section advising agencies on how to evaluate the effects of climate change on a proposed action and to consider how adaptation and resilience measures might be integrated into the action. No doubt because it would require acknowledging that climate change is occurring, the 2019 Draft Guidance contains no such guidance.

The bottom line is that, if the 2019 Draft Guidance were adopted as is, agencies will conduct GHG emissions analyses but not need to consider reasonably foreseeable upstream and downstream emissions or how the action could incorporate climate change mitigation, adaptation, and resilience. Of course, that would just be CEQ guidance. The courts may have a different idea for how NEPA engages climate change.

Three Steps Back – DOJ Restrictions on Use of SEPs Are Misguided and Counter-Productive

Posted on September 10, 2019 by Zach C. Miller

The U.S. Department of Justice (DOJ) has taken three steps since June 2017 through August 2019 that severely limit the use of Supplemental Environmental Projects (SEPs) in civil environmental settlements.  Those actions are legally unsound, are generally not sought or supported by the business community or state or local governments, and are counter-productive to the effective enforcement of federal environmental law.  Such actions, and the recent DOJ threat to completely ban use of SEPs in the future, should be revisited and reversed.

A SEP is a consensual, environmentally beneficial project related to an underlying environmental law violation, but not necessary to achieve compliance, that generally results in a reduction in the party’s monetary civil penalty.  SEPs have been widely used in settlements with both businesses and state and local governments since the 1980s and have historically been supported by both parties.  Their use has been governed by a series of EPA policies, most recently updated in 2015.  For example, the 2015 SEP Policy requires that a qualified SEP cannot be a cash payment to a third party, must voluntarily go beyond what is required to comply with law, and must meet one or more specified categories of public environmental benefits.  EPA estimates that, from 1998 through 2012, it negotiated SEPs worth over a billion dollars.

Since 2017, DOJ has unwisely taken several steps that curtail the use of SEPs.  On June 5, 2017, then-Attorney General Sessions issued a one-page Memorandum to DOJ attorneys that broadly prohibited any settlement “that directs or provides for a payment or loan to any non-governmental entity that is not a party to the dispute.”

Questions about whether this new policy prohibited SEPs generally or allowed their continued use with governmental entities were answered by DOJ’s next two steps.  On November 7, 2018, DOJ issued a policy directive that prohibited DOJ from agreeing to any settlements with a state or local government that “extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Then, in a memo dated August 21, 2019, political appointee Assistant AG Jeff Clark made clear that the 2017 and 2018 policies are considered by DOJ to prohibit the use of SEPs in all settlements with state and local governments.  However, in recognition of the strong support for SEPs by many governmental entities, the memo temporarily allows the extremely limited use of SEPs with such entities (“only as a matter of last resort” … and only as “a small component of the overall settlement”) during an unspecified “interim period … pending my [AAG Clark’s] broader review of the SEP policy.”  In other words, the referenced impending “broader review” could and, under the reasoning of the August 2019 memo, likely will conclude that any and all use of SEPs is unlawful and prohibited.

But that reasoning is circular and unsound.  The August 2019 Memo acknowledges that the AG’s June 2017 policy “largely tracks” and in effect implements the 2017 “Stop Settlement Slush Funds Act,” which prohibited settlements allowing payments to parties other than the U.S., and was passed on a partisan vote in the House but was rejected by the Senate.  H.R. 732, 115th Cong., 1st Sess. (2017).  Among other problems, that rejected bill failed to recognize that the 2015 SEP Policy already expressly prohibits cash payments to third parties, and some environmental statutes (not consensual settlements) provide for assessment of attorneys’ fees to prevailing parties, so the perceived “settlement slush fund” problem was illusory.  The November 2018 DOJ Memo then purported to implement that initial 2017 policy, and the August 2019 Memo thereafter concludes that the preceding 2017 and 2018 DOJ policies together mandate that SEPs must be banned.  The 2019 Memo also analyzes at length the narrow 2018 infrastructure-related amendments to the Clean Water Act and concludes they do not expressly authorize the use of SEPs.  But it does not analyze the long-standing, bi-partisan legal conclusions that nothing in federal law prohibits the use of SEPs and that doing so is within DOJ’s and EPA’s broad enforcement discretion.  Rather, DOJ’s conclusions, in a house-of-cards fashion, are based solely on “enforcement” of its own novel policies based in turn on a piece of rejected partisan legislation.  Space does not permit a detailed response here to the August 2019 Memo’s other high-minded but tenuous allegations about SEPs infringing on Congress’ “power of the purse” and on “local democratic processes,” except to say, please see the Administration’s own contrary positions on those points for White House Border Wall funding and restricting State vehicle emission limits.

Sometimes, it’s been said, it’s necessary to take a step back to take two steps forward.  DOJ’s actions restricting SEPs, however, are three huge steps backwards, with a threat of a fourth misstep and disastrous total ban.  Such a ban would preclude consensual, beneficial projects long favored by business and local governments and would unduly hinder and delay resolution of federal environmental enforcement actions.  Those serious missteps should be revisited and reversed.

Climate Whack-a-Mole; or How the Trump Administration Institutionalizes Ignorance in the Endangered Species Act

Posted on August 27, 2019 by Peter Van Tuyn

Given the severity and finality of the extinction of species on this planet, and the myriad adverse impacts on human society and natural ecosystems of such extinction, Congress passed the hallmark Endangered Species Act in 1973.  Since then it has helped save myriad species from extinction and recover many species to healthy population levels.  The success of the ESA in meeting its goals, and strong public support for the law, did not stop the Trump administration from targeting the ESA to ease what it perceives as its negative impact on economic growth. 

As those familiar with the ESA know, a central duty under the law is for federal agencies to consult with the experts within the federal government before undertaking any activity that might jeopardize a species listed under the ESA or adversely modify such a species’ critical habitat.  This consultation helps both to prevent jeopardy and adverse modification and to identify ways in which the activity could proceed without having such effects. 

Among the Trump administration’s controversial proposals was to change the ESA regulations to create a climate change exemption to the ESA’s expert consultation process.  This proposal would have exempted from such consultation any proposed federal action with “effects that are manifested through global processes,” a phrase that is a clear reference to climate change. 

Not surprisingly, this proposal was met with substantial criticism from ESA supporters, who asserted that there was no legal authority to excise climate change from the ESA’s consultation requirements and that to deliberately do so was extremely foolhardy.  These people undoubtedly breathed a sigh of relief when the final rule came out without this proposal, which the Trump administration abandoned “in the interest of efficiency” in the face of that stinging criticism.  

That sigh, however, was certainly followed by a gasp, as those same people found that the final regulations included a wholly new regulatory approach designed to achieve the same effect.  The Trump administration did this by controlling what the expert agencies can consider as they seek to understand the effects of proposed federal action. 

Here is how it works.  First, the final rule defines “effects of the action” as

all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

(emphasis here and elsewhere added).  One layer deeper, the final rule defines the newly-added term “consequence,” in relevant part, as follows: 

Considerations for determining that a consequence to the species or critical habitat is not caused by the proposed action include, but are not limited to:  (1) The consequence is so remote in time from the action under consultation that it is not reasonably certain to occur; or (2) The consequence is so geographically remote from the immediate area involved in the action that it is not reasonably certain to occur; or (3) The consequence is only reached through a lengthy causal chain that involves so many steps as to make the consequence not reasonably certain to occur.

The final rule also defines the term “reasonably certain to occur,” which was not defined in the prior rule, to read, in relevant part, as follows:

Factors to consider when evaluating whether activities caused by the proposed action (but not part of the proposed action) or activities reviewed under cumulative effects are reasonably certain to occur include, but are not limited to:  (1) Past experiences with activities that have resulted from actions that are similar in scope, nature, and magnitude to the proposed action; (2) Existing plans for the activity; and (3) Any remaining economic, administrative, and legal requirements necessary for the activity to go forward. 

Finally, the new rule mandates that the criteria set forth in these new definitions of “consequences” and “reasonably certain to occur” “must be considered by the action agency and the [expert agencies].” 

Although the term “climate change” is not used in the text, the intention to preclude the Services from considering climate change is evident.  To begin with, the definition of “consequences” sets forth three criteria and provides that any one of these would support a non-causation finding.  These three factors – remoteness in time, geographic remoteness, and lengthy causal chain – are classic attributes of climate change.  Indeed, climate change is a global phenomenon that has taken decades to develop from multiple sources, through what may be (or perhaps in some cases may not be) complex causal chains.  Furthermore, the definition of “reasonably certain to occur” takes a retrospective stance, emphasizing “past experiences” and “existing plans,” and thus discounts the possibility of new and novel activities resulting from a proposed action in a climate-altered world. 

By providing that the criteria in these two definitions “must be considered,” the new rule makes it clear that it is creating a mandatory duty for the expert agencies to ignore climate-related impacts in their consultations under the ESA.  Indeed, the preamble to the new rule explains that, in situations where the consequences of activities resulting from a proposed action are “remote in time or location, or are only reached following a lengthy causal chain of events,” the consequences of such activities “would not be considered reasonably certain to occur,” thus removing discretion from the experts to determine the likelihood of occurrence. 

So, the Trump administration reacted to the hammering of its proposed attempt to institutionalize the ignorance of climate change impacts on listed species and their habitat with an approach that appears for the first time in the final rule and is effectively the same. This may not be the end of the matter, however, as I suspect the gasps of ESA supporters will turn to anger, and then to action, as they likely head to the courtroom to challenge the final rule.

Of Robots, Sensors and Drones: ACOEL and ELI Invite You to “Greentech 2019”

Posted on August 26, 2019 by Bradley Marten

Co-authored by Scott Fulton and Rob Kirsch

This fall, on October 1-3, 2019, ACOEL is partnering with ELI and other organizers to convene “Greentech 2019” in Seattle, a first of its kind conference bringing tech industry leaders together with environmental lawyers, policy makers and academics.  Speakers on five industry panels will discuss how environmental laws can promote, and sometimes obstruct, our ability to deploy new technologies that have the potential to be protective of natural resources and the environment.  See www.greentechconference.org.  New ACOEL member Paul Hagen will moderate a panel and is a member of the conference Planning Committee. Speakers include leaders from the energy, manufacturing, transportation, services and food industries.

The Greentech Conference is an outgrowth of a certain amount of whiskey being drunk by the three of us at last year’s ACOEL meeting in Jackson Hole.  We were discussing ELI’s upcoming 50th Anniversary celebration (Scott is ELI’s President) and hit on the idea of hosting a conference in Seattle focusing on the next 50 years of environmental law. That future, we have come to believe, will be informed as much by technology as by environmental regulation. And in shaping it, ELI and ACOEL will want to be at the table. A good and concise summary of some of the ideas that will be addressed at the Greentech Conference can be found in ACOEL Member Dan Esty’s 2017 monograph entitled “Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability,” and in Dan’s forthcoming book, “A Better Planet:  Big Ideas for a Sustainable Future.” Also setting the stage is a related piece that Scott did with tech guru Dave Rejeski called, “A New Environmentalism: The Need for a Total Strategy for Environmental Protection."

Numerous other ACOEL members are thinking about, and acting on, the “big ideas” being discussed at the Greentech Conference. The program can be downloaded here. We hope that you and your colleagues can attend and that you will help get the word out about this important event.

In addition to ELI, and Brad and Paul’s law firms and Rob’s former law firm, the conference is sponsored by a number of other ACOEL member organizations, by major technology companies (Amazon, Google, Microsoft, Intel, and First Solar), innovative manufacturers, universities and NGOs.  Sponsorship information can be found here. If you – or a colleague – are able to join us, you can register here. There are special discounted rates for public sector and academic attendees, and an early-bird discount that is available for all through August 31.

Please feel free to forward this invitation to your clients, students, cohorts and friends.

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Posted on August 23, 2019 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Banning PFAS in Food Packaging – Should states do the job of the FDA?

Posted on August 21, 2019 by Kenneth Gray

In June, Maine joined Washington State in presumptive bans on all per- and polyfluoroalkyl substances (PFAS) in 2022, if their respective state agencies make findings that there are “safer alternatives.” These laws were adopted in response to public and environmental group pressures over the presence of some PFAS in certain food packaging, the general ubiquitous and persistent nature of other PFAS, and the desire to “do something” about PFAS.

These state PFAS laws were adopted despite the fact that the U.S. Food and Drug Administration (FDA) regulates PFAS in food contact applications. Since 2000, FDA has authorized the use of food contact substances through the Food Contact Notification program and certain PFAS are currently authorized for use in specific applications related to their non-stick and grease, oil, and water-resistant properties. For example, the Maine legislature barely considered FDA’s regulations in its deliberations on the state law.  

While some PFAS do indeed pose risks under particular exposure scenarios, these new food packaging laws cast a broad net over the entire class of compounds. Apparently applying the discredited “precautionary principle,” these laws lump all PFAS together, despite known differences in toxicity, persistence, and fate. State legislators and administrators are taking independent action even as the FDA, the U.S. Environmental Protection Agency (EPA) and other national health agencies struggle with whether the PFAS compounds have enough commonalities to even identify appropriate subclasses of PFAS compounds.

In Maine, the law leaves important decisions to the Maine Department of Environmental Protection (DEP) and the sister agencies it may call on, none of which have experience regulating manufacturing of food packaging, much less understanding or regulating health issues related to food. FDA’s work on food additives requires federal funding and expertise. Maine’s law allows the DEP to force manufacturers to provide information on chemicals, potential for harm, and alternatives, but gives the department no additional resources to analyze that information. In its determinations, the DEP may consider the extent to which the food package is adequately regulated by the federal government or a Maine agency.  This begs the question --Can DEP really do FDA’s job better?  As to PFAS regulation, there is no funding mechanism.

A curious feature of the Maine law exempts the manufacturer of a food or beverage product in a food package as long as the manufacturer has less than $1 Billion in annual national sales of such food and beverage products (presumably U.S. sales). Which raises an additional question -- If a package really poses serious risks to food or beverages, is it sensible public policy to allow manufacturers with lower revenues to market those products?

Of course, the larger question is whether we are better off with individual states regulating the components of food packaging, since a significant amount of food packaging is created for national and regional markets. Not only is there no guarantee that different states will arrive at the same levels of concern for the same chemicals, but if the differing PFAS standards for drinking water are any indication, decisions on PFAS bans and alternatives will vary. It is not hard to imagine the difficulties and frustrations that packaging formulators will have trying to get packaging products to market.

To make the future more interesting, the Maine law also creates a new program regulating food contact chemicals, adopting multiple provisions generally modeled on the state’s Toxic Chemicals in Children’s Products law. DEP may create a list of food contact chemicals of high concern (up to 10, but since structurally related chemicals are included, entire classes can be listed), based on toxicity, persistence, and other factors. The DEP may then designate such food contact chemicals as “priority,” which triggers notice to DEP if more than 100 ppm in the package as a contaminant, or if they are intentionally added above a practical quantitation limit. (If there is no notice to the DEP, the package is simply banned.) The DEP may also request information for chemicals of concern and an assessment of alternatives, or may assess a fee and then secure an assessment by a contractor. And the DEP may impose fees for its work, and for managing information it receives. Perhaps most significantly, Maine may ban priority chemicals if there is a “safer alternative.”

Surely, we live in interesting times.

Trump Track: Speed Bumps on the Road to Species Protection

Posted on August 21, 2019 by Rick Glick

On August 12, 2019, the Trump Administration adopted three new rules in an attempt to rein in the Endangered Species Act (“ESA”).  The rules would undo a rule in place since 1978 affording protections for “threatened” species similar to those listed as “endangered”; limit “critical habitat” designations where species do not now occur; and most controversially, inject economic considerations into the listing process.

The ESA was enacted in 1973 and signed into law by President Nixon.  At that time, environmental protection was not seen as the partisan issue it is today.  The Clean Water Act, Clean Air Act and formation of the EPA all came during Nixon’s watch with near-unanimous support in the Congress.  Speaking on the ESA, Nixon said:  “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.”

In enacting the ESA, Congress used uncommonly crisp and unambiguous language.  For example, listing decisions must be “solely on the basis of the best scientific and commercial data available.”  Further, the Act directs federal agencies to “utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.” 

The courts have given these words robust interpretations, beginning with TVA v. Hill, which halted the construction of the Tellico Dam to protect endangered snail darters.  Since then scores of ESA cases have protected listed species.  In the Pacific Northwest, these cases often focus on salmon, northern spotted owls and shore birds at the expense of hydropower and the timber industry.

The ESA still enjoys broad public support, but has been on the Republican hit list for decades due to the economic effects associated with species protection.  Of particular note for this Administration, ESA restrictions stand in the way of oil and gas extraction and pipelines.  Yet in an era when the White House and both houses of Congress were all in Republican hands, the Administration was unable to get passed any limitations on ESA jurisdiction. 

The new rules represent the Administration’s shot at reducing the scope of the ESA through policy and rulemaking.  Here is a brief summary of some key elements:

Section 4(d) Rule

Under Section 4(d) of the Act, the fish and wildlife agencies can establish protections or exemptions for certain activities, known as 4(d) rules.  Since 1978 the agencies used a “blanket rule” that treated “threatened” species the same as those designated “endangered. The new rule reverses that default position, and requires a specific 4(d) rule custom made to provide additional protection for threatened species.  This change benefits industry in that the prohibition on “take” of listed species will not automatically apply to threatened species.  Of additional importance is the fact that the new 4(d) rules will take time to develop.  In the interim, presumably development may proceed without fear of prosecution for take of a threatened species.

Critical Habitat

Historically, the agencies have on occasion elected to list as “critical habitat” areas in which listed species do not now occur, but potentially could.  In Weyerhaeuser v. Fish and Wildlife Service, the U.S. Supreme Court suggested that such designations would not be available for areas that needed improvement to be good habitat, and remanded the matter back to the FWS.  The new rules require designation of areas as critical habitat where listed species currently exist before considering unoccupied areas, and then imposes new standards to demonstrate the species will benefit if the designation is extended to unoccupied areas. 

The new rule would also allow the agencies to decline designation of critical habitat if they find doing so “not prudent.”  This includes changes to habitat from climate change.  The rationale is that the government cannot control climate change, so taking steps to protect such habitat would be futile.

Section 7 Consultation

ESA Section 7 requires federal permitting or action agencies to consult with the fish and wildlife agencies about potential “jeopardy” to listed species.  The new rule would affect the “baseline” used for such determinations.  The jeopardy determination will apply only to the new activity; consultation is not required for ongoing activities that the action agencies lack discretion to change.  

Assessment of ongoing activities is particularly relevant to the continuing litigation over the application of the ESA to the Federal Columbia River Power System, a series of hydropower and flood control dams in the Snake and Columbia Rivers.  At the heart of the litigation is whether the existence of four Lower Snake River dams should be presumed, limiting evaluations for jeopardy to modifications to the projects or operations.  The agencies argued that the Corps of Engineers, which operates the dams, have no discretion to modify their purpose and therefore the status quo is the proper baseline.  Courts to date have not found this argument persuasive.

Listing Determinations

Perhaps the most controversial rule change concerns consideration of economic impacts in making a listing or delisting decision.  As noted above, the ESA mandates that listing determinations must be based “solely on the basis of the best scientific and commercial data available.”  The previous rule added for emphasis that the listing must be made “without reference to possible economic or other impacts of such determination.”  The new rule eliminates that language and would allow consideration of economic effects, but like the statute, also specifies that the designation must be based on the best available science.  The Administration has offered no plans on how this analysis will be conducted.  Environmental groups, not surprisingly, see this as a back door means of inserting economics into the decision-making.

Conclusion

There is broad scientific consensus that biodiversity among plants and animals is essential to long-term survival of life on the planet.  Species go extinct or are imperiled every day, often but not always due to human activity.  The ESA was intended address the manmade impacts to wildlife, and indeed there have been stunning successes—the bald eagle, grizzly bear and gray wolf to name a few. 

But the economic dislocations from ESA implementation in many instances have been substantial, often without concomitant species recovery.  Columbia River salmon are still in trouble after billions of dollars spent.  Protection of old growth timber for northern spotted owl habitat led to severe hardships to communities reliant on the forest products industry, only to find that the predation of spotted owls by barred owls could lead to the former’s extinction. 

There is nothing easy, or cheap, about preventing extinction.  It is hubris to suggest government can fix the problem.  But, having created much of the problem, it seems we have to try.  Our effort must extend beyond only saving the “charismatic mega fauna” that dominate media reports, like salmon and polar bears.  Although the public generally supports saving iconic species, support wanes for lesser known species. That is particularly so in rural communities with natural resource-based economies.  Yet these relatively unknown species also play essential roles in the ecosystem. 

The ESA, as well as the other major environmental statutes, is in need of reform to address the unintended consequences of the Act.  That is a task only Congress can perform, but until they do the executive and judicial branches will fill the vacuum.  In the meantime, environmental groups and some states have announced plans to challenge the new rules, which means another several years of litigation and uncertainty. 

That is not a recipe for sound policy, but is what we have until the national consensus on the environment returns.  And no, I’m not holding my breath either.

The Bureau of Land Management’s NEPA Review of Land Plans: Is Net Zero A Reasonable Alternative?

Posted on August 20, 2019 by Robert Uram

The Federal Land Policy and Management Act (FLPMA) requires the Bureau of Land Management (BLM) to review and revise its land use plans periodically. In the current round of reviews, the BLM is seeking to roll back protections for areas of critical environmental concern, to reduce lands managed for wilderness, and to greatly expand lands available for oil and gas and coal leasing. Since production and consumption of oil, gas, and coal result in the release of vast amounts of carbon, these changes threaten to worsen the outlook for global warming.

Before it can adopt these land use changes, the BLM must, of course, comply with the National Environmental Protection Act (NEPA). Now nearing its 50th anniversary, NEPA is one of the most important federal environmental laws. While NEPA does not mandate that a federal agency take actions that are most protective of the environment, it does require decision makers to fully disclose the environmental impacts of any major federal action in an Environmental Impact Statement. Additionally, an EIS must present and consider reasonable alternatives to a proposed federal action that might mitigate environmental impacts. Consideration of alternatives is at the heart of an EIS. An EIS that does not cover a full range of reasonable alternatives is deficient.

Increased future fossil fuel development on public lands will lead to enormous increases in climate change gases. The fact that fossil fuel development affects global temperatures has long been clear to federal decision makers. Indeed, as long ago as 1979, the Programmatic EIS for the Federal Coal Leasing program warned that coal use was a contributor to greenhouse gases and could result in increased temperatures of 2-3° Celsius. The BLM will certainly make some attempt to disclose these impacts, but mere disclosure is not enough. The BLM needs to present meaningful alternatives that would address climate change concerns.

To date, the BLM has been considering a short list of alternatives in its land use planning EISs,  a no-action alternative that would keep the current land use plan in place, and several alternatives that vary the amount of protection for sensitive lands and the extent of lands open to fossil fuel development. If Judge Skelly Wright (the author of the seminal NEPA case, Calvert Cliffs v. Atomic Energy Commission) were alive today, he would undoubtedly call the BLM’s approach “crabbed.”

In particular, the BLM’s alternatives fail to present the decision maker with an alternative that would directly address the increase of carbon emissions. Many authoritative analyses, including the UN Intergovernmental Panel on Climate Change, have concluded that the world needs to achieve net zero carbon emissions economy-wide by 2050 to limit the temperature rise to 1.5˚C above pre-industrial levels. Net zero carbon dioxide can be achieved by balancing carbon emissions with carbon removal or offsets or simply eliminating carbon emissions altogether.

To comply with NEPA, the BLM needs to add a “net zero” land-use planning alternative that would reduce or mitigate net carbon impacts from activities in the planning area to zero by 2050 or another date certain. This alternative would, by necessity, constrain fossil fuel development and provide for offsetting carbon reductions. A net zero alternative can be fully consistent with FLPMA.

Net zero land use planning is not unrealistic. Many countries, states, local governments, and private businesses have or will adopt net zero policies, and many development projects are being planned to achieve net zero now. Even very large carbon producing projects can achieve net zero emissions. For example, a master planned community in southern California that will build 21,000 homes and 11.5 million square feet of commercial and office space associated with 60,000 jobs was originally planned with little consideration of climate effects. Years of litigation, environmental analysis, and private initiative transformed the project into a net zero project by incorporating a combination of onsite and offsite measures.

To achieve net zero, the project will design homes and business to be energy efficient and use solar power, will install an electric vehicle charging station in every home and build 4,000 other electric vehicle charging stations, half in the community and half offsite. In addition, the project will provide subsidies for converting public transit buses to electric buses and creating an electric school bus program within the community. Offsite, the project will invest in carbon reducing measures in the surrounding area as well as elsewhere in California and other locations.

In these critical times for the planet, NEPA can play an important role in showing a path to net zero. Net zero alternatives for the BLM’s land-use plans and other activities would illuminate the role public lands plays in contributing to (and potentially avoiding) the adverse effects of global warming and identify changes needed to reach net zero for the proposed federal action. It might be too much to hope for that this administration will seize the opportunity to adopt a net zero alternative, but the analysis of what is needed will be informative and can be a blueprint for future administrations.

Does The Mineral Owner’s Dominance Foreclose Environmental Advocacy by the Surface Owner?

Posted on August 8, 2019 by Thomas Hnasko

Since the beginning of recorded mineral law, the owner of the mineral interests has enjoyed an elevated status in its relationship with the surface owner, resulting in the universally accepted notion that the mineral estate is the “dominant” estate.  Based on this long-standing characterization, courts have traditionally declared that, even where the deed creating a split estate is silent, the mineral owner enjoys an implied easement to use so much of the surface estate as is reasonably necessary for the exploration and production of minerals.  A recent, unpublished state court decision explored the intriguing issue of whether the mineral estate’s dominance allows its owner to prevent the surface owner from advocating for environmental protections for the surface in a public forum.     

In the case of Lone Mountain Ranch, LLC v. Santa Fe Gold Corp., No. D-101-CV-2013-02581, in which the author represented the surface estate owner, the mineral estate owner asserted that the surface owner’s participation in public processes designed to impose environmental protections for the surface constituted a violation of, or interference with, the mineral estate’s easement for access to and use of the surface for mineral development. The mineral estate owner claimed that such participation by the subservient surface estate would be detrimental to the development of the minerals and, therefore, contrary to the “dominance” enjoyed by the mineral estate.  At bottom, the mineral estate owner claimed that its easement deprived the surface owner of its right to advocate in a public forum for environmental protection of the surface estate.

Lone Mountain, as the surface estate owner, countered that such an interpretation would transform an access easement into a restrictive covenant and re-write the deed reservation splitting the estates to include promissory and obligatory terms that have nothing to do with physical access.  After hearing from professorial experts in the oil and gas and mineral disciplines, the court agreed with Lone Mountain and held that the dominance enjoyed by the mineral estate refers only to physical access, which the surface owner has no right to obstruct.  The court reasoned that an implied or express easement for access and development does not have the characteristics of a restrictive covenant and thus could not foreclose protected public participation and advocacy for environmental protections of the land.  As a result, instead of acting as a mere bystander to mineral development, a surface owner under a split estate deed may contest and resist mineral development under that estate based on environmental concerns that are unrelated to issues of physical access granted by the easement.

“Go back to where you came from” – a personal journey

Posted on August 7, 2019 by Brenda Mallory

The first time that I remember being told “go back to where you came from,” I was 18. Although not the first time I was targeted because of my race, it was the first time I remember those words. I had just finished my freshman year at Yale and I travelled with three African-American friends from Connecticut to Laconia, New Hampshire for a karate tournament. We were staying in a cabin in an easily forgettable location. In the morning as we loaded the car to leave for the event, we noticed several bunnies grazing in the grass. As kids from an industrialized, urban area, we watched with excitement and nervous laughter as the bunnies did their business and then hopped away. The spell was broken by an angry older white man, who hobbled out of a nearby building, yelling at us to get out of there, to go back to where we came from. We were stunned. The young men in the group responded in protest: we weren’t doing anything and we weren’t going anywhere. Of course, we were leaving but we would not leave until he went back in his cabin. Despite the bravado, we were all shaken and a little on edge when we returned to sleep for the night.

The next time, I was about 23. It was a quiet Sunday morning and I was walking down a major street in my hometown of Waterbury, Connecticut. I was in law school and had escaped for the weekend; I was on my way to the bus station to return to New York. The morning calm was broken by a car screeching around the corner, loud music blaring out the windows, carrying a rowdy bunch of white boys. One of them leaned out the window and yelled, “Hey, Ni*ger,” and some version of “get out of here or go back where you belong.” It was the first time I can remember having the N-word slapped upside my head in such a hostile and aggressive way.

The next time, I was about 25. I was walking through the North End of Boston with my white Jewish boyfriend, now husband, Mark. Mark had been staying with friends and we were picking up his things. As we passed a group sitting on a stoop, someone yelled, “Get out of here,” followed by, “There was a time they would have been killed for just walking down this street.”

Fast forward about 10 years for the last example I will share. More typical of recent encounters, the specific words were not used, but the message of not belonging or being suspect was clear. I’m in my mid-30s, a partner in a fancy law firm, living in an upper-class neighborhood in Montgomery County, Maryland. I am working a reduced schedule to have more time with my child and am at home on a Friday. The doorbell rings and I answer it holding my two-year-old. The woman standing on my porch, seeming a little annoyed, says, “Hi, do you know how long they’ve lived here?” Seriously not understanding, I ask “who?” She says, “the owners.” With the expressive eyes of my father, I say, “I’m the owner.”

My personal experiences are not unlike those of many African-Americans and other people of color—and much less traumatic than many. Yet, the memories sting and they stay with me. I have always viewed my experiences as evidence of isolated pockets of intolerance, with the mainstream arc of justice and equality bending in the right direction. My message to myself was just keep striving for excellence in the spaces you occupy and, one interaction at a time, my success will help overcome stereotypes and calm fears, leading to a better world for others.

At a time when hateful and divisive rhetoric is growing and spewing from our highest political leaders, it is clear that the journey to our more perfect union and the best ideals for this nation will take more concerted efforts, vigilance, and focus.  And so, I was pleased to join my former Obama Administration colleagues in issuing the Washington Post Op Ed, We are African Americans, we are patriots, and we refuse to sit idly by, committing to invest in the hard work to make this a great country, for all. As the Op Ed concludes, “We plan to leave this country better than we found it. This is our home.”

Brenda Mallory is the Director and Senior Counsel for the Conservation Litigation Project, a project created to protect the environmental and conservation values on public lands. During the Obama Administration, Brenda served as the General Counsel for the White House Council on Environmental Quality. Before then, Brenda held various senior positions at the U.S. Environmental Protection Agency, including as the Acting General Counsel and the Principal Deputy General Counsel. She also led the legal office supporting EPA’s pesticide and toxics programs. Brenda spent 15 years in private practice, chairing her firm’s Natural Resources Practice Group. She has been a Fellow in the American College of Environmental Lawyers since 2016.

Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

Because I Didn’t Say So!

Posted on August 5, 2019 by Brian Rosenthal

Major sources of air pollution must obtain a Clean Air Act Title V permit under their state’s EPA- approved implementation plan.  Permits, of course, can be challenged.  By petition to the EPA Administrator, the Sierra Club challenged a Utah permit in part based on a challenge to the standard used when the permit was issued in 1997! 

The challenge was denied.  The D.C. Circuit has exclusive venue for nationally applicable regulations or orders or issues of nationwide scope.  So, Sierra Club appealed to the D.C. Circuit but also filed a protective appeal in the Tenth Circuit in case the D.C. Circuit’s exclusive venue was not controlling.  Good move.  Because the issue involved a single permit from a single state, and because the Administrator used a “novel” interpretation of Title V limited to the specific circumstances presented and did not make a determination of nationwide relevance, venue was found to properly lie in the Tenth Circuit. 

It may be creative to conclude that venue is lacking because “the circumstances presented” by the federal air permit challenge are local in nature, but isn’t that always true in a decision on an air permit source with impacts in a single state?  If the Administrator had used other language intimating general application of a standard without a specific finding of a matter of nationwide effect, one has to wonder whether that would produce the same result.  So a word to the careful practitioner.  File the protective appeal in the issuing state’s circuit! 

“DISCARDED” or “NOT DISCARDED”: That Is the Question (or “Asked and (finally) Answered!”)

Posted on July 31, 2019 by Karen Crawford

On July 2, 2019, the D.C. Circuit Court of Appeals denied a petition brought by an environmental group for review of EPA’s Transfer-Based Exclusion for secondary hazardous materials in California Communities Against Toxics v. EPA (D.C. Cir. July 2, 2019) (No. 18-1163).  The court found that “EPA did not act contrary to RCRA in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily ‘discarded’ each time they are transferred from a generator to a reclaimer along with payment”, and that “EPA has provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem RCRA addresses where they meet conditions EPA concluded were adequate for safe transfer and legitimate recycling.”  This is exclusion is set forth a 40 C.F.R. § 261.4(a)(24).

Background

In 2008 EPA promulgated the Transfer-Based Exclusion, along with the Generator-Controlled Exclusion, to encourage and expand the safe, beneficial recycling of hazardous secondary materials when carried out in accordance with specified “legitimacy factors”.  After challenges to the rule by both environmental and industry groups, EPA replaced the original Transfer-Based Exclusion with a new rule known as the Verified Recycler exclusion.  This new rule was also challenged and was vacated in 2017 when the appellate court reinstated the original rule with requirements added in 2015 to cover emergency preparedness and containment.  American Petroleum Institute v. EPA, 862 F. 3rd 50 (D.C. Cir. 2017).  On rehearing, the court expanded the exclusion to cover spent refinery catalysts.  American Petroleum Institute v. EPA, 883 F 3rd 918 (D.C. Cir. 2018).  Later the same year, without further notice and comment, EPA published the Transfer-Based Exclusion as modified by the D.C. Circuit throughout the 10 years of challenges as a final rule entitled Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule, 83 Fed. Reg. 24,664 (May 30, 2018), resulting in another challenge and the July decision of the D.C. Circuit Court of Appeals.

RCRA Authority

While Petitioners did not contend that the act of transferring the waste or of reclamation constitute “discard,” they did contend that a generator’s payment to a reclaimer to accept such material necessarily indicated the material has negative value to the generator, and thus the transfer constitutes a means of getting rid of, or “discarding”, the material.  RCRA does not define “discarded material” or address payment, but the court found precedent in its own prior decisions which foreclosed petitioners’ contention that payment is determinative of “discard”.

In particular, the court concluded that Congress had not directly resolved whether “discarded material” must include hazardous secondary materials that a generator paid a reclaimer to accept.  It then moved to the question of whether EPA’s interpretation is “based on a permissible construction of the statue,” (i.e., whether or not it is the only permissible interpretation) and found support for EPA’s decision to equate legitimate recycling with lack of “discard”.  The court noted that EPA had considered the payment to reclaimers issue and studied the market forces, and had determined there were various reasons for payments to recyclers, including lack of competition in recycling markets, cost savings compared to compliance with Subtitle C requirements, and the need for capital costs to develop and implement the necessary recycling infrastructure and market.  The court concluded that instead of ignoring the relevance of the payment issue, EPA had addressed it in the Legitimacy Factors analysis but declined to make it dispositive, a permissible interpretation of “discard” that was not contrary to RCRA.

Reasoned Basis

The court also concluded that EPA’s Transfer-Based Exclusion was not arbitrary and capricious as the conditions imposed under the exclusion ensure that the hazardous secondary materials do not end up in a landfill or incinerator but remain in a continuous stream or flow of production within industry processes, and they cover potential risks by requiring third-party reclaimers to handle them properly and safely and to not discard them.  Those provisions address excessive accumulation, requiring reclamation of at least 75% of hazardous secondary materials that a reclaimer obtains over a calendar year.  In addition, residuals must be managed in compliance with applicable regulations, including Subtitle C, when “discarded.”  Because there is no statutory requirement that these conditions be identical to Subtitle C requirements, the court determined that EPA’s response was not arbitrary and capricious.

The court also reviewed EPA’s explanation for its changed position as to whether the Transfer-Based Exclusion’s restrictions and conditions were adequate.  The court noted that recycling management and controls had improved over time due to enforcement and to generator audits of reclaimer performance and financial viability. As a result, EPA’s restrictions and conditions were found to be sufficient to ensure safe recycling activities.

Conclusion

The impact of this decision on the regulated community will depend on whether the Transfer-Based Exclusion, as modified by EPA in 2015, was incorporated into the state’s hazardous waste regulations, as well as the authorization status of the state; however, those states that delayed adoption of the rule, awaiting the final outcome of this long legal battle, now have clearer direction. 

This thoughtful and practical opinion seems to provide EPA with a tutorial on promulgating a defensible regulation, and perhaps even a final answer on a long debated rule!  This author would like to see EPA use the opinion as a template to try again with other important, but now vacated rules.  How about a new comparable fuels rule?

The Supreme Court’s Most Important Environmental Law Decision in 35 Years

Posted on July 30, 2019 by Robert Brubaker

As our esteemed colleague John Cruden is fond of saying, administrative law is a subset of environmental law.  My vote for the most important Supreme Court environmental law decision in 35 years goes to the administrative law case (involving not environmental rules but the interpretation of a Department of Veterans Affairs rule) handed down on June 26, Kisor v. Wilkie.

I believe Kisor will prove to be the watershed case that that marks a consensus on shifting core principles of administrative law for decades to come.  To me, it continues what I saw as Justice Scalia's project to reform reflexive deference to agency “interpretations” (with the GHG Tailoring Rule case, UARG v. EPA, being a notable milestone, and probably also the thinking behind his final vote, on the extraordinary Clean Power Plan stay).  What are the odds that Auer v. Robbins is the unnamed case that Justice Thomas was referring to in his humorous anecdote at former Justice Scalia’s memorial about “Nino’s” outrage at “one of the worst ever” decisions of the Court (that Nino wrote)?   

Kisor goes a long way toward fulfilling Justice Kennedy's 2018 recommendation in his final opinion (Pereira v. Sessions) to reconsider "the premises that underlie Chevron and how courts have implemented that decision."  And, it further cements Justice Kagan's observation, in her 2015 Scalia Lecture at Harvard that "we're all textualists now."  It clearly articulates and shines a bright and permanent light on the concern about administrative agencies pushing too far at times in combining the power to make, interpret, change, administer, and enforce binding law, with too little independent judicial oversight.

The four separate opinions in Kisor distinguish judicial review of agency interpretations of their own rules (Auer deference) from agency interpretations of statutes (Chevron deference), but there are some inevitable parallels.  Kisor establishes a three-step analysis for agency interpretations of its own rules: 1) is the rule genuinely ambiguous? 2) if so, is the agency’s interpretation of the genuine ambiguity reasonable? and 3) even if an agency interpretation of a genuine ambiguity is reasonable, is it of a “character and context” that justifies deference?  Step 1 is strikingly similar to the pre-Chevron deference analysis under Skidmore (acceptance of an agency’s interpretation is commensurate with its “persuasive power”).  As Justice Kagan put it: “serious application of these tools [of construction, such as text, structure, history] therefore has use when a regulation turns out to be truly ambiguous.  The text, structure, history and so forth at least establish the outer bounds of permissible interpretation.”  Steps two and three of the Kisor framework add specificity and rigor to the judicial inquiry not spelled out in Skidmore.  Importantly, Kisor casts a highly skeptical eye on agency interpretations that circumvent appropriate procedural safeguards, or veer outside the lane of the agency’s expertise, or conflict with a prior agency construction.

It is significant that Kisor is authored by Justice Kagan, and joined by Justices Ginsburg, Breyer (noted for his command of administrative law), and Sotomayor, and joined in part by Chief Justice Roberts.  This is not a majority that can be characterized as anti-administrative state or as sponsors of a partisan Republican or conservative agenda.  Chief Justice Roberts wrote a short concurring opinion, expressing his view that the “distance between the majority and Justice Gorsuch is not as great as it may initially appear” because the majority’s catalog of the “prerequisites for, and limitations on” Auer deference has much in common with Justice Gorsuch’s list of the reasons that a court might be persuaded to adopt an agency’s interpretation.  Justice Gorsuch wrote a 42-page concurring opinion, joined by Justice Thomas and in parts by Justices Kavanaugh and Alito, touring the history of the Court’s deference jurisprudence and expressing a preference for overruling Auer and reverting to Skidmore deference.  Justice Kavanaugh wrote a concurring opinion, joined by Justice Alito, opining that “rigorously applying footnote 9” in Chevron (exhorting courts to “exhaust all the ‘traditional tools’ of construction” before concluding that an agency rule is ambiguous) should lead “in most cases to the same destination” as Justice Kagan’s majority opinion and eliminate any basis “to put a thumb on the scale in favor an agency” interpretation.

The boundaries on administrative powers and discretion are placed by Kisor in the hands of the judiciary, with paramount responsibility to judge conscientiously based on a searching and independent inquiry into the relevant legal and factual circumstances involved, and not based on some dogmatic, oversimplified, or wooden formula.  Deference cabined by a diligent judiciary is better than deference too readily or haphazardly granted or denied.  Justice Kagan's detailed instructions ("we mean it" she wrote) to judges handling administrative interpretation cases may well do more good for the opponents of Auer deference than an outright overruling of Auer.  If the Auer precedent had been overruled, instead of being "restated" and "somewhat expanded on," there would be more uncertainty and inconsistency, over a longer period of time, about exactly what replaces Auer deference.  The implicit call to legislators and administrators to pay better attention to the text and clarity of the laws they write is constructive too.  Good work Justice Kagan.