Why We’re Taking a Hard Look at Nuclear Power Plant Closures

Posted on November 13, 2018 by Kenneth Kimmell

Last month the Intergovernmental Panel on Climate Change (IPCC) issued a sobering report. Based on the most up-to-date scientific evidence, the report warns that we are rapidly losing any appreciable chance of meeting the Paris climate agreement goal of keeping temperature increases to “well below” 2 degrees Celsius above pre-industrial levels.

The report also makes clear that if we fail to meet this goal, the consequences will not only be severe, but they will be experienced sooner than expected. (For more information on the IPCC report, see our blog series)

In stark defiance of science, here in the United States the federal government has abdicated its leadership role and is now taking a wrecking ball to the pillars of progress—the Clean Power Plan, our nation’s first limits on CO2 from power plants; fuel economy/greenhouse gas emission limits for cars and trucks; and rules to limit methane emissions from oil and gas operations.

While a number of states, cities, businesses, universities and others have stepped up admirably, many observers have concluded that there is a high degree of uncertainty about whether we will meet or even get close to the pledge we made as part the Paris Agreement—a 26 to 28 percent reduction from 2005 levels by 2025. This graph, adapted from a study performed by the Rhodium Group, depicts this:

US projected emissions compared to the US Paris pledge. Source adapted from Taking Stock 2018, Rhodium Group

These sobering realities dictate that we keep an open mind about all of the tools in the emissions reduction toolbox—even ones that are not our personal favorites. And that includes existing nuclear power plants in the United States, which currently supply about 20 percent of our total electricity needs and more than half of our low-carbon electricity supply.

A new UCS report, The Nuclear Power Dilemma: Declining Profits, Plant Closures, and the Threat of Rising Carbon Emissions, indicates that more than 22 percent of total US nuclear capacity is unprofitable or scheduled to close over the next five to 10 years. The report also indicates that without new policies, the electricity generated by these and other marginally economic nuclear plants is likely to be replaced in large part with natural gas-fired generation (although this will vary from plant to plant). If this occurs, cumulative carbon emissions in the electric sector could increase by up to 6 percent between 2018 and 2035.

While a 6 percent increase in emissions doesn’t sound that sizable, emissions from the electric sector must decrease, rapidly and substantially. The National Research Council has found, for example, that power plant emissions must decrease by 90 percent by 2040 to meet US climate goals.

Most of that reduction will be achieved by using electricity more efficiently, expanding increasingly cheap solar, wind, and energy storage, modernizing our grid, and building more transmission lines to connect these renewable sources to load centers. We are counting on these approaches to replace capacity as coal plants close; cut down on an overreliance on natural gas in the short term and displace it over time; and increase overall electricity supply to pave the way for the electrification of transportation, space and water heating, and industrial processes.

But if nuclear power plants close prematurely, we add a fourth task—replacing lost nuclear capacity. While efficiency, renewables, transmission and storage may be up to the task, governments must adopt policies that assure that we will decarbonize even if these resources fall short of our expectations.

Factoring all of these considerations in, our new report calls for proactive policy to preserve nuclear power from existing plants that are operating safely but are at risk of premature closures for economic reasons or to ensure that lost nuclear capacity is replaced with carbon-free sources.

The best policy is an across-the-board national carbon price, which UCS has been advocating for years. Another policy solution that hasn’t received as much attention is a national low carbon electricity standard. This policy builds on the success of state renewable electricity standards but would include other low or zero carbon energy technologies. Either option would help the existing nuclear fleet, substantially boost solar and wind energy, and substantially decrease natural gas and coal use, while reducing US power sector carbon emissions by up to 28 percent cumulatively by 2035. These are durable policy solutions. Rather than a temporary fix that throws money at the problem, these policies address a systemic market failure that will help level the playing field for nuclear and other low carbon technologies in the long-run.

In the absence of national carbon price or low carbon electricity standard, the report calls upon states—which have plenary authority over the electric sector—to take proactive measures of their own. For example, California’s strong renewable energy and energy efficiency standards and climate policies mean that it can likely replace the Diablo Canyon nuclear facility by 2025 with clean energy and continue to drive down emissions. New York, Illinois and New Jersey have all adopted policies to provide financial support for distressed nuclear power plants that value their carbon-free power attributes. At the same time, these states have boosted renewables and efficiency, and sought to ensure that preserving existing nuclear power does not in any way undermine expansion of renewables.

The UCS report does not argue for subsidies for any specific plants. That case will have to be made in state-specific forums. Should states decide to support nuclear power plant subsidies, our report calls for them to be temporary and subject to periodic reassessment. And companies seeking subsidies must open their books and allow the public and regulators to make sure that the subsidies are needed and cost-effective, and that the same level of carbon free power cannot be provided during the relevant time period with less costly options.

Finally, our report makes clear that we would never support financial assistance that is tied to also subsidizing fossil-based energy sources, such as the rumored Trump administration proposal to bailout coal and nuclear plants based on spurious national security grounds.

Our report also factors in the critical issue of nuclear safety. Since its founding, UCS has been deeply concerned about the risks posed by nuclear power. An accident or terrorist attack at a US nuclear reactor could severely harm public health, the environment, and the economy. For this reason, UCS has worked as a nuclear power safety and security watchdog for more than 40 years. Consistent with our longstanding advocacy for nuclear safety, subsidies should be considered only for plants that at a minimum earn the highest safety rating from the Nuclear Regulatory Commission. This ensures that subsidies are not used to correct safety problems caused by bad management and gives under-performing plants an incentive to improve to be eligible for subsidies. And our report in no way backtracks from our longstanding insistence that there be strict oversight from the Nuclear Regulatory Commission, and that nuclear power plant operators continue to make their plants safer by expediting the transfer of spent fuel to dry casks, bolstering emergency management procedures, increasing emergency planning zone sizes, and other measures outlined in numerous UCS reports, including Preventing an American Fukushima.

Nuclear power plants are controversial, for legitimate reasons. But the IPCC report reminds us that we are running out of time and will have to make hard choices. Preserving the capacity of safely operated nuclear plants or ensuring that this capacity is replaced with zero carbon alternatives is an imperative that cannot be ignored.

Flint Water, Legionnaire’s Disease, and Corruption in Office

Posted on November 12, 2018 by Jeffrey Haynes

On August 20, 2018, a Michigan state district court judge bound over Nick Lyon, the current director of the Michigan Department of Health and Human Services, for trial on two counts of involuntary manslaughter and one count of misconduct in office arising out of the deaths of two men from Legionnaire’s disease at a Flint-area hospital. In a rambling opinion read from the bench, district judge David Goggins found that two elderly men with prior health problems contracted Legionnaire’s disease at Hurley Hospital and died in 2015 because the health department director failed to give public warnings until January 2016 of outbreaks of the disease in the Flint area in 2014-2015.

Contradictory testimony linked Flint water to the outbreaks generally but did not establish that Flint water was the cause-in-fact of spreading the disease.  The challenge of establishing that Flint water was the specific source of the disease for the decedents was made more difficult by the fact that the hospital was already hyperchlorinating its water supply.  In theory, at least, hyperchlorination should have eliminated the Legionnaire disease toxin.

Apart from the causation question, the result does not easily square with Michigan law. In Michigan, misconduct in office is a common law felony. Caselaw defines misconduct in office as including (1) conduct in the exercise of the duties of the office or done under color of the office; (2) discretionary acts that were either misfeasance or malfeasance; and (3) acts that represent “corrupt behavior.” Examples of corrupt behavior would be enriching oneself or one’s friends while performing duties of one’s office.

The public health statute requires public notice based on the director’s “determination” that an “imminent danger to the health or lives of individuals” exists.  The court found probable cause to believe that the director’s failure to give notice of an outbreak of Legionnaire’s disease was corrupt behavior.

The preliminary examination transcript is thick with evidence of negligence of department staff in responding to local health department requests for help. The evidence also showed that the director was concerned about panic from a public notice and saving the state money by not addressing the disease outbreak.  But the transcript is thin on whether corruption was the basis for the misfeasance.  The misfeasance was surely bad judgment.  But there was no evidence that corruption motivated the director in exercising his discretion in the timing of the notice.

The result may not be surprising in view of the desire of Flint citizens to punish state actors involved with the crisis, combined with the pressure that may be created on judges who are elected by the same citizens. The current attorney general ran for governor in part based on the state spending over $26 million prosecuting state actors in the Flint water crisis. He lost. His successor, the Democratic attorney general-elect, must now decide whether she wants to continue spending similar amounts prosecuting members of a Republican former administration or work with the Democratic governor-elect to spend the state’s money fixing the Flint water system. The state may not have money to do both.  And if that is true, perhaps prosecutorial discretion will give way to fixing the water system once and for all.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

A Time to Pivot, Reset, and Recommit to Core Principles

Posted on November 5, 2018 by Scott Fulton

These past months have been turbulent times for my old agency, EPA. Shortly before this writing, Scott Pruitt resigned in a cloud of allegations about ethical and judgment lapses, proving once again that, in Washington, D.C., process fouls are often more undoing than policy choices. And, of course, if your policy choices are provocative, all the greater the need to, as my mother would say, “Keep your nose clean,” as the sharp knives will no doubt be out, ready to slice and dice if the opportunity is presented.

The charges against Pruitt are still under investigation by EPA’s Office of Inspector General and other bodies, so I’ll not go too far in speaking to them other than to say that they are striking — and likely unprecedented — in their number and pattern. Whether or not Pruitt is ultimately found to have violated the law, operating in a manner that creates openings for issues of this kind is itself problematic. These are unforced errors in the classic sense.

With this as backdrop, I thought I might take the occasion to offer some suggestions to Acting Administrator Andrew Wheeler, or to whomever the next confirmed administrator might be, about possible ways to help EPA recover its footing and put some separation between the turbulence of these past months and where the agency goes from here.

First, there would be value in some messaging that reinforces EPA’s core mission — environmental protection — and the environmental quality goals behind it. There are different ways to achieve the mission, and of course the work needs to be undertaken in a manner that envisions environmental quality and economic development as compatible objectives. But clarity is important in terms of the unique contribution EPA makes in ensuring that development occurs in a way that also satisfies the environmental quality guarantees embedded in our laws. This is a vital and difficult calling, and one with respect to which clarity is important.

One way to get this message out is to do so through the budget. I and many others have been baffled by budgets from this administration that propose cutting both EPA and the categorical grants to the states. Such budgets project a fundamental questioning of the need for an environmental protection enterprise anywhere in government, begging the need for some remessaging on this front.

Second, make adherence to the Standards of Conduct for Executive Branch Employees a personal and organizational priority. A successor coming in the wake of allegations of this kind always has the opportunity to distinguish him or herself on the basis of adherence to the highest ethical standards. This is of course a time-limited opportunity, but you will likely be remembered most for how you navigate a shift in this arena.

Third, after Pruitt’s stumbles, recommit to openness. A renewed commitment to transparency will help the agency in turning the corner. Therefore, Wheeler’s issuance of his own “Fishbowl Memo” in the tradition of William D. Ruckelshaus is more than welcome. “This memorandum reaffirms those commitments,” the Acting Administrator told agency staff. “I encourage all EPA employees to uphold the contents of this memorandum and conduct themselves and their business in a manner worthy of the public’s trust and confidence. Our success as an agency depends on it.”

Fourth, hit the reset button in the relationship with career leadership and staff. The word in the hallways of EPA is that the career folks have thus far been relegated to the distant sidelines during this administration and have rarely been present for administrator briefings and consultations. There are also rumblings — some of them exposed in the media coverage — that Pruitt had a tendency to act first and consult with the agency’s career experts only after a problem relative to the action emerged. This is how mistakes are made. All and all, the relationship between the political leadership under Pruitt and careerists at EPA has left a serious morale issue that needs to be addressed if the career workforce is to be put to productive use by this administration.

It is common for a new administration to come in suspicious of the loyalties and biases of the career institution that they inherit. But at some point, and usually long before where we are now, the administration comes to see the career institution as an expert support function that is ready and willing to help implement its policy agenda.

Can the Trump EPA recover from its stumbles? Sure, but likely only if it makes some pivots. Maybe by the time you read this, some of the steps suggested here will already have been taken. I hope so.

[This piece originally appeared in the September-October 2018 issue of The Environmental Forum® and is reprinted with permission

Presidential Memo to Boost Western Water Projects—Can it Succeed?

Posted on November 1, 2018 by Rick Glick

On October 19, President Trump issued a “Memorandum Promoting the Reliable Supply and Delivery of Water in the West.”  The Memorandum calls for streamlining federal water infrastructure development and operations, apparently by skirting environmental and other administrative processes.  As previously noted here, the Administration is intent on weakening the laws controlling federal water projects, but that cannot be accomplished by executive fiat alone.

At the core of the Memorandum is a directive to the Secretaries of the Interior and Commerce to designate, within 30 days, “one official to coordinate the agencies’ [Endangered Species Act (ESA)] and [National Environmental Policy Act (NEPA)] compliance responsibilities” and to “develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law.” 

This directive evinces a misapprehension of the legal framework, and continues a failed approach to regulatory change by shortcutting federal law.

First, Cabinet departments are not monolithic entities; they are made up of multiple sub-agencies, each with its own statutory guidelines.  Among others, Interior includes the Bureau of Reclamation, which builds and operates the water projects, and the U.S. Fish and Wildlife Service, which has responsibility for resident fish and terrestrial species.  BOR is the lead agency for NEPA, while the FWS is a reviewing agency of BOR’s work, and serves an independent consulting role under the ESA.  The only role of Commerce is through NOAA Fisheries, an agency within Commerce with responsibility for anadromous fish and marine mammals. 

While the agencies can and do coordinate to a certain extent, they have discrete legal functions and responsibilities.  A single officer to coordinate these disparate activities seems impracticable.

Second, the Administration’s overarching approach to loosening environmental rules is to rescind, suspend or delay implementation of environmental regulations that it believes impede the economy.  However, time and again the courts have found such actions to violate the Administrative Procedures Act or other statutes.  See, for example, the decision of a federal judge in South Carolina earlier this year invalidating “suspension” of the Waters of the U. S. (WOTUS) rule, or the D. C. Circuit’s rejection of extending the effective date of the Chemical Disaster Rule.  Implementation of the Memorandum is likely to meet the same fate.

Bringing efficiency to a convoluted, expensive and protracted process is a laudable goal, but one that has eluded previous administrations.  The problem is that the APA and the environmental protection laws are not designed for efficiency, but to make sure that the government has considered the potential impacts of its actions before implementation.  Without an act of Congress, efficiency gains will be at the margin.

The Side-Agreement Takes Center Stage: Environmental Surprises in the Draft U.S-Mexico-Canada Agreement

Posted on October 30, 2018 by Tracy Hester

NAFTA’s successor - the awkwardly named U.S Mexico Canada Agreement (USCMA) - has already stirred up a swarm of commentary.  The initial draft tackles major economic questions among the three countries, including important decisions about agriculture, intellectual property, telecommunications, and energy.  These big issues have provoked a welter of summaries, analyses, attacks, and punditry.

Except, surprisingly, for environmental issues.  Only a small percentage of the popular and political coverage has picked up on the USMCA’s new environmental provisions.  That silence is especially puzzling because the draft agreement contains some important environmental provisions.

First, a little background.  When the U.S, Mexico, and Canada negotiated the original North American Free Trade Agreement, the backlash over its perceived neglect of environmental concerns led the parties to negotiate the North American Agreement on Environmental Cooperation (NAAEC) as a parallel side-agreement.  NAAEC established a permanent Commission on Environmental Cooperation (CEC) to provide a framework for coordinated environmental actions by the three nations, and the side-agreement also created a ground-breaking environmental enforcement review process to let private citizens request inquiries into alleged failures by any of the three nations to enforce their own environmental laws.  While this process suffers from several important shortfalls, it nonetheless remains a trailblazing step to emphasize environmental concerns by assuring private citizens a voice in international trade relations.

Despite their importance, NAAEC and its environmental enforcement review process have languished in a diplomatic netherworld for years.    As each country shifted leadership and political alignment, the CEC and its enforcement review unit suffered from periods of malnourished funding, benign neglect, or even outright hostility.  When Canada, Mexico, and the U.S. negotiated the TransPacific Partnership, that agreement did away with NAFTA’s and NAAEC’s separate environmental approaches in favor of a unified environmental section that included specific requirements for certain industry sectors (such as fishing), and substantially watered down the enforcement review process.   Given the TPP’s change in course, the prospects for NAAEC, the CEC, and its enforcement review process looked dim when the Trump Administration forced a renegotiation of NAFTA earlier this year.

Those fears now seem a bit unfounded.  The draft USMCA text adopts several key structures of NAAEC, leaves clear room for the CEC to continue, and contemplates entry of an Environmental Cooperation Agreement (ECA) to ultimately replace NAAEC.  While we have yet to see the draft ECA, the USMCA’s environmental provisions already affirm NAAEC’s enforcement review process and even incorporate some reforms sought by commentators for years.  The USMCA also includes some of the TPP’s express environmental mandates for particular industries without that agreement’s troubling retreat from NAAEC’s review process.  The USMCA, notably, consigns all fights to the dispute resolution process of the overall trade agreement, which potentially gives its environmental obligations a much sharper bite.

The USMCA remains only a draft, and the pending ECA may take its environmental directions entirely astray.  But in the meantime, the current draft USMCA’s environmental provisions promise a surprising, and promising, move away from the side-agreement sideshow and into the heart of the parties’ main trade agreement.

A Sliver of Hope for the Government’s Remaining NSR Enforcement Cases?

Posted on October 16, 2018 by Seth Jaffe

Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative.  The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.

However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief.  Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign.

I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce.  I’ll settle for three points.  First, it may not be a legal doctrine, but I’d apply the doctrine of common sense, rather than the doctrine of concurrent remedies.  Given that all courts agree that NSR does not impose ongoing operational requirements, it doesn’t even make sense to me to think of ongoing forward-looking injunctive relief with respect to a one-time violation that may have occurred twenty years or more ago.

I’ll add to that a related point.  As other NSR cases have noted, many of these facilities have changed hands since the projects at issue were constructed.  In those cases, the former owners aren’t subject to injunctive relief, because they don’t own the facilities and thus have no ability to install BACT.  The new owners aren’t subject to injunctive relief, because they did not violate the Clean Air Act.  In these circumstances, are we really going to make the availability of injunctive relief subject to the random circumstance of which facilities have been sold and which have not?  That just seems nuts.

Finally, I’ll emphasize that EPA and DOJ shouldn’t get too excited over this decision.  The Court was very clear that it was not deciding whether injunctive relief was appropriate, only that it wasn’t barred by the statute of limitations.  The Court’s language was unlike any I’ve ever seen before and is worth a read:

On remand, the district court must further consider whether any equitable relief is appropriate and proper under the legal and factual circumstances of this case in which the legal relief has been time barred. We recognize that we are not giving the district court much guidance in this task. … Perhaps the answer to this knotty question of injunctive relief will reveal itself after a full hearing and the presentations of the parties. And we hope that we are not being too cowardly when we sincerely wish the district court good luck.

And I’m sure that the District Court will appreciate the 5th Circuit’s good wishes.

CROSSWORD PUZZLE FOR SEVEN STATES SUBJECT TO REGIONAL EMPHASIS PROGRAM FOR A NEW AGRICULTURAL SAFETY INITIATIVE

Posted on October 11, 2018 by Brian Rosenthal

To address the concerns for worker exposure to potentially hazardous gases and chemicals commonly used in agricultural operations, a federal agency, will provide a three (3) month period of education beginning October 1, 2018. Enforcement is then scheduled to follow through September 30, 2019. According to the agency, workers in this industry face hazards that include fire, explosions, and exposure to toxic gases and hazardous chemicals. Work the Crossword to discover the seven states subject to a new Regional Emphasis Program targeting the fertilizer storage, mixing/blending, and distribution industry in those states.

*Key below (upside down)

Overview of the Past ACOEL Year

Posted on October 3, 2018 by John Cruden

The American College of Environmental Lawyers just completed one of the most significant and exceptional years in its history.  As President, I set goals for the College this year to emphasize outreach, education, and pro bono efforts using our six committees and six newly appointed task forces as the vehicles for our work.  The following is a brief summary of what we accomplished, with recognition to some of the individuals who made it happen.

Here are some of the “firsts.” We had our first joint conference with another college, the American College of Construction Lawyers, led by Michael Gerrard and held in Columbia Law School.  And, we are now collaborating with the National Judicial College and the American Institute of Chemical Engineers. Dave Tripp, our task force leader for other colleges, has been key to our success. We had our first webinars for the college (put together by Outreach Chair Mary Ellen Ternes and Government Liaison Chair David Erickson), interviewing EPA leadership, culminating in the just completed interview of the Acting EPA Administrator. And we have already completed a highly-regarded joint educational seminar with the American Law Institute and have another one scheduled. Jim Bruen, as the first President of the related ACOEL Foundation, obtained IRS certification as a nonprofit organization, which will allow us to advance the Foundation in the coming year.  For the first time, our blog was rated as one of the top 100 in the nation and we published over a hundred high quality blogs, about one every other weekday. 

Pam Giblin led a project by the former ACOEL Presidents to create an extensive list of the responsibilities of the President and President-elect.  Our communications committee, chaired by Andy Field, led the way in creating a new web page, spearheaded by Peter Culp, and we are well on our way to completion. 

On the outreach side, I have spoken on behalf of ACOEL internationally (keynote speaker at Toronto Canadian Environmental Law and Lisbon International Bar Association Conferences), and to numerous ABA groups, Law School gatherings, state bar conferences and other events.  And, we have dramatically enhanced our pro bono efforts, with the new domestic Envision Utah project, as well as actions in Africa, India, and Cuba. The just released (July-September) edition of the African Wildlife Foundation’s magazine, Travel Africa, includes an article on Mentoring Wildlife Crime Prosecutions. The article speaks about training wildlife crime prosecutors and establishing the institutions needed to support their ongoing work, stating that “The American College of Environmental Lawyers has also offered its support to the prosecutors during and beyond their mentorship period.” All this is a tribute to the great work of Chair Jim Bruen and Deputy David Farer.

This year we will have our annual conference in October at Grand Teton National Park, our first in a national park. I salute Peter Hsiao, who has supported incoming President Allan Gates to put together a superb three-day conference—we expect record attendance (and a new Conference App). At our annual conference we will give the annual Hermann writing award to Emily Hush, selected by the outreach committee, led by their Deputy JB Ruhl, from 15 high quality nominations from law schools.  And, at the conference, we will also celebrate the life of Steve Hermann, the founding member of the college, with a short video from the oral histories task force. The conference will also feature keynote speakers by leading administration officials and three different panels on the most important environmental issues of the day.

Our other task forces, including Illegal Wildlife Trafficking (mentioned above), Disaster Planning, and Environmental Principles, have been active and produced superb results. For example, our Disaster Response Task Force, led by Jeff Civins, is creating a white paper on disaster planning, and was instrumental in planning EarthX Texas, touted as the largest event in the world of its kind celebrating Earth Day.

Finally, orchestrated by our Regional Director Ted Garrett, we had ACOEL activities in every Region and meetings with key federal and state administration officials, including a number of regional administrators.  And we were all proud to have our own, Alex Dunn, selected to be an EPA Regional Administrator and, more recently nominated by the President to be EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP).

We are proud of our college and its many accomplishments.  As you read this blog, and review the many other blog submissions on this website, you will get a greater knowledge of the high quality of the now over 250 members of the College.

PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.

 

The New Mexico Supreme Court Holds that the Copper Mine Remediation Rule is Consistent with the Water Quality Act

Posted on September 24, 2018 by Thomas Hnasko

Since 2013, when the New Mexico Water Quality Control Commission (“WQCC”) enacted the most comprehensive Copper Mine remediation rule in the country, the Attorney General and various NGOs have continued to challenge the rule because it established, on an industry-wide basis instead of through a case-by-case determination, “foreseeable places of [groundwater] withdrawal” at mine sites that are protected from contamination under the New Mexico Water Quality Act.  Initially, the Court of Appeals rejected the Attorney General’s challenges in Gila Resource Information Project v. N.M. Water Quality Control Comm’n, 2015-NMCA-076, 355 P.3d 36, holding that the determination of a protectable “place of withdrawal” has always been and remains a matter committed to the Commission’s discretion.  The Supreme Court granted certiorari to consider the question, and has now reaffirmed the Court of Appeals’ decision, but did so focusing on language directly from the Water Quality Act itself, rather than relying on the Commission’s discretion.

In Gila Resources Information Project v. N.M. Water Quality Control Comm’n, 2018-NMSC-025, 417 P.3d 369, the Attorney General repeated the argument that the Copper Rule allegedly failed to protect foreseeable places of withdrawal at mine sites because it allowed the placement of monitoring wells – at which water quality standards would be measured – to be located outside of open pits, waste stockpiles, or other active mining units.  According to the Attorney General, this placement of monitoring wells necessarily ignored the existence of protectable groundwater within the confines of those wells.  As such, the Copper Rule violated the Water Quality Act’s proscription against issuing permits for any mining facility that contaminated groundwater at “foreseeable places of withdrawal.”

Not so, said the New Mexico Supreme Court.  If the Water Quality Act prohibited water contaminants in excess of applicable standards at the location of any “discharge,” the Court reasoned that petitioners may be correct.  However, the statute itself provides that groundwater quality “shall be measured” at “foreseeable places of withdrawal.”  The Court accepted respondent’s interpretation as the “most sensible reading” of this requirement, concluding that the “shall be measured” language implies that groundwater must actually be brought to the surface for analysis and measurement.  Of course, the normal method for bringing water to the surface is through samples collected from a monitoring well.  The Court found that the measurement of groundwater quality “at any place of withdrawal” means that the New Mexico Environment Department, when acting on a permit, must select specific locations for the placement of those monitoring wells.  According to the rule, those locations must be as close “as practicable” to the open pits, waste piles and active mine units.

Thus, based on the practical consideration that groundwater quality must be measured for compliance with standards at a monitoring well, the Court relied on statutory construction, rather than on the discretion afforded to the WQCC, to hold that the Copper Rule develops a sensible procedure to protect groundwater at foreseeable places of withdrawal.  In this regard, the Supreme Court’s decision departed from the Court of Appeals’ analysis and upheld a comprehensive copper mine remediation rule that will likely be followed by other copper-producing jurisdictions.

CALIFORNIA, THE JUNGLE, AND CAP-AND-TRADE

Posted on September 21, 2018 by James Holtkamp

On September 14, 2018, the California Air Resources Board (CARB) issued for public comment the proposed California Tropical Forest Standard.  The proposed standard is not an attempt to address a future in which global warming has changed California’s redwood forests into tropical jungles; rather it is intended to allow reductions in carbon emissions from mitigation of rain forest deforestation in tropical countries to be linked with California’s cap-and-trade program. 

California is already well-known for its influence on culture, economics and politics outside its borders. Here in Utah we sometimes feel like we are really just a big county in eastern California.  Even outer space is not insulated from California.  As the Global Climate Action Summit wound down in San Francisco last week, Governor Brown announced that California would send its own satellite into orbit to track and monitor pollutants.  You can’t get more outside of California than that.

The proposed standard consists of detailed criteria for tropical forest credits and is accompanied by a 185-page draft environmental analysis prepared by CARB under the California Environmental Quality Act.  The proposal is issued under CARB’s cap-and-trade program rules, which authorize CARB to consider reductions originating in developing countries or “subnational jurisdictions” (e.g., provinces or states) within those countries.          

The proposed standard would require the jurisdiction seeking to link its emission reduction program with the California program to develop a “sector plan” demonstrating that the program was developed through a robust, transparent, and participatory process.  The sector plan would detail the legal, policy and program tools used to reduce emissions; procedures for monitoring, reporting and verification of reductions; and provisions to avoid double-counting of reductions with any other program.  The proposal also provides for establishing baseline emission levels, avoiding leakage, securing third-party verification, involving and protecting indigenous communities, and other elements designed to ensure that the reductions are robust and permanent.

The proposal does not include a mechanism for linking tropical forest credits to the California system; rather it is simply a proposal for standards for the credits which, after additional rulemaking by CARB, would be eligible for inclusion in the cap-and-trade program.  

Carbon emissions released from tropical forest deforestation and degradation account for about one-fifth of carbon emissions across the globe. The president and Congress have been unwilling to address the issue.  California has stepped into the breach.

Perhaps living in eastern California is not such a bad thing, after all.

We May Not Always Have Paris, But Perhaps We Can Do Better Than Paris

Posted on September 20, 2018 by Seth Jaffe

Last week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  (And a shout out to ACOEL fellow Pam Giblin, who is a Senior Policy Advisor at the CLC.) 

I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.

I understand the difficulty in convincing what passes for the GOP base at this point – and the GOP members of Congress – to endorse the carbon tax.  Oops, I meant dividend.  I’m hopeful that enough members will come around at some point.  My real worry is that the environmental movement will reject the plan because it calls for elimination of current regulations concerning carbon.

Years ago, Gina McCarthy used to say quite freely that the Obama administration would get most of its carbon reductions, not from direct regulation of GHG emissions, but instead from all of the other air regulations it was promulgating, such as the power plant MACT standards.

What environmentalists have to remember is that the reverse is also true – any robust program to reduce carbon emissions will also lower emissions of conventional pollutants.  Indeed, in defending the Clean Power Plan, environmentalists have made that very argument.  Why not acknowledge the same point in connection with a carbon tax and give up on a set of regulations that have always been clunky at best, are nowhere near as efficient a regulatory tool as a carbon tax, and which, as compared to a carbon tax, really benefit no one other than environmental lawyers and consultants?

God, wouldn’t it be a breath of fresh air to see Congress actually get something big done for the American people?  Let’s not screw this one up.

The D.C. Circuit Court Coal Combustion Conclusion: “C” is for Cookie, that’s good enough for me!”

Posted on September 19, 2018 by Kathy Beckett

As our blue friend, The Cookie Monster, looks for words that begin with “c” he immediately settles upon a single favorite, the cookie. There is a bias in the selection by The Cookie Monster, as he prefers only one thing, cookies.  By using one noun and offering no other, we can conclude The Cookie Monster has a bias against other “c” nouns like carrots, cabbage and  cauliflower.  Using The Cookie Monster preferred word “c” methodology as applied to the recent D.C. Circuit decision in Utility Solid Waste Activities Group, et al. v. EPA et al., No. 15-1219 (August 21, 2018), one can find several “c” words selected by the panel of judges, Henderson, Millett, and Pillard that predict the conclusion.  As with The Cookie Monster, early choice of words sends a message.

Beginning with the obvious, the petitions filed by industry and environmental advocates concerned “coal”, “coal residuals” to be precise.  The petitioners challenge the EPA 2015 Final Rule governing the disposal of coal combustion residuals produced by electric utilities and independent power plants.    The Court offers in their Background discussion an opening observation that contaminants that are cancerous are found in coal residuals that are disposed of in concentrated locations that are massive.  These disposal areas are constructed without composite liners sometimes using inadequate clay liners allowing the commingling of water and contaminants.  Background conditions may not be able to be restored.  Catastrophic risks are posed and consequences may be amplified.  A compendium of damage cases has been compiled.  Complete destruction of aquatic ecosystems are identified. 

With the initial “c” analysis as noted above, the casual reader can predict the EPA Coal Residual rule does not fare well with this panel.  A few opinion highlights are offered:

  • Congress’ passage of the Water Infrastructure Improvements for the Nation Act (“WINN Act”) will have to be managed by EPA later.
  • Continued operation of unlined impoundments pursuant to 40 CFR 257.101 is vacated and remanded for consideration.
  • Clay-lined impoundments are not actually lined, so the court vacates 40 CFR 257.71(a)(1)(i).
  • Capricious describes the legacy ponds regulation.
  • Cure for select portions of EPA’s coal residual rule is a remand of (i) the regulation of coal piles; (ii) the Proposed Rule’s notice of Coal Residuals pile regulation; and (iii) the 12,400-ton threshold for beneficial use (and notice thereof).

Concurring, Henderson construes disposal to mean CCR is not curb trash. 

How Much Does Trump Even Care About Deregulation?

Posted on September 13, 2018 by Seth Jaffe

Rick Glick’s September 11 post discusses Judge David Norton’s August 2018 decision to issue a nationwide injunction against the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States RuleAs noted in Rick's post, that case was not about the merits of the WOTUS rule.  It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.

Which brings me to the point of this post.

The Administration’s failure to comply seems so obvious that one has to wonder whether the Administration even cared whether the Suspension Rule could survive judicial review.  Indeed, this case seems part of a clear pattern.  The Court noted as much in quoting a summary of such cases from the plaintiffs’ brief:

Clean Air Council v. Pruitt (vacating the EPA’s attempt to temporarily stay a Clean Air Act regulation without “comply[ing] with the … APA”); Open Communities All. v. Carson, (enjoining the defendant agency’s attempt, “without notice and comment or particularized evidentiary findings, … [to] delay[] almost entirely by two years implementation of a rule” adopted by the previous administration); Pennsylvania v. Trump (enjoining two new “Interim Final Rules” based on the defendant agencies’ attempt to “bypass notice and comment rule making”); Nat’l Venture Capital Ass’n v. Duke (vacating the defendant agency’s “decision to delay the implementation of an Obama-era immigration rule … without providing notice or soliciting comment from the public”); California v. U.S. Bureau of Land Mgmt. (holding that the defendant agency’s attempt to postpone a regulation’s compliance dates “after the rule’s effective date had already passed … violated the APA’s notice and comment requirements by effectively repealing the [r]ule without engaging in the process for obtaining comment from the public”); Becerra v. U.S. Dep’t of the Interior, (holding that the defendant agency violated the APA in “fail[ing] to give the public an opportunity to weigh in with comments” before attempting to postpone a rule that had already taken effect).

To which the Court added its own footnote:

To this litany of cases, the court adds two more from the last several months— Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin. and Children’s Hosp. of the King’s Daughters, Inc. v. AzarAs these cases make clear, this court is but the latest in a series to recently find that an agency’s delay of a properly promulgated final rule circumvented the APA.  (My emphasis.)

I find it hard to believe that numerous smart lawyers, across a range of agencies, all suddenly forgot what the APA requires.  Isn’t it more likely that the Administration simply doesn’t care about the outcome?  The government of the most powerful nation on earth, that likes to think that it taught the world about democracy, doesn’t care about governing.  All it cares about is having Twitter material, to feed to its adoring fans and, equally importantly, to bait its many critics.

WOTUS Lives! . . . at Least in Half the States (for Now)

Posted on September 11, 2018 by Rick Glick

On August 16, a federal judge in South Carolina invalidated the Trump Administration’s suspension of the rule defining “waters of the United States” (WOTUS), under the Clean Water Act.  In South Carolina Coastal Conservation League v. Pruitt, the court found that the notice-and-comment opportunity supporting the Suspension Rule was too narrow and thus violated the Administrative Procedure Act.  The WOTUS suspension is the latest in a series of attempts by the Administration to stall implementation of Obama era regulations, none of which have met favor with the courts. 

As reported here about one year ago, the Trump Administration announced a two-step process to undo WOTUS.  The first step was to suspend WOTUS for two years, during which a revised WOTUS rule would be developed.  In the meantime, guidance on jurisdictional waters that had been issued in the 1980s by the EPA and Army Corps of Engineers would be reinstated.  The public notice of the Suspension Rule requested comments only on the suspension, but not the substance of either the Obama WOTUS rule or the 1980s guidance.

U. S. District Court Judge David C. Norton, a George H. W. Bush appointee, reasoned that the practical effect of the Suspension Rule is that the WOTUS rule would not apply and instead the 1980s guidance would control.  The court then noted that the definitions in the WOTUS rule and the 1987 guidance are “drastically different” and it is hard to comment on the Suspension Rule without talking about that difference.  That refusal to allow comment on the substantive differences violates the notice-and-comment provisions of the APA:  “An illusory opportunity to comment is no opportunity at all.”  The judge therefore rejected the Trump Suspension Rule, and imposed a nationwide injunction. 

Explaining the jurisdictional reach of the Clean Water Act has flummoxed the federal agencies and courts for decades.  Far from bringing clarity, the Obama WOTUS Rule drew over one million comments and multiple judicial challenges on the merits of the rule.  Initially the question was whether such challenges should be made in the U. S. district courts or the Circuit Courts of Appeal.  The Sixth Circuit held that the appellate courts had original jurisdiction and stayed all of the pending district court actions, but that decision was reversed earlier this year in a unanimous decision of the U. S. Supreme Court.  Thus, those lower court cases can continue.

Judge Norton, in South Carolina Coastal Conservation League, was clear that he was not ruling on the merits of the WOTUS Rule, but just the procedural correctness of the Suspension Rule.  In challenges on the merits, other federal courts have stayed the WOTUS Rule in 24 states.  Striking down the Suspension Rule means that WOTUS remains in effect in the other 26 states. 

At the moment, then, about half the country is subject to the WOTUS Rule, while the other half is not.  What could go wrong?

Brett Kavanaugh: Enemy of Innovation

Posted on September 5, 2018 by Kenneth Kimmell

The confirmation fight over Supreme Court nominee Brett Kavanaugh is underway.  Supporters and opponents are drawing battle lines over crucial issues such as abortion, health care, immigration, and whether the President is subject to criminal processes.  But the nominee’s views on the role of federal agencies in protecting public health, safety and the environment deserve our attention as well.

Unlike others before him, Brett Kavanaugh is no “stealth nominee.” As a judge on the DC Circuit Court of Appeals, Judge Kavanaugh authored many opinions on the role of federal agencies, and these opinions provide an unusually expansive window into his thinking.

Unfortunately, a careful review of his opinions reveals a disturbing pattern:

Judge Kavanaugh is hostile to innovation by executive branch agencies. He has such rigid and antiquated views of the respective roles of congress and executive agencies that he leaves little room for federal agencies to try new approaches to existing problems or to take on new challenges. This should alarm not just those on the left who would like to see more robust federal response to threats to public health, the environment, worker safety and the like, but conservatives as well, who should also want government to be nimble and able to adjust to new circumstances.

To see this pattern, follow me on a guided tour of his thinking in three key cases.

Interstate air pollution and the “Good Neighbor Rule.”

Air pollution crosses state boundaries, and many states are in the unenviable position of having dirty air even though they are effectively controlling pollution sources within their state. For example, even if Maryland were to shut down every business in its state that emits ozone-causing pollutants, portions of the state would still be in violation of federal ozone standards due to pollution from neighboring upwind states. There is a provision in the federal Clean Air Act, colloquially called “the Good Neighbor” rule, that prevents one state from causing or significantly contributing to another state’s violation of federal air quality standards.

The problem is that it is fiendishly complex to implement the good neighbor rule. Many “upwind” states emit multiple pollutants to many downwind states, many downwind states receive multiple pollutants from multiple upwind states, and some states are both upwind and downwind states. Thus, it is exceedingly difficult to point a finger at any one particular upwind state and say that it is “responsible” for any downwind’s state air quality, and even more difficult to devise a formula to fairly and effectively apportion responsibility.

In 2011, after many false starts, the Environmental Protection Agency (EPA) crafted an ingenious “Transport Rule” to address the problem. The EPA conducted extensive analysis of the costs of pollution control to determine how expensive it would be, per ton of pollutant reduction, to ensure that upwind states in the aggregate do not cause downwind states’ air quality in the aggregate to exceed federal standards. The EPA then gave each upwind state a pollution “budget” for the state to use to reduce the pollutants that were wafting beyond their borders, based on this “cost per ton” reduction benchmark. In this way, just enough pollution would be reduced so that upwind states would not tip a downwind state into non-compliance, and the amount of each state’s pollution reduction would be based on a common yardstick of cost-effectiveness.

But Judge Kavanaugh struck this plan down. In his view, Congress had not expressly embraced this particular approach, and therefore the EPA was not allowed to implement it. His decision instead required EPA to determine each upwind state’s “proportionate responsibility” for pollution in downwind states and base the required reductions on that (even though the statute does not explicitly require that approach). Judge Kavanaugh’s decision largely ignored the compelling practical difficulty of assigning proportionate responsibility, or the many economic benefits of the EPA’s proposed approach.

As a result, his ruling would have consigned downwind states to many more years of air pollution while the EPA grappled with how to implement it.

Had Judge Kavanaugh’s “proportionate” responsibility approach been required by the law, that would be one thing. But it wasn’t. The Supreme Court, on a 6-2 vote that included Justices Kennedy and Roberts, found that that the statute did not require a proportionate responsibility approach (even assuming one could be fashioned). Instead, they ruled that Congress had vested the EPA with broad discretion to devise an appropriate remedy, and the Transport Rule was both fair and cost effective.

The Clean Power Plan oral argument

This same apparent hostility to agency innovation was on display in Judge Kavanaugh’s comments on the Clean Power Plan during a court hearing. That case involved a challenge to the Obama Administration’s Clean Power Plan, the nation’s first-ever rules to limit carbon pollution from coal and gas fired power plants, one of the largest sources of greenhouse gases in the United States. The Clean Power plan, a measure that received extensive input from Union of Concerned Scientists and many others, relied on an infrequently used provision of the Clean Air Act that allows the EPA to require polluters to use the “best system of emissions reduction” to address pollutants such as greenhouse gases.

After years of review and receipt of over 4 million comments, the EPA issued a final rule in October 2015. The EPA determined that the “best system of emissions reduction” for carbon pollution from power plants included three strategies that are in widespread use today—improving the efficiency of coal plants, switching from coal to gas, and substituting low or no carbon generation, such as wind, solar and nuclear. The EPA quantified the emissions reduction that would be possible using these strategies, and devised a national standard based on this quantification. The rule was intended to cut carbon emissions from power plants by approximately 30 percent by 2030, and formed a key component of the United States’ pledge to reduce its overall emissions as part of the Paris Climate agreement.

Industry and states filed suit to challenge the Clean Power Plan, and the case was heard by the DC Circuit court of appeals. No decision was ever issued on the case, but the court held an all-day oral argument in which Judge Kavanaugh participated. His questions and comments were revealing.

A major point of debate focused on the unusual nature of the regulation. When regulating conventional air pollutants, EPA often sets pollution control standards by focusing on what each plant can do with pollution controls at the source to cut pollution, e.g. a scrubber to lower sulfur dioxide emissions, or a baghouse to collect soot. In the Clean Power Plan, in contrast, EPA established CO2 limits by focusing not on what each individual plant could do to cut CO2, but rather what the system as a whole could do by shifting away from coal-based generation towards gas and renewables.

The opponents contended that this “beyond the fenceline” approach rendered it illegal, because Congress had not specifically authorized it.

Judge Kavanaugh’s questioning at the hearing demonstrated that he bought into this line of thinking. Judge Kavanaugh stressed repeatedly that the rule would have significant economic consequences, that the EPA was using a previously unused provision of the Clean Air Act to implement this approach, and that Congress had not specifically embraced the policy of shifting to low or no carbon generation. Judge Kavanaugh seemed unmoved by the strong counterarguments that: 1) EPA had a mandatory duty under the act to lower carbon pollution from power plants; 2) this was the most cost-effective and tested method of doing so; and 3) it fit the statutory command to deploy “the best system of emissions reduction.”

While the court never issued a ruling, it seemed clear that Judge Kavanaugh was prepared to strike down the rule on this basis, leaving behind no remedy for carbon pollution from power plants.

The Case of the Killer Whale

In 2010, an employee of Sea World was lying on a platform above a pool during a whale training show when a killer whale dragged her into the water, maiming and drowning her. This marked the third death by killer whales in a roughly 30-year period.

The Occupational Health and Safety Administration (OSHA) responded by requiring the company to ensure minimum distances and physical barriers between a trainer and a whale.

Sea World challenged this order, claiming that OSHA impermissibly extended its authority to regulate the risks of sporting events. Two of the three judges, including Merrick Garland, President Obama’s ill-fated Supreme Court nominee, dispensed with the challenge, ruling that OSHA had the authority to require these commonsense safeguards for workers.

Not so Judge Kavanaugh. His dissenting opinion begins as an elaborate paean to the thrill of sporting events in which physical risks are present. He never actually critiques the solution that OSHA devised on the merits, but rather deploys the familiar lawyer’s trick of a “parade of horribles,” claiming, e.g. that if OSHA can regulate killer whale shows, it can prohibit tackling in football or set speed limits on NASCAR racing (things that OSHA has never done). All of this, according to Kavanaugh, would go well beyond the authority that Congress intended OSHA to have.

As for the physical safety of employees who work with whales—according to Kavanaugh’s logic, that would be up to Congress to legislate.

Common threads

What unites these opinions—and others like them—is that, in each of these cases, Judge Kavanaugh struck down solutions (or appeared poised to do so), when a federal agency responded to an existing problem with a novel approach or sought to address a new problem in a manner we should all value—with creativity, scientific evidence, consideration of costs and benefits, and an eye towards feasibility and practicality. In none of these cases did the agency violate any specific provision of its authorizing statute. But, in all of these cases, Judge Kavanaugh opposed these solutions under the theory that Congress had not specifically blessed the choice the agency had made.

Judge Kavanaugh and his defenders claim that curbing the power of agencies is essential to ensuring that elected leaders in Congress, rather than unelected bureaucrats, make the fundamental policy choices. This seemingly benign principle is either naïve, malevolent, or both.

The fact of the matter is that Congress is largely paralyzed and incapable of passing legislation on virtually any important issue—witness the stalemates on immigration, gun control, climate, health care, and many others. And even when Congress manages to overcome gridlock, as a necessity it legislates in broad generalities, not specifics. This is because Congress does not have a crystal ball to foresee all the possible variations of a problem or all the best solutions to it. That is why Congress wisely delegates implementation to agencies staffed with experts, and why we use a process of notice and comment to ensure that all views are heard before a regulation becomes final.

There is an important role for the courts in this rulemaking process judges must make sure that agencies do not violate the law or disregard sound reasoning and evidence. But Judge Kavanaugh takes the judicial role too far. His insistence that Congress specifically endorse an agency plan that is otherwise scientifically sound and legally within its discretion is a formula for paralysis, and the maintenance of the status quo (which helps explain his appeal to groups such as the Koch Brothersand the US Chamber of Commerce).

All of us will regret it if Judge Kavanagh’s reactionary view becomes the guiding principle of a new Supreme Court majority. With Congress already deadlocked and demonstrating almost daily basis its inability to respond to pressing challenges, we cannot thrive if executive branch agencies are paralyzed as well.

Glider Kits and The Thrill of Defeat

Posted on September 4, 2018 by Samuel I. Gutter

Twice in my career, I’ve had a case cut out from under me, the result of withdrawal of final EPA action that I was prepared to defend.  In the first case, I was in the Office of General Counsel at EPA, working with a DOJ lawyer who was to become my career-long friend and colleague, ACOEL fellow Dave Buente.  We were nearing oral argument to defend EPA’s noise regulation for garbage trucks (a case we would have won!) when EPA Administrator Anne Gorsuch revoked the regulation as part of EPA’s dismantling of the noise program. 

The second instance occurred a short time later.  EPA had granted a waiver that would have allowed high levels of methanol to be blended with gasoline.  The waiver was by all indications a political favor for a Utah company that was close to the administration, and was challenged by the major auto companies who feared damage to the rubber gaskets and hoses in car engines.  When Administrator Gorsuch departed EPA, it wasn’t long before the new leadership reversed the waiver decision, summarily ending the litigation.

Having your client reverse course is a jarring experience, but I must admit that there’s something liberating about shutting down your own case.  So I know firsthand how lawyers in OGC and DOJ likely felt last month when EPA reversed Administrator Scott Pruitt’s final action – lifting limits on glider kits – and reinstated the restrictions imposed by the Obama Administration.

For those who haven’t followed this mini-series, here are the basic facts.  A glider kit is a heavy-duty highway truck without an engine.  A company then takes an engine pulled from a wreck or junk yard, rebuilds it, and installs it in the truck.  In general, a rebuilt engine installed in a vehicle only has to meet the emission standards to which it was originally certified.  So, the result is a “new” truck that is less expensive than a current-technology vehicle (including avoidance of costly federal excise taxes), but that pumps out a lot more emissions – 44 to 55 times more, according to a New York Times article published last February.

The Times article included another claim:  that that dominant manufacturer of glider kits, Fitzgerald Glider Kits of Crossville, Tennessee, was run by a family that had powerful connections in Tennessee Republican circles and that had curried favor with Mr. Pruitt and President Trump (displaying, on a Trump campaign visit, baseball caps with the slogan, “Make Trucks Great Again”).

Seeking to limit the number of such rebuilds – estimated to comprise up to 4% of new truck sales – the Obama EPA had imposed a cap of 300 glider kits per year on any one manufacturer, a move that would have effectively shut down Fitzgerald, with annual sales in the thousands.  But on his last day in office, July 6, 2018, Administrator Pruitt issued a “no action assurance,” stating that EPA, in its enforcement discretion, would no longer enforce the cap.

Environmental NGOs and the states pounced, and in a rare and stunning move, the DC Circuit granted an administrative stay of Pruitt’s action on July 18, only one day after petitioners moved for that relief.  Equally remarkable, on July 26 new EPA Administrator Wheeler announced that EPA was reversing Pruitt’s action, reinstating the cap on glider kits.  Finally, on August 22, the DC Circuit dissolved the stay and dismissed the case as moot.

And with that conclusion, a small group of government lawyers got to experience for themselves not “the thrill of victory” or “the agony of defeat,” but rather “the thrill of defeat.”

The Environmental Impact of Bitcoin

Posted on August 30, 2018 by Stephen Gidiere

I have a confession to make.  I just couldn’t resist.  I know it was foolish.  But, yes, it’s true—I own bitcoin.  To be exact, I own 0.00108151 bitcoin.  I even have a bitcoin “wallet,” which is nothing more than an app on my phone that I transferred some money (I’m sorry, dollars) into.

I have another confession to make.  Although I have read article after article about “crypto-currencies” and the technology underlying them—blockchain—I really do not fully comprehend it.  I get that it’s a method of digitally validating transactions using a decentralized network of computers.  And that bitcoin is a way of compensating people who do the validating.  But that’s about as far as it goes for me.  I thought that buying my 0.00108151 bitcoin would give me some insight into the whole process, but really I am just out about $35 so far.

But what I have gained is some appreciation for the environmental cost of bitcoin and, by extension, the paperless, digital world that we live in.  On the surface, going to a paperless currency—or paperless anything—seems like plus on the environmental side.  No cutting down trees.  No printing process with solvents and other waste.  No transportation with greenhouse gas emissions.

Yet the environmental impact of the digital currency, though unseen by most, is substantial.  Running all those computers uses substantial amounts of electricity.  In fact, the cost of running the computers is the major limiting factor in bitcoin mining operations (basically server farms).  I have read that investors are flocking to areas of the country with low cost power—like Washington State, rich with cheap hydro power.  And I have recently read about one community in Texas where it is reported that a bitcoin mining operation will start up at a retired aluminum smelting plant, to take advantage of the energy infrastructure already in place.

With the price of bitcoin fluctuating widely (including in my bitcoin wallet), is this sustainable?  There is a real risk of energy infrastructure being built and then abandoned—who gets stuck with those stranded costs?  What about all those servers, creating mountains of electronic waste?  Will the bitcoin rush leave a trail of destruction, like virtual tailing piles from the California Gold Rush?  So I’m thinking—maybe I should cash in what’s left of my bitcoin and fold it up in my real wallet to do my part.

Froggie Goes A Courtin’ in the Home of the Hapless Toad

Posted on August 29, 2018 by Allan Gates

John Roberts’ first opinion as a judge on the D.C. Circuit was a dissent from denial of rehearing en banc in an Endangered Species Act case.  His opinion famously referred to the endangered species at issue as “a hapless toad that, for reasons of its own, lives its entire life in California[.]”  Two years later critics pointed to this flippant reference to species extinction as a reason to oppose his nomination to be Chief Justice.

On October 1st the Supreme Court will begin a new term.  The first case scheduled for oral argument is another ESA case involving another amphibian, the dusky gopher frog.  In this case, private landowners challenge the government’s designation of 1,500 acres of pine forest not occupied by the frog as critical habitat essential for survival of the species.

The ESA clearly authorizes the designation of private land as critical habitat; and it expressly authorizes the designation of land not occupied by an endangered species if the Secretary finds the area to be essential for the species’ survival.  The fight over habitat for the dusky gopher frog in the Supreme Court involves two relatively straightforward issues of statutory construction:

  1. Whether land not occupied by an endangered species may be designated as critical habitat if the land currently lacks one or more of the physical or biological features essential to conservation of the species; and
  2. Whether the agency’s decision not to exercise its discretionary authority to exclude petitioner’s land from critical habitat on grounds of economic impact is committed to agency discretion.

A district judge appointed by President Reagan and generally regarded as staunchly conservative, upheld the critical habitat designation, but did so with clear distaste for the result:

“The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of government insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions.”

The Fifth Circuit, widely regarded as one of the most conservative federal circuits, affirmed the district court, albeit with one judge on the panel dissenting and six judges dissenting from denial of rehearing en banc.

The Supreme Court’s decision to hear the case does not bode well for the dusky gopher frog.  As the saying goes, “The Supreme Court does not grant cert. to affirm.”  The broad picture of this case is familiar.  A small, seemingly insignificant creature is allegedly blocking the common sense path of economic development and prosperity. The arguments challenging the habitat designation are long on drama regarding supposed economic impact, despite the fact the habitat designation only affects government actions, and in the absence of a federal nexus, does nothing to change the landowners’ private use of their property.  And, the arguments against the habitat designation are very short on concern over the survival of what the landowners dub as the “phantom frog.”

So far, the sturdy structure of the ESA has generally withstood this type of full frontal assault, from the snail darter to the Delhi Sands flower-loving fly, to the hapless toad, and now to the dusky gopher frog.  If the dusky gopher frog wins, it will not be the first time the Supreme Court took an ESA case that seemed at first blush to be an easy reversal only to find itself ultimately affirming a decision protecting the species.  That was exactly what happened with the snail darter in TVA v. Hill.  And, as was the case in TVA v. Hill, a victory for the dusky gopher frog in the Supreme Court will undoubtedly fuel arguments that Congress should amend the ESA.

Brett Kavanaugh’s recent nomination to succeed Justice Kennedy has prompted speculation that he would vote against the dusky gopher frog based on his opinion in the D.C. Circuit vacating the critical habitat designation for the San Diego fairy brine shrimp and his critical view of Chevron deference.  Such speculation may be overstated.  It is not clear the Senate will vote on Judge Kavanaugh’s confirmation in time for him to participate in the decision regarding the dusky gopher frog.  And, in any event, the record supporting the habitat designation for the frog is far more robust than that involving the fairy brine shrimp.  In this case, conservative principles supporting strict adherence to statutory language may carry the day for the dusky gopher frog.

500-Year Flood, Last Straw, or Asteroid Strike? Metaphorically Testing the Resilience of Environmental Law.

Posted on August 28, 2018 by JB Ruhl

Regardless of your politics, it’s hard not to describe the environmental policies of Trump Administration as…very different. Indeed, that’s exactly what his supporters want and his opponents fear. But the question is how much different. Enough, I would say, to test the resilience of environmental law.

With origins in ecology, resilience theory has swept into the social sciences as a way of thinking about how social systems withstand forces of change, especially extreme events like the so-called 500-year flood—the flood so big it is expected on average only once every five hundred years. It’s now common to read commentary and proposals on how to build resilience of cities to natural disasters, resilience of corporations to consumer crises, and resilience of the financial system to economic shocks. Well, as I have suggested previously, legal systems are social systems, and they have either enough or not enough resilience to bounce back from extreme “pulse” disturbance events or from a long onslaught of less intense “press” events. If they don’t have enough then, just like an ecosystem experiencing desertification after prolonged drought, a legal system could experience a regime shift and look nothing like its former self on the other side.

One thing that’s entirely apparent now is that, after 35 years of arguing and name calling in environmental law between the “left” and the “right,” we’ve been playing between the 40-yard lines after all. We see that because there’s a new team in town, and they are trying to set up their offense on the 10-yard line, first-and-goal. But I shift metaphors. Back to resilience, and floods, though I may come back to football.

Had any other Republican who threw his or her hat into the ring back in early 2016 been the nominee instead of Donald Trump and won the White House, we’d all have expected “disturbance” events of some magnitude—some pushback on the Clean Power Plan, some softening on climate change policy, some pull-back on the WOTUS rule. Democrats would have waved arms and sounded alarms. But really, in retrospect it would have been just a bunch of 25-year floods and a rare 100-year flood here and there. Then a Democrat would eventually take over and we’d have more of the same in the opposite direction, with role reversal. Hey, that’s politics (or it was politics). The bottom line is that 45 years after the environmental law statutory big-bang of the early 1970s, all these disturbance events added up have never swamped environmental law as we have known it—the laws and agencies are still there, plugging away, albeit it with different playbooks (football again) from administration to administration. In short, environmental law had resilience to spare!

The Trump Administration, at the very least, is a 500-year flood—it’s intended to be that or more. 500 years is a long time, but 500-year floods happen. The smug complacency of the previous paragraph missed one little problem: when a 500-year “pulse” event flood comes along after decades of continuous lesser-magnitude “press” disturbances, it’s possible the resilience reserve just isn’t enough to stave off the assault and prevent a regime shift. Maybe it can, but maybe this 500-year flood is the last straw. And then there’s also the possibility that the Trump Administration is more like an asteroid strike—you know, like the one that wiped out the dinosaurs. Even when the resilience reserve after a long press assault is at three-quarters, that’s a challenge. As in, no way.

So which is it: a 500-year flood environmental law can withstand, the last straw, or an asteroid strike? Everyone has his or her own positions, and I’m not (in this post) trying to tell anyone what they should hope for. Rather, stepping back from the political fray, what’s the evidence? Here’s my take.

First, I don’t think this is an asteroid strike. Those happen fast, and are unequivocal impact events. For environmental law, that would mean something like we wake up one day and there is no Clean Water Act, Clean Air Act, Endangered Species Act, and so on—they went the way of the dinosaurs. There is no evidence that is in the cards, even if it were in the plans. The fact is that our governance system, notwithstanding the critiques, makes it immensely difficult for any new administration, regardless of its agenda and mandate, to accomplish an asteroid strike on environmental or any other field of law. Power is too dispersed, procedures are enforced, courts step in, the public pushes back, election cycles are short, politics can turn to molasses, and so on. Notwithstanding all the hype from both sides, the Trump Administration so far has not proven to be that big of an event. Arguably, though, asteroid strikes have happened in our not too distant past—the Great Depression and WWII were impact events that threw our entire governance system into a regime shift, leading to the dawn of the regulatory state. Were an external global event of that magnitude and threat to occur, its combined effect with the Trump Administration’s agenda could be a very hard blow indeed.

Rather, the evidence thus far is that the Trump Administration, for environmental law and many other fields, looks like a 500-year flood.  It has pushed really hard on all those resilience mechanisms just mentioned, but they are pushing really hard back. And I don’t see it getting near the last straw. I follow the Endangered Species Act very closely from a centrist position—I am no starry-eyed fan or red-eyed critic—and I from what I observe there is zero chance of it going away. But there is a 100 percent chance it will experience broad and deep regulatory and policy reform—it’s well underway already—and perhaps some legislative tinkering. This almost surely will be an outlier disturbance event, like a 500-year flood, and may deplete the resilience reserve more than usual, but it will not wipe it out.  As for other corners of environmental law, I leave that to their respective experts, but my sense is that it is largely the same story.

Again, I’ve tried not to imprint my own politics onto this analysis. Like an ecologist studying an ecosystem under disturbance, I’m simply asking, how big a disturbance to environmental law are the policies of the Trump Administration? We all agree they are big and intended to be so. But ten years from now, will we be playing between the ten, twenty, thirty, or forty yard lines on the football field, or will we be playing soccer on the pitch? I guess only time will tell, but I’m sticking with my seats on the 50-yard line for now.

Look Before You Tweet, or How Not to Respond to Wild Fires

Posted on August 23, 2018 by Rick Glick

In a tweet released August 6, President Trump offered his analysis of how to combat the ongoing human and ecological tragedy of one of the worst fire seasons of record. 

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The president then directed Commerce Secretary Wilbur Ross to take action to free up all that wasted water and solve the fire problem, the first part of which the Secretary dutifully did.  On August 8, Secretary Ross directed NOAA Fisheries, the agency within the Department of Commerce that implements the Endangered Species Act with regard to anadromous fish and marine mammals, as follows: 

Consistent with the emergency consultation provisions under the ESA, Federal agencies may use any water as necessary to protect life and property in the affected areas. Based on this directive, NOAA will facilitate the use of water for this emergency.

Call me old fashioned, but I think an inquiry to California officials as to what they actually need might have been appropriate.  It also couldn’t have hurt to include an expression of concern for the lives and homes lost to the conflagration.  Instead, Mr. Trump chose to cast blame on restrictive environmental laws constraining the amount of water available to fight the fires. 

In fact, California has repeatedly informed the Administration that lack of water is not the problem.  The fires are driven by hot, dry conditions and high winds.  They are primarily fought not by dumping water but by constructing fire breaks to contain the fire.

It is interesting that the Administration chose not to invoke the “God Squad” provisions of the Endangered Species Act to exempt federal response agencies from ESA requirements.  The reason may reflect that this is an elaborate and politically fraught process.   Still, invoking the emergency consultation procedures under the ESA is a grave undertaking that requires NOAA to step through a process to mitigate emergency measures, document its decision not to impose protective measures for listed species, and then at the end of the emergency discuss remediation of the effects of the actions with the other federal agencies. 

The ESA does affect water use, but the conflict is generally between agricultural water interests and aquatic habitat advocates.  It may be that the Administration is using the fire emergency to highlight a different priority, to remove ESA impediments to allow more water for irrigation.  In his statement, Secretary Ross concluded: “Going forward, the Department and NOAA are committed to finding new solutions to address threatened and endangered species in the context of the challenging water management situation in California.”

That’s a fairly innocuous statement, but it could easily be read as a policy statement that the Administration sees the ESA as an impediment to allocating water for agricultural and other business uses in California and elsewhere.  That may be, but it is one Congress put in place decades ago to conserve listed species and their critical habitats, and which Congress has not seen fit to address further.

Attaboy, Jeff!

Posted on August 16, 2018 by Paul Seals

On August 1-3, for the 30th year in a row, Jeff Civins chaired the Texas Environmental Superconference in Austin.  The well-attended sold-out event, presented multimedia, multidisciplinary programs addressing environmental issues and topics, with a Texas theme: “A Texas State of Mind.”  With over 500 registrants, the conference, through Jeff’s guidance, did it again.   The conference combines the latest legal and technical information with playful humor.  Jeff in his humble manner would give the credit to the planning committee, but the Superconference would not be “Super” without Jeff’s leadership and perseverance.  Who says you can’t herd cats!

The unique conference is recognized as one of the best environmental conferences in the country, attracting speakers from around the country and from federal and state agencies.  For two and a half days, cooperative federalism is on full display.

For the 30th Superconference, the program featured a panel of “experienced” environmental attorneys, who reflected on environmental regulation over the past 30 years “and then some.”  The panel included four Fellows, Pam Giblin, John Cruden, Kinnan Goleman, and myself.

As we say in Texas, “Jeff, you done good!”

Is the Superfund Taskforce an EPA Superhero or Just a Bunch of Smoke and Mirrors?

Posted on August 15, 2018 by Heidi Friedman

Is the Pruitt/Wheeler Superfund Taskforce the Clark Kent of Environmental Law, hidden cape and all, producing more effective and efficient cleanups and conquering the nasty villains of TCE and Vinyl Chloride to protect the human race?  Pruitt made his initial request to his superhero squad to prioritize Superfund on March 22, 2017, and the Task Force recommendations came out a few months later identifying 21 priority sites (which by the way were priorities well before that list came out because they were on the NPL) along with many other objectives.  On the Taskforce recommendations' first anniversary, EPA recently gave itself the traditional 1-year anniversary gift of paper by publishing an almost 100-page report detailing all of its Superfund accomplishments and identifying what the environmental villains of the world can expect in Year 2.   Although there is not enough space here to dissect the so-called “accomplishments,” the list feels a lot like that “To Do” list I sometimes generate for tasks I am about to complete, just so I can have the pleasure of drawing a line through it to say I finished something. 

Although many of those officials implementing the task force goals for EPA are superheroes in many ways, the main problem is that the Superfund process is much less than “super,” especially since the reach of the program is expanding not contracting.  For example, we are constantly dealing with new and emerging contaminants.  Closed sites are being reopened to look for 1,4-Dioxane, PFOS-PFOAs and other new or emerging contaminants, many of which are ubiquitous.  Then we have vapor intrusion to further complicate the investigation and pathway exposure evaluation process, even more so now that VI contributes to the hazard ranking system used by  EPA to score a site for listing on the NPL.  So as we make the scoring, listing, investigation and remediation processes broader and more complex, can we really argue that there is now more success in cleaning up these sites, converting them to beneficial use and delisting them?

I don’t think so, at least not yet.  To really move things along, industry and EPA should be focusing on identifying and testing more efficient technologies so that all media can be remediated in reasonable time frames.  How about working toward collaboration among stakeholders to develop reasonable, risk-based cleanup levels based on realistic exposures at sites rather than blindly insisting that MCLs apply for restoration even if no one has or will ever drink the groundwater?  And let’s talk about promoting voluntary actions instead of negotiating orders for every piece of work.  Ramming down model order language and picking insanely expensive remedies overnight to just check the boxes does not generate results or build relationships between industry and EPA to support the program.

Instead, these actions may lead to more PRPs contesting EPA’s decisions as arbitrary and capricious, resulting in further delay and inefficiency.  In fact, we are already seeing erosion of the historical deference that has been given to EPA’s decision making process.  See, e.g., Genuine Parts Co. v. EPA.   Industry and EPA need to form a partnership that focuses on real risk to human health and the environment if there is really going to be a change in the Superfund program that will benefit our communities.  If not, we will remain in the same less than super program, attempting to clean up the same sites for the next several decades.   Or maybe Wonder Woman will swoop in and save the day??? Fingers crossed!

When Should A Regulatory Program Be Eliminated?

Posted on August 9, 2018 by David Flannery

It is certainly not unusual for regulatory agencies implementing water quality standard programs to conduct periodic reviews of the appropriateness of those programs.  Such has been the case with the Ohio River Valley Water Sanitation Commission (“ORSANCO”) for many years. In connection with the current triennial review of its Pollution Control Standards, ORSANCO recently offered the following statement in a public notice and request for comment

This review of the Pollution Control Standards differs from past reviews in that it asks your input on whether ORSANCO should continue to maintain, administer, and periodically update the current Pollution Control Standards, or should eliminate the Pollution Control Standards and withdraw from the process of maintaining and updating such standards.

The proposal to eliminate this regulatory program was undertaken by ORSANCO following a multi-year comprehensive assessment of ORSANCO’s function and role in partnership with its member states, USEPA, and the many other water quality protection activities that are currently administered to protect the Ohio River. This review caused ORSANCO to reach the conclusion “that all member states are implementing approved programs under the federal Clean Water Act” and that “there appears to be little or no purpose for the Commission to continue the triennial review process of updating the PCS rules.” ORSANCO also concluded that elimination of its regulatory program was being proposed with full confidence that the public would have “the full and complete protection of the federal Clean Water Act and the oversight of USEPA and the states without the redundancy of the current PCS program”. http://www.orsanco.org/wp-content/uploads/2016/09/Preferred-Expanded-Alternative-2-and-Minority-Report.pdf   

ORSANCO is seeking comment on this proposal through August 20, 2018. Details of the proposal and the public comment process can be found on the ORSANCO web site.  I am sure that ORSANCO would be very interested in hearing from any of you that have a comment on the proposal or any thoughts on the title question about when a regulatory program should be eliminated.

 ORSANCO is an interstate compact whose member states include Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia.  The Compact forming ORSANCO was signed in 1948 following the consent of the United States Congress and enactment of the Compact into law by the legislatures of the eight member states.