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. 

cid:image001.png@01D42FED.97C91780

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.

Managing Interdependence in a World of Chaos

Posted on August 8, 2018 by Dan Esty

Managing interdependence in our complicated world of nearly 200 nations and thousands of other interests pushing and pulling on global policymaking is never easy. And yet the challenge of getting the world community to work together to solve problems remains urgent – especially for issues of inescapably global scope such as climate change. The international chaos of the past several weeks (with the U.S. President attacking allies, denigrating longstanding alliances, cozying up to autocrats, and brandishing tariff increases like a hotheaded D’Artagnan slashing his way through a Three Musketeers movie) shows just how fragile our collaborative regimes can be. Against this backdrop, the success of the 2015 Paris Climate Change Agreement in getting so many nations and so many others (including mayors, governors, and CEOs) to commit to a joint effort to reduce greenhouse gas emissions looks more amazing today than it did when the COP21 negotiations concluded three years ago.

Continued progress to address the threat of climate change cannot, however, be taken for granted.  Discord in one domain of international relations has a tendency to spill over into others.  Indeed, successful collaboration often depends on give-and-take across policy realms as well as within particular treaties or other cooperative endeavors. President Trump’s bellicose behavior on the international stage thus adds stress to the efforts to maintain momentum for climate change action – on top of the discord that he had already introduced by promising to pull the United States out of the Paris Agreement.

But the news from the climate change front is not all bad.  President Trump cannot actually remove the United States from the Paris Agreement until 2020 based on the accord’s carefully specified withdrawal provisions.  More importantly, the leadership slack is being taken up by others.  Not only have foreign leaders, such as Canadian Prime Minister Justin Trudeau and French President Macron, grabbed the climate change mantle, a whole series of mayors (including Anne Hidalgo in Paris and Frank Jensen in Copenhagen not to mention hundreds of municipal leaders across America) and governors (including Jerry Brown in California and Jay Inslee in Washington state) have ramped up their greenhouse gas emissions control initiatives. Indeed, nearly 3000 subnational leaders across all 50 U.S. states have signed on to the “We Are Still In” coalition, and their actions have kept the United States more or less on target to achieve the emissions reduction commitment set out by President Obama in the U.S. “nationally determined contribution” to the Paris Agreement.

So while the Trump Administration’s non-cooperative posture may yet slow down the global march toward a clean energy future, it may also hasten the creation of a new multi-dimensional structure of global climate change action – and a framework for managing international interdependence more generally -- capable of withstanding the President’s belligerence. With layers of state and local activities as well as national and global ones, supported by initiatives from the business community and many other non-governmental actors, the pace of progress need not falter. And the unintended gift of a more diverse and robust regime of global collaboration may well endure.

Von Humboldt's Gifts

Posted on August 6, 2018 by David B. Farer

Somehow I'd made it this far into my life without ever having heard of Alexander Von Humboldt.  Now, thanks to a wonderfully enlightening and beautifully written biography, I'm in a state of wonderment about this man.  (Thus the title of this blog, with apologies to Saul Bellow.)

The book is The Invention of Nature -- Alexander Von Humboldt's New World, by Andrea Wulf (Alfred A. Knopf, 2015; 473 pp.)

Von Humboldt (1769-1859) was a Prussian-born explorer and naturalist, a prodigious writer, a close friend of Goethe, friend and advisor to many including Thomas Jefferson and Simon Bolivar, inspirer of Charles Darwin (who took a copy of Humboldt's Personal Narrative with him on the Beagle), Henry David Thoreau, John Muir and many, many others.

As a young man, he undertook a five year, groundbreaking exploration of the Americas from 1799 to 1804 (spending much of that time in Latin America, including a year in Venezuela alone), and in 1829, at age 60, undertook another arduous expedition in Russia and Siberia.

As early as the 1790s, he was documenting the impacts of deforestation and deleterious agricultural practices and speaking plainly of the consequences; namely, climate change. During his lifetime, he encouraged climate studies around the world.  He investigated the interconnectedness of volcanos around the globe, of global weather patterns (inventing isotherms along the way), compared rock strata across the earth, and studied the negative impacts of human activity on the balance of nature.

Andrea Wulf delves into Von Humboldt's life in a lucid and engaging manner, documenting his origins, his development as an individual steeped in both science and the arts, his bold, groundbreaking expeditions, the development of his ideas and their exposition in his many books, his dramatic impact on others and the spreading and further development of his ideas by those who followed.

Wulf notes that his contemporaries described him as "the most famous man in the world after Napoleon," that aside from his numerous books and studies, he wrote on the order of 50,000 letters and received at least double that, and at the same time helped advance the careers and travels of fellow scientists and explorers.

Goethe, Wulf writes, compared Humboldt to a "fountain with many spouts from which streams flow refreshingly and infinitely, so that we only have to place vessels under them."

In 1834, at the age of 65, he began the book he intended to bring together everything he had been studying about nature. The first volume was published in 1845, and he named it Cosmos.  A Sketch of the Physical Description of the Universe, drawing the title from the Greek word for "beauty" and "order."

It became an instant best seller in its original German version, and was translated into ten other languages in the following few years.

"Cosmos," Wulf writes, "was unlike any previous book about nature.  Humboldt took his readers on a journey from outer space to earth, and then from the surface of the planet to its inner core.  He discussed comets, the Milky Way and the solar system as well as terrestrial magnetism, volcanoes and the snow line of mountains."

By the 1850s, his portrait hung "in palaces as remote as that of the King of Siam in Bangkok," and "his birthday was celebrated as far away as Hong Kong."

Wulf describes that John Floyd, the U.S. Secretary of War, "sent Humboldt nine North American maps that showed all of the different towns, counties, mountains and rivers that were named after him," and noted that thought had been given to renaming the Rockies as "Humboldt Andes."

He was mourned around the world upon his death in 1859, and then ten years later, on the centenary of his birth, there were celebrations from Australia to America, including commemorations and parades in many of the major cities of the U.S.

And yes, the Humboldt Current and hundreds of plants and animals are also named after him.  Wulf even documents that the state of Nevada was nearly named after Von Humboldt.  Yet as Wulf describes and then sets out to change, he has been nearly forgotten in the English-speaking world outside of academia.

It's a great read; stimulating, inspiring and a finely told life of a great man.

Strong Headwinds Face Water Quality Trading in the Chesapeake

Posted on August 2, 2018 by Ridgway Hall

The Chesapeake Bay watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. When the six states and the District asked EPA to establish a multi-state Total Maximum Daily Load under the Clean Water Act in 2010 and assign each state its fair share, they took on the job of reducing discharges of nitrogen from all sources by 25%, phosphorus by 24% and sediment by 10%. The goal is to have all necessary measures in place to achieve this by 2025 to meet applicable water quality standards. With funding at the state and federal levels in short supply, a search was on for the most cost-effective ways to reduce these pollutants.  The states with the biggest burdens, Pennsylvania, Virginia and Maryland, each turned to the emerging practice of water quality trading.

Trading enables a discharger for whom the cost per unit of pollution reduction is lower than for other dischargers to reduce its pollution below what the law requires and sell that extra reduction as a “credit” to another discharger for whom the cost per unit of pollutant reduction is greater.  The result is that the seller makes money from the credit sale, and the buyer attains compliance at a lower cost than it would otherwise incur. Sounds simple, doesn’t it?  In October the Government Accounting Office published the results of a nationwide survey in which it found that only 11 states have water quality trading programs, and the only significant use being made was in Pennsylvania, Virginia and Connecticut, even though EPA has been promoting it since 1996. (I discussed this in “Water Quality: Wading into Trading” posted Nov. 28, 2017).

To encourage the Bay states to adopt trading programs that will comply with the Clean Water Act and its implementing regulations, EPA published a series of “Technical Memoranda” (TMs) addressing key elements of a trading program including “baseline” (the maximum amount of pollution allowed under any applicable law before a credit can be generated), protecting local water quality where a credit is used, credit calculation, and accounting for uncertainty. This is needed where a nonpoint source, like a farm, is generating credits by installation of best management practices (BMPs) and the pollution reduction benefits must be estimated using modeling. The TMs also address credit duration, certification by the agency, registration and tracking on a publicly posted registry, and verification that the BMPs on which the credits are based are being maintained.  Finally, they address sampling and public participation. (See my blog post of Sept. 26, 2016 “New Tools for Water Quality Trading”).  Credits can also be used to “offset” new or expanded discharges. The TMs are not regulations, but set forth EPA’s “expectations”.

Common Elements

Pennsylvania, Virginia and Maryland have adopted trading regulations which are intended to be consistent with the TMs.  The principal elements include . . . [CLICK HERE TO READ THE REST OF THIS ARTICLE]

WOTUS: Legal Issue or Scientific Issue?

Posted on August 1, 2018 by Seth Jaffe

Last month, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected, it asks what are the jurisdictional limits in the Clean Water Act.

It’s cynical, because, by failing to take on the science behind the 2015 rule, which seemed fairly persuasive to me, EPA and the Corps avoid the hard regulations necessary to protect our waters while clothing themselves in feel-good words about the integrity of the statute and the important role given to states under the Clean Water Act.

Part of the beauty of the SNPR is the way it carefully navigates between whether the broader jurisdictional interpretation taken by the 2015 rule is prohibited under the Clean Water Act or simply not required under the Clean Water Act.

The agencies are also concerned that the 2015 Rule lacks sufficient statutory basis. The agencies are proposing to conclude in the alternative that, at a minimum, the interpretation of the statute adopted in the 2015 Rule is not compelled, and a different policy balance can be appropriate.

I’m not sure I agree with the administration’s interpretation of the scope of the CWA, but it’s not crazy.  If I had to bet, I’d assume that it would survive judicial review.

The problem is that this simplistic legal approach ignores the science and ignores the missions of both EPA and the Corps.  If the 2015 rule is more protective of the nation’s waters, and if there are questions about the scope of jurisdiction under the CWA, then shouldn’t the administration be asking Congress to clarify EPA’s and the Corps’ authority so that they can regulate in a manner consistent with what good science says is necessary to protect the waters of the United States?

I’m not holding my breath.

Michèle Ma Belle

Posted on July 19, 2018 by Robert Falk

Michèle B. Corash, one of our giants of environmental law and my dear friend, mentor, and partner retired from active practice earlier this year.  She, her unique persona, and her achievements are well known to many, while Michèle’s other, quieter accomplishments, deeds, and attributes are likely known to only a few.  Because “these are words that go together well,” I will discuss just a small handful of her better and lesser knowns below.

As almost all of you may know, Michèle proudly served as general counsel of the U.S. Environmental Protection Agency from 1979 to 1982.  Prior to that she served as deputy general counsel for the U.S. Department of Energy, and, previously, was a special assistant to the chairman of the Federal Trade Commission.  (Since we shared a common initial job description in our federal government careers, in working together for almost three decades, one of Michèle favorite things to say to keep me on my toes was “once a special assistant, always a special assistant.”) 

As general counsel, Michèle, among other things, helped EPA give birth to CERCLA, as well as regulations implementing key provisions of RCRA and many of our other fundamental environmental statutes.  While her participation in the reach of our environmental laws is likely her more significant accomplishment, on the other side of the equation, she also served on then-Vice President George H.W. Bush’s Regulatory Reform Task Force, where she helped steer its recommendations to avoid the type of unconscionable approaches that we unfortunately witness all too often being undertaken by the current Administration. 

In her subsequent career in private practice, Michèle was widely recognized as a leader and innovator in environmental law.  She received the highest rating for environmental lawyers from Chambers USA virtually every year, and Legal 500 USA repeatedly ranked Michèle as a Leading Lawyer in Environmental Litigation.   On a wider stage, Michèle was listed in the Expert Guides to the World’s Leading Lawyers – The Best of the Best, and here on the “left” coast, California Lawyer also cited Michèle as one of the “Best of the West.”  (Perhaps of more significance to her personally, is that Michèle’s work was also recognized by The Los Angeles and San Francisco Daily Journal as having the “widest impact and is changing an industry or the law or the society as a whole.”)   

As many of you know, beyond her accomplishments in practice, Michèle was a founding member of the American College of Environmental Law and served as its President in 2008-2009 (culminating in a fabulous and still-remarked upon party in her penthouse condominium with its 360° view of San Francisco).  Prior to that, Michèle served on the ABA’s Standing Committee on Environmental Law and (after assigning me as a junior associate to be her special assistant for organizing it), chaired its International Conference on Environmental Law in Pacific Rim Nations in Hong Kong in 1991. 

Somewhat lesser-knowns about Michèle include her tireless promotion of women and diversity in the legal profession, in the business world more generally, and particularly within our firm.  (In addition to parties for ACOEL and many others, Michèle hosted current and former women attorneys and summer associates at a very well attended annual dinner at her home.)  Michèle also serves as a fabulous mentor to her nieces (who she regularly brought to work on Take Your Daughter to Work Day) and as a godmother to several close friends’ children.  As added evidence of her boundless energy, she has also been a longtime patron of the opera and remains an active member of the Board of the San Francisco Symphony. 

Although I could go on (and on) and tell you, many other things about what a wonderful mentor and friend Michèle has been over the years, instead, I prefer to conclude this serenade with Mr. McCartney’s lyrics:

Michèle, ma belle
These are words that go together well
My Michèle

Michèle, ma belle
Sont les mots qui vont très bien ensemble
Très bien ensemble

I love you, I love you, I love you . . . .

Fear of Forward Looking Statements: Climate Reporting and the TCFD

Posted on July 18, 2018 by Christopher Davis

Risks relating to climate change are becoming increasingly material to companies in a broad range of sectors, to investors who own their shares, to banks that lend to them, to insurers that insure them, to communities where they operate, and to regional and global economies. Climate-related factors including energy transition from fossil fuels to renewables, extreme weather events and water scarcity are having increasing impacts. As a result, climate-related disclosure has become a hot topic, or should be, as companies are required by the Securities and Exchange Commission (SEC) and other regulators to disclose their material climate-related risks.

In the wake of the 2015 Paris climate agreement, the Task Force on Climate-Related Financial Disclosures (TCFD) was created by the G20’s Financial Stability Board in 2016 to develop consistent, voluntary standards for companies, investors and insurers to report climate-related financial risks and opportunities. The task force was chaired by Michael Bloomberg, and comprised of 32 members from major global corporations, financial institutions, corporations, accounting firms, credit rating agencies and other organizations. The TCFD issued a final report presenting its Recommendations [insert link] for such disclosures in June 2017. The Recommendations have been endorsed by more than 250 companies, banks, institutional investors, insurers and other organizations.

The TCFD Recommendations focus on two kinds of financially material climate-related risks: transition (legal/policy, technology, market, reputation) and physical risks. They call for disclosures in four areas: (1) Governance of climate-related risks and opportunities, (2) Strategy for identifying and addressing climate-related impacts, (3)  Risk Management measures to assess and manage relevant risks, and (4) Metrics and Targets including reporting Scope 1, 2 and 3 greenhouse gas emissions and metrics and targets to measure and manage them.

While the TCFD Recommendations have garnered considerable attention and support, notably from institutional investors, relatively few companies have so far committed to report in accordance with the Recommendations. There are various reasons for this, including inertia, cost and advice from inside and outside counsel about the purported liability and competitive risks associated with the kinds of forward-looking statements called for by the Recommendations. Indeed, disclosures consistent with what the TCFD recommends would be much more substantive, revealing and useful than the generic boilerplate disclosures of climate and other environmental risks that commonly appear in SEC filings.

Corporate counsel often provide conservative advice on disclosures in SEC and other mandatory corporate financial reporting. Federal securities laws provide corporate issuers with safe harbors for forward looking statements (typically focused on projections of future financial results) where accompanied by meaningful cautionary statements. Also relevant here is the SEC’s 2010 “Guidance Regarding Disclosure Related to Climate Change,” which highlights mandatory reporting requirements under SEC Regulation S-K for financially material climate-related risks, including the impact of legislation or regulation, international accords, indirect consequences of regulation or business trends, and physical impacts.

While caution and risk aversion are hallmarks of typical legal advice, I would argue that good, thoughtful disclosures consistent with the TCFD Recommendations are likely to have a range of benefits to the disclosing companies, and limited risks. Doing the internal work across disparate corporate functions necessary to address the TCFD Recommendations will improve a company’s understanding and management of evolving climate-related risks and opportunities. Good, meaningful disclosures require homework that underpins good corporate governance, risk management and strategic planning. What gets measured gets managed, and the TCFD Recommendations call on companies to assess and manage climate risks and opportunities, and to report to stakeholders on how they are approaching these issues.

Companies responding in a timely and effective way to the accelerating economic and physical changes brought by climate change can be expected to have a competitive advantage over their peers that fail to do so. Likewise, companies that meaningfully and credibly disclose how they are responding to material climate risks and opportunities, as called for by the TCFD, should enjoy a competitive advantage over their competitors who do not. A range of stakeholders (including current and prospective customers and employees) are likely to respond more favorably to companies that make a good faith effort to comply with evolving best practice disclosure standards. The likelihood of being sued for securities fraud based on such well-grounded climate disclosure seems low. By contrast, the risks of successful claims of non-disclosure and misleading disclosure for companies that fail to meaningfully disclose climate-related risks affecting their business seem quite real, as suggested by the investigations of ExxonMobil’s climate-related disclosures. The market generally rewards leaders that, to paraphrase hockey great Wayne Gretsky, are skating to where the puck is going rather than where it has been, and are early responders to global megatrends like climate change.