EPA Proposes to Defund Superfund Litigation

Posted on October 12, 2017 by David Uhlmann

The Trump administration has unleashed a withering assault on environmental protection efforts that seeks to roll back decades of bi-partisan efforts to provide clean air and water in the United States.  Environmental groups and state attorneys general are challenging the EPA in court over its proposals to repeal the Clean Power Plan, the Clean Water Rule, and dozens of lesser-known regulatory programs.  While those lawsuits have achieved some initial success, based on EPA’s failure to comply with the Administrative Procedures Act, there is justifiable concern about the fate of EPA’s regulatory programs.

But less attention has been paid to a rollback buried in the EPA’s FY 2018 budget, which also might have devastating impacts:  the proposal to end EPA funding of Superfund litigation by the Justice Department.  Since 1987, the EPA has reimbursed the Justice Department for the cost of bringing Superfund cost recovery cases, with as much as a third of the Environment and Natural Resources Division (ENRD) budget devoted to Superfund work.  (This year, ENRD was expecting about 20 percent of its funding to come from the EPA.)  The cost-sharing arrangement is enormously beneficial to the Superfund program, which receives hundreds of millions of dollars of cost recovery every year in cases litigated by ENRD.

EPA's effort to defund cost recovery litigation could lead to layoffs at ENRD, cripple the Superfund program, and undermine criminal and civil enforcement of the environmental laws.  The proposal has all of the features of another Trump administration executive fiat that could fly under our collective radar.  It deserves condemnation from everyone who cares about public health and the environment, as I explain in an October 4th New York Times op-ed entitled Undermining the Rule of Law at the EPA.

Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

From High Within the Ivory Tower, the Tenth Circuit Decides That a Third-Party Liability Policy Doesn’t Cover Third-Party Environmental Liabilities

Posted on October 9, 2017 by Thomas Hnasko

In an unpublished decision in Taos Ski Valley, Inc. v. Nova Casualty Co., the Tenth Circuit decided the so-called “owned or occupied property” exclusion in a third-party comprehensive general liability (“CGL”) policy barred coverage for the third-party damage claims asserted by the New Mexico Environment Department against Taos Ski Valley (“TSV”) because the petroleum-product contamination, through the expedient efforts of TSV, was successfully confined to the boundaries of property occupied by TSV and did not impact groundwater, a third-party resource owned by the State of New Mexico.  In so doing, the Court reasoned language added to the owned or occupied property exclusion, which barred coverage for damage to the insured’s property “for any reason,” was sufficient to disclaim coverage.

The Tenth Circuit was not persuaded by the reasoning of Judge Pozner and others that, under a CGL policy, the location of the damage is immaterial; rather, it matters only that the damage caused an immediate third-party liability instead of damage only to the insured’s first-party property interests.  Moreover, the Court was not persuaded by the argument that environmental practitioners can now advise their clients to defer environmental clean-ups until property owned by the public (as a third party), i.e., the groundwater aquifer, is damaged.  The Court summarily concluded that, in such an event, the policy would foreclose coverage on another basis, because the damage to the groundwater would be expected and intended by the insured.  Certainly any environmental practitioner knows this is pure folly.  Simply instructing an environmental consultant to schedule the groundwater sampling on Thursday, as opposed to Tuesday, might well do the trick to ensure publicly-owned water resources, as opposed to just soil, suffer environmental harm and trigger coverage under the CGL policy.  More importantly, it is unfortunate the Court actually believes the New Mexico Supreme Court, as a matter of state law, would sanction a result encouraging the pollution of our resources, instead of prompt environmental clean-ups, in order to secure insurance coverage.  Claims of environmental contamination, after all, constitute damage to the public, as a third party, whether damage occurs within or outside of the boundaries of property owned or occupied by the insured.

HIPPOS, THE DANCE OF THE HOURS, AND THE TRUMP ADMINISTRATION

Posted on October 5, 2017 by James Holtkamp

The award-winning 1940 movie Fantasia includes a segment with a bevy of hippopotami in tutus preforming the Dance of the Hours. It is a remarkable depiction of an alternate reality in which the law of gravity doesn’t seem to apply.  The 2017 version of an alternate reality is the Trump Administration’s perspective on climate change.  Like the hippos in Fantasia, Messrs. Trump and Pruitt and other Administration officials are trying to ignore inexorable laws of nature and human behavior.  Unlike the hippos, they will not succeed (reserving judgment on whether they will look as nice in their tutus).

In June, Mr. Trump announced the withdrawal of the U.S. from the Paris Agreement, claiming that it was a ”bad deal” that would “kill American jobs.” With Nicaragua belatedly deciding to sign on to the Agreement, the only two countries left that are not participating in the Agreement are the U.S. and Syria.  (Nicaragua, by the way, initially refused to sign the Agreement, not because it thought the Agreement was too stringent, but rather that it wasn’t stringent enough.)

Meanwhile, Category 5 hurricanes march through the Gulf of Mexico and the Caribbean, epic droughts wither the Pacific Coast, sea lanes in the Arctic are open for the first time in recorded memory, and entire islands disappear beneath rising seas.  The human cost of these and other climate-related events is immense.

The preamble to the Paris Agreement identifies the following climate-vulnerable areas of society:

·         Poverty-stricken populations

·         Food security

·         Quantity and quality of jobs

·         Human rights

·         Health

·         Indigenous peoples

·         Local communities

·         Migrants

·         Children

·         Gender Equality

·         Empowerment of women

·         Intergenerational equity

·         Ecosystem integrity

·         Justice

The rejection of the Agreement by the Trump Administration represents a denial of the broad impact of climate change on society as articulated in the Agreement.  Like the hippos in the dance, the Administration wants to live in a world in which the laws of nature don’t apply.  But real-world hippos and the rest of the inhabitants of the planet (including all of us and our children and grandchildren) will suffer the consequences of their denial of reality.

Looking for Shelter under the Permit Shield

Posted on October 4, 2017 by George House

As a follow up to Kenneth Gray’s post on PFASs, the PFAS situation in the lower Cape Fear River of North Carolina is a new battleground for the Clean Water Act NPDES permitting process.  GenX is a product that DuPont, and now Chemours, began manufacturing in or about 2010 as a substitute for PFOA of Parkersburg fame.  When GenX is used in other processes at the same plant facility, it is released in the process wastewater as a byproduct.  While testing Chemours discharge for GenX, two other perfluorinated compounds, identified by EPA as PFESA Byproducts 1 and 2, were discovered.

The Department of Environmental Quality (DEQ) of North Carolina sued Chemours (spin-off of DuPont) on September 7, 2017 and sought injunctive relief from the North Carolina Superior Court for an order requiring Chemours to, “immediately cease discharging the substances identified as PFESA Byproduct 1 and PFESA Byproduct 2  . . . from its manufacturing process into the surface waters . . . and, to continue to prevent the discharge of process wastewater containing GenX into the waters of the State.”   DEQ alleged among other things that Chemours and its predecessor DuPont, “failed to timely disclose to DWR (the permitting authority) the discharge of GenX and related compounds into the Cape Fear River” and, “In particular, none of the DuPont and Chemours NPDES permit applications referenced ’GenX’ or any chemical name, formula, or CAS number that would identify any GenX or related compounds in the Facility’s discharge.”  Further, DEQ alleged, “Part of the permit applicant’s burden . . . is to disclose all relevant information, such as the presence of known constituents in a discharge that pose a potential risk to the human health.” 

By letter from counsel dated September 8, 2017, Chemours responded, “The NPDES permit specifically describes the portion of the Fayetteville Works’ complex that generates the PFESA’s and, in accordance with well- and long-established NPDES permitting practice as construed and ratified by the courts, this is sufficient for the discharges to be covered by the permit . . . . chemical substances did not have to be enumerated by name in Chemours’ NPDES permit in order to be covered under the permit, so long as the process from which they were generated was described in the permit.”  Chemours further stated that this situation, “characterizes the circumstances that also prevail at countless permitted facilities throughout North Carolina and the rest of the United States, where numerous untested and unregulated trace-level compounds are present in permitted discharges”.

North Carolina courts will now have to grapple with the issues presented in Piney Run Pres. Ass'n v.Cnty. Comm'rs that was recently cited with approval in S. Appalachian Mt. Stewards v. A&G Coal Corp., both Fourth Circuit cases, and rule upon the issue of how much information a permit applicant must disclose to successfully avail itself of the “permit shield.”

Doing the Environment in My Retirement

Posted on October 3, 2017 by Ben Fisherow

It’s been sixteen months since retirement … or have I just been on a sabbatical?  The days have been full enough and way too stress-free seriously to consider going back.  So, it now seems it will be retirement for sure, and not return, but the urge persists to be RESPONSIBLE and to feel at least some pressure to perform.  How to achieve the latter without reverting to the former?

I have volunteered to teach environmental enforcement to old fogies (like me) at one of our nearby adult education outlets – the Osher Lifelong Learning Institute.  Rather than go all-in to this teaching gig, I will try myself out during OLLI’s 3-day “February Shorts” that run between the normal lengthy Fall and Spring sessions.  Compressing thirty years of experience enforcing the nation’s major environmental statutes into three 90 minute lectures will be interesting.  What’s more, the talks need to be entertaining, which means a Power Point with visuals and music (Remember Randy Newman’s “Cuyahoga River?”).  Thank God for the help of my daughter-in-law.

I am also applying to the District of Columbia’s Master Gardener program.  This promises to be quite cool because after 8 weeks of classroom instruction, one needs to volunteer 50 hours of community service to obtain the Master’s certificate.  Since my tech-savvy daughter-in-law is the principal of an elementary school, and they need some help around the grounds, I’ll have the chance to really accomplish some things. 

Moreover, DC like many other cities has been grappling with the problems posed by the runoff of stormwater into its sewer system where it combines with normal flows of industrial and residential waste.  The increased volume of this combined sewage during wet weather, which often exceeds the capacity of the District’s system to treat, must be discharged from several outfalls, untreated, directly into the Anacostia and Potomac Rivers.  The threats to the public and aquatic life are obvious.  “Green infrastructure” projects are an innovative approach to intercepting excess wet weather flows before they reach stormwater drains.  They could present a feasible alternative to building new, massive, underground tunnels to store combined sewage until it can be properly treated and safely discharged from the District’s single large sewage treatment plant at Blue Plains. 

The District is working with EPA to substitute green for gray infrastructure as one way to achieve the sewage discharge reductions the Clean Water act requires.  And, so far, it appears EPA has been willing to accommodate increased neighborhood green spaces, roof gardens, permeable pavement and the like as potential alternatives to the disruption that construction of deep tunnels could cause.  With my Master’s certificate in hand, I hope to present myself to the District as a worker to help them Implement some of their green infrastructure initiatives.

Pretty good ideas, I think.  Whether I succeed with any of them remains to be seen.

Cooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0

Posted on September 26, 2017 by Jeffrey Haynes

In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute.  Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017).  The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”

Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply.  The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court.  The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws.  Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind.  The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.

The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state.  The state officers were not contractors, employees, or agents of federal officers.  The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship.  EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute.  The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection. 

The court kept the floodgates closed.  It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.

So, states’ rights advocates, take heart.  Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own.  Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.

Limerickal Recognitions in an Unrecognized Meter

Posted on September 21, 2017 by Andrea Field

Last month, our colleague John Milner was elected to serve as Chair of the ABA’s Section of Environment, Energy, and Resources (SEER).  John’s election follows over 35 years in the practice of environmental law and years of contributions to SEER. 

After congratulating John on his election, I did some research to determine how many of us in the American College of Environmental Lawyers (the College) have also served as Chair of SEER.  Here is what I found. 

 

We all know that John Milner’s a stand-out.

Still, there are more of us (I have no doubt),

Who have chaired SEER and who

Are Collegians, too. 

But how many and who?  Let us find out.

 

Well – mirabile dictu – I now know

There are seventeen such College Fellows – 

Milner; Russell; and Dunn;

And R. Kinnan Golemon;

Also Lynn Bergeson; Richard Stoll-o;

 

Mike Gerard; Eugene Smary; Ken Warren;

Sheila Hollis; and I’m not ignorin’

Steve McKinney; and Lee

DeHihns; Evans (Parthy);

Plus Ted Garrett.  Now let’s keep explorin’.

 

As this leadership onion is unpeeled,

Three additional names are now revealed:

That most worthy of gents –

And our next President –

John C. Cruden; C. Dinkins; and A. Field

 

So when we meet in Charleston, let’s all cheer

The accomplishments of the whole past year.

Clap your hands.  Raise a glass

To Jim Bruen and the class

Of the seventeen Fellows who’ve chaired SEER.

The Intersection of Environmental Justice and Climate Change

Posted on September 20, 2017 by Lisa C. Goodheart

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts.  Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities.  For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks.  Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure.  It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably.  Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes.  Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ.  Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination.  In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts.  That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities.  This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making.  Its scope was limited to environmental agencies, and it contained no mention of climate change.  Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making.  In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.”  This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N.  Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated.  The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making.  The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities.  States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs.  This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster.  As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

PFAS – NOT JUST ANOTHER “EMERGING” CONTAMINANT

Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Turn On, Plug In, Peel Out

Posted on September 18, 2017 by Samuel I. Gutter

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal.  It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S.  And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer. 

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles.  Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers.  Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors.  GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years.  Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.  

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future.  And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years?  Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play.  China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles.  And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up.  And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror. 

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery.  But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share.  As prices drop and driving range increases, electric vehicles will become more affordable and practical.

Fasten your seatbelt, there might be an EV in your future!

Trump’s 2-For-1 Order: Still Arbitrary and Capricious After All These Months

Posted on September 15, 2017 by Seth Jaffe

In June, I posted about Foley Hoag's brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO.  By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated.  The Order is thus the definition of arbitrary and capricious.

Late last week, OMB issued a memorandum to executive agencies, requiring them to develop “Regulatory Cost Allowances” for FY 2018.  The memorandum is only one page.  In that one page, it uses the word “cost” 11 times.  The word “benefit” does not appear.

The memorandum notes that the purpose of the Order is to “lower regulatory burdens” and “to be prudent and financially responsible in the expenditure of funds, from both public and private sources.”

I hate to beat a dead horse, but one would have thought that the absolute size of the “regulatory burden” is not what’s relevant; what’s relevant is whether that regulatory burden is exceeded by the benefits of proposed regulations.  One would also have thought that requiring expenditures of private funds for regulatory compliance would be seen as “prudent” if those compliance costs are exceeded by the benefits.

Indeed, one would have thought – and I do still think – that seeking to lower regulatory compliance costs without regard to the benefits provided by government regulations is just plain crazy.

Silly me.

Countering RCRA Corrective Inaction

Posted on September 14, 2017 by Dean Calland

David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction.

The current statistics on remedial progress at RCRA corrective action sites are disappointing.  EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action.  However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program.

There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach.  RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.”  As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time [of RCRA corrective action cleanups] by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.”  RCRA FIRST was an effort to address the root causes of delay such as unclear or non-specific investigation or cleanup objectives and the lack of specific processes to elevate differences among stakeholders early in the project.  As part of this effort, EPA has published a Toolbox for Corrective Action which is designed to arm both respondents and the agencies with practical recommendations to help achieve more efficient investigation decision-making and remedy selection.

The willingness of EPA regions and delegated states to discuss these approaches varies considerably; however, one of the specific reasons that caused EPA to get serious about corrective action reforms was their recognition that agency manpower is likely to continue to shrink over time, and that the traditional approach was wasteful of agency resources.  Some specific examples of how RCRA FIRST has been used to forge consensus on difficult issues are listed below.

·         Up front establishment of a Corrective Action Framework (CAF) that describes the parties’ understandings regarding future investigation and remediation work at the facility borne out of an on-site meeting with agency site managers and their superiors.  CAF Meeting Agenda; CAF Template. The CAF is not a formal agreement but it can be referenced and attached to the consent order for both parties to build upon during the subsequent work;

·         Willingness to eschew the traditional RFI study at sites with older data sets in favor of a limited scope RFI that solely addresses identified and agreed upon data gaps;

·         Allowance for the respondent to by-pass the RFI Workplan and instead roll the existing characterization data and some limited additional sampling results directly into the RFI Report;

·         In appropriate circumstances, elimination of the Current Conditions Report and Preliminary Conceptual Site Model steps in the process;

·         In certain limited instances, an agreement to skip the obligation to submit a Corrective Measures Study (CMS) altogether, in favor of moving directly to the Statement of Basis, thereby saving considerable time and money. This is more likely to happen when a presumptive remedy is being sought by the Respondent or when there is an identified reuse for the property that will bring new uses and jobs to the site;

·         Agreement to the submission of a limited Corrective Measure Study that only addresses potential corrective measures that are demonstrated, cost-effective or presumptively applicable.

·         Placing pressure on all participants to use quarterly team meetings and pre-discussed decisional criteria for decision-making in place of the extremely time consuming “redo loop” of written comment and response on technical reports and to bring impasses to the attention of decision-makers earlier (the Evaluation Process);

·         Willingness to terminate older consent orders and unilateral orders and consolidate all applicable requirements into one operative corrective action instrument;

·         An agreement that EPA managers coordinate with state agencies where both have ongoing jurisdiction (e.g., when EPA has responsibility for corrective action and the state has responsibility under their UST program) to avoid duplication of effort and cost for the Respondent;

·         A formal acknowledgement by EPA that Respondent may request a written determination that Respondent has met the consent order’s requirements for just a portion of the facility, particularly if necessary or helpful for a sale or innovative reuse of the subject parcel.

In this era of ever-shrinking agency resources, it is incumbent on all stakeholders at RCRA corrective action sites to seriously consider these new techniques that can make the RCRA corrective action process more time efficient and less costly.

Cuba Delegation 2: ACOEL’s Possible Contribution to the Cuban Environmental Community and Other Observations from XI International Convention on Environment & Development (Part 2 of a Two-Part Series)

Posted on September 13, 2017 by Mary Ellen Ternes

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice.  At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience.  It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate.  Also worth noting is that many of the conference participants are familiar to us all.  For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico.  Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain.  Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages.  Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment. 

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey.  This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law.  The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000).  Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters.  They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

Cuba Delegation 2: Our July 2017 Presentation in Havana and ACOEL Progress on Pro Bono Projects in Cuba (Part 1 of a Two-Part Series)

Posted on September 12, 2017 by David B. Farer

In July, Mary Ellen Ternes and I spoke at the XI International Convention on Environment & Development in Havana, Cuba.  Our topic was Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.  Our paper on the topic was published in the proceedings of the Convention.

Our participation at the event was an outgrowth of the continuing work of the ACOEL Cuba Working Group, which explores the potential for ACOEL pro bono projects there.  Following our initial delegation to Havana in September 2016, the Working Group's further efforts have now also resulted in encouraging indications that we will be able to establish Memoranda of Understanding for Fellows to move forward on specific assignments in Cuba.

For our written and oral presentations, Mary Ellen and I focused on (a) the way that environmental controls over infrastructure development and operation have evolved and improved substantially in the U.S. over the last fifty years, and (b) the benefits of the lessons learned.  Mary Ellen addressed the areas of air and water quality, water supply, waste management, and sewage treatment.  I concentrated on remediation of contaminated media and the College's commitment to pro bono work.  In particular, I emphasized the goal of having Fellows provide pro bono environmental law services as may be requested on behalf of the Cuban people and certain institutions or environmental agencies in Cuba. 

During our Havana meetings, we were also invited to submit proposed MOUs for a joint research project and a teaching project.  We will be developing those MOUs and hope to have additional positive news and pro bono prospects on which to report.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

Doin’ the Dunes – Part XI

Posted on September 7, 2017 by Joseph Manko

As a response to the wreckage of property caused by Superstorm Sandy on Absecon Island, New Jersey, the municipalities that comprise the coastline – Brigantine, Atlantic City, Ventnor City and Longport – supported the construction of dunes on their beaches . . . with one exception.  The outlier, Margate City, chose to oppose the construction of dunes on its beaches and beginning in 2014, Margate went to court to prevent the New Jersey Department of Environmental Protection (DEP) and US Army Corps of Engineers (Corps) from building dunes in Margate. 

Thus ensued various challenges from Margate homeowners and ultimately the Margate City Council, leading to a rash of decisions in state and federal courts as described in my prior 10 blogs.  Earlier this year, both courts upheld the authority of the DEP and the Corps to proceed, and construction began in July – starting in the middle “municipality”:  Margate’s beaches.  (Not surprisingly, Margate described this disruption in the heart of tourist time as “payback” for its opposition.  Also not surprisingly, the DEP and Corps disputed Margate’s characterization.) 

Dune construction on Margate’s beaches has not proceeded without incident.  Since Margate is located at – or just a tad above – sea level, heavy rainfalls or tidal crests have historically caused Margate’s streets to flood, and the stormwater  and its various constituents to spill out directly to, or in outfall pipes through, the beaches and into the ocean.  Without the dunes, residents had grown accustomed to occasional resultant ponding as the stormwater percolated across and through the sand.  However, as the dunes rose, the traditional rate of percolation stopped, causing the formation of standing stormwater “lakes,” which the city has dubbed “Lake Christie.”  The standing stormwater impedes the access to the beaches and allegedly creates dermatological problems for lifeguards and people walking through.

Although Margate abandoned further litigation regarding the authority of DEP and the Corps to build dunes, Margate was drawn back to court by the outcry regarding the dunes’ failure to allow normal percolation.  Margate met with initial success:  the state court issued a temporary restraining order (TRO) on further construction until the contractor for the Corps could demonstrate a process to address the standing water.  The Corps – which was not a party to the state proceedings – then successfully moved to have the case removed to the federal district court, where the TRO was dissolved by Judge Renee Marie Bumb, the same judge who had previously ruled that the DEP and Corps had the authority to build the dune.  In her ruling, Judge Bumb held that the state court had no jurisdiction to issue a TRO against a federal agency (the Corps) and again stressed the Sandy aftermath concern for allowing resumption of the construction, subject to a series of conditions, including eliminating the current pooling and determining the manner in which recurrences of flooding would be avoided. 

As I complete this latest blog, Margate’s appeal of Judge Bumb’s decision to the Third Circuit was denied.  And I, an owner of a beachfront condo and a long time summer tourist in Margate, continue to try to remain otherwise “uninvolved” other than as a writer of blogs.  Did I know where this was headed when I wrote my first blog?  Absolutely not.  Did I know that my very persona as an environmental attorney would make me be unwillingly controversial?  Absolutely not, but it’s been interesting to observe, rather than serve as an environmental litigator so close to my “second home.” 

WHICH WAY ARE THE WINDS BLOWING ON THE INTERNATIONAL TRANSPORT OF AIR POLLUTANTS?

Posted on September 5, 2017 by David Flannery

At a time when the international transport of air pollutants is squarely before the DC Circuit in connection with the challenge to the Cross State Air Pollution Rule Update (State of Wisconsin, et al v. EPA, Case No. 16-1406) there is new information confirming that “but for” international transport, every air quality monitor in the nation would be achieving compliance with both the 2008 and 2015 National Ambient Air Quality Standards (“NAAQS”) for ozone Assessment of International Transport and Improved Ozone Air Quality

In November 2016, EPA proposed a rule addressing implementation of the 2015 ozone NAAQS in which it requested comments on whether the international transport provisions of Section 179B of the federal Clean Air Act should be limited to nonattainment areas adjoining international borders. Section 179B allows a state which is not in attainment with the ozone NAAQS to seek relief from certain implementation requirements of the Clean Air Act if it can show that the NAAQS would be met “but for” international emissions. Among those responding to this request for comments, the State of North Carolina noted that “contribution from sources outside of the U.S. has become more prominent in the overall ozone profile for many areas” and that “transport of ozone is well documented and not restricted to impacting only areas adjacent to Canada or Mexico.” http://www.csg.org/aapca_site/news/documents/NorthCarolinaDEQ-2-13-2017.pdf

In his letter of June 6, 2017 EPA Administrator Scott Pruitt extended the deadline for promulgating designations related to the 2015 ozone NAAQS by 1 year and in doing so, identified international transport as one of the complex issues that EPA would review during the extension period (https://www.epa.gov/sites/production/files/2017-06/documents/az_ducey_6-6-17.pdf).  However, in its Federal Register notice published on August 10, 2017, EPA withdrew its announced 1-year extension of the deadline for promulgating initial area designations for the 2015 ozone NAAQS (https://www.federalregister.gov/documents/2017/08/10/2017-16901/withdrawal-of-extension-of-deadline-for-promulgating-designations-for-the-2015-ozone-national). The notice of withdrawal of the 1-year extension makes no specific mention of international transport, although the notice offers the following statement: 

The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed. 

While, as noted above, it is becoming increasingly clear that “but for” international emissions every monitor in the nation would be complying with ozone NAAQS requirements, the implementation of that conclusion is for the moment, at least, blowing in the winds of regulatory change.  

With Litigation Guaranteed, the fate of national monuments will be uncertain for some time

Posted on September 1, 2017 by Brenda Mallory

At the end of August as the last days of summer pass, the Conservation community waits with bated-breath to learn what the Trump Administration will do to twenty-one significant national monuments and the century-old tradition they reflect. The consensus—among those who have dedicated their lives to protecting special places, the local communities whose economies have been bolstered by their presence, and a broad swath of Americans who simply enjoy having extraordinary places to visit—is that it won’t be good. The further consensus is that what the Administration is considering likely exceeds the President’s legal authority under the Antiquities Act. Both progressive and conservative voices have recently argued that the president lacks the authority to diminish or revoke National Monuments. While the motivations for making this argument may be different, the basic statutory and constitutional arguments are the same, and the significance of the president taking this uncharted path to diminishing national monument protections is recognized (in either a positive or negative light) even by the few who argue he does have the authority to do so.

The legal question begins where many of our most controversial issues today start –the scope of a law. Yet, at its foundation, a history of simmering tensions over the extent of Federal lands in the west and the Federal government’s control over those lands has fueled passions around this issue. For over 110 years, the Antiquities Act has stood as one of the most powerful tools for the protection of cultural, historic, and scientific resources. Some have described it as the first statute with an exclusively protective purpose.  The statute gives a President the discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” A key question is what does “other objects of historic or scientific interest” mean? This Administration appears poised to take on the longstanding, judicially endorsed conclusion that this phrase includes large landscapes like the Grand Canyon, and to bring to the fore the threshold question of whether a subsequent President can change the monument designation of a predecessor.

In April, President Trump signed an Executive Order instructing Interior Secretary Zinke to undertake a review of Antiquities Act monument designations since 1996. Secretary Zinke then launched the review process identifying 27 monuments that fit the EO criteria: 26 because they were over 100,000 acres and one for the purpose of determining whether stakeholder engagement had been adequate. Recommendations were submitted to the President on August 24, 2017, but have not been made public. The Commerce Secretary received a similar presidential directive and is undertaking a separate process for marine monuments and national marine sanctuaries.

Over its history, monument designations under the Antiquities Act have been challenged as inconsistent with the statute and have always been upheld. See, e.g., Cameron v. United States, 252 U.S. 450 (1920), Cappaert v. United States, 426 U.S. 128 (1976). However, no President has attempted to revoke a prior designation and there has been no judicial challenge in the previous circumstances where a President has modified the boundaries of a designation. All signs are suggesting that we are about to see both for the first time: the President is expected to revoke or substantially reduce one or more monuments and, if he does, a challenge is inevitable. While this will be a case of first impression, the overwhelming view of scholars, which I share, is that the President does not have the authority to take these actions because Congress has not delegated him the authority to undo a designation. See, e.g., a collection of articles submitted to the Department of Interior by 121 scholars and similar analysis for marine monuments. Of course, there is an alternate view.

Putting the law aside, the atmospherics associated with this early battle by the Administration are noteworthy. First, like many of its other actions, the unprecedented nature and scope of the attack is striking. While it was immediately obvious after the election that there would be some effort to challenge then-President Obama’s most controversial monument designations, with Bears Ears National Monument in Utah at the top of the list, few expected that designations completed decades ago, by three different Presidents would be under threat. Businesses and communities have grown and developed because of and in reliance on these monuments, inseparable from the benefits they bring to their local areas. Upending years of investment and expectation is stunning. Nor was it expected that the attack would include so many monuments, land and sea, or that Marine Sanctuaries, which are completed over many years and with considerable process, would be thrown brazenly into the mix.  

Second, like the Administration’s attack in other areas, the stated narrative driving the challenge to national monuments – alleged abuse of executive power, failure to consult or listen to stakeholders, ignoring elected officials, restoring balance to the use of Federal land – is at odds with the Administration’s own behavior in the process.  As noted in the above-referenced articles, revoking or substantially reducing the size of a monument is beyond the scope of the President’s authority, a clear abuse of executive power. Even conservative leaning scholars and publications have joined the ranks of those condemning the anticipated executive action as beyond the President’s authority. Moreover, Secretary Zinke has unapologetically spent his “review process” meeting primarily with opponents of the monuments and the summary of his report released last week dismisses as part of a “well-orchestrated national campaign” the 2.7 million comments generated during the review process that overwhelmingly support retention or expansion of national monuments. Next, while the Republican elected officials are getting Zinke’s attention, it is not clear that the views of their Democratic colleagues are being given the same weight. Finally, talk of balance in federal land use is in direct conflict with the newly ascribed goals of “energy dominance” and the expedited efforts to open unspoiled areas to oil and gas drilling, and other extractive activities. Taken together, it is clear that this battle is less about correcting “unlawful” designations by previous Presidents and more about aggressively shifting the policy focus on Federal lands to exploiting the natural resources. For monuments designated under the Antiquities Act, only Congress has the authority to change the designation; and Congress is the appropriate body to consider whether policy shifts warrant such changes.

Finally, the attack on national monuments is not occurring in isolation. Many other efforts to eliminate or impair environmental and conservation protections on Public lands are underway.  They encompass repealing protective measures such as the stream protection rule, withdrawing the rule regulating hydraulic fracturing; repealing the Clean Water Act Rule; eliminating the ban on drilling in the Arctic; and rescinding the Executive Order directing federal agencies to consider rising sea levels when building public infrastructure in flood prone areas. They also include process initiatives that appear designed to undermine the fact based decision-making necessary to ensure the protection of environmental and conservation measures. These initiatives include Zinke’s Order to streamline onshore oil and gas permits, his regulatory reform initiative to eliminate “unnecessary regulatory burdens,” and his Order jumpstarting Alaska Energy focused on opening the Alaska National Wildlife Refuge and the National Petroleum Reserve Area to oil and gas drilling.

With this backdrop, there is a sense of foreboding as the Administration’s monuments review process comes to an end. One thing is clear, whatever is in the upcoming announcement by the Administration, it will likely take years of litigation before these issues are resolved and this century-old law will be put to the test.         

The Curious Case of the Prairie Dog that Stopped Barking

Posted on August 31, 2017 by Allan Gates

In 2015 a district court enjoined enforcement of an Endangered Species Act 4(d) rule on the ground the federal government lacked authority under the Commerce Clause to regulate the take of a purely intrastate species, the Utah Prairie Dog, on nonfederal land.  The decision flew in the face of four prior court of appeals decisions in other circuits and attracted substantial commentary, including a blog post by a fellow member of ACOEL. In late March the Tenth Circuit unanimously reversed the district court decision. The Tenth Circuit’s opinion expressly embraced the prior decisions in the Fourth, Fifth, Ninth, and Eleventh Circuits that the district court had rejected.

Standing alone, the Tenth Circuit’s decision would be notable only for the fact that it restored Endangered Species Act case law to a more orthodox state of consensus.  But four procedural details add interesting contextual background.

First, the Tenth Circuit took an unusually long time deciding the case.  The court heard oral argument and took the appeal under submission on September 29, 2015.  The court did not issue its decision until March 29, 2017, exactly eighteen months later.  It is not apparent why the Tenth Circuit took so long to issue its opinion, but the length of the wait was definitely a source of nervous contemplation among the parties.

Second, Friends of Animals intervened as a party in the district court and participated vigorously throughout the trial court proceedings and appeal.  At the time the Friends intervened, October of 2013, there was little reason to think the Fish & Wildlife Service would not vigorously defend its authority under the ESA.  By the time the appeal was decided, however, the picture was different.  The Trump administration had taken office, and there was significant doubt about its interest in vigorously defending the scope of Endangered Species Act jurisdiction.  The presence of Friends of Animals as a party, and not merely as an amicus, assured there would be vigorous party opposition to the plaintiff’s petition for rehearing and potentially its petition for certiorari.

Third, after the Tenth Circuit’s opinion was issued and before the deadline for responding to the plaintiff’s petition for rehearing en banc, the Fish & Wildlife Service ordered an internal review of the 4(d) rule in dispute, to be completed in 120 days.  The review is to consider, among other things, the effectiveness of the state’s Utah Prairie Dog Management Plan in protecting the species.  The Service asked the court for a 135 day stay of proceedings to allow completion of the internal review before requiring any other action in the appeal.  The Service argued the internal review could result in changes to the 4(d) rule that might render the plaintiff’s claims moot.  The court denied the Service’s request for stay and subsequently denied the plaintiff’s petition for rehearing en banc.

The Service’s decision to initiate internal review of the 4(d) rule may wind up frustrating both the anti-ESA property rights advocates and the environmental groups.  The Service’s statement that its internal review might moot the plaintiff’s claims will likely be advanced as a reason for denying any petition for certiorari the plaintiff may file.  And the Service’s explicit focus on examining the effectiveness of the state’s Utah Prairie Dog Management Plan may foreshadow an inclination on the part of the new administration to reduce federal protection of the species despite the success in beating back the assault on ESA jurisdiction.

Assisting in the Aftermath of Hurricane Harvey: Every Lawyer Can Help!

Posted on August 30, 2017 by Brian Rosenthal

Also authored by Andrea Field & Mary Ellen Ternes

Many in the College have been asking what lawyers can do to help those in need in Texas in the aftermath of Hurricane Harvey.  Answers to that question are pouring in from many sources.  The following are a few suggestions, based on what we are hearing from legal practitioners and aid organizations in Texas. 

First, if you are a member of the State Bar of Texas, you may have received a letter from Bar President Tom Vick.  It outlines specific ways in which you can provide legal and desperately-needed non-legal help.

Lawyers who are not members of the Bar of Texas, though, can also provide legal services.   Yesterday, the Supreme Court of Texas issued an emergency order to allow out-of-state lawyers to practice in Texas temporarily in the aftermath of Hurricane Harvey, and the Court provided a registration form for the temporary practice of law in Texas. According to Betty Torres – the Executive Director of the Texas Access to Justice Foundation, which is the largest funding source of legal aid in Texas – the following are some of the types of legal services that will be in high demand after the water recedes and people try to put their lives back together:  (i) assistance with securing FEMA and other benefits available to disaster survivors; (ii) assistance with life, medical and property insurance claims; (iii) help with home repair contracts and contractors; (iv) replacing wills and other important legal documents destroyed in the disaster; (v) assisting in consumer protection matters, remedies and procedures; and (vi) assistance with mortgage/foreclosure and landlord/tenant problems.

In addition, as is often the case, what is needed most right now is money.  For those who want to assist all Texans in need of essential legal services, please donate to the Hurricane Harvey Legal Aid Fund.

The Government’s “Bare Legal Title” CERCLA Defense Wears Thin

Posted on August 29, 2017 by Theodore Garrett

The United States has encouraged economic activities such as mining on federal lands.  Such activities have resulted in contamination and subsequent CERCLA cleanup orders.  Companies undertaking such cleanups have sought contribution from responsible parties including the United States.  Two recent decision reject the government’s argument that its “bare legal title” should not give rise to CERCLA owner liability.  A logical result and also poetic justice, since the United States has consistently urged that CERCLA be construed broadly and liberally as a remedial statute.  Turnabout is fair play.  

In Chevron Mining Inc. v. United States, the 10th Circuit on July 19, 2017 held that the United States was liable as an owner under CERCLA 107(a) because it owned national forest lands in New Mexico.  The lands were mined over several generations by Chevron Mining.  Chevron began remediation expected to cost more than $1 billion pursuant to three EPA administrative orders.  Chevron then filed suit against the United States seeking contribution.  The 10th Circuit held that owner liability attaches to the United States as the owner of portions of the site, and plaintiff need not show that the defendant caused the release of hazardous wastes that required cleanup.  The court rejected the government’s argument that “bare legal title” is insufficient to trigger owner liability, noting that CERCLA contains neither an express nor an implied exception for owners of “bare legal title.”  The court’s opinion also notes that Chevron received loans from the United States, under the Defense Production Act, to fund its exploration activities and received authorization from the Forest Service for pipelines to dispose of mine tailings.  The case was remanded to the district court for further proceedings to determine the government’s equitable share. 

Similarly, in El Paso Natural Gas Company v. United States, the District of Arizona ruled on August 15, 2017 that the United States is liable under CERCLA as an owner of 19 uranium mines.  The mines are located on the Navajo Reservation and are being remediated by El Paso.  The court cited longstanding law that the United States owns fee title to reservation land.  The fact that the Navajo Nation has significant rights in reservation land is not inconsistent with the power of the United States over reservation land.  The court cited the Chevron Mining case above with approval, and also noted dicta from the 9th Circuit that the passive title owner of real property is liable.  Given CERCLA’s broad remedial purposes, the district court held that the United States, as a fee title holder with plenary and supervisory powers over reservation land, is an owner for purposes of CERCLA.  The court’s decision does not address the extent of the government’s liability, to be addressed in the equitable allocation phase of the case. 

These and other decisions will support efforts by companies responsible for remediation at CERCLA sites on federal land to have the government contribute an appropriate share of the cleanup costs.  Also, mindful of its potential liability, perhaps the government will more carefully consider risks and costs when making remedy decisions, which would be welcomed at all sites, whether or not on federal lands.

Eight Things Environmental Lawyers Can Do in the Age of Trump

Posted on August 28, 2017 by Michael Gerrard

One of the great things about the ACOEL is that its members are very diverse in their views on politics and policy.  On the subject of reactions to President Trump's environmental policies, we have a spectrum ranging from outraged to jubilant. Count me at the outraged end. I would welcome counter-thoughts from the other end of the spectrum.

With that disclaimer, here are my personal views.

This is a time of unprecedented peril to U.S. environmental law.  What can those of us environmental lawyers who are outraged do about this?

Obviously, each individual’s flexibility depends in large part on where we work – we academics have almost complete flexibility, as do lawyers in their own small firms; lawyers in NGOs quite a bit; lawyers in big law firms have significant constraints; and lawyers in government are the most tightly constrained.

But to the extent people do have flexibility, these are eight things we can do.

1. Push back

Resist these efforts by Trump, Scott Pruitt, Ryan Zinke and the rest. That may involve speaking out; suing or intervening or joining as amici in others’ lawsuits; or filing comments when the opportunity arises. We need to try to preserve the gains that were made in prior administrations to the extent possible.  Some day – though not soon enough -- we’ll have a new President who actually believes in law and science and cares about current and future generations, and when that day comes we’ll want to get back on track as quickly as possible.

2. Think globally, act locally

Much of the most important action for the rest of the Trump era will be at the state and the city levels. I’m fortunate to be in a state and a city where there is overwhelming consensus on the importance of environmental protection, and we have leaders who want to move forward – maybe not always as far and fast as we would like, but generally in the right direction. So those who are in state or city government, or who work closely with those who do, have special opportunities to devise and deploy tools that can work where you are and can serve as a model for elsewhere.

3. Decarbonize

To avoid the worst impacts of climate change we need to move away from fossil fuels and toward a clean energy economy that is centered around renewables like wind, solar and hydro, and that operates with the greatest possible degree of energy efficiency. The plummeting costs of wind and solar, in particular, mean we are in the midst of a very positive energy revolution in which renewables push out fossil. Lawyers are needed to help acquire the permits, real estate, and financing for the many new clean energy facilities and devices.

4. Adapt

The outlook for future climate change is extremely serious and seems to be getting worse. Sea level rise, melting ice, episodes of extreme heat, drought and precipitation, and other projections are no less than scary.  We need to build resilience into construction projects, natural resource management, and all manner of other activities. This can happen through zoning actions, licensing and rate proceedings, environmental impact review, and many other settings where lawyers are central players. We should do this both because we need our projects and activities to be resilient, and because if the leaders of large enterprises are led to recognize the impact that climate change may have on their own organizations, ultimately this should have a political impact.

5. Do no harm

If you can, avoid representing the NIMBY side in litigation against renewable energy projects.

In law firms -- If you possibly can, stay away from matters where you’ll be litigating on the side of Trump’s environmental deregulation campaign.

And to our friends who work at EPA, Interior, DOJ and other federal agencies -- you are in our hopes and prayers, we’re thinking of you all the time, we admire your perseverance, and to the extent we possibly can, we have your backs.

6. Reduce personal environmental footprint

Each of us can do more to lower our own environmental impact. This can mean, for example, replacing incandescent light bulbs with LEDs; insulating our homes; driving less and walking, biking, or taking mass transit more; driving electric, hybrid, or small efficient cars; eating less meat (especially beef); diligently turning off lights and appliances and closing faucets; flying less; and recycling more.

7. Contribute

Even if we can’t litigate or campaign directly, we can contribute money to those who do.  NGOs that are on the front lines of litigation, lawful activism and needed research, political action groups that work for pro-environmental candidates, and such candidates themselves are all worthy of support.

8.  Vote

Finally, there is no excuse for U.S. citizens not to vote at every opportunity, and those who can should work hard to try to persuade others to vote, and to cast those votes for an environmentally positive future.

If you do as many of these things as you can, you’ll have done your part in helping the planet through this awful Trump era, and hopefully into an area where we can all smile a lot more.

A Win for Appropriative Water Rights

Posted on August 25, 2017 by Rick Glick

In an unpublished opinion released August 24th, the Ninth Circuit rejected a long waged effort to upend the City of Bend’s water planning by forcing it to abandon its vested surface water rights in favor of an all-groundwater supply.  As is often the case, plaintiffs chose a somewhat oblique attack on the City’s water planning, relying on NEPA and forest planning laws to force a change of direction.

Central Oregon LandWatch v. Connaughton was a challenge to a Special Use Permit issued by the U. S. Forest Service to the City to construct a new pipeline and to upgrade water diversion facilities on Tumalo Creek, within the Deschutes National Forest.  The existing pipeline also was previously constructed within the national forest under a SUP, but needs replacement.  The project drew controversy. 

Plaintiffs contended that cessation of water withdrawals by the City is necessary to preserve Tumalo Falls, whereas the City argued that the project would enhance Tumalo Creek.  To maintain pressure, the old pipeline needed to be kept full, resulting in constant diversions and discharge of surplus water downstream.  The new pipeline allows the City to withdraw water on demand, which will keep more water in the stream.  In addition, the City is working closely with the Tumalo Irrigation District to further protect the creek.

An amici group comprised of municipal and agricultural water users, intervened on behalf of the Forest Service and the City.  (Disclosure:  Our firm represents the amici, and serves as water counsel to the City, though we did not represent the City in this case).  The Oregon Water Resources Department separately intervened as an amicus.

The central concern for amici was the integrity of Oregon’s appropriative water rights law, which follows the first in time, first in right principle of other Western states.  Plaintiffs sought to upend that principle by elevating federal minimum flows in the forest planning context over state water law.  Oregon law allows the Oregon Department of Fish and Wildlife to apply for instream water rights, which would have priority from the date of application and would be treated like any other water right.  The purpose of the instream right is to prevent future appropriations, and so the “minimum” flows in the water right usually comprise or exceed the entire flow of the stream.

Plaintiffs argued that the Forest Service should have imposed minimum flows for the creek in the SUP, which they contended should be derived from the instream water established for Tumalo Creek.  The problem is that the instream water right is junior in priority to the City’s water rights.  Imposing the instream water right flows as a condition of the SUP would effectively turn appropriative water rights law on its head.  The instream right—with its aspirational flow regime—would then take precedent over the City’s right.

The court below rejected that outcome, as did the Ninth Circuit but on the basis that establishment of minimum flows are not required by rule or case law.  Further, doing so would not benefit Tumalo Creek because the City’s project would “positively impact stream flows” in one reach of the creek and “have no or minimal impact” in two other reaches, one of which is subject to Tumalo Irrigation District diversions that are not subject to the SUP.

The court also found that the Forest Service did not violate NEPA by limiting the alternatives analysis in the Environmental Assessment to just two: (1) implementation of the project and (2) a “no action” alternative based on the existing SUP.  In other words, the court was not troubled by the Forest Service assuming that continuing exercise of the City’s surface water rights represents the status quo.   The court rejected plaintiffs’ argument that the Forest Service needed to additionally evaluate an alternative scenario where the City reduces or ceases withdrawals from Tumalo Creek.  The court found that the discussion in the Environmental Assessment was adequate, and relied on language in the EA that fully supports the City’s water planning:

The Forest Service determined that the surface water formed a “critical component of the City’s dual-source [water] supply.” . . . The EA explained that groundwater-only options would “compromise the City’s ability to provide a safe and reliable water supply,” reduce water flows in other parts of the Deschutes River, be costly, and be less reliable than a dual-source system. The EA also flagged possible environmental concerns posed by the groundwater-only option, including reduced surface stream flows (which are fed by groundwater) and increased energy consumption caused by pumping groundwater. This discussion was sufficient.

A dual source water system is the dream of every municipal water planner.  That redundancy is insurance against natural or human-caused catastrophes that could disable one source.  And all water users need to be able to rely on the priority of water rights under the law.  That the Forest Service and the Ninth Circuit declined to upset the City’s long-term water planning is a victory for municipal water planners everywhere.

H.R. 23: A VERY BAD FEDERAL WATER LAW BILL—AND A WORSE PRECEDENT

Posted on August 24, 2017 by Richard M. Frank

H.R. 23 is an important and most unfortunate environmental bill currently working its way through the U.S. Congress.  Sponsored by California Republican Congressman David Valadeo—with a strong assist from House Republican Majority Leader Kevin McCarthy—H.R. 23 passed the House of Representatives last month on what was largely a party-line vote, 230-190.  It has now moved to the U.S. Senate.

This California-specific legislation would “reform” federal and California state water and environmental laws in order to provide more water from federal and state water projects in California to state agricultural interests in the state’s Central Valley.  H.R. 23 would do so at the expense of environmental values.  (That’s not mere interpretation or speculation on the part of this observer—it’s the express intent of the bill.)

Why, exactly, is H.R. 23--which has largely evaded public and media attention to date--such a flawed legislative proposal?  Let me count the ways:

First, it would reverse an over century-long tradition of federal deference to state water law regarding the construction and operation of federal water projects.  Congress made that commitment in the Reclamation Act of 1902, which transformed the settlement and economy of the American West.  Congress has reiterated this commitment to cooperative federalism in numerous subsequent federal statutes.  But H.R. 23 reneges on that promise, expressly preventing California state water regulators from imposing any restrictions on the federal Central Valley Project that would protect environmental values.

Doubling down on its preemptive effect, H.R. 23 expressly exempts the CVP (and those who obtain water from it) from application of California’s public trust doctrine, which—as is true of many other states—operates as a longstanding, cornerstone principle of California natural resources law.

Additionally, H.R. 23 brazenly exempts operation of the CVP and other California water projects from the federal Endangered Species Act “or any other law” pertaining to those operations.

H.R. 23 thus is terrible news for California’s environment.  But why should environmental attorneys from other states be concerned about the bill?

The answer is again multifaceted.  H.R. 23 represents the first serious Congressional effort of 2017 to weaken application of the Endangered Species Act.  The broad ESA exemption contained in H.R. 23 could easily be replicated in future federal legislation affecting federal, state or local projects in other parts of the country.

Similarly, if the longstanding tradition of federal deference to application of state water law is breached by passage of H.R. 23, rest assured that similar attempts will be made concerning similar projects in other states as well.

H.R. 23 is opposed by both of California’s U.S. Senators, along with California Governor Jerry Brown.  Even more notably, California’s largest water district—the Metropolitan Water District of Southern California—has signaled its opposition to the bill, declaring that it “goes too far” in elevating agricultural water interests over California’s environment.

H.R. 23: an awful bill for California, and a terrible precedent for the nation as a whole.

Refining the Relationship Not Retrenchment – Cooperative Federalism 2.0

Posted on August 23, 2017 by Robert J. Martineau Jr.

The cooperative federalism approach to environmental protection in this country has been a fundamental tenet of our federal environmental laws since the early 1970’s.   In short, Congress passed laws, EPA wrote the regulations, and States sought delegation of those programs and implemented and enforced them.  When those state programs were in their infancy EPA tended to have a strong oversight role and states often looked to EPA for technical support and guidance.    EPA often limited the discretion of states in implementing those federal programs.    As states programs matured, states developed their own expertise and often identified new and innovative ways to implement federal requirements and achieve desired outcomes.   States are now authorized to implement over 90 percent of the federal programs and also take lead on most enforcement matters.    Over time the federal state relations has slowly morphed from a parent –child relationship to one of an old married couple.  A decade or so ago, EPA officials might have bristled at the notion of a coequal partnership, but no longer.

States are looking to continue to refine that relationship to help improve environmental outcomes in an efficient and cost effective way to help ensure we put limited resources to work in the most productive way.     In June, the Environmental Council of the States (ECOS) issued a white paper entitled “Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health”.  Its purpose was to highlight an ongoing discussion of the relationship of federal/state environmental regulators.  The paper is intended “to stimulate and advance” an important discussion of how “a recalibration of state and federal roles can lead to more effective environmental management at lower cost.”

This document has certainly fulfilled its intended purpose.  Since the issuance of the paper, there has been extensive discussion by and between state and federal regulators, NGOs, industry groups, legislators and others on this topic.  ECOS’ paper has served as the framework and focal point for that discussion.

ECOS’ paper sets forth nine principles on the roles and functions of EPA and the States under Cooperative Federalism in this modern era of the environmental protection enterprise.  The paper sets out ECOS’ members’ views on what cooperative federalism should mean in the areas of: 

1.      Regulation development and setting national minimum standards to protect human health and the environment;

2.      Implementing  national regulatory programs;

3.      Allowing flexibility in meeting those standards;

4.      Engagement of other stakeholders in those implementation efforts;

5.      Enforcement;

6.      Oversight by EPA of states implementation efforts;

7.      Interstate and regional environmental  issues;

8.      Scientific research and data gathering; and

9.      Funding for federal and state programs.

The paper recognizes the many challenges of refining this relationship but the interest in and around this topic has fostered much thoughtful discussion and debate.  ECOS’ recent STEP Conference in Washington, D.C. was devoted to this topic and more than 150 state and EPA regulators as well as NGOs, industry groups and academics shared their thoughts and ideas.  The Environmental Law Institute also addressed this topic in an inaugural “Macbeth Dialogues” (named after the late Angus Macbeth, a longtime ACOEL member) in a “Chatham House” format.  Discussion leaders included those from state agencies, former EPA staff, NGOs and academics.    In addition, EPA senior staff and states agency officials have addressed how to refine the relationship in meetings at EPA Headquarters and several regional offices.

Some have explicitly suggested or inferred that this “Cooperative Federalism 2.0” discussion is a ruse for less environmental protection, or relaxing of standards.  Certainly for ECOS’ members, that is not the case.  Cooperative federalism does not equal deregulation or weakening environmental protection.     While there may be separate conversations ongoing about the veracity of the effectiveness of certain rules,  that is not what Cooperative Federalism 2.0 is about.  It is about defining the respective roles and accomplishing the mission of protection of public health and the environment in a cost effective way that respects the different roles of the federal and state partners.  As the ECOS’ paper notes in its conclusion, the ECOS member States “strongly believe that positive reforms and improvements to the bedrock of cooperative federalism are needed … to create and implement environmental protection programs worthy of 21st century challenges.  States are eager to engage our federal partners, and others who have a keen interest in how the states and federal governments perform their roles, on how we can move forward consistent with these principles, in order to protect the environment and public health”.