Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

Leaving on the Midnight Train to Maui (Going Back to Find a Simpler Place in Time)

Posted on January 21, 2021 by Allan Gates

With apologies to Gladys Knight & the Pips:

https://www.youtube.com/watch?v=HwbmufPphP0

It is not unusual for a lame duck administration to issue a flurry of midnight rules and administrative actions shortly before leaving office, and the Trump administration is no exception.  One of the last minute actions by President Trump’s EPA is a draft guidance document signed on December 4th regarding application of the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund.

Much of the draft guidance document reviews in unexceptional terms the threshold conditions that must be satisfied before an NPDES permit is required, namely:

  • There must be an actual discharge of a pollutant;
  • The discharge must be from a point source; and
  • The pollutant must reach a water of the United States.

The last page and a half of the draft guidance is where things get interesting.

The majority opinion in Maui identifies seven specific factors to consider in determining whether a point source discharge to groundwater that reaches navigable waters requires an NPDES permit.  The last page and a half of EPA’s draft guidance adds an eighth factor to the list.  The new factor is consideration of system design and performance.

According to the draft guidance document, the design and performance of a system should be viewed as something of a higher-order consideration that “can affect or inform all seven factors identified in Maui.”  Thus, if a system’s design and performance slows transit time of the pollutant, increases distance the pollutant travels, promotes dilution, or otherwise affects one of the Maui opinion’s seven enumerated factors, the fact that the system is designed and performing to achieve that result apparently should weigh against requiring an NPDES permit.  The draft guidance then proceeds to identify a number of specific systems that would be less likely to require an NPDES permit based on the new eighth factor:

  • Septic systems, cesspools, settling ponds and similar systems designed to provide storage or treatment;
  • Stormwater controls, infiltration or evaporation systems, green infrastructure, and other runoff management systems; and
  • Water reuse, recycling, or groundwater recharge facilities.

The draft guidance document implicitly acknowledges that its addition of an eighth factor to the Maui opinion’s list of seven goes beyond mere interpretation of the Court’s decision.  The guidance document notes, perhaps somewhat defensively, that the majority opinion in Maui expressly invites EPA to develop interpretive guidance that would illuminate application of the Court’s “functional equivalence” test.  The draft guidance document then goes on to claim that the agency’s eighth factor should be given deference under National Cable & Telecomm. Ass’n v. Brand X Internet Serv. even if it is deemed inconsistent with the Court’s opinion in Maui:

Even when an agency’s interpretation of an ambiguous statutory provision differs from a court’s interpretation, an agency may take such a construction because it remains the authoritative interpreter of the statute it administers.

EPA’s explicit call for Brand X deference to the agency’s draft guidance is particularly ironic because the government’s briefs in Maui did not ask for deference to EPA’s interpretation of the statute, and they did not even cite Chevron or Brand X.  Moreover, the Court in Maui summarily rejected the formal interpretive statement on discharges to groundwater that EPA issued one month before the government’s merits brief was due.

It is not clear whether the draft guidance will ever be finalized or otherwise survive the transition to the Biden administration.  But if it survives, the new eighth factor is likely to be the target of a number of questions.  For example, why should a system that is deliberately designed and operated in a manner that delivers pollutants to waters of the United States be given more lenient regulatory treatment than a less deliberate activity that delivers the same amount of pollutants to jurisdictional waters in an otherwise similar manner?  Isn’t a system with deliberate design and identifiable performance expectations exactly the kind of operation that fits logically into the scheme of NPDES individual and general permits?  And what are we to make of the list of specific systems that are to be given special consideration under the eighth factor?  Is this list anything more than a last minute attempt to put a finger on the scales whenever one of the enumerated systems may come under scrutiny for adding pollutants to waters of the United States?

Against this backdrop it is fair to ask whether the draft guidance document offers the kind of assistance in applying the functional equivalence test the Maui Court invited EPA to provide.

There’s a First Time for Everything

Posted on January 21, 2021 by Robert M Olian

Anyone with even a passing interest in environmental law has seen numerous articles over the past four years noting the Trump administration’s efforts to roll back this or that environmental regulation. ACOEL’s blog contains dozens of such posts, and the New York Times is probably not far behind. The NYT aptly reflected the thrust of most such commentary in a recent article:

“All told, the Trump administration’s environmental rollbacks could significantly increase greenhouse gas emissions over the next decade and lead to thousands of extra deaths from poor air quality each year, according to energy and legal analysts.” (emphasis added)

“Environmental rollbacks lead to extra deaths” was a story line long before there was ever a Trump administration, of course, but never, until now, have I seen the reverse, namely “extra deaths lead to environmental rollbacks.”

On January 17, 2021, California’s South Coast Air Quality Management District issued Executive Order 2021-01, which notes:

  • “… the current rate of deaths in Los Angeles County is more than double that of pre-pandemic years ...”;
  • "… the growing backlog of cremation cases within the county constitutes a threat to public health …”; and
  • “… permits issued by South Coast AQMD and currently in effect for human crematoria contain limits on the number of cremations … that may be cremated each month ….”

SCAQMD then proceeded to roll back the permit limits on crematoria (on a temporary basis).

Normally I’d now offer a snarky comment, but this is all just so sad that I can’t bring myself to write it, so you’re on your own.

Environmental Justice: Where Are the Roadblocks?

Posted on January 19, 2021 by Jerry L. Anderson

We have known since the 1980s that people of color bear a disproportionate share of environmental harms.  In 1994, President Clinton issued Executive Order 12,898, which required federal agencies to develop policies incorporating the principles of environmental justice into their mission.  EPA, as well as many state environmental agencies, established an Office of Environmental Justice, to help communities of color gain a voice in environmental decisionmaking and integrate EJ policies into all facets of the agency’s work.

Despite these efforts (and many others), the U.S. Commission on Civil Rights concluded in 2016 that little progress had been made in reducing disparate environmental impacts based on race.  The report shows that broad directives promising to reduce discrimination cannot overcome the structural barriers that frustrate or prevent effective progress. Today, I want to point to two possible levers of change.

1.       Who is making the decision? The issue of equitable representation.

Decisions that cause environmental harm are often made either by local zoning boards or by state environmental agencies, in the form of citizen commissions.  For example, the local Planning and Zoning Commission will decide where to site Locally Unwanted Land Uses (LULUs), such as landfills, waste incinerators or factories.  State appointed bodies, such as the Environmental Protection Commission in my state, often decide questions of water or air pollution permitting and enforcement.

Who is making these decisions?  Do they represent the population that will be impacted the most?

In a 2008 study, my research team at Drake Law found that 84% of large-city zoning board members where white, over 20 percentage points higher than their demographic percentage.  In addition, board members skewed heavily toward white-collar professionals, particularly those with a vested interest in development. 

State environmental boards also often suffer from a lack of diversity.  Often, state statutes require that certain economic groups be represented (e.g., industry or agriculture), but do not mandate representation for those impacted by pollution.

Local officials should recruit zoning board participants from underrepresented populations, including those most affected by environmental harms. In addition, state statutes should be amended to ensure adequate representation from impacted low-income and minority communities.

2.       Who can participate in the decision?  The issue of fair process.

In order to oppose the siting of a highway or factory that will impact their neighborhood, minority and low-income groups face numerous barriers to mounting effective opposition. They typically suffer from a lack of resources, limited free time, and restricted access to political networks.  Collective action problems weigh down their attempts to marshall resources to hire legal counsel or expert witnesses.

Adding to their difficulties, many states do not allow opponents of an environmental permit an adversarial hearing, thereby preventing them from effectively making a record at the administrative level. In contrast, permit applicants who are either denied a permit or whose permit contains limitations they object to are allowed an administrative hearing or “contested case.” See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had no right to contested case proceeding).  Opponents can only file written comments. If they want to challenge the permit, they need to file a case in state court.  That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence.  The court will review based on the record made below, which the impacted citizens were not allowed to fully participate in.

Making participation by impacted communities easier and more effective will require statutory and regulatory changes to administrative hearing procedures.  In the meantime, however, environmental attorneys should consider pro bono opportunities to help level the playing field.

These recommendations address only two structural issues lying behind the racial disparities in environmental harm. For further discussion of those barriers, check out this podcast series on Racism in Administrative Law.

To examine environmental justice in your community, I highly recommend EPA’s Environmental Justice Screener, which allows you to compare environmental harms against demographic data.

"Keep Makin’ Bacon” Indiana’s Right to Farm Act Statute Upheld As Constitutional

Posted on January 11, 2021 by Chris Braun

Indiana, like every other State, has adopted a Right to Farm Act to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” Indiana Code § 32-30-6-9(b) (“RTFA”). The RTFA limits the availability of state-law nuisance actions with respect to agricultural operations.

The Plaintiffs’ residential properties are located in rural Indiana near land owned by a family of second- and third-generation farmers who decided to convert land that had been historically used to grow row crops to a state-of-the art concentrated animal feeding operation (“CAFO”) for raising 8,000 hogs. The farmers obtained the necessary zoning changes, construction and operation permits, and environmental permits to build two 33,500 square foot buildings with ventilation fans, slatted floors and concrete pits to store liquid waste and began operations in October 2013. Two years later, the Plaintiffs commenced the action alleging claims of nuisance, trespass, personal injuries and property damage based on the odors and airborne emissions produced by the hog-farming operation.

The lawsuit was dismissed on summary judgment, with the dismissal upheld on appeal. The lawsuit included several constitutional challenges to Indiana’s RTFA. The Indiana courts held that the Plaintiffs’ nuisance claims were precluded by the RTFA, ruled that their trespass claims should be treated as nuisance claims as a matter of state law because they were essentially a repackaged version of the nuisance claims, and determined that the application of the RTFA did not effect a regulatory taking of the Plaintiffs’ properties. 

As the Indiana Court of Appeals held, Indiana’s legislature has declared that the Indiana RTFA is vitally important to Indiana’s agricultural economy and the protection of farmers’ rights related to livestock agriculture and the use of their farmland. The Court held that the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.”  Indiana Code § 32-30-6-9(b). The purpose of the law is “to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” The Court of Appeals also recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology.”

During the litigation, the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment. The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

The Plaintiffs’ filed a petition for certiorari with the U.S. Supreme Court. The question presented by the Plaintiffs’ petition was whether the application of Indiana’s RTFA to preclude Plaintiffs’ nuisance claims constituted a regulatory taking without compensation violative of the federal Constitution.

The Plaintiffs argued that the Supreme Court should take the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants responded that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.

The Plaintiffs’ litigation came to an end on October 5, 2020, when the U.S. Supreme Court denied the Plaintiffs ’ petition. As a result, Indiana farmers are now permitted to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree. Janet L. Himsel, et al. v. 4/9 Livestock, LLC, et al., 122 N.E. 2d 935 (Ind. App. 2019), Petition to Transfer Denied (Ind. S. Ct., Feb. 20, 2020), Cert. Denied (U.S. S. Ct.., Oct. 5, 2020, page 27).

Agriculture is an important part of Indiana’s economy as it contributes approximately $31 billion to the State, with $3.55 billion of that revenue coming from animal and animal product production.  More than 85% of the livestock raised in Indiana are raised in confined feeding operations.  There are more than 56,000 farming operations in Indiana and 96% of those farms are family owned and operated.  This case was important because the Indiana courts recognized the Indiana Legislature’s statutory framework to protect farmers who are not negligent in operating their farms while rejecting the various constitutional challenges to the RTFA, including equal protection, due process and taking arguments.  This case provides the necessary assurances to Indiana’s farmers and the agricultural community that they have the right to choose how best to modernize their farming and livestock operations.  In addition, Indiana’s RTFA and this case provide a helpful guide to other states that are interested in updating their own RTFA statutes to ensure a proper balance is struck between the needs of the agricultural community and neighboring property owners when dealing with such land use issues.   

Paying More than Your CERCLA Fair Share

Posted on January 8, 2021 by David G. Mandelbaum

The rhetoric of enforcement under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, plays well in public.  The government seeks “cleanup” and makes “the polluter pay.”  Cf. S. Rep. No. 96-848 at 13 (1980); Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020).  Contrast that with mitigating climate change where, in the words of the Pogo Earth Day poster, “we have met the enemy, and he is us.”  Four years ago, then-new EPA Administrator Scott Pruitt described the Superfund program as the “cornerstone” of EPA’s “core mission” of protecting the environment and human health.  Memorandum on Prioritizing the Superfund Program (May 22, 2017).  (To be sure, as things turned out, emphasizing Superfund may not really have been what the last administration was about.  See, e.g., Rule on Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 5, 2021).) If this next administration succumbs to the temptation to feature Superfund, perhaps it and we might focus on some of the mess the statute as drafted and read by the courts has made of private contribution claims, or a small corner of that mess.

The rhetoric plays better when the costs are higher and the work is more impressive.  So, Superfund has become a tool used repeatedly to clean up sediments in industrial waterways, mining sites, and similar “mega sites.” By contrast, it does not even have a straightforward way to approach voluntary response to common problems that cause human exposure to hazardous substances, like PCB contamination within buildings to be redeveloped.  And, of course, the “polluters” who are paying are not really the human beings who caused the releases.  Even if the business entity remains the same, the shareholders, directors, officers, and employees who were associated with a release decades in the past are not the same as those who must pay today.

Large, complicated sites and a capacious notion of “polluter” lead, naturally, to a desire to reallocate costs through contribution or private cost recovery actions.  But sections 113(f) (dealing with contribution), 113(g) (dealing with limitations periods), and 107 (dealing with cost recovery), produce a maze of procedural incoherence.

A CERCLA contribution claim seeks reallocation of costs the contribution plaintiff has incurred in excess of its fair share of the total.  Arguably, then, the claim is premature until the plaintiff can allege that it has incurred that excess.  That requires the plaintiff to be able to allege something about the total costs.  But there is confusion – sometimes so profound that it is not expressed – among lawyers and courts about what actions or costs count as the total. 

One natural approach would be to consider the total to be all costs incurred or to be incurred with respect to that facility.  Indeed, one ordinarily would think that costs incurred during various stages of response would net against each other when deciding whether a party had paid more than its fair share.  If I buy the baseball tickets, you would naturally buy the beer (at least up to the price of a ticket); if one party overpaid on a removal, it might get a compensating discount on the remedial action.  So, under this approach, a party cannot recover in contribution unless it can allege that it has incurred more than its fair share of all costs.

But that might be very hard to do before a large portion of the remedial action had been completed.  Section 113(f)(1) allows a contribution claim “during or after” a claim for cost recovery, and the limitations period for a contribution claim runs from entry of the judgment or entry into the settlement.  See 42 U.S.C. § 113(f)(1), (g)(3).  Thus, arguably some level of legal undertaking to incur future costs may count as “incurring” those costs for purposes of satisfying the requirement that a contribution plaintiff incur more than its fair share.

But even that may leave timing problems.  The limitations period is three years from a trigger:  a judgment or judicially approved settlement for costs or damages, or an administrative order settling costs under section 122(g) or (h).  An early settlement for RI/FS costs, for example, could be more than three years before a record of decision, let alone entry into any sort of commitment by anyone to implement the remedy.  The remedy could be divided into operable units, and they could be separated in time by more than the limitations period.

Treating each separate action as a stand-alone total would deny the netting principle.  It will always be true that a party (other than a solely liable party) pays more than its fair share of every dollar that that party pays.  But if you don’t allow for tasks to be divided up, you make settlement of cases with the government, or even among private parties, quite difficult.

None of this would be overly troubling if one could have confidence that courts would treat separate actions as simply parts of a single whole.  If one knew that, then allowing the limitations period to expire on a small, early set of costs would simply mean that the settling up for those costs would occur in the contribution action for later costs. 

But courts have, in some circumstances, decided that contribution may not even be available for later actions if they are conducted under orders or agreements that do not meet the requirements of Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), and Atlantic Research Corp. v. United States, 551 U.S. 128 (2007).  That is, costs incurred complying with a Unilateral Administrative Order, for example, are not costs incurred “during or following any civil action” under section 106 or 107, nor are they incurred under a settlement.  42 U.S.C. §§ 9613(f)(1), (3)(B).  Those costs would be recoverable from a jointly and severally co-responsible party through a cost recovery claim under section 107(a)(1-4)(B). Although typically the defendant would have a section 113 counterclaim, it is not clear how that would play out if some of the defendant’s (or the plaintiff’s) costs were incurred in a separate response action as to which the limitations period had run and how the accounting of paying more than one’s fair share would be accounted.

Finally, note that most courts would take equitable account of payments by insurers, indemnitors, or other contribution defendants in determining whether a contribution plaintiff has paid more than its share.  If separate actions are separate totals for this purpose, then one must allocate those payments by action when the insurer or indemnitor did not allocate, and even if the contribution defendant was allocating, it may also have been netting.

There isn’t any reason for all this complexity.  It is all readily fixable.  We just haven’t fixed it. 

Showerheads: Untangling the Outgoing Administration’s Last Attack on Energy Conservation Standards

Posted on January 6, 2021 by Adam Kahn

Regulatory trackers from Harvard Law School, Columbia Law School, and the New York Times identify over 100 rule changes from the outgoing Trump administration that could increase greenhouse gas emissions or decrease other protections of  the environment. The weakening of conservation standards for showerhead flows will be one of the last of such rules to go into effect prior to January 20, 2021. The Department of Energy (DOE) promulgated the so-called “Showerhead Rule” on December 16, 2020, which becomes effective on January 15, 2021. (DOE also promulgated new rules that weaken efficiency standards for certain washers and dryers on the same schedule.) 

The Showerhead Rule amends the Energy Conservation Program for Consumer Products Rules, found at 10 CFR Part 430. Part 430 implements part of the “Energy Policy and Conservation Act or EPCA, as amended by the Energy Policy Act of 1992, and codified at 42 U.S.C. 6291-6309.  Specific to showers, Section 31(D) of 42 U.S,C. 6293 defines “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” And 42 U.S.C. 6295(j) imposes a maximum water use of 2.5 gallons per minute for “any showerhead” manufactured after January 1, 1994.  Since Congress passed EPCA in response to the 1973-74 energy crisis, the implementing rules have largely been viewed as a success, and a stepping stone to further conservation efforts.  In January 2017, DOE described the appliance efficiency standards as “highly effective -- achieving high bang-for-the-buck energy savings.”  In short, this rule cannot be good for the environment.

Application of EPCA to showerheads was admittedly the subject of complaints about inadequate flow, particularly in the years immediately following implementation of the standards.  President Trump got lathered up about this too.  As he explained in July, 2020:

We’re bringing back consumer choice in home appliances so that you can buy washers and dryers, showerheads and faucets. So showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect. (Laughter and applause.)

In response, the Showerhead Rule added two definitions to its Energy Conservation Program rules: “Body spray means a shower device for spraying water onto a bather from other than the overhead position.  A body spray is not a showerhead” and “Showerhead means any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term ‘showerhead’ to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” (emphasis added).

What is the effect of this rule?  For “ordinary” one-head showers, not much.  Flow from a single head shower “spraying device” is still limited by statute to 2.5 gpm.  The differences are for those who want a shower with multiple spraying devices (e.g., waterfalls, shower towers, rainheads, and shower systems) and/or “body sprays.”  The definitions change a longstanding DOE policy that considers each spraying device from a single pipe to be part of one “showerhead,” so they are collectively limited to 2.5 gpm.  Now each spraying device in a product containing multiple “heads” are considered separately for purposes of determining compliance with the 2.5 gpm limit.  Thus, a shower with four water spraying devices can use 10 gpm (until the hot water runs out), and Body Sprayer flow is unlimited.

The Showerhead Rule allows showers to consume more water and use more energy to heat water.  The increase could be significant: the U.S. Energy Information Administration reports that water heating consumes more household energy than anything but space heating, and showers are one of the largest consumers of hot water. Time will tell whether the additional water and energy wasted in the name of consumer choice is a relative drip or flood.

The incoming administration has options to rescind or reverse rules, including the Showerhead Rule.  But President Biden cannot issue an executive order to invalidate an existing regulation.  Nor can he “freeze” a rule that has been finalized and has taken effect.  Changing a rule requires the usual notice and comment periods, unless the “good cause” exception in the Administrative Procedures Act (APA) can be invoked.  

Litigation could also change or delay the effective date of the Rule.  The deadline to challenge the Showerhead Rule under the APA and EPCA is March 16, 2021.  Litigation can be slow, but if a challenge is brought, in the near term the Department of Justice could decline to defend the rule and request a stay to give DOE the chance to consider amendment or repeal. Similar lawsuits were brought at the end of December 2020 by 15 state attorneys general and NGOs challenging the October 2020 “Dishwasher Rule” which loosened dishwasher efficiency standards.

Showerhead manufacturers also need to contend with state and local law. Many state energy conservation standards are preempted by EPCA, but that law also allows or requires preemption to be waived is specified circumstances.  DOE waived preemption for showerheads in 2010.  Six states then adopted standards stricter than 2.5 gpm:  California, New York, Colorado, Washington, Hawaii, and Vermont.  These state standards, which likely will be interpreted under the superseded DOE policy, reduce the incentives for showerhead makers to sell products newly authorized by the Showerhead Rule.  As other states try to reduce GHG emissions, additional states may promulgate new rules to avoid the effects of a federal rule that does just the opposite.

Will manufacturers retool and remarket their product lines on the assumption that the Showerhead Rule will remain in place, at least for the states that have not adopted their own standards? The choice is theirs, but with increasing ESG considerations, the limited market, and a flood of uncertainty surrounding future of the Rule, many may wash their hands of this opportunity.   

The Showerhead Rule will hardly go down as the worst attack on the environment from the outgoing administration. There is simply too much competition.  There is also hope that a future regulator will consider the (paraphrased) advice of Rodgers and Hammerstein and conclude: “I'm gonna wash this [Rule] right outta my hair, and send [it] on [its] way.”  At 2.5 gpm or less.

EPA’s Ozone NAAQS Decision — Perhaps the Statute Itself Deserves Some of the Blame

Posted on December 28, 2020 by Seth Jaffe

Last week, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb.  I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS.  After all, only one decision can be the single worst environmental policy of an entire administration.

I’m not that close to the science on the ozone NAAQS, but I have the sense that the ozone evidence is just more of the same in the past four years; it’s nothing like the seeming flood of evidence we’ve seen concerning the risks of PM2.5 at sub-NAAQS exposures.  We do need to remember that there was some substantial evidence in 2015, when EPA adopted the 70 ppb standard, that there are risks at concentrations below 70.

The real question is what we mean by an “adequate margin of safety.”  As I have previously noted, this is really a policy question, not a scientific question.  On the other hand, it’s not an infinitely malleable concept and it’s pretty clear that questions of background or the cost-effectiveness of the controls necessary to get to a level below 70 ppb are not relevant to whether a NAAQS set at an particular level in fact attains an “adequate margin of safety.”  The adequate margin of safety is what it is; whether we as a society want to spend the money necessary to ensure that there is an adequate margin of safety is a different question.

Conceptually, I understand why Congress made the choice that it did.  Let’s first answer the scientific question regarding what level is “safe.”  Then we can figure out how we get to that “safe” level and whether society is prepared to spend the money to do so.  Unfortunately, the structure of the Clean Air Act – not to mention the state of our politics in 2020 – doesn’t permit a rational discussion regarding the policy choices that flow from the “how safe is safe” decision.

And so we end up with what’s supposed to be a scientific question becoming infected with implicit policy questions, which perverts the answer to the scientific question.  From a legal point of view, it’s the conservative justices, who say that they care about what words Congress actually uses in writing legislation, who should be the quickest to reverse both Trump NAAQS decisions.  From a purely etymological point of view, it’s difficult to conclude that either the PM2.5 NAAQS or the ozone NAAQS currently protect the public health with an adequate margin of safety when there is substantial – even if not definitive – evidence that there is significant morbidity and mortality associated with exposures below the current NAAQS.

Do I expect the current conservative Supreme Court majority to do as I suggest?  No, but it would not be a bad litigation strategy for the public health advocates who will inevitably challenge both decisions to focus really sharply on just how much flexibility there can be in the definitions of the words in the phrase “adequate margin of safety”.

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Posted on December 10, 2020 by Seth Jaffe

On Tuesday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually.  That hardly seems consistent with the Clean Air Act, which requires that NAAQS be set at the level requisite to protect public health “with an adequate margin of safety.”

As the Trump administration winds down, I think we can start the discussion of the single worst environmental decision made in the last four years.  There’s a lot of competition, and I welcome reader submissions, but for my money, this may well be it.

I understand that there is discussion among the Biden transition team regarding how much to prioritize action to lower the PM2.5 NAAQS.  At some level, it’s a heavy lift, because a lot of work goes in to revising a NAAQS.  The administration may conclude that its climate efforts will address particulate matter as a co-benefit.  That would certainly be true, but the NAAQS are important.  To me, they are still the core of the CAA.  That should be particularly true as a heightened focus on environmental justice emphasizes the link between environmental issues and public health.  Many of those tens of thousands of excess deaths take place in EJ communities.

Retaining the existing PM2.5 NAAQS – worst environmental decision ever by the Trump administration.  And that’s saying a lot.

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

Posted on December 7, 2020 by Seth Jaffe

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue.  It went on to review the decision by the North Dakota Department of Health, which concluded that the emissions should be excluded and CCMC did not require a permit.  The Court held that the NDDOH decision was entitled to deference, stating that:

"The process for NSPS enforcement would be significantly impaired if the state authority did not have the ability to make determinations based on application of given facts to the SIP and EPA framework."

There was a vigorous dissent by Judge Stras, who found it incomprehensible that a federal court would defer to a state agency interpretation of federal law.  In his pithy introduction, Judge Stras asserted that:

"Most Americans would be surprised to learn that state bureaucrats can play an even larger role than federal judges do in interpreting federal law."

I’m inclined to put a pox on the houses of both the majority and the dissent.  The problem with the majority is that it is too cavalier in asserting that, under the CAA’s cooperative federalism regime, states have the responsibility to implement the permitting regime.  That’s true, but it’s not obvious that the states get to make major interpretive decisions, such as what EPA’s own regulations actually mean.  I think that the majority also wrongly gives short shrift to the problem of inconsistent decisions being made by different delegated states.

On the other hand, Judge Stras relies on a mode of constitutional interpretation that is void of any basis in the Constitution or our political history.  He also seems far too quick to reach a constitutional question that should not even be at issue.  First, I think Judge Stras is correct that the regulation is not in fact ambiguous in these circumstances.  I would have found that, even if NHDOH was entitled to some deference, its decision that the emissions did not come from a coal processing plant was plainly wrong.

Second, the real solution, not discussed by the majority or the dissent, should have been that this case should not be a dispute between the authority of a federal court and a state agency, but a dispute between EPA and a state agency.  SCOTUS already ruled, in Alaska Dep’t of Envtl. Conservation v. EPA, that EPA has authority under the CAA to override state agency permitting decisions.  The plaintiffs should have asked EPA to override the NHDOH decision.  I don’t know why that did not happen here – perhaps it was because the plaintiffs assumed (probably correctly) that EPA would not rule against CCMC, since EPA had embarked on a mission to save coal.  Even if that were the case, however, the plaintiffs could then have appealed EPA’s decision to federal court and the case would have been presented in the proper way.

Finally, I’ll reiterate that this case really may be important.  Judge Stras is a Trump appointee and I wouldn’t be shocked if some of the recent appointments to SCOTUS were sympathetic to his arguments.  What makes the case really interesting is that those same judges are also those most sympathetic to the state side of cooperative federalism issues.

If this issue were to make it to SCOTUS, it would be fascinating to see if Justice Gorsuch rules for the coal company, because federalism gives decisional authority to the states, or for the plaintiffs, because the Constitution precludes state agencies from interpreting federal law.

As a lawyer I once dealt with was fond of saying, “that’s what makes a horse race!”

New Jersey Governor Signs Historic Environmental Justice Legislation

Posted on December 4, 2020 by Debbie Mans

New Jersey Governor Phil Murphy recently signed a historic environmental justice bill to protect overburdened communities from pollutants.  The law requires the New Jersey Department of Environmental Protection (NJDEP) to deny permits for certain new facilities “upon a finding that approval of the permit…would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit analysis…”.  NJDEP may apply conditions to a permit for the expansion of an existing facility or the renewal of an existing facility’s major source permit based on the same review and finding.

This law was well over a decade in the making, after having stalled for several years in the New Jersey Legislature. A combination of individual leadership in the legislature, early and strong support from Governor Murphy, a determined advocacy campaign lead by environmental justice advocates, and a general sense that it was well past time to address environmental racism led to its passage.

Covered facilities include (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons a day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material a day; (6) scrap metal facility; (7) landfill; or (8) medical waste incinerator (except when attendant to a hospital or university and processing self-generated waste).

If this facility is located in whole or in part in an “overburdened community” then it must prepare an environmental justice impact statement and hold a public hearing in the community.  There are requirements for enhanced public notice, including use of a local non-English newspaper.

An “overburdened community” is defined as any census block group in which (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency. 

The mapping of these areas can be found in Appendix A of “Furthering the Promise: A Guidance Document fo Advancing Environmental Justice Across State Government.”

The law does not become operative until adoption of rules and regulations to implement the provisions of the law.  There is no timeframe provided in the law for NJDEP to accomplish this and it will likely take more than a year due to several key items needing to be hammered out during the rulemaking process. 

This includes how a new facility could qualify as serving a “compelling public need,” allowing NJDEP to grant a permit that imposes conditions, rather than denying the permit.  Additionally, the law leaves to rulemaking or guidance the process and geographic scope of determining whether approval of the permit, together with other environmental or public health stressors affecting the community, would cause or contribute to adverse cumulative or public health stressors that are higher than those borne by other communities within the State, county or other geographic unit analysis.  This is an important issue, because comparing the Ironbound section of Newark to an adjacent neighborhood can result in a different outcome than comparing it to a neighborhood in a different county or region of New Jersey.

NJDEP has begun stakeholder conversations on the proposed rulemaking.  To find out more, please see the presentation from the October 22, 2020, stakeholder session and video recording of the session.  For more information on NJDEP’s Office of Environmental Justice and all their programming visit their website.

Debbie Mans is the former Deputy Commissioner at the New Jersey Department of Environmental Protection

One Op-Ed + One Book = ACOEL Blog

Posted on December 3, 2020 by Krista McIntyre

An opinion in this week’s Los Angeles Times, One of American’s great wildernesses is being destroyed, bit by bit, in a silent massacre (Ben Raines, November 29, 2020), (https://www.latimes.com/opinion/story/2020-11-29/mobile-river-biodiversity-extinctions-alabama) got me thinking about one of my re-reads this year, E.O. Wilson’s The Creation: An Appeal to Save Life on Earth (2006). The LA Times’ op-ed highlighted one of the richest ecosystems in the world, measured by number of species and types of habitat, the Mobile River Basin in Alabama. This wilderness is rich with more species of oak, crawfish, turtle, mussels, and freshwater fish than any other river delta system in the world. E.O Wilson explored and experienced this “stronghold of biodiversity” during his formative teenage years. His work on biodiversity, conservation, entomology, and all-things-Nature is prolific and iconic.

In The Creation: An Appeal to Save Life on Earth, Wilson petitions his counterpart, a Southern Baptist pastor, to join forces for the sake of the planet’s imperiled biodiversity. A secular humanist, a scientist, seeking counsel and help from a “literal interpreter of scripture.” An odd couple, for sure. E.O. Wilson selectively references religion and science, creation and evolution, to forge common purpose with his Pastor-friend. “Dear Pastor, what I fear most is a pervasive combination of religious and secular ideology of a kind that sees little or no harm in the destruction of the Creation.” With the sixth extinction underway, the “human hammer” -- not God’s will -- is to blame for the permanent losses Earth experiences, Wilson urges. He warns that to act as if  “extinction is natural” -- recurring over billions of years without harm to the biosphere -- misses the spiritual and scientific points. “However biodiversity arose, it was not put on this planet to be erased by one species.” Whether by creation or evolution, this “beautifully balanced” and functioning biosphere pre-dated humans. We are latecomers, he says.  And we are accelerants of the destruction.

E.O. Wilson’s experiences in Nature span the Earth. His examples of biodiversity in The Creation include the North American wolverine, the Venezuelan pitchfork ant, and cichlid fish in Africa’s Lake Victoria. But his scientific journey began in Alabama, in the Mobile River Basin, with a Boy Scout project studying fire ants. Now this unique American ecosystem is at risk. In his LA Times’ op-ed, Ben Raines describes the perilous impacts to the Mobile River Basin; impacts that track the factors outlined by E.O. Wilson in The Creation that contribute to global biodiversity loss: habitat loss, invasive species, pollution, population, and overharvesting. The rate of aquatic and terrestrial species extinction, Raines notes, is roughly double that seen anywhere else in the continental United States. And, according to the piece, Alabama ranks last in the nation in spending to protect the environment.

As pled in The Creation, what advice might E.O. Wilson offer Ben Raines to preserve and protect this special area of Alabama? Build alliances with unlikely allies. Meet on common ground. Teach scientific method. Nurture exploration and curiosity of Nature in children. Believe in Nature’s proven powers to heal, to support life, to endure before and after humans. Reach across disciplines and predispositions to summon stewardship of the biodiversity that nourishes human spiritual and scientific life. And don’t delay.

Combating Climate Change with the Clean Air Act’s International Air Pollution Provision

Posted on November 23, 2020 by Michael Burger

As the key staffing decisions and priority policy agendas for President-elect Joseph R. Biden begin to take shape, the questions of when and how the administration will act on his campaign’s climate plan are front and center. Deservedly so. The scale and scope of the climate crisis calls for immediate and comprehensive nationwide efforts to reduce greenhouse gas emissions. There is no question that new federal legislation would be the best option. But with Georgia’s two Senate seats still undecided and the political implications of the November election still being parsed out, the prospect for federal legislation remains highly uncertain. What’s more, even assuming Congress does enact new climate legislation, it may not go far enough in reducing GHGs to be consistent with science-based climate targets, or to meet the nation’s international climate commitments. From January 20 onward, the Biden administration will need to think through and set in motion regulations that rely on existing statutes to achieve the deep emission reductions required to avoid increasingly dangerous, highly unpredictable climate scenarios.

Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales provides a roadmap for an essential component of such a plan:  the Environmental Protection Agency’s international air pollution authority. This new book, which I edited, is the culmination of a decade of collaboration by scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute at UCLA, and the Institute for Policy Integrity at NYU, with major contributions from other outstanding legal scholars, experienced lawyers from the Environmental Protection Agency and the State Department, leading state regulators, and veterans of congressional climate battles. Its chapters lay out how the Clean Air Act’s international air pollution provision -- Section 115 -- provides a logical, common-sense basis for a federal climate policy that (a) allows the executive branch to synchronize the nation’s domestic emission reduction efforts with its international climate commitments; (b) authorizes the use of a broad range of regulatory approaches, including market-based mechanisms; (c) respects cooperative federalism by giving EPA the responsibility to set emission reduction targets and states the authority to decide how to achieve them; and (d) is administratively simple. Whatever might come from Congress in the next year or two, and whatever else the Biden administration’s environmental, energy and natural resources agencies might do, EPA’s international authority can fill the gap between the emission reductions other federal, state and local programs can achieve and the level of cuts required to meet the nation’s climate goals. 

Though it has only been invoked once, and never implemented, the criteria for using the international air pollution provision are relatively straightforward. Section 115 is triggered when EPA both finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country (the “endangerment finding”) and determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country” by Section 115 (the “reciprocity determination”). In the case of climate change, both of these prerequisites are readily met: GHGs in the U.S. contribute to climate change, which endangers public health and welfare in other countries just as much if not more than it does here in the U.S. And the UNFCCC, the Paris Agreement, and potentially new, additional agreements ensure both that the U.S. can participate in other countries’ planning and that there is a mutual, or “reciprocal,” substantive commitment to address the climate crisis.   

Once triggered, Section 115 operates through state implementation plans (SIPs), the state air pollution control programs that are the heart of the Clean Air Act’s cooperative federalism model for achieving the nation’s air pollution control goals. Under Section 115, EPA’s role is to require the states to revise their SIPs to the extent they are “inadequate to prevent or eliminate the endangerment.” As explored in detail in the book, EPA can use the provision to set GHG emission reduction targets for the states, and the states can work together with EPA and other states to build upon their existing initiatives to achieve these emission reductions in a cost-effective manner. If a state refuses to revise its SIP, EPA can promulgate a federal implementation plan (FIP) for the state, authority that EPA has exercised in other contexts.

Some of this may sound familiar to some of you. Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales reflects a  significant enhancement of a 2016 article, which many of the book’s authors contributed to, and which received a good deal of attention, that examined how EPA’s international air pollution authority could help achieve the country’s climate change goals at that time. The book’s updated analysis makes important adjustments to the thinking in that article to reflect all that has happened in the intervening years – including developments in the UNFCCC, the U.S. Supreme Court, and U.S. politics. The book’s chapters dive deeper into the key implementation issues that would face EPA and the states, and they explore ways to address the various legal and policy issues that would arise – including critical questions of judicial review in an evolving doctrinal landscape marked by uncertainty around the future of Chevron deference and the shadow cast by the “major questions” doctrine. But the book’s chapters present solid answers to these questions, and demonstrate that the statutory language is robust enough to empower EPA and the states to reduce U.S. emissions in line with our international commitments, while providing sufficient guardrails to constrain and direct agency discretion.

The Clean Air Act’s international air pollution provision is not the only existing authority the Biden administration can, should, or will rely on to address climate change. But it is a powerful one. And while the idea of relying on the provision may seem novel to some, it is not new. Former EPA General Counsel Roger Martella wrote one of the first articles advocating the approach back in 2009. (Another former EPA GC, and ACOEL fellow, Jon Cannon, is one of the contributors to the book.) The provision provides EPA and the states with the authority, and the flexibility, to address GHG emissions in an efficient and equitable manner. It should be on the table when, early in 2021, the U.S. rejoins the Paris Agreement, and the federal government recommits to ambitious climate action.   

To read a summary of the book, go here.

To purchase the book, go here. You may use the discount code MBRG35 for a 35% discount on hard cover copies. The discount code does not apply to e-books, which are also available, and a lot less expensive.

For additional materials on the International Air Pollution provision, go to the Sabin Center’s Section 115 resources page, here.

HAS THE TIME COME FOR A GREENHOUSE GAS NAAQS? LAW STUDENTS WILL ARGUE THE ISSSUE AT THE 33RD ANNUAL NATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

Posted on November 19, 2020 by Karl Coplan

One thing that is clear from the 2020 election: the Senate will remain closely divided, with slim majority control to be determined by the two January Senate runoff races in Georgia. President Elect Biden has announced the most aggressive climate policies of any major party climate candidate ever, but the prospects of achieving these goals through climate legislation are slim as long as Republicans maintain majority control or a bare Democratic majority lacks the votes to eliminate the filibuster (or to vote in strong greenhouse gas emissions controls). The likely continued lack of legislative action on climate is refocusing attention on measures EPA can take under existing Clean Air Act (CAA) authorities.

One potent EPA option in the Clean Air Act toolkit is the authority to add greenhouse gases  (GHGs) to the CAA § 108 list of criteria pollutants. A pollutant is eligible for listing as a criteria pollutant once EPA has found that that the pollutant “may reasonably be anticipated to endanger public health or welfare.” EPA made that finding for GHGs back in December, 2009, when the Obama administration invoked CAA § 202 to regulate new motor vehicle GHG emissions based on the identical endangerment criteria of § 202. Environmental groups 350.org and Center for Biological Diversity filed a petition with EPA, also in December 2009, demanding that EPA list GHGs as a criteria pollutant. But the Obama administration chose not to invoke the NAAQS program for GHGs, fearing the severe regulatory repercussions. Once EPA lists a criteria pollutant, it must propose primary and secondary National Ambient Air Quality Standards (NAAQS) within twelve months (§§108, 109), and establish final NAAQS within another ninety days (§ 109). Promulgation of final primary NAAQS triggers a three-year compliance deadline for states – after which States risk loss of all federal highway funding and EPA imposition of emissions control measures within the State. And since no State could realistically meet this three-year deadline for a climate protective GHG NAAQS, adoption of the primary NAAQS would be a recipe for draconian federal enforcement measures.

Fearing this regulatory morass, the Obama administration chose to put the U.S. on track to meet its Paris Agreement climate goals through a combination of motor vehicle mileage standards, new source standards, and invocation of CAA § 111(d) authority to require States to develop Best Systems of Emissions Reductions standards for existing power plants through a combination of emissions reductions, renewable energy development, and regional trading systems. EPA called this the “Clean Power Plan.” EPA’s § 111(d) authority for the Clean Power Plan was sufficiently uncertain that the Supreme Court took the unprecedented action of enjoining the implementation and enforcement of the Clean Power Plan before any judicial challenge actually reached the Court. The Trump administration withdrew the Clean Power Plan in favor of much weaker plant-by-plant GHG emissions controls.

Unlike § 111(d) authority, EPA’s authority to list GHGs as a criteria pollutant could not be more textually clear. Indeed, the phrasing of § 108 seems to make a pollutant’s listing mandatory upon a finding of endangerment, directing that EPA “shall” list, as a criteria pollutant, a pollutant that “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.” 

A 1976 Second Circuit case, NRDC v Train, held that § 108 imposes a mandatory obligation on EPA to list a pollutant as a criteria pollutant for the CAA Title I NAAQS program once it has made a determination that pollutant may present an endangerment to public health or welfare under the Title II provisions governing motor vehicle emissions. The facts of Train are highly analogous -- EPA made the endangerment finding for lead additives in fuel but had not planned to list lead as a criteria pollutant. Until the court ordered it to do so.

Would a court apply Train to order EPA to list GHGs as a criteria pollutant subject to the NAAQS? What if a hypothetical 2009 petitioner for a GHG NAAQS tried to enforce that theory in court? That’s the question presented in the 33rd running of the 2021 Jeffrey G. Miller National Environmental Law Moot Court Competition, to be conducted by the Elisabeth Haub School of Law at Pace University in February and March, 2021. You can view the problem here. Due to COVID restrictions, all rounds up to the Final Round will be conducted virtually this year. This may be a climate blessing in disguise, as running the competition as a virtual event will vastly reduce the travel related carbon emissions associated with the competition. This year’s virtual event may provide a template for the more climate friendly moot court competitions of the future. Licensed attorneys can sign up to judge here (CLE credit is available).

INTERSTATE AIR TRANSPORT - IF AT FIRST YOU DON’T SUCCEED …

Posted on November 18, 2020 by David Flannery

As I review USEPA’s current proposal to address the Good Neighbor provisions of the Clean Air Act (CAA) with respect to the interstate transport of ozone-related air pollutants  (85 Fed. Reg. 68964; October 30, 2020), I keep recalling the phrase – “If at first you don’t succeed, try, try again.”

USEPA has been addressing the Good Neighbor provision of the CAA over the last 20 years through a number of rulemakings. For a complete history of these various rulemakings see: https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport. These rulemakings have included the NOx SIP Call (which addressed the 1979 ozone National Ambient Air Quality Standard (NAAQS)), the Clean Air Interstate Rule (CAIR) (which addressed the 1997 ozone NAAQS), and the Cross-State Air Pollution Rule (CSAPR) (which established the Group 1 Trading Program to address the 1997 ozone NAAQS).

USEPA’s more recent efforts to address the Good Neighbor requirements with respect to the 2008 ozone NAAQS, however, have taken on an added level of complexity with now two failed rulemakings.

The first of these failures involved the CSAPR Update Rule promulgated in 2016. In that rule, USEPA sought to impose short-term emission controls that could be implemented by the start of the 2017 ozone season. The result was the creation of a Group 2 Trading Program to impose a set of emission reductions on electricity generating units in 22 states based upon the optimization of controls that were already installed. On September 13, 2019, the D.C. Circuit remanded the CSAPR Update Rule to USEPA finding that it was a partial rule that did not eliminate all upwind significant contribution to downwind nonattainment or maintenance areas in the attainment year of 2021. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).

The second attempt involved the CSAPR “Close Out” Rule promulgated in 2018 in which USEPA found that no additional emissions reductions from upwind states were any longer necessary because USEPA air quality projections for 2023 showed that there were no remining nonattainment or maintenance areas by that date. A mere 18 days after it had remanded the CSAPR Update Rule, the D.C. Circuit vacated the CSAPR Close Out Rule by reaffirming that the attainment date that should have been used by EPA for its analysis was 2021 – not 2023.  New York v. EPA, 781 Fed App’x 4 (D.C. Cir. 2019)

As a result of the remand in the Wisconsin case, USEPA has now proposed the Revised CSAPR Update rule as the third attempt to specify the obligations of upwind states to avoid significantly contributing to downwind air quality nonattainment or interfering with air quality maintenance of the 2008 ozone NAAQS. In an effort to determine a complete remedy in response to the Wisconsin remand, EPA has examined air quality and emission control data in 2021 and has proposed a Group 3 Trading program to impose a new round of emission reductions from electric generating units in 12 states while inviting comments on the possibility of imposing emissions reductions on other source categories.  The comment period on this proposal will close on December 14, 2020.

All of which causes me to recall yet another phrase, as I wonder whether “the third time will be the charm.” 

An Oily Test for the Public Trust Doctrine

Posted on November 17, 2020 by Jeffrey Haynes

On November 13, Michigan Governor Gretchen Whitmer (“That woman from Michigan!”) issued a notice to Enbridge Energy that by May 2021 it must cease transport of oil through twin pipelines that traverse the Straits of Mackinac. On the same day, Michigan’s Attorney General filed a complaint in state court for injunctive relief against Enbridge. (For those who do not speak Michigander, “Mackinac” is pronounced “Mackinaw.” Here’s a handy guide.) The notice terminates Enbridge’s 1953 easement in the Straits because of violations of the public trust doctrine and “longstanding, persistent, and incurable violations” of the easement’s standard of care. Background of the controversy is here.

Although the pipelines have not leaked in nearly 70 years, a major leak or spill would cause harm rivaling Santa Barbara, the Exxon Valdez, and Deepwater Horizon, but in fresh water. Lakes Michigan and Huron form the largest lake (by surface area) in the world. The pipelines transport 23 million gallons per day of oil and natural gas liquids for four miles underwater between Michigan’s upper and lower peninsulas. Hazards to the pipelines abound. Vessel anchors have dinged them, strong water currents have shifted pipeline supports, and protective coatings have flaked away.

The state argues that the easement was void from its inception or revocable, or both, because the state in 1953 did not find that the easement would improve the public trust or not impair the remainder of Michigan’s public trust bottomlands. The state argues that Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), and several Michigan public trust cases require these findings. Citing recent anchor strikes, the state argues that continued operation of the pipelines poses “inherent risks” of environmental harm.

In addition to the public trust argument, the state asserts that recent operational incidents violate the easement’s standard of “due care of a reasonably prudent person” for the safety and welfare of public and private property. Labelling violations as “incurable,” the state cites many places where the distance between pipeline supports exceeds the required 75 feet, invasive zebra mussels prevent repairing the protective coating, and the pipelines bend more than allowed.

The capacious standards of the public trust doctrine and “due care” give judges plenty of legal room to rule for the state. But Enbridge will argue that it should be allowed to operate the pipeline until it can place the pipeline in a tunnel it proposes to drill beneath the Straits. It is perhaps fitting that this controversy occurs 50 years after Michigan law professor Joseph Sax reinvigorated the public trust doctrine. But the state’s timing is likely less about celebrating that anniversary than the fact that Governor Whitmer will have a favorable Democratic majority on the Michigan Supreme Court starting January 1.

An Uncommon Dialogue: All We are Saying, is Give Peace a Chance

Posted on October 22, 2020 by Richard Glick

Those of a certain age will remember this plaintive, kumbaya-seeking line from John Lennon’s Vietnam War protest song.  Naïve, perhaps, but an Uncommon Dialogue process initiated thorough Stanford’s Woods Institute for the Environment, expresses a similar hope for peaceful solutions among the warring parties in hydroelectric regulatory processes.  A two and a half year effort has resulted in execution of a Joint Statement of Collaboration on U.S. Hydropower: Climate Solution and Conservation Challenge.  Signatories include an extraordinary collection of national environmental and industry groups.

The impetus for the Joint Statement is the urgent need to address climate change by promoting non-greenhouse gas emitting, renewable energy resources.  Hydroelectric power meets these criteria, and has the added benefit of storing energy capacity that is readily dispatchable, as with a battery, making it an ideal companion to other renewable resources when the sun doesn’t shine and the wind doesn’t blow.  The central problem, of course, is that dam building across America has often resulted in decimation of native and anadromous fish runs.  Mitigating or reversing damage to rivers is a formidable challenge, impossible in some cases, but feasible in others.

The Joint Statement notes that there are about 90,000 dams in the U.S., but only 2,500 produce electricity.  About 30% of existing FERC-licensed hydropower facilities will be up for relicensing over the next decade.  These facts led the participants to focus on three main policy directions in the Joint Statement:

  • Rehabilitating both powered and non-powered dams to improve safety, increase climate resilience, and mitigate environmental impacts;  
  • Retrofitting powered dams and adding generation at non-powered dams to increase renewable generation; developing pumped storage capacity at existing dams; and enhancing dam and reservoir operations for water supply, fish passage, flood mitigation, and grid integration of solar and wind; and
  • Removing dams that no longer provide benefits to society, have safety issues that cannot be cost-effectively mitigated, or have adverse environmental impacts that cannot be effectively addressed.

A 60-day period now begins, during which signatories to the Joint Statement will reach out for comments from a broader range of stakeholders, including state and tribal governments.

Many of us practicing environmental, natural resources and energy law chose those fields because we cared about the environment and believed that economic growth and conservation values could, and indeed must, coexist.  While only 7% of the nation’s electricity output now comes from hydropower, this old technology could play a much bigger role if we maximize the benefits and minimize the harms through collaboration based on trust, rather than endless litigation.  The climate change crisis demands that we try, and this Joint Statement is a big step in the right direction.

Regulating Guidance As Though It Were Regulation

Posted on September 18, 2020 by Seth Jaffe

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. An agency operating in this way gains a large advantage. “It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.” The agency may also think there is another advantage-immunizing its lawmaking from judicial review.

Furthermore, much guidance is like that reviewed in Appalachian Power.  “The entire Guidance, from beginning to end-except the last paragraph-reads like a ukase.   It commands, it requires, it orders, it dictates.”

I defy anyone who has dealt with government regulations on a daily basis to say that, in their heart of hearts, they don’t know this to be an accurate description of how guidance comes to be created and used.  Because it is accurate – and as much as it pains me to say so – I support the rule issued by EPA on Monday that regulates EPA’s issuance of guidance documents.

To my friends who are either regulators or in the environmental community, let me suggest that reining in guidance is a good thing for those who believe in government regulation.  While I acknowledge that I am sometimes prone to rhetorical excess, l think it fair to say that the overuse of guidance – and the bureaucratic tendency to implement guidance as though it were a “ukase” – is one reason why government has increasingly been seen as illegitimate.  When those who are regulated see government bureaucrats as modern day Judge Roy Beans – the law north, south, east, and west of the Pecos – then many of us develop deep skepticism about government.

I believe in government.  I want others to do so as well.  That’s why I support regulating guidance as though it were regulation – because it functionally is regulation.

“Purple Haze … Is It Tomorrow, Or Just the End of Time?”

Posted on September 14, 2020 by Samuel I. Gutter

We are in Yosemite, midway through our month-long RV trip out west.  We planned this trip long before the world heard of Covid-19, but decided it was the lowest risk vacation we might take in 2020, so off we went.  After two weeks of hot sun and blue skies in the stunningly beautiful national and state parks of Southern Utah, we headed toward our planned stops in California and Oregon.  And then we hit the wall – the fire wall.

Coming into California through Death Valley and driving north, the normally majestic Sierra Nevada range on our left was barely visible.  At our next stop in June Lake, air quality was determined by the direction of the wind.  When the wind blew from the west, the mountains disappeared and the smell of smoke was everywhere.  There was no hiking – all National Forests in California are closed, with stringent fines for violators, out of concern that even the stray cigarette butt could add to the conflagration.  Further north, huge areas of Oregon that have never experienced wide-scale fires are burning, with devastating consequences.

Driving west into Yosemite on State highway 120, we had to be escorted by Park Service vehicles through areas where local fires are burning trees right up to the edge of the road.  Now at midday, the sky is Martian-orange with heavy smoke from the Creek Fire.  The scene is eerie and apocalyptic.

So instead of heading north to California and Oregon as we had planned, we’re backtracking to Utah and Arizona, before returning home to the East Coast.  For us, it’s a route change and an inconvenience.  For many others, it’s a human and economic tragedy on top of the unprecedent crush of the pandemic.

And it’s an environmental disaster.  The embedded map is from the U.S. government’s AirNow site, www.airnow.gov, and shows unhealthy and dangerous air quality blanketing California and Oregon.  Make no mistake; the fires are the direct consequence of climate change.  Standing among the embers in Oroville, California Governor Newsom said, “This is a climate damn emergency.  This is real and it’s happening.”  www.latimes.com/california/story/2020-09-11/california-wildfires-climate-change-gavin-newsom-trump

To those of us who have spent decades involved in clean air regulations, what is happening now on the West Coast viscerally dwarfs the impacts from controlled stationary and mobile sources.  While hopefully transient in time, this seems worse than any day in the history of Southern California’s smog alerts in the latter half of the last century.  I don’t mean to belittle the long-term importance of emission regulations – they are essential to public health and welfare – but this tragedy is a stark reminder that unless we vigorously deal with global climate change, we will continue to experience very real and immediate consequences, including public health and safety emergencies, on an immense scale.

Not Quite the Same as Making Mexico Pay For the Wall

Posted on September 9, 2020 by Seth Jaffe

As the New York Times has documented, President Trump stated numerous times that Mexico would pay for the border wall. With this context, it was hard not to appreciate the delicious irony when EPA announced last week that it would be financing two separate measures to reduce pollution migrating from Mexico to Southern California.

In other words, not only is Mexico not paying for the wall (and neither is Steve Bannon), but the United States is paying for pollution controls in Mexico! I actually happen to think that this is good news, but I doubt that President Trump is going to be trumpeting this accomplishment to his base. There’s a pretty persuasive argument to be made that avoiding pollution controls is one way that Mexico is able to produce goods more cheaply than the United States. And we’re now financing Mexico’s ability to undercut the price of US manufactured goods?

Instead of requiring Mexico to internalize the externality caused by loose environmental controls in Mexico, we’re subsidizing the externality.

Will wonders never cease?

Implementing the CLCPA: New York is Amping up the Electrification of its Transportation Sector

Posted on August 26, 2020 by Gail Port

In September 2019, I wrote about the banner year it had been for the environment and environmental legislation in New York, particularly with the passage of the Climate Leadership and Community Protection Act (CLCPA) which was signed into law in July 2019.  The CLCPA sets a bold, aggressive, statewide framework to reduce net greenhouse gas emissions to zero by 2050—a very high bar for state-led action to address climate change.

To keep the state on track to achieve its goals, the CLCPA called for the creation of two significant decision-making bodies. The first, the Climate Action Council, is in charge of developing the scoping plan for New York’s economy to achieve the State’s bold clean energy and climate agenda. The second is the Climate Justice Working Group, which will guide the state in carrying out its ambitious climate targets by ensuring that the environmental justice provisions of the CLCPA—such as clean energy spending, green jobs, and affordable resources—are enforced and distributed equitably to low-income communities of color. Appointees to both of these bodies have been made and meetings have been held. The Advisory Panels called for in the CLCPA, which consist of representatives from public, private, academic, environmental and community groups covering six economic sectors areas—transportation, energy efficiency and housing, agriculture and forestry, land use and local government, energy intensive and trade-exposed industries, and power generation—were filled on August 24th.  Members of the Just Transition Working Group, which is charged with helping to ensure NY’s workforce is prepared for and will benefit from the transition to renewable energy, were also appointed on that date. 

Governor Cuomo has taken other steps to meet the CLCPA’s ambitious goals, including,

While guiding New York through the difficult and challenging process to flattening the enormous curve of COVID-19 cases, Governor Cuomo continued to work on advancing the CLCPA’s ambitious goals and in mid-July announced a nation-leading initiative to expand electric vehicle use to help combat climate change.  Our Governor prudently recognizes that well after the Coronavirus is no longer a threat, the existential threat of climate change will still be with us. 

The program to accelerate New York’s transition to cleaner mobility is expected to stimulate $1.5 billion in new investments and to provide more than $2.6 billion in consumer benefits and economic opportunities (translation: lots of green jobs).   The package of initiatives to electrify New York’s transportation sector includes: (i) an “EV Make Ready” initiative to accelerate the deployment of more than 50,000 charging stations by 2025 and (ii) $206 million set aside to benefit low-income and disadvantaged communities, which includes $85 million to fund three innovative clean transportation prize competitions.

Back in January 2020, the New York Department of Public Service (“DPS”) released a white paper proposing a bold statewide electric vehicle charging program. That program, which was alluded to in the Governor’s State of the State, is intended to spur the installation of infrastructure to support widespread electric vehicle deployment throughout the state. It is estimated that New York needs about 850,000 electric vehicles on the road to cut pollution from transportation to meet the clean car Zero Emission Vehicle (ZEV) standards. The state will need over 100,000 public and workplace charging stations and over 4,000 Direct Current Fast Charging (DCFC) stations to support that number of electric vehicles.

EV Make Ready Program

The EV Make-Ready Program will be funded by investor-owned utilities in New York State and creates a cost-sharing program that incentivizes utilities and charging station developers to site electric vehicle charging infrastructure in places that will provide a maximal benefit to consumers. Specifically, this program will provide funding to create more than 50,000 level 2 charging plugs, which are capable of charging a vehicle at least twice as fast as a standard wall outlet. Providing drivers with assessable charging stations is the key to encouraging the wide-spread adoption of electric vehicles. Given that the transportation sector is responsible for the largest contribution to greenhouse gas pollution in the U.S., with those emissions increasing more than any other sector over the last 30 years, coupled with the fear of many New Yorkers of using crowded mass transit options during the Coronavirus pandemic, this is clearly a step in the right direction. 

Competitions

Solving onerous problems requires innovative thinking and the creation of incentives to foster that creative thinking often can be a winning strategy. This program includes $85 million to fund three competitions to support clean transportation options to benefit lower socio-economic communities. The three competitions are:

  1. the Environmental Justice Community Clean Vehicles Transformation Prize, a $40 million program focused on reducing harmful air pollution in frontline communities and creating transportation “green zones” across New York State;
  2. the Clean Personal Mobility Prize, a $25 million program soliciting innovative and high impact approaches that enable access to clean transportation services for disadvantaged and underserved communities; and
  3. the Clean Medium- and Heavy-Duty Vehicle Innovation Prize, a $20 million program designed to achieve direct benefits; allow concrete investigation of opportunities, costs, and benefits; and prove out innovative and high-impact approaches to medium- and heavy-duty electrification that can be replicated at scale, including for “last-mile” solutions, one of the fastest growing emissions sources in this class of vehicles. 

2019 was off to a good start in New York with much promise on how we planned to confront the threat of climate change. Then came 2020, the year we stayed home, changed the way we live (perhaps forever), lost over 172,000 US citizens to COVID-19, wore masks, and saw large-scale protests and long overdue calls for racial and social justice.  I for one hope that 2020 will also be remembered as a defining time in the fight against climate change—at least in New York.

BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications

Posted on August 12, 2020 by Seth Jaffe

Last month, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct, but I don’t think it’s necessarily even a Chevron issue.

After Justice Gorsuch shocked many readers by holding that the plain language of the Civil Rights Act required protection of transgender people, environmental lawyers speculated whether Justice Gorsuch’s passion for plain language readings might benefit the environmental side in any pending environmental disputes.  I have questioned such hopes, but I think that the Waste Prevention Rule case may not be a bad candidate.  “Waste” may not be defined in the statute and there may be uncertainty in precisely what it does mean, but I don’t that there is any plausible understanding of the word that limits its meaning to “economic waste.”  Venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.

Justice Gorsuch, are you listening?

The second important issue is the Court’s rejection of BLM’s redefinition of the “social cost of methane.”  This is just one of many occasions in which the Trump administration has attempted to change Obama administration positions.  To date – and including this case – the Trump administration has had a difficult time enacting its policy preferences when those policies are interwoven with scientific questions.  Here, President Trump issued Executive Order 13783, which disbanded the Interagency Working Group and withdrew all of the documents created by the IWG, including its social cost of methane metric, which included global costs.  That metric had been intensively vetted and was subject to peer review.  In response to EO 13783, BLM withdrew the global social cost of carbon approach and replaced it within one that looked only at the domestic cost, an approach that was not subject to peer review and has been roundly criticized by economists.

Judge Rogers was not amused.

While Executive Order 13783 may have withdrawn the relevant technical support documents for political reasons, it did not and could not erase the scientific and economic facts that formed the foundation for that estimate—facts that BLM now ignores.  [T]he President did not alter by fiat what constitutes the best available science.  (My emphasis, because this may be the single best sentence written to date summarizing this administration’s approach to environmental regulation.)

Notwithstanding my views of this administration, I’m not so confident about this part of the opinion.  I can certainly imagine conservative judges concluding that whether the U.S. government should care about the global, as opposed to domestic, cost of methane is more of a policy choice than a scientific question.

There’s little doubt though, that this is not the last case in which courts are going to have to wrestle with this thorny problem.

Hats Off to the Green New Dealers

Posted on August 10, 2020 by Leslie Carothers

Watching the U.S. government botch the response to the pandemic may deepen pessimism about our prospects for meaningful action to prevent catastrophic climate change. But multiple failures in foresight and management of a simpler crisis may well help make the case for serious national climate protection policies. In fact, strategies for climate action are gaining momentum. And environmental lawyers are stepping up to help.

Two developments in late 2018 created new pressure for action. The Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5 degrees C (October 2018) warned that avoiding increasingly severe impacts requires achieving net zero emissions by 2050 and reductions of 45% by 2030. Soon after, young activists led by the Sunrise Movement announced the Green New Deal. Proposed House Resolution 109 (Feb. 7, 2019) calls for a 10 year “national mobilization” to meet 100% of the U.S. power demand through “clean, renewable, and zero emission sources,” and to establish a host of programs to address economic weakness and inequality through investments in priorities like infrastructure, universal health insurance, and even a jobs guarantee. Speaker Nancy Pelosi was cool to the “Green Dream,“ and Republicans dismissed the Green New Deal as a socialist takeover. But despite its many critics and its daunting ambition, the Green New Deal has spurred an emerging climate policy consensus on the left and beyond.

Many civil society organizations representing environmental groups, the labor movement, and front-line environmental justice communities harmed by pollution have produced new reports and platforms influenced by the Green New Deal. For example, the U.S. Climate Action Network, a coalition of environmental organizations, issued a Vision for Equitable Climate Action that presents a concise statement of climate policy solutions from a consensus building initiative involving 100 groups. An analysis of this agenda and others by David Roberts in Vox stresses their common focus on achieving the goal of net zero emissions by 2050 by similar means: stringent sector-based energy standards; large scale public investments in efficiency, technology, and infrastructure to reduce emissions and create good jobs; and environmental justice, a commitment not only to protect disadvantaged communities from excess pollution but also to support a just transition for fossil fuel industry workers displaced by the transition to a clean energy economy.

The Democratic members of the House Select Committee on the Climate Crisis established by the Speaker issued a 540-page report in June with comprehensive recommendations for legislative committees. That report sets the same major priorities of setting sector standards, public investment, and environmental justice, with much more elaboration of the details. Neither the Climate Action Network report nor the House Committee Democrats reject the use of market mechanisms to set a price on carbon, but market tools are not central to their agendas. What is clear is that climate strategies combining energy use standards with big public investment to rebuild our infrastructure, generate good jobs, and protect vulnerable communities have won wide acceptance by environmental organizations and the broader Democratic Party, now including the Biden campaign.

The Biden plan announced in July would set technology neutral clean energy standards for the power sector that could allow trading of credits among sources, while pledging major infrastructure investments and greater monitoring of pollution sources to protect disadvantaged communities. His plan calls for a transition to 100% green energy in the power sector by 2035, a national net zero emissions goal by 2050, and $2 trillion in federal investments in clean energy infrastructure, procurement, and research over 4 years. The Democrats’ call for massive federal spending on decarbonization of the economy akin to the original New Deal looks less extreme following a Democratic primary campaign spotlighting decades of wage stagnation amid exploding health and housing costs for the majority of Americans. Today’s pandemic and the resulting economic damage and unemployment have only strengthened the case for more federal spending to revive a long underperforming economy.

In another important policy development, the Climate Leadership Council, the leading proponent of a revenue neutral carbon tax with revenue returned to citizens to offset higher energy costs, issued a Bipartisan Climate Roadmap in February, 2020. The updated plan, narrowed from earlier versions to focus on stationary sources of carbon dioxide and stripped of non-starters like liability protection for fossil fuel companies, estimated that it would reduce U.S. greenhouse gas emissions by 57% by 2035, “unlock” $1.4 trillion in capital investment, presumably private, and create 1.6 million jobs. Initially developed by respected Republican elders James Baker and George Shultz, the plan has many high-powered endorsers from diverse sectors and retired public officials from both political parties. Thorny issues like how this plan can intersect with existing state emission trading and renewable energy portfolio standards remain. But the bigger question is whether this ambitious market-oriented plan would finally bring many congressional Republicans to the table to work on a national law. It is noteworthy that the U.S. Chamber of Commerce, mirabile dictu, issued a new statement of climate policy priorities last year, concluding in bold type that “inaction is not an option.” Can the Republican Party be far behind? We shall see.

It’s great to see lawyers advancing concrete climate response actions, too. The report on Legal Pathways for Deep Decarbonization in the United States (2018) edited by ACOEL members and climate experts John Dernbach and Michael Gerrard offers 25 chapters by lawyers who donated their time. (The report and a short summary document are available from the publisher, the Environmental Law Institute). The editors have now recruited 24 law firms and legal clinics to draft model laws implementing the ideas or serve as peer reviewers. More volunteers are still needed. Here is the link to the recently launched website on the project where the work will be published. If readers have interest and time to contribute your skills to this fine project, check it out.

Nearly 30 years ago, the U.S. Senate ratified the 1992 United Nations Framework Climate Convention calling for national efforts to work toward stabilizing greenhouse gas emissions at 1990 levels. Those of us dismayed by our national failures since then should applaud young activists for transforming the debate with the Green New Deal’s call for urgency, equity, and economic revival to meet the challenge of the climate crisis. It’s about time.

Assistant Attorney General Clark’s Clean Water Act Edict: A Solution to a Non-Existent Problem?

Posted on July 30, 2020 by Jeffrey Porter

During the dog days of summer in a general election year, Assistant Attorney General Jeffrey Bossert Clark, the nation's top environmental lawyer, has issued an eloquent, albeit curiously sourced, ten page edict to his subordinates at the Department of Justice decreeing that the Federal Government will not make the same Federal Clean Water Act claims as a State unless there is a good reason to do so.  See Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings (July 27, 2020), https://www.eenews.net/assets/2020/07/27/document_gw_03.pdf.

Environmentalists will likely complain that this edict is intended to prevent Federal cases that might otherwise be brought.   But there’s no evidence that “overfiling,” which is when the Federal Government commences an enforcement action that is already the subject of a State enforcement action, has been common during the Trump Administration, or any other recent Administration.

More specifically, as AAG Clark knows, nearly one in four State Attorneys General are currently suing the Environmental Protection Agency over what they allege is an impermissibly narrow interpretation of the Federal Clean Water Act.  See State of California, et al. v. Andrew H. Wheeler as Administrator of the United States Environmental Protection Agency, et al. (May 1, 2000), https://ag.ny.gov/sites/default/files/wotus_complaint.pdf.   Regardless of what one thinks of the merits of the Attorneys General’s case, it seems irrefutable that the Federal Government has not been, and will not be, overaggressive about enforcing the Federal Clean Water Act during this Administration.

If AAG Clark really intends to effect a meaningful change in the Department of Justice’s behavior in the future, why did he recite and ratify so many traditional circumstances in which Federal enforcement on top of State enforcement is deemed appropriate, including when a State is sitting on its hands, when the State requests it, when important federal interests are implicated, when there is a "gap" in the relief sought by the State, or where there are otherwise "exceptional circumstances"?

And why, to support what seems to be a completely uncontroversial conclusion, did the Assistant Attorney General feel compelled to cite an opinion of the Supreme Court authored by the late Justice Antonin Scalia striking down a provision of the Brady Handgun Violence Prevention Act as well as equally irrelevant remarks on white collar crime prosecutions by former Deputy Attorney General Rod Rosenstein?

And why does Assistant Attorney General Clark not reference at all a year-old EPA edict by the Assistant Administrator for Enforcement and Compliance Assurance, which requires coordination between EPA and any State before EPA gets involved in a matter already the subject of State enforcement? See Enhancing Effective Partnerships Between EPA and the States in Civil Enforcement and Compliance Assurance Work (July 11, 2019), https://www.epa.gov/sites/production/files/2019-07/documents/memoenhancingeffectivepartnerships.pdf.

And, if all of this isn’t puzzling enough, why does Assistant Attorney General Clark begin his memorandum about when the Federal Government should bring claims already brought by a State by questioning one of the fundamental premises of federal environmental law proffered by one of his most respected predecessors over forty years ago?

Since the Assistant Attorney General’s memorandum seems to be a solution to a non-existent problem, one is left to wonder whether there is more to it than meets the eye.

Trump Upends NEPA Rules in the Name of Speed

Posted on July 28, 2020 by Rick Glick

On July 15, 2020 President Trump announced a “top to bottom overhaul” of the National Environmental Policy Act (“NEPA”) regulations, complaining about the “mountains and mountains of bureaucratic red tape in Washington” getting in the way of major federal projects such as pipelines and highways. NEPA, signed into law 50 years ago by President Nixon, requires federal agencies to consider the environmental effects of a proposed project before approval, and to provide the public and stakeholders the opportunity to comment.

With the new rule going into effect on September 14, 2020, the Trump administration hopes to streamline environmental review of major projects requiring federal approvals or located on federal lands. While many of the current NEPA processes will remain in place, the new rule includes at least three major changes weakening the reach of NEPA.

First and perhaps most significantly, the rule removes the definition of “cumulative impact” from the regulations, and revises the definition of “effects,” effectively eliminating the concept of the cumulative effects analysis. Under former NEPA regulations, “cumulative impact” was defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” The new rule takes the position that consideration of cumulative impacts is not required by NEPA, and “can divert agencies from focusing their time and resources on the most significant effects.”

However, NEPA implementation has long been premised on the fact that environmental effects do not occur in a vacuum and can only be understood in the context of previous developments. The impact of a discrete action may itself not be significant, but in combination with prior or other actions can be very significant indeed. A good illustration is Sierra Club v. Penfold, a 1987 decision affirmed by the 9th Circuit in which the district court found that while individual gold placer mines were very small operations with minor impact, taken together they had a significant impact on at least two watersheds, thus requiring an EIS.

The new rule also clarifies that agencies should not consider effects to be significant if they are “remote in time, geographically remote, or the result of a lengthy causal claim,” citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767-68 (2004), for support. Under this revision to the rule, broader environmental degradation, such as climate change, would not be considered. For example, a pipeline carrying shale oil or gas would be analyzed for the effects of ground disturbance where the trench is excavated, but not the effects of facilitating oil and gas exploration, extraction and consumption in faraway locations. The removal of cumulative and attenuated impacts from consideration under the NEPA process would significantly reduce the reach of the statute and will likely draw legal challenges.

Second, the new rule allows project proponents to prepare their own Environmental Impact Statement (“EIS”), whereas previous regulations only allowed the project proponent to prepare an Environmental Assessment (“EA”). Previously, the lead federal agency would either do the review or engage a contractor, paid for by the applicant. The new rule thus increases the role project proponents may play in assessing the environmental impact of their own projects. Applicants will still need to disclose any financial or other interest in the outcome of the action subject of the EIS, a requirement that the Trump administration originally proposed to abandon but decided to maintain in response to public concerns about transparency.  

Third, the new rule narrowed the definition of “major federal action,” explicitly excluding actions with “minimal Federal funding or minimal Federal involvement.” The new rule also now excludes extraterritorial activities or decisions from the NEPA process.

Industry groups have generally welcomed this new streamlined process, while critics have raised concerns that the Trump administration’s action significantly narrow the reach of NEPA and will negatively impact our environment and communities of color that are often disproportionately affected by major pipeline or highway projects.

President Trump continues to move forward with his promise to accelerate and weaken the environmental review process applying to industrial and energy projects, as we have periodically reported in our “Trump Track” posts. Like many other actions we reported on, the new rule is sure to draw legal challenges, and could be vulnerable to repeal under the Congressional Review Act (CRA) depending on the results of the 2020 November election.

While the NEPA process is no doubt overly expensive and time-consuming, overhauling it by rule is problematic because of decades of case law enforcing the notion that agencies must take a “hard look” at impacts associated with an action, assess them in context, and demonstrate a thorough consideration of alternatives. Undoing this extensive body of case law will require legislation, not simply a new rule which is likely to only generate more litigation. Thus, the likely short-term effect of the rule is to further delay, not accelerate projects, as the inevitable court challenges proceed.