RGGI Is a Success Story. When Will It Be Obsolete?

Posted on September 29, 2016 by Seth Jaffe

When RGGI rggilogo2was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model, to be the laboratory of a GHG allowance system.  The hope was certainly that RGGI would succeed its way into obsolescence.  Surely, by 2016, there would be a federal statutory basis for GHG regulation.

It’s now September 2016 and a federal statutory basis for a GHG trading system remains a seemingly distant hope (this post is definitely not about the Clean Power Plan).  We may still be waiting, but we do at least have substantial data from the laboratory that is RGGI.  In fact, yesterday, RGGI released its analysis of The Investment of RGGI Proceeds through 2014.  Some highlights:

  • Power sector GHG emissions have decreased by more than 45% since 2005, while regional GDP has increased by about 8%.
  • The total value of RGGI investments reached $1.37 billion through 2014.
  • Energy efficiency has taken up 58% of RGGI investment. The report states that the expected return is $3.62 billion in lifetime energy bill savings.
  • Clean and renewable energy make up 13% of investments, with an expected return of $836 million in lifetime energy bill savings.

One can quibble with these numbers.  They don’t really provide a reliable comparison to what would have happened in the absence of RGGI.  Nonetheless, it’s pretty clear that RGGI does work.  We can reduce GHG emissions without giving up on economic growth, and we can use the regulatory process to move our energy economy where it needs to be.

Now, if someone could just figure out a way to make RGGI obsolete, that would be true success.

Havana Calling: The College’s New Initiative for Pro Bono Work in Cuba

Posted on September 28, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

New Tools for Water Quality Trading

Posted on September 26, 2016 by Ridgway Hall

For well over a decade states and stakeholders have been trying to develop water quality trading and offset programs to facilitate compliance with the Clean Water Act.  The goal of “trading” is to allow a discharger who can cost-effectively reduce pollutants to a lower level than legally required to sell the resulting “credit” to another source whose per-unit cost of reducing that same pollutant is greater. The “credit” is the amount of reduction achieved by the credit generator beyond compliance. The result is more cost-effective compliance. 

An “offset” involves using a “credit” to offset a new or increased discharge to a water body which is not achieving water quality standards (often referred to as “impaired”) for that pollutant.  Without such an offset, any new discharge to an impaired water body is illegal, because it would exacerbate the standards violation. Typically the credit or offset is incorporated into the permit of the user, and is thereby enforceable.

Recognizing these benefits, EPA supports trading, and issued a policy and guidance memo in 2003.  One of the most promising opportunities for trading is the reduction of nitrogen, phosphorus and sediment, which are causing water quality problems across the country.  Farms typically have nonpoint source discharges of all three of these pollutants, and can reduce the volume much more cost-effectively than a municipal or industrial point source, which is the typical buyer. However, efforts to establish trading programs have run into problems, such as determining a measurable “baseline” compliance level for a nonpoint source credit generator before a credit can be generated. Nonpoint sources typically use “best management practices” (BMPs) to achieve pollution reductions representing their fair share of loading allocations for the water body to which they discharge. Before a farmer can generate a credit, his “fair share”, or baseline, must be both determined and met.

Additional problems include protecting local water quality where the credit is used, verifying the implementation of a credit, and accounting for uncertainty in the amount of pollution reduction which a BMP implemented at a non-point source will actually achieve. As a result, while many states have tried to establish such programs, including the development of regulations, very few have been successful. 

To address these problems, EPA over the past 3 years has issued 8 “technical  memoranda” (TMs) which set forth EPA’s “expectations” for the contents of an effective trading program within the Chesapeake Bay watershed. This is, in effect, a pilot.  The reason for the focus on this 64,000 square mile watershed is that in 2010 EPA published the biggest total maximum daily load (TMDL) ever issued under the CWA, which sets forth pollutant loading allocations which must be achieved throughout the watershed in order to achieve compliance with applicable water quality standards. I described this TMDL in a previous post entitled EPA Issues Biggest TMDL Ever for Chesapeake Watershed, posted on March 4, 2011. Faced with huge costs to achieve the reductions, many of the states are looking at trading.

To maximize the likelihood that such trades will be carried out in compliance with the CWA, EPA issued the TMs for use by the Bay states in designing their programs. They address baseline determination, duration of credits, components of a credit calculation, protection of local water quality, accounting for uncertainty of the water quality benefit of a BMP, representative sampling, verification and certification (including inspections and public availability of all relevant documents), and accounting for growth (including need for an “offset” program). The “credit calculation” TM addresses, among other things “additionality” (the requirement that any trade must result in a net reduction of pollution) and “leakage” (when a pollutant load reduction at one location indirectly causes an increase in pollution elsewhere). These can be accessed on EPA’s “Trading and Offsets in the Chesapeake Bay Watershed” web site. They are not regulations or even “official agency guidance” (says EPA), and do not have the force of law. They do set forth EPA’s “expectations”.  EPA officials have said that each state trading program will be reviewed for consistency with these TMs.

For those around the country who are trying to design and implement trading programs, these TMs can be enormously helpful.  They are fairly brief (typically 6 to 12 pages), clear and concise.  And who among us would not support more cost-effective reduction of pollution?

New Mexico Supreme Court to Determine if Copper Rule Prevents, Rather Than Encourages, Ground Water Pollution

Posted on September 23, 2016 by Thomas Hnasko

The New Mexico Water Quality Control Commission enacted what is arguably the most comprehensive copper mine remediation rule in the country.  The Copper Rule requires copper mines to uniformly implement prescriptive measures of pollution control and to protect ground water at “foreseeable places of withdrawal.”  But does the Copper Rule really prevent pollution, as required by the New Mexico Water Quality Act?  Not so, say the Attorney General and various NGOs, who appealed the case to the New Mexico Court of Appeals.  They claimed that the Copper Rule’s uniform monitoring criteria, which require the placement of a monitoring well network as close as practicable around the perimeter of mine units, does not sufficiently protect ground water and therefore fails to satisfy the Water Quality Act’s mandate that contaminant concentrations not exceed permissible standards at places of withdrawal.  The Court of Appeals affirmed the Commission’s rule-making in Gila Resources Information Project v. N.M. Water Quality Control Comm’n, holding that the determination of a “place of withdrawal” has always been and remains a matter committed to the Commission’s discretion. [Link to Case.] 

The New Mexico Supreme Court will now consider whether the New Mexico Water Quality Control Commission has the authority, under the Water Quality Act, to adopt the regulations imposing prescriptive pollution controls and defining by rule, rather than on a case-by-case basis, the type of monitoring controls which essentially define protectable ground water as that existing on the exterior of active mine units.  After a number of swings of the bat, the petitioners in the Supreme Court have refined their arguments. They now claim that the Water Quality Act requires a case-by-case determination of a place of withdrawal, based on particular aquifer characteristics, rather than a definition derived by rule.  To succeed with this challenge, the petitioners must overcome the legislature’s mandate, in the 2009 amendments to the Water Quality Act, that the Commission adopt uniform monitoring requirements for the entire copper industry.  The battle seems to be whether the Copper Rule is sufficiently flexible to protect all places of withdrawal – regardless of where located – or whether the rule imposes a de facto definition of a place of withdrawal based on criteria that may not be tailored specifically to the aquifer characteristics at a particular site.  Oral argument is set for September 28, 2016.

EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited

Posted on September 21, 2016 by Seth Jaffe

On Monday, EPA promulgated amendments to its “Exceptional Events” Rule.  The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS.  EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS.  The change is important for two reasons.  First, on the merits, EPA noted that:

"the “but for” criterion has often been interpreted as implying the need for a strict quantitative analysis to show a single value … of the estimated air quality impact from the event. As a result, some air agencies began using burdensome approaches to provide quantitative analyses in their exceptional events demonstrations to show that the event in question was a “but for” cause of a NAAQS exceedance or violation in the sense that without the event, the exceedance or violation would not have occurred. In many cases, the “but for” role of a single source or event is difficult to determine with certainty and it is more often the case that the impact of emissions from events and other sources cannot be separately quantified and distinguished."

I think that EPA got this exactly right.  As tort professors have always known, how a burden of proof is allocated is often outcome-determinative.

Which brings me to the second reason why the change is important – at least to me.  Just hearing the words “but for” causation triggers an uncontrollable wave of nostalgia.  In 1996, my client, New England Telephone, was keetenroberternesttnawarded summary judgment in a CERCLA contribution case.  It was then the first – and may still be the only – case in which a defendant who admittedly sent hazardous substances to a site was awarded summary judgment on the ground that its wastes had not caused the incurrence of any response costs.

I like to think that NET prevailed due to the fine lawyering of its counsel, but I have always known in my heart of hearts that the identity of the judge may have had something to do with the result.  The case was heard by Robert Keeton, distinguished judge, Harvard Law professor and – importantly – one of the authors of Prosser and Keeton on Torts.

At the summary judgment hearing, Judge Keeton did not want to hear from me, even though it was my motion.  He did not really even want to hear from the plaintiffs’ counsel.  Instead, he launched into an approximately 30-minute lecture on the role of causation in tort law, including, of course, a discussion of “but for” causation.  When he finished the discussion from Prosser and Keeton about the so-called “Minnesota fire cases”, Judge Keeton paused, looked up, smiled broadly, and said:  “I wrote that part.”

It was the best summary judgment argument I ever gave.  I never said a word.

The Drama of the Massachusetts Power Wars

Posted on September 20, 2016 by Lisa C. Goodheart

Sometimes the most extraordinary things in the world of law and government get served up in the most undramatic way.  If you aren’t paying attention to the back story, and you don’t know the context, you might almost miss the action.  And future generations, seeking to decipher history, might all too easily overlook the most crucial and delicate tipping points.  This fact of life has been emphatically proven by the Pulitzer Prize-winning cultural juggernaut that is the Broadway musical Hamilton, by Lin-Manuel Miranda.  In addition to telling the very personal story of one of our nation’s founding fathers, Hamilton shows, in brilliant style, that even seemingly dry and technical matters such as the origins of our nation’s financial system, and the logic underlying the complex apparatus of modern administrative agencies, are actually fueled by passion, dripping with drama, and world-changing in consequence.  You just need to know whose story to tell, and how to read between the lines.

A recent case in point:  On August 17, 2016, the Massachusetts Supreme Judicial Court issued its decision in Engie Gas & LNG LLC v. Department of Public Utilities (Docket SJC-12051/SJC-12052).  Environmental and energy lawyers readily recognized the decision as an important one, but it’s easy to see how future generations, far from the current action, might miss the excitement here.  The question in Engie was whether the state utility department could approve ratepayer-backed, long-term contracts by electric distribution companies for the purchase and resale of interstate natural gas pipeline transportation capacity. 

To answer that question, the Engie court addressed, among other things, (1) the propriety of the appeal in the absence of a final adjudicatory order; (2) the pertinent standard of review, (3) the canon of statutory construction reddenda singula singulis, a.k.a. the rule of the last antecedent (which might also be merely a grammar rule), (4) whether ambiguity should or could be found in statutory language that neither expressly forbids nor clearly permits the proposed departmental action, (5) the parties’ competing interpretations of the legislative history, (6) the overall statutory framework, (7) the necessity of a “distributive reading” of the terms “gas or electric,” (8) the limitations of the deference to be afforded to an agency’s reasonable interpretation of a statute it is charged with enforcing, where the interpretation represents a significant departure from the agency’s own record of administering the pertinent statute, (9) the importance of ensuring consistency with the fundamental policy embodied in the legislation at issue, and (10) the interpretive pertinence of subsequent, separate legislation. Phew! 

Ultimately, the SJC rejected the utility department’s determination of the scope of its authority, and concluded that the pertinent statute forbade the imposition on electricity ratepayers of the costs of new natural gas supply infrastructure.  Like many judicial opinions concerning complex environmental and energy issues, the Engie decision has a sober logic that makes it seem unsurprising, correct, and even almost easy.  But wait – what just happened here? 

Ladies and gentlemen, we have an affair of honor!  One dueling party and its seconds, the state’s public utility department and electric distribution companies, contend that the policy choice by our state government’s executive branch to expand natural gas pipeline capacity is a sensible way of meeting our very real need for reliable electrical power.  Even as we move toward a more sustainable future of renewable energy, they say, we still depend urgently on new supplies of natural gas, obtained by means of fracking, to provide the essential “bridge” fuel, and we can all get ready for price spikes and power blackouts each winter if we ignore that reality.  It’s an emergency, and our future is at stake!  

The other dueling party and its seconds, who include the Massachusetts Attorney General and a coalition of environmentalists, land conservationists, and consumer and taxpayer advocates, insist that we don’t need any new natural gas infrastructure at all.  And if we don’t push much faster and harder for a larger-scale shift to more environmentally sustainable ways to support our energy consumption, they say, we are fiddling while Rome burns. It’s an emergency, and our future is at stake!

Grappling with the fine points of utility infrastructure regulation and financing may make some people’s eyes glaze over.  To which I say, are you kidding?  I can’t think of another moment when our courts were faced with environmental and energy law disputes more laden with tension and drama.  This is the high-stakes, heroic, dueling-on-the-ledge stuff on which our future history depends.  It could practically be a Broadway musical.

Psst. Anyone want a National Monument in Maine?

Posted on September 16, 2016 by Kenneth Gray

Usually we associate uniqueness, grandeur, history, and pleasure with our National Monuments and National Parks.  With President Obama’s August 24, 2016 Declaration of Katahdin Woods and Waters National Monument…not so much.

The controversial designation comes after a decades-long campaign by Roxanne Quimby, founder of Burt’s Bees natural cosmetics company, who was unabashed in making it clear that she saw this as a personal legacy.  Through her efforts and expense, more than 87,000 acres were obtained over the years and then donated to the U.S. on August 23rd. The President acted the next day. 

In acquiring the overwhelming underdeveloped land accessible only by dirt roads, Quimby had already restricted or limited the traditional logging, snowmobiling and hunting activities on much of the property, which did not endear her to locals or some visitors.  Further, logging groups and others concerned with increased federal restrictions raised concerns about road safety for the additional visitors expected to travel on the private logging roads providing access to the new National Monument and the loss of timberlands, especially if a national park were ultimately created.  (A number of national parks started as national monuments.)

Although the Department of Interior photos of the Monument show Mount Katahdin, a truly spectacular mountain in the Maine’s Baxter State Park, the National Monument lands only provide distant views of the mountain, not access to the state park or the mountain. Critics point out that there are no developed roads or camping sites on the National Monument lands, and local towns gain little advantage from the designation because traffic doesn’t flow through them to the remote location.   Undeveloped Maine woods are beautiful but remote.  Few people would go (way) out of the way or buy a “high clearance vehicle” to reach them -- and there are vast, undeveloped state and private forests at least as picturesque, more accessible and offering similar or better recreational opportunities.  Ever heard of the Allagash Wilderness? 

Most believe a majority of Mainers did not support the national park proposal, but no state-wide poll was conducted  Many Mainers, three-quarters of Maine’s congressional delegation, Maine’s governor and the state legislature had  opposed the concept, and the majority of the congressional delegation had opposed even designation as a national monument.  With no wave of support for the national park and lacking the congressional support required for a park, the option left to the President to lift his pen.

Maine is a wonderful place to visit, live and work, and has legitimate claims to its self-proclaimed moniker “Vacationland.”  But unless you are truly seeking generic backcountry experience (and competing with logging trucks on unpaved roads to get there), my recommendation is that you visit Baxter State Park and climb Mt. Katahdin (the northern terminus of the Appalachian Trail), or explore Acadia National Park on Mt Desert Island.  At least I can promise you won’t be disappointed.

Senate Approves $4.9 Billion for Drinking Water

Posted on September 15, 2016 by Rick Glick

Congress in recent years has not really been in the business of solving core public welfare problems like safe drinking water.  Today the Senate, however, has taken a major step forward by passing the 2016 Water Resources and Development Act, S. 2848.  WRDA bills are the annual appropriations bills to shore up the nation’s water service infrastructure.  The Senate bill would provide $9.4 billion for water projects, hydrology and flood control, including $4.9 billion to address aging municipal water systems. 

By and large, Americans take for granted that their municipal water supply systems deliver abundant, wholesome and safe drinking water.  Water borne illnesses are rare in this country, and the professionals I know that operate these systems take their jobs seriously and feel the weight of the responsibility.  And yet, there are colossal failures putting public health at risk—like Flint.

The Flint debacle reflects a complete absence of professional water management.  The problem there was a change in water supply, and the failure to add commonly available corrosion inhibiting chemicals to the water to prevent lead pipelines from leaching lead into Flint homes.  What should have been an inexpensive operational measure became a billion dollar pipe replacement project.  And that figure doesn’t include the long-term costs to address health effects of drinking the water, not to mention the cost of a different kind of corrosion, that of the public trust.

But even well-managed municipal water systems, including those that tout the high quality of the supply, can have serious lead problems.   My town of Portland, Oregon, has one of the purest water sources in the country, the Bull Run water shed on Mt. Hood.  The water is so soft, however, that it has a corrosive effect.  Luckily Portland doesn’t have lead service pipes like Flint, but many older homes have lead solder in their plumbing, resulting in Portland exceeding lead drinking water standards in high risk households and schools.

The Portland Water Bureau is taking steps to address the lead problem, like raising the pH level in the water to minimize lead leaching.  But Portland’s water rates are among the highest in the country, and the cost of maintaining safe water supplies is only going up.  There is a practical limit to how high water rates can go, and communities with fewer resources than Portland struggle to keep up.

This is where the federal government is supposed to step in, to address problems that exceed local capacities to protect the public.  Although a little late in coming, S. 2848 is a mostly bipartisan bill, which if enacted could move the needle in the right direction.  Let’s hope this bill gets through the House and to the President for signing without further delay.

Section 101(f) of the Clean Water Act: Common Sense to Further a Common Purpose

Posted on September 9, 2016 by William Green

Section 101(f) of the Clean Water Act (CWA) creates a “national policy” that “to the maximum extent possible” the Act “shall” be implemented in a manner that “prevent[s] needless duplication and unnecessary delays at all levels of government.”  (33 U.S.C. § 1251(f))  Although this and the other overarching goals in § 101 of the Act were “no exercise in boilerplate rhetoric,” (William Harsha, Jr. (Ohio), Congressional Record 16520 (Jun. 3, 1976)) they are typically ignored.  Instead of ignoring § 101 of the CWA, however, a strong argument can be made that courts should remand or even vacate an agency’s action if it can be shown that such an action needlessly duplicates or unnecessarily delays efforts to “restore and maintain the chemical, physical, [or] biological integrity of the Nation’s waters. (33 U.S.C. § 1251(a)) This would further Congress’s intent as codified in §§ 101(a) & (f) of the CWA.

Consider the ongoing controversy about the recent “Waters of the United States” rule (Rule).  (80 Fed. Reg. 37,054 (Jun. 29, 2015)) Many have said much about this Rule, focusing on lofty constitutional arguments, erudite discussions of which and when Supreme Court opinions control, and the finer points of APA jurisprudence.  But few have argued that the automatic implementation of its increased jurisdictional scope would contravene § 101(f).  Because the Rule seeks to increase the federal government’s jurisdiction under the CWA, without more, coverage of the Act’s regulatory requirements would immediately attach to previously non-jurisdictional waters.  This inextricable link of new jurisdiction and implementation could lead to disruptive delays and associated problems. 

When, for example, the hundreds of ditches that form a sprawling municipal separate storm sewer system become jurisdictional, various implementation requirements would be triggered – noncompliance with which could lead to administrative and civil penalties and criminal liability.  In this and many other instances, the sudden applicability of CWA requirements could have the unintended consequence of actually impeding ongoing efforts to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  

The shift of focus from traditional waters of the United States to stormwater conveyances could divert and dilute scarce local government resources.  This could delay meaningful water quality improvements for the lakes and rivers people actually use to swim and fish, and use for potable water could become more difficult to attain and then sustain. Such delays would serve no environmental benefit and would be especially unjustified where local governments only use those stormwater conveyances for stormwater management or for treating discharges from them into traditional waters of the United States.  Indeed, until promulgation of the Waters of the United States Rule, stormwater conveyances have historically been excluded from the CWA’s jurisdictional reach.        

It thus seems that the directives of §101(f) should be taken into account in litigation judging the appropriateness of the Waters of the United States Rule.  This would ensure that the Rule is implementable in a fashion that satisfies §101(f)’s common sense mandate to “prevent needless duplication and unnecessary delays” in furtherance of the fundamental goal of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”

William H. Green thanks Mohammad O. Jazil for his contributions to this post.

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Posted on September 8, 2016 by Seth Jaffe

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source.  However, other types of facilities will get no comfort from the decision.

Helping Hands Tools involved a challenge to a PSD permit issued to Sierra Pacific for a cogeneration plant to be located at one of its existing lumber mills.  Under EPA’s BACT Guidance, Sierra Pacific stated that the purpose of the CoGen plant was to use wood waste from the mill and nearby facilities to generate electricity and heat. Relying in part on the 7th Circuit decision in Sierra Club v. EPA, which held that it would impermissibly redefine the source to require a mine-mouth coal generating plant to consider different fuels in its BACT analysis, the 9th Circuit found that EPA was reasonable in determining that, because a fundamental purpose of the CoGen plant was to burn wood waste, it would impermissibly redefine the source to require Sierra Pacific to consider solar power as part of its BACT analysis.

Importantly, the Court also rejected the plaintiffs’ request that Sierra Pacific consider greater use of natural gas.  The Court concluded that very limited use of natural gas for the purposes of startup, shutdown, and flame stabilization did not undermine the fundamental purpose to burn wood waste.  This is critical to source-located biomass facilities, because EPA’s GHG Permitting Guidance specifically says that greater use of an existing fuel should be considered in the BACT analysis:

"unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility."

Unfortunately, the language of the decision appears to me to give EPA substantial leeway in future BACT analyses to redefine the source in other cases.  It seems to me that, building on the 7th Circuit decision, the Court has simply created an exception to potential source redefinition in circumstances where the location of the facility justifies a very narrow fuel selection.  If a coal plant intends to burn coal from the mine next door, ok.  If a lumber mill intends to burn its own wood waste, ok.  Otherwise, however, all bets are off.

What is particularly troubling was the Court’s acknowledgement that the GHG BACT guidance is vague, and its deference to EPA’s application of its own vague guidance. This is precisely the concern I noted when the Guidance was first issued.  Time will tell, but I foresee some fairly extreme BACT determinations being blessed by some very deferential courts.

Flatulence Isn’t Super fun(d)

Posted on September 2, 2016 by Peter Hsiao

Do air emissions of pollutants constitute a “disposal” under the federal hazardous waste laws?  The Ninth Circuit said “no” in Pakootas, et al. v. Teck Cominco Metals, Ltd. based upon its reading of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  The decision both sets important precedent and showcases the judicial process to discern legislative intent when a statute’s plain language is stressed by an unusual fact pattern.  If air pollutants can create CERCLA disposals, then emissions from any stationary or mobile source, including animal emissions of methane (which is considered a pollutant subject to CERCLA by EPA), may be the basis of cleanup liability.

The decision involves a smelter located just north of the border with British Columbia.  An earlier decision in that case held that a foreign-based facility can be liable under CERCLA for slag discharges into a river running to the United States.  Plaintiffs then alleged the facility arranged for disposal by emitting hazardous air contaminants which were carried by the wind and deposited in Washington State.  The district court denied a motion to dismiss and certified the matter for immediate appellate review.

Reading the plain language of CERCLA, the Ninth Circuit found that “a reasonable enough construction” of the law would be that the facility “arranged for disposal” of its air pollutants.  No legislative history or EPA rules shed light on this subject.  However, the Court concluded it was not writing on a blank slate.  Noting that CERCLA incorporates the definition of “disposal” from the Resource Conservation and Recovery Act (RCRA), the Court cited its prior decision in Ctr. for Cmty. Action and Envtl. Justice v. BNSF Rwy. Co., which held that diesel particulate emissions “transported by wind and air currents onto the land and water” did not constitute “disposal” of waste within the meaning of RCRA.  To be a disposal, the solid or hazardous waste must first be placed into or on any land or water and thereafter be emitted into the air.  The Court also cited its en banc decision in Carson Harbor Vill., Ltd. v. Unocal Corp., holding that passive migration was not a disposal under CERCLA. 

The Court thereby found that arranging for “disposal” did not include arranging for air “emissions.”  This interpretation of “disposal” was largely consistent with CERCLA’s overall statutory scheme.  The Court expressed concern that plaintiffs’ more expansive reading would stretch CERCLA liability beyond the bounds of reason.  “[I]f ‘aerial depositions’ are accepted as ‘disposals,’” the Court said, “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense.” 

The Court did not discuss in detail the statutory interplay with the Clean Air Act, which regulates air emissions under a complex regulatory and permit scheme.  Under CERCLA, federally permitted releases are excluded from liability.  But because air permits often specify the control equipment parameters rather than an emission limit, a CERCLA plaintiff may allege that the mere existence of a permit does not provide a blanket immunity from liability and the facility would remain liable for any releases that were not expressly permitted, exceeded the limitations of the permit, or occurred at a time when there was no permit.  The Court in passing did note its skepticism that the federally permitted “release” exception evidenced any Congressional intent regarding the meaning of “disposal.”

The Ninth Circuit is the highest court to exclude air emissions from the reach of CERCLA and RCRA.  The Court’s citation to Carson Harbor does not provide an exact analogy since a passive landowner has not “arranged” for the initial release of hazardous substances, as compared to the smelter operations which result in air emissions.  But the Court’s unwillingness to create potentially unlimited CERCLA liability for air emissions is compelling.  Under CERCLA, liability is strict, joint and several and retroactive.  Air emissions are widely transported and dispersed in relatively small concentrations by large numbers of potential sources, making CERCLA liability findings and allocations difficult if not impossible. 

The Court thereby divined Congress’ intent to make CERCLA’s scheme workable, apart from a literal reading of its text.  For judges to “repair” statutory language in this way is controversial.  The decision is reminiscent of the U.S. Supreme Court holding that the Obama health care plan provides tax credits to millions of people who purchase insurance from a federal marketplace, even though the statute only provides credits for those who purchase from marketplaces “established by the state.”  According to Justice Roberts, that was the only way the law would work, and despite the plain wording in the statute, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”  CERCLA also is not a model of clarity, and the Ninth Circuit similarly incorporated practicality as a factor in discerning Congress’ intent to avoid overreaching in assigning liability for the cleanup of toxic chemical releases.

The California Supreme Court Hoovers Up More Pieces of the Mining Law of 1872

Posted on September 1, 2016 by James Holtkamp

Once both a paradigm of brevity in the federal code and a fertile source of work for generations of mining lawyers, the Mining Law of 1872 has been picked away at (pun intended) for many years. The romance of throwing a pack and a pick on a mule, nailing an old tobacco tin to a post with a location notice, and wresting riches from your very own mining claim is largely gone. The restrictions in federal and state law on surface disturbances from mining have made operations by individuals on mining claims more anachronistic than ever.

On August 22, 2016, the California Supreme Court knocked off another big chunk when it unanimously held that California’s ban on suction mining for gold is not preempted by the Mining Law. People v. Rinehart, No. S222620 (Aug. 22, 2016). Mr. Rinehart was convicted of engaging in suction dredge mining for gold on his mining claim in violation of a moratorium on the practice imposed by the California Department of Fish and Wildlife. Not surprisingly, the department found that suction dredge mining has significant adverse impacts on water quality, protected species, and the environment generally.

Rinehart went ahead with suction dredge mining anyway, and when charged criminally, argued that the Mining Law preempted any state laws that would restrict his right to mine on his mining claim. He was convicted, but the California Court of Appeals reversed the conviction, agreeing with Rinehart that the Mining Law preempts any state restriction on mining on a mining claim.

The Supreme Court reversed the Court of Appeals, explaining in great detail how the Mining Law was not intended to allow mining without regard to the application of state police power on a duly located mining claim, notwithstanding that the purpose of the law is to facilitate the development of mining on public lands. The court relied heavily on precedents going back over a century, including a series of U.S. Supreme Court decisions holding that in order to displace the application of state law on federal lands, Congress must act affirmatively. The court was doubtless influenced by an extensive amicus brief filed by the United States, which agreed that the state’s moratorium was not preempted by the Mining Law.

The California decision is not surprising given the increased emphasis on state and federal regulation of the environmental impacts of mining operations, which began with the major environmental legislation of the 1970s. For example, many years ago the BLM and Forest Service issued regulations requiring permits for surface disturbances on unpatented mining claims. The federal Surface Mining Control and Reclamation Act and the various state programs operating under delegation from that statute also regulate surface impacts of mining operations. Other environmental laws, including federal and state clean water statutes, air quality laws, and waste management requirements have been applied to mining operations without regard to whether the right to mine is based on fee simple ownership, leasehold interests, or unpatented mining claims.

Opponents of the Mining Law view the law as an anachronistic give-away of federal resources but have not succeeded in repealing it. But environmental regulations such as the suction dredge mining moratorium in California and increasingly insurmountable economic challenges in operating a small mining operation are slowly strangling the Mining Law. It is death by a thousand . . . picks.

Who Moved My Cheese?

Posted on August 31, 2016 by Michael Hardy

Spencer Johnson’s classic came to mind when I learned of new plans for the Burger power plant on the Ohio River.  The Burger plant has had a makeover from an electric generating facility to a massive chemical plant feasting on the abundant natural gas in the Marcellus and Utica regions of Western Pennsylvania and Eastern Ohio.

When I returned from active duty, my employer said, you will practice environmental law. Because I was accustomed to taking orders, I said "yes sir". That led me to cooling towers for the Davis Besse and Perry Nuclear plants on Lake Erie. More dramatically, however, it led me to years of dealing with coal-fired generation in Ohio.  Rich with coal and numerous coal-fired plants on Lake Erie and the Ohio River (and other rivers as well), I thought Ohio would supply cheap, coal-fired energy for many people for years.  Unfortunately, I did not predict the obsolescence of coal-fired electric generation or the recent emergence of natural gas as the leading source of fuel for power. I saw clients invest billions of dollars in pollution control equipment only to see the emission reduction goal posts moved beyond reach as regulators adopted progressively more stringent measures to address new national ambient air quality standards, lake breeze fumigation, long range transport, acid rain, regional haze, hazardous air pollutants, and greenhouse gas emissions.

When I started my  practice, virtually all of the Ohio base load units burned coal. And thousands of Ohio miners worked and their families prospered. Barges carried coal down the Ohio River or unit trains took coal to the Lake Erie plants.  I saw Little Egypt take big bites of coal and overburden in southeastern Ohio. I remember when an interstate (77) was closed to let the mammoth excavator proceed to the next seam of coal on the other side.

I have stood on the air pollution control deck of a massive Ohio River power plant that spans a highway. I have wiped the floor with white gloves of a coal fired plant on Lake Erie. I have worked with the dedicated professionals who took pride in maintaining those plants. So it saddens me to read that talented engineers are being laid off from engineering companies in Akron, and major utilities are selling megawatts on the Ohio River.  AEP and First Energy have announced plans to auction generating units.

Some of us remember that our success was measured in jobs retained while reaching a reasonable accommodation with the environment.  I hope my successors have that opportunity .

So with  sadness and regret – but also an appreciation that my career started in 1973, at the beginning of the burgeoning practice of environmental law, when "Coal Was King" and the Burger plant was alive and well – I hope you watch this short video of the demolition of the Burger coal-fired power plant to make way for a natural gas cracker.  Here is the demise of the Burger "tall stack." May Burger rest in peace.  

Be Vewy, Vewy Quiet – EPA’s Noise Program Might Be Coming Back!

Posted on August 30, 2016 by Samuel I. Gutter

Many, many years ago, when I was a staff lawyer at EPA headquarters, my duties included advising the program that implemented and enforced the Noise Control Act of 1972.  My last involvement, though, was to help dismantle the program.  In one of the more curious footnotes to the deregulatory wave that swept EPA in the early years of the Reagan administration, EPA axed the program – sort of.  Leaving behind a regulatory ghost town, EPA revised its noise regulations to leave standing the bare structure of federally preemptive rules, while clearing the building of its regulatory and enforcement staff.  In effect, EPA took itself out of the picture, morphing the noise regulations into a self-certification program for manufacturers. 

And there, in 40 CFR Parts 201 through 211, the rules have resided (quietly) for the last 34 years – noise standards for rail equipment, trucks, and portable air compressors, as well as labeling requirements for hearing protectors.  (But not garbage trucks.  EPA promulgated final noise standards for those, but revoked the regulations on the eve of the DC Circuit argument in which EPA was to defend the rule.  Think about that next time you hear the hydraulics whining outside your bedroom window at 5:00 a.m.) 

Ah, but did the noise program really end?  As one of my EPA supervisors quipped at the time, the noise program is like a spider you’ve stepped on: you think it’s dead, but then its leg starts twitching.  Today’s twitch comes from the New York congressional delegation, specifically Congresswoman Grace Meng (D-NY), whose district lies in the flight path of LaGuardia Airport, and New York’s democratic senators, Chuck Schumer and Kirsten Gillibrand.  Together, they have introduced “The Quiet Communities Act of 2016.”  The bills (H.R.3384 and S.3197) would bring back EPA’s Office of Noise Abatement and Control.  The legislation focuses on aircraft noise (regulation of which has, since the early 1980s, rested solely in the hands of the FAA), and it’s fairly modest in scope, authorizing a program of studies and grants, not a return to command-and-control regulatory efforts.  However, both bills include a charge to EPA to “assess the effectiveness of the Noise Control Act of 1972” – kind of like checking on the Betamax hiding in your garage closet.

Let’s not get carried away by the imminent descent of the “cone of silence” over our nation, though:  www.govtrack.us gives the legislation a 2 percent chance of being enacted.  But hey, you never know.  All eyes on the spider!

Requiem for an LNG Project

Posted on August 29, 2016 by Rick Glick

Perhaps not many, at least not in Oregon, would mourn the failure of a liquefied natural gas terminal and associated gas pipeline project.  As counsel for over a decade to the Oregon LNG project at the mouth of the Columbia River, I mourn less for the failure of the project than the process.  I am confident that if the standards-based approval process had been allowed to play out, we would have satisfied all federal and state permitting criteria.  But, alas, we never got that opportunity.

The Natural Gas Act, as amended in 2005, confers upon the Federal Energy Regulatory Commission exclusive authority over the siting of LNG export terminals and interstate pipelines.  The NGA, however, preserves authority delegated to the states by the Clean Water Act, Clean Air Act, and Coastal Zone Management Act.  The problem is that Oregon law requires state agencies to first receive affirmation from local governments of compatibility with land use regulations before issuing a state permit. 

Other states have similar laws and have attempted to use them to halt or impede LNG projects, only to have  Courts of Appeals for the D.C., First and Fourth Circuits reject the incorporation of local land use planning into state processes as preempted by the NGA.  But the conflict with state law sets up an unnecessary confrontation, adding expense and delay that can prove fatal to a project under development, as it was here.

The Oregon LNG project, aware of the federal preemption argument, nonetheless filed land use applications at the City of Warrenton for the terminal, and at Clatsop County for the pipeline.  The project filed the applications to demonstrate a desire to comply with all applicable regulations, confident in its ability to do so.  In fact, an independent hearings officer, following an evidentiary hearing, concluded the project met all County criteria.  Following approval by the County Commission, and, while an appeal by opponents was pending, an election occurred.  An anti-LNG slate was elected to the Board of Commissioners, and the newly constituted County Commission promptly reversed course.  And there’s the rub: the criteria had not changed, only the elected officials passing judgment.  Thus, local land use compatibility statements were not to be had, rendering the state permitting process impossible to complete.

This is not a screed against the multitude of state or federal agencies reviewing our various, complex permit applications.  To be sure, the agencies felt the political pressure brought by opponents, which caused them to be cautious and deliberate (perhaps too deliberate) and thus slow moving.  Nor is this to suggest that local governments and sentiment should have no role in siting energy projects that affect their communities.  Of course they should.

The real problem, however, is the total deference given under Oregon law to local land use regulations, even when the local land use decision is so blatantly political, thus creating a legal basis for NIMBY-ism.  In our case, this deference essentially gave veto authority to the Clatsop County Board of Commissioners, which cannot have been the intent of Congress or the state legislature.  Otherwise, how would any infrastructure project of national importance ever be constructed—highways, power plants, transmission lines, fiber optic cables, telephone lines, railroads, bridges, or dams—if locals could block it through a land use resolution?

ALL SPECIES MATTER

Posted on August 25, 2016 by Stephen Herrmann

GONE. The Bramble Cay melomys is no more.  The small rodent, the only mammal endemic to the Great Barrier Reef, is the first documented extinction of a mammal species due to contemporary climate change.  So says Luke Leung, a scientist from the University of Queensland.  “The key factor responsible for the death of the Bramble Cay melomys is almost certainly high tides and surging seawater, which has traveled across the island” destroying the animal's habitat and food source, said Dr. Leung.

Australia’s most isolated mammal had not been seen since 2007.  The report confirming the extinction of the Bramble Cay melomys, however, was not released until June 2016, in order to give scientists time to verify the loss of the species.  Upon release of the report, Dr. Leung said it was the first such extinction due to contemporary climate change.  He said his team “collected data, looked at other research and left no stone unturned” before making that assertion.  Dr. Anthony Barnosky, a professor at the University of California at Berkeley and a leading expert on climate change's effect on the natural world, said the claim seems “right on target to me”.

Both Drs. Leung and Barnosky believe that the climate change responsible for the demise of the melomys is caused by humans.  Whether caused by humans, aided and abetted by humans or merely not abated by humans, the extinction of the Bramble Cay melomys is, sadly, unlikely to be the last species loss to be caused by the effects of contemporary climate change.  How many more?

A SEP in the Right Direction: The Path Toward Win-Win Scenarios

Posted on August 23, 2016 by Scott Fulton

One of the interesting questions that emerged in the strategic planning process for the Environmental Law Institute is whether ELI could offer more support in the development and/or administration of supplemental environmental projects, or “SEPs”. 

Having played a role in the birthing of the original SEP framework in the early 1990s while at EPA, and through my own experience as a practitioner, I am convinced that penalty mitigation through the performance of SEPs can come as close to a win-win as is possible in the enforcement context.  Rather than having penalties, payable as they are only to the U.S. Treasury, lose their site-specific identify and value, SEPs allow diversion of some of those resources to projects geared toward environmental or process improvements that not only achieve compliance, but also provide discrete and measurable environmental benefits. 

Development and implementation of a suitable SEP can at times be challenging.  For these reasons, companies sometimes opt in favor of paying a large penalty rather than a reduced penalty with a SEP.  Meanwhile, the government appears to be keener than ever about utilizing this tool.  EPA’s draft Environmental Justice Plan 2020 Action Agenda, for example, observes that “when these types of projects are feasible, they can play an important role in cases that raise environmental justice concerns. Thus, EPA is setting the goal of increasing the number of SEPs and mitigation projects affecting overburdened communities.” 

So here’s the thought.  Perhaps to lighten the SEP load for defendants and government alike, an entity like ELI could help in the conceptualization and, in appropriate cases, the administration of SEPs.  As it happens, ELI already has experience in this area.  For example, in the context of settlement negotiations between a state environmental regulatory agency and a defendant (I’ll not disclose identities here), ELI was brought in to help shape and then implement a SEP to develop a training module on the regulations at issue in the case.  Under the SEP, in addition to developing the training materials, ELI is to deliver at least two in-person classes to targeted audiences comprised of manufacturers and/or consumers, and to make these informational briefings more broadly available online (via, e.g., webinars, and audio-video recordings suitable for posting, including on the ELI website).

And this SEP is not a one-off.  As a research and education institute, a convener experienced in community outreach and engagement, and a non-partisan presence having affinities with both regulators and the business community, ELI is well-suited to work with companies and their representatives to craft and execute approvable SEPs.  These range from education of stakeholders about regulatory requirements and measures that go beyond compliance; to research, analysis, and publication of information on best practices for compliance and beyond; to monitoring and evaluating the success of on-the-ground SEPs undertaken by other organizations.  Also, it probably goes without saying, but because we’re a non-profit, we can and must do our work on a cost-basis.  In other words, we’re cheap. 

Just a thought to tuck away for the next time a SEP enters your or your client’s equation.

Rolling Thunder?

Posted on August 18, 2016 by Steve McKinney

Today, the U.S. EPA and Department of Justice announced that Harley Davidson has accepted defeat on defeat devices.   The icon of rebellion lost its black luster years ago when bankers, professors, and, of all things, lawyers, became the most noticeable owners and riders of their iron horses.   The Gucci sunglasses betrayed the weekend gangsters to mere citizens who at first trembled at the rumble of Harley motors. 

But now, the historic purveyor of the rawest available form of horsepower has agreed to stop selling popular “super tuners” for “Super Glides”, “Fat Boys”, “Road Kings”, “Electra Glides” and other iconic rides.   The engine tuner kits are guaranteed to raise the rumble another notch or two.   The problem?   Emissions.   What?!  Yes, emissions. 

Well, actually cheating about emissions.  EPA says Harley’s “super tuned” engine emissions are higher than the emissions certified for stock engines.   I’m shocked.  The aftermarket nature of these horsepower enhancers does not matter.   Harley is not supposed to help rabble rousing bikers exceed their emissions allowances, says EPA.

Wow.  Is blaming Harley for breaking the rules within the rules?  Has the last hope of rebellion been reduced from “rolling thunder” to a Vespa’s whine?  I would take my stack of Harley t-shirts out in the backyard tonight for a ceremonial bonfire, but Birmingham has banned open burning until November.

EPA’s Mighty Power

Posted on August 5, 2016 by Eric Fjelstad

In Mingo Logan Coal Company v. EPA, the D.C. Circuit recently upheld EPA’s use of its “veto” authority over an Army Corps of Engineers permit to fill jurisdictional waters for the Spruce Mine in West Virginia.  Section 404(c) of the Clean Water Act provides EPA authority to “deny or restrict the use of any defined area for specification (including the withdrawal of specification).”  This authority was described by the court in Mingo Logan as “a mighty power and its exercise will perhaps inevitably leave a permittee feeling as if the rug has been pulled out from under it.” 

The salient facts in Mingo Logan involved a Section 404 permit for a “mountaintop removal” coal mine.  After a 7-year EIS, the Corps issued the permit in 2006.  EPA expressed reservations with the permit, but communicated to the Corps that it “had no intention of taking [its] Spruce Mine concerns any further from a Section 404 standpoint.”  But times change – and so do administrations – and in 2009 EPA asked the Corps to suspend, revoke, or modify the permit.  After the Corps refused to do so, EPA began the 404(c) process, which led to a final decision in January 2011 to withdraw the specification for two (of three) disposal sites covered under the permit. 

On appeal, Mingo Logan argued that EPA did not consider the company’s sunk reliance costs (a point EPA conceded).  Even though 404(c) does not explicitly denote costs as a factor in EPA’s decision-making, the court stated that an agency “should generally weigh the costs of its action against its benefits.”  Unfortunately for Mingo Logan, the court found that the company had not appropriately raised the issue of reliance costs before EPA or the district court. 

The Mingo Logan decision is a bitter pill for developers, interjecting an additional element of uncertainty into a Section 404 regulatory process that is already challenging and subject to shifting political winds.  As noted at this site, the agencies and courts have struggled with the jurisdictional reach of Section 404 and when a party can challenge the government’s actions.  Key take-aways from Mingo Logan include:

First, 404(c) battles are not for the faint of heart.  EPA has successfully used the authority twelve times since the passage of the CWA.  Every attempt to stop EPA through litigation has ultimately failed. 

Second, Mingo Logan clarifies that a Section 404 permit can be withdrawn years after its issuance.  The decision will serve to undermine confidence in the integrity of the permitting process in the United States. 

Last, Mingo Logan highlights the inherent problems of shared EPA/Corps responsibility.  Defenders of 404(c) will note that this “mighty authority” is rarely used.  Although true, it misses the point that the effects of 404(c) are, in fact, regularly felt by the regulated community.  The ability to say “no” gives EPA significant leverage – behind the scenes -- in the permitting process. 

Query whether we would have a better, and more effective, Section 404 permitting process if all of the authority and responsibility for permitting were vested in a single agency – either the Corps or EPA.

Taking Colin to the Limit One More Time

Posted on August 4, 2016 by Andrea Field

This post started as a piece about a recent Fifth Circuit decision:  Texas v. EPA. In that case, the state of Texas (and others) challenge EPA’s disapproval of Texas’s (and Oklahoma’s) plans for controlling regional haze and EPA’s decision to impose its own haze-control program instead.  To make my drafting process more entertaining (and the task of posting more challenging for our official poster, Colin Gipson-Tansil), I set a goal for myself:  to include within my post at least 25 valid links to others’ posts during the past year.  Fortunately for me, there is almost nothing in Texas v. EPA that doesn’t link to one or more recent posts. 

Jurisdiction and Venue.  Many of the past year’s posts point out problems caused by the failure of the Clean Water Act to state unambiguously which federal court has jurisdiction to hear a specific challenge to an EPA action under that statute. Stoll’s 9/2/2015 post, Glick’s 10/9/2015 post, Horder’s 11/3/2015 post, Perdue’s 2/5/2016 post, and Uram’s 4/5/2016 post.  Texas v. EPA demonstrates that choice-of-court problems also exist under the Clean Air Act’s judicial review provision, §307(b)(1).

Clean Air Act §307(b)(1) – said the Fifth Circuit – is a two-fold provision:  first, it confers jurisdiction on the courts of appeals, and then it delineates whether the appropriate venue for challenges will be the regional circuits (if the challenged action is locally or regionally applicable) or the D.C. Circuit (if the action is nationally applicable).  Believing EPA’s disapproval of its regional haze program to be locally or regionally applicable, Texas filed its challenge in the Fifth Circuit.  EPA moved to dismiss or transfer the case to the D.C. Circuit based on a separate, not-as-well-known prong of §307(b)(1), which directs that a petition for review of what seems like a non-national action may be filed only in the D.C. Circuit if the action is “based on a determination of nationwide scope or effect and if in taking such action [EPA] finds and publishes that such action is based on such a determination.”  After an exhaustive de novo evaluation of that portion of §307(b)(1), the Fifth Circuit determined that because the challenged EPA actions are locally or regionally applicable and because they are not based on any determinations that have nationwide scope or effect, the Fifth Circuit is the appropriate court to hear the case.

But wait.  There are other link-worthy aspects of Texas v. EPA, including the following.

Explanations of Decisions to Stay Challenged Actions.  During the past year, posts have discussed whether and how much a court needs to explain the basis on which it stays a challenged rule pending completion of litigation concerning that rule’s validity. Jaffe’s 2/10/2016 post, Gerrard’s 2/10/2016 post.  If it is a lengthy explanation you seek for when and why a court should stay an EPA action pending completion of litigation, the Fifth Circuit provides that in Texas v. EPA.

Deference.  Other recent posts have addressed when deference to an agency interpretation is – or is not – appropriate. Kovar (12/10/2015); Percival (1/27/2016); Field (2/11/2016); Haynes (2/19/2016); May (6/9/2016); Civins (7/5/2016); Jaffe (8/2/2016).  In Texas, the Fifth Circuit put clear limits on deference, holding that the level of deference owed to an agency’s conclusions is “substantially diminished when the subject matter in question lies beyond the agency’s expertise.”  Thus, while the Fifth Circuit was prepared to defer substantially to EPA’s views on environmental science, it declined to defer to EPA’s views on whether its actions would impair the reliability of the electricity grid.  Since “EPA has no expertise on grid reliability” (that is FERC’s domain), the “deference owed to EPA’s assertions about grid reliability [is] diminished and the agency must support its arguments more thoroughly than in those areas in which it has considerable expertise and knowledge.” 

That limitation on deference could have an impact on the most talked-about case by ACOEL members this past year:  West Virginia v. EPA, in which more than two dozen states and many other parties challenge EPA’s Clean Power Plan. Jaffe’s 9/10/2015 post, Gerrard’s 2/10/2016 postJaffe’s 10/23/2015 post, Jaffe’s 12/9/2015 post, Percival’s 12/16/2015 post, Stoll’s 12/21/2015 post, Perdue’s 2/5/2016 post, Jaffe’s 2/10/2016 post, Field’s 2/11/2016 postSession’s 2/17/2016 post, and Freeman’s 3/2/2016 post. The Fifth Circuit’s limit on deference is the basis of a recent Federal Rules of Appellate Procedure 28(j) letter sent to the D.C. Circuit by the petitioning states in West Virginia.   According to those states, the Fifth Circuit’s decision in Texas v. EPA supports, among other things, the petitioning states’ argument that EPA has failed to show that the Clean Power Plan will not detrimentally affect grid reliability. 

Perhaps the link in which I take the most pride, though, is this last link – to Seth Jaffe’s October 2, 2015 Brief Rant on Cost-Effectiveness Analysis.  In that post, Seth argues that if the purpose of a rule is to improve visibility, EPA should use a measurement of visibility – a deciview (dv) – to assess visibility improvement. Well, in Texas v. EPA, the Fifth Circuit seemed to be heading in the direction of agreeing that in considering the cost of a regional haze program, EPA should use the $/dv metric.  Alas, at the last minute, the court pulled back on a complete endorsement of the $/dv metric:  because the petitioners had a “strong likelihood of establishing other flaws” in EPA’s actions, the court said it did not need to decide whether  EPA “fell short of its obligation to consider the costs of its regulations” by failing to use $/dv metrics.  So, Seth may have to wait a while longer before seeing a court mandate for EPA’s use of $/dv metrics to evaluate visibility improvements.  I, however, achieved my goal of including a record number of links in this post.  

Does It Matter That Air Quality Is Improving?

Posted on August 3, 2016 by David Flannery

The Environmental Protection Agency is expected to announce its final Cross State Air Pollution Rule (CSAPR) update by the end of summer 2016.  But does the update account for the fact that several new regulatory programs that could significantly improve downwind air quality?

In his posts of August 3, 2015 and April 30, 2014, ACOEL Fellow Paul Seals likened the voyage of the interstate transport of air pollutants to “Homer’s Odyssey”.  He promised us all that the D.C. Circuit decision of June 24, 2015, in the case of EME Homer City Generation, L.P., v. EPA, concerning the CSAPR would not end the voyage of interstate transport – and indeed it has not. 

Critical to the development of a rule to address the interstate transport of air pollutants is that the rule not call for emission reductions that are more than necessary to achieve attainment in every downwind state.  EPA’s 2017 deadline for attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS) invites the question of what the ozone air quality is likely to be in 2017.  EPA’s proposed CSAPR Update identified only 4 monitors in the East that it predicted to be in non-attainment with the 2008 ozone NAAQS in 2017. 

EPA’s prediction of 2017 air quality, however, did not take into account several new regulatory programs that are either on-the-books or on-the-way. These programs are certain to continue to improve ozone air quality in the East.  Among the more significant of these programs are:  

-          Pennsylvania Reasonably Available Control Technology (RACT) II

-          Ozone Transport Commission Model Rules

-          Connecticut RACT

-          New York High Energy Demand Day (HEDD) controls; and

-          Connecticut High Energy Demand Day (HEDD) controls

To illustrate the significance of this point, Alpine Geophysics modeled the impact of only a portion of the Pennsylvania RACT II program on ozone concentrations at the nonattainment monitors downwind of Pennsylvania identified by in the CSAPR proposal.  The following results from the Alpine Geophysics report illustrate that even one of these new programs is likely to significantly improve ozone air quality at the critical monitors in the East:

EPA Nonattainment Monitors

Ozone Improvement needed (ppb)

Ozone Improvement Achieved By PA RACT Alone

Connecticut Fairfield (90013007) 1.2 83%
Connecticut Fairfield (90019003) 2.1 48%
Connecticut New Havens (90019003) 1.3 54%

Such improvement - related to only one of the unaddressed programs - raises the question about whether all of the EPA identified nonattainment monitors will, in fact, be in attainment with the 2008 ozone NAAQS when these on-the-books and on-the-way programs are implemented in 2017, even without the CSAPR update. 

The answer to this question, and to the merit of any new transport rule, lies with additional air quality modeling of these programs.  When EPA announces its final rule on the CSAPR update by the end of summer, we will see whether the agency has taken account of these additional programs and see the future direction of this on-going odyssey.  

HOW ACOEL AND THE WHITE HOUSE MAKE (SOME) HISTORY

Posted on August 3, 2016 by Jeff Thaler

Back in the early days of the College, then-incoming President Brad Martin had asked interested Members to work with Lexis Nexis in developing some treatises on a range of topics. Indeed, years later you can go to this link to see how you too can join the very few who purchase some of these treatises, see a photo of Brad, and the list of ACOEL authors. New Council of Environmental Quality guidance on treatment of climate change in federal environmental impact analysis suggests these treatises may have some impact.

I agreed to and with the aid of one of Brad’s former associates, in 2010 authored a treatise entitled “Treatment of Greenhouse Gases Under the National Environmental Policy Act”  . We addressed the then-recently released (February 2010) White House Council on Environmental Quality’s Draft Guidance on consideration of climate change and greenhouse gases in NEPA environmental reviews. In the conclusion I said:

With the prospects for comprehensive, economy-wide regulations on greenhouse gas emissions uncertain, climate change will continue to be addressed under existing environmental laws, including NEPA and its state-level counterparts. It has become increasingly clear that project proponents and lead agencies will be hard-pressed to avoid evaluating greenhouse gas emissions and other climate-related impacts attributable to public and private development projects. But disparate treatment across federal and state jurisdictions has left agencies and developers struggling with when and how to evaluate such impacts in their environmental review documents. Despite a growing body of regulations, case law, and guidance, substantial uncertainty remains regarding the scope, type, and depth of analyses required of climate change effects under NEPA and state analogues.

Little did I know or even suspect that the “disparate treatment” would continue unabated for another 5-plus years.  The Draft Guidance was intended to be finalized in 2011, but the final version would not be released until the waning days of the Obama Administration On August 2, 2016, the CEQ has now issued its 34-page Final Guidance, which expressly requires all Federal agencies to include climate change in their analysis of environmental impacts.

 In sum, the Final Guidance (at 4-6):

“[r]ecommends that agencies quantify a proposed agency action’s projected direct and indirect GHG emissions, taking into account available data and GHG quantification tools that are suitable for the proposed agency action;  Recommends that agencies use projected GHG emissions (to include, where applicable, carbon sequestration implications associated with the proposed agency action) as a proxy for assessing potential climate change effects when preparing a NEPA analysis for a proposed agency action; Recommends that where agencies do not quantify a proposed agency action’s projected GHG emissions because tools, methodologies, or data inputs are not reasonably available to support calculations for a quantitative analysis, agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available; Discusses methods to appropriately analyze reasonably foreseeable direct, indirect, and cumulative GHG emissions and climate effects; Guides the consideration of reasonable alternatives and recommends agencies consider the short- and long-term effects and benefits in the alternatives and mitigation analysis; Advises agencies to use available information when assessing the potential future state of the affected environment in a NEPA analysis, instead of undertaking new research that is, and provides examples of existing sources of scientific information; Counsels agencies to use the information developed during the NEPA review to consider alternatives that would make the actions and affected communities more resilient to the effects of a changing climate; …and Counsels agencies that the “rule of reason” inherent in NEPA and the CEQ Regulations allows agencies to determine, based on their expertise and  experience, how to consider an environmental effect and prepare an analysis based on the available information.”

How many of our LexisNexis recommendations were reflected in the Final Guidance I cannot yet say. But one moral of this tale is that College members may be able to direct a spotlight on needed changes in environmental regulating, even when those wheels of justice grind exceeding slow.

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

Posted on August 2, 2016 by Seth Jaffe

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. boiler-mactThe industry challenges were a complete washout.  The environmental petitioners won one significant victory and a number of smaller ones.

The environmental petitioners’ one significant victory is important.  EPA included within relevant subcategories any source that burns a fuel containing at least 10% of the “subcategory-defining fuel.”  However, for defining MACT, EPA included only those sources that burn fuel containing at 90% of the subcategory-defining fuel for existing sources, and 100% for new sources.  The Court rejected this approach.

"The CAA, however, demands that source subcategories take the bitter with the sweet. Section 7412 mandates, without ambiguity, that the EPA set the MACT floor at the level achieved by the best performing source, or the average of the best performing sources, in a subcategory. It thus follows that if the EPA includes a source in a subcategory, it must take into account that source’s emissions levels in setting the MACT floor."

Which brings me to my big take-away from this decision.  Chevron lives.  By my count, The Court cited Chevron 30 times.  Chevron pervades the decision.  Even in the one big issue that EPA lost, the Court’s decision was based not on a rejection of EPA’s interpretation of an ambiguous provision under step 2 of Chevron, but on a plain meaning interpretation of § 112.  EPA defined what a source is, but it then refused to calculate MACT based upon the performance of all of the sources in a given subcategory.  The statute simply did not allow EPA that leeway.

Other than EPA’s attempt to avoid taking “the bitter with the sweet”, however, the Court’s deference – by three Republican appointees – to EPA’s technical decisions was notable.  Not every case is the Clean Power Plan.  Where EPA is not really pushing the boundaries, I don’t see the Supreme Court weakening Chevron any time soon.

The Data Don’t Lie: Has MNA Science Outpaced Site Decision-Making?

Posted on July 26, 2016 by Charles Efflandt

The importance of a thorough technical evaluation of monitored natural attenuation (MNA) at chlorinated solvent and other groundwater-contamination sites cannot be overestimated. Regulatory acceptance of MNA as a preferred remedial alternative can save millions of dollars in response costs compared to common presumptive remedies. Because “active” remediation technologies rarely achieve complete contaminant treatment or removal, MNA is an implicit, if not specifically evaluated, component of most groundwater remedial actions. A proposal to use MNA as the primary cleanup mechanism, however, is often met with resistance from regulators, notwithstanding years of supportive data.  Such resistance may be attributable to antiquated agency policies or, perhaps, an inadequate evaluation of evolving MNA science.

The use of MNA at groundwater sites has typically required a showing of a stable or shrinking plume, source control, sustainable natural attenuation conditions, and acceptable risk to health and the environment. Today, mathematical and modeling tools can systematically establish data trends demonstrating that remedial action objectives will be achieved through natural attenuation in a reasonable time frame.

Unfortunately, even if confronted with irrefutable data, many state regulators will reject meaningful consideration of MNA unless the attenuation mechanism can be pigeon-holed into  policies that focus on the demonstration and scoring of anaerobic biodegradation conditions at a site.  That is because after almost two decades, EPA’s 1998 Technical Protocol for Evaluating Natural Attenuation of Chlorinated Solvents in Ground Water remains the framework for MNA evaluations and decision-making in many states. Because the 1998 Protocol presumed that the primary effective mechanism for natural attenuation was anaerobic biodegradation, the Protocol has unduly restricted state policies for screening and approval of MNA remedial action.

Numerous studies since the publication of  the 1998 Protocol, however,  have shown that a viable MNA remedial strategy can be supported by attenuation mechanisms other than anaerobic biodegradation These studies have documented other viable contaminant-destructive attenuation mechanisms and evaluation tools, such as aerobic cometabolism enzyme degradation, magnetic susceptibility, compound specific isotope analysis, and improved sampling and modeling techniques. Greater awareness of these scientific developments by regulators and environmental professionals will result in MNA being an increasingly important remedial tool at many groundwater sites.

We have learned the hard way that it’s much more difficult and expensive to clean up sites using default remedies than first thought. Fortunately, it is becoming increasingly apparent that nature has an ability to degrade various chemicals more quickly and effectively than previously believed.   Regulatory acceptance should not, and need not, include unreasonable technical hurdles, such as imposing  attenuation “causation” requirements that are neither feasible nor necessary to support what cannot be disputed. That a proposed MNA remedy does not neatly fit into the traditional anaerobic degradation box, and cannot with precision be attributed to one or more alternative degradation mechanisms potentially active at a site should not be determinative. At the end of the day, the data don’t lie. The MNA determination ought to begin with, and remain focused on, the empirical data and data trends.

FINDING LEGAL PATHWAYS TO DEEP DECARBONIZATION IN THE UNITED STATES

Posted on July 21, 2016 by John Dernbach

On December 12, 2015, in Paris, France, the parties to the U.N. Framework Convention on Climate Change—a total of 196 countries—unanimously agreed to a goal of net zero greenhouse gas emissions by the second half of this century.  For the United States, the technical and logistical challenge of achieving the goal of the Paris Agreement (as it is called) is enormous, but so is the legal challenge.

The U.S. short-term emissions reduction objective, stated in a submission made in the run-up to the Paris conference, is “to achieve an economy-wide target of reducing its greenhouse gas emissions by 26%–28% below its 2005 level in 2025.”  This objective, the U.S. says, “is consistent with a straight line emission reduction pathway from 2020 to deep, economy-wide emission reductions of 80% or more by 2050.”   Achieving the short-term goal depends on the outcome of the presidential election as well as litigation involving the Clean Power Plan.  And there was, until recently, no roadmap for deep U.S. reductions by 2050. 

The absence of long-term analysis, in the U.S. and other countries, is being filled by the Deep Decarbonization Pathways Project, which is led by the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations.  It is based on the work of research teams in 16 countries that are responsible for 74 percent of the world’s greenhouse gas emissions--Australia, Brazil, Canada, China, France, Germany India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, the United Kingdom, and the United States.  DDPP says in a report synthesizing the findings of the project to date that most of these countries “had never developed pathways consistent with a global 2°C limit, nor were they actively considering this question.”   (The purpose of the Climate Change Convention is to keep the increase in global temperatures from human-caused greenhouse gas emissions below a “dangerous” level.  That level is widely regarded as 2°C, or 3.6 °F, above pre-industrial levels, although the Paris Agreement seeks to keep the increase “well below” that level.  The temperature increase to date is already about 0.9 °C above 1880 levels, when temperatures were first recorded.)

DDPP has conducted a technical analysis and policy analysis of pathways to deep decarbonization for the United States.  These reports, prepared by E3 (an energy consulting firm), the Lawrence Berkeley National Laboratory, and the Pacific Northwest National Laboratory, appear to be the most detailed studies of how to achieve deep reductions in U.S. greenhouse gas emissions by 2050.  

Perhaps the DDPP’s most important finding “is that it is technically feasible for the U.S. to reduce [carbon dioxide] emissions from fossil fuel combustion” by 85% from 1990 levels by 2050, which is “an order of magnitude decrease in per capita emissions compared to 2010.”  If the U.S. did that, it could reduce its overall greenhouse gas emissions by 80% below 1990 levels by 2050.  

Enormous changes would be required in the U.S. energy system to make those reductions happen.  Because it is difficult to decarbonize gasoline and liquid fuels, the researchers said, meeting the 2050 objective would require almost complete decarbonization of electricity and, among other things, switching a “large share” of end uses that require gasoline and liquid fuels over to electricity (such as electric cars).  It would also be necessary to produce fuel from electricity itself, they said, citing the production of hydrogen from hydrolysis as an example. 

Decarbonizing electricity and producing fuel from electricity itself would double electricity generation but reduce its carbon intensity to 3% to 10% of current levels, requiring a vast increase in either renewable energy (as much as “2,500 gigawatts (GW) of wind and solar generation (30 times present capacity))” or carbon capture and sequestration.  The average fuel economy for light duty vehicles such as cars would need to be over 100 miles per gallon, and these vehicles would need to be fueled almost entirely by electricity and hydrogen.  

The challenge of translating these technical and policy pathways into a workable legal framework is considerable.  Assuming, for example, that the U.S. can achieve 54.5 miles per gallon as a fleet-wide average for new vehicles by 2025, as the current Corporate Average Fuel Economy standard requires, how does the U.S. achieve a fleet-wide average of more than 100 miles per gallon for all vehicles by 2050? As DDPP explains, “[t]his would require the deployment of roughly 300 million alternative fuel vehicles by 2050.”  A similar conundrum exists in reliance on renewable energy sources: what legal changes are needed to guide the development of the grid so that it can continue to be reliable while it accommodates a vast increase in intermittent electricity sources such as solar and wind energy?

Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia Law School, and I have begun work on an edited volume that will identify and analyze a wide variety of legal pathways to decarbonization in the United States, based on these reports.  We have assembled an excellent team of legal scholars and practitioners and are aiming for publication in 2017.  We hope to inspire similar efforts in other countries.  

An essential part of the decarbonization challenge is proposing, analyzing, and comparing various legal decarbonization pathways in each individual country, including the U.S.  In the face of a daunting challenge, there exists a real possibility that lawyers can help improve human quality of life throughout the world by facilitating the creation of a legal framework that accommodates zero-carbon development.