Posted on December 9, 2016
Not that there is anything wrong with wetlands mitigation banking. I, for one, would certainly like to own one with the perceived return on investment and lack of control on the market – but, there is another option that achieves the same “no net loss” goal for impacting wetlands.
While we all recognize that the Corps’ mitigation rule establishes a hierarchy that favors the purchase of credits from approved mitigation banks, permitted responsible mitigation is still allowable under certain circumstances. In fact, most recently in South Carolina the landscape mitigation approach has been successfully used to further economic development projects. In at least one instance, the landscape approach was used entirely in lieu of the purchase of mitigation banking credits. In another, a hybrid approach was used which combined a permittee-responsible-project with the purchase of credits.
How did it work – you ask? Rather well, I might say. But how did it work?
In each instance, the applicant involved a conservation entity to serve as the sponsor for the project. Desirable property was identified which had previously been targeted for preservation by a state or federal resource agency. The sponsor then entered into an agreement with the applicant to secure the mitigation property and, if necessary, perform any enhancement work to achieve the required mitigation credit for the project. The applicant agreed to reimburse the sponsor for acquiring, holding, and enhancing the mitigation property. In one instance, the sponsor will ultimately convey the property to a state resource agency. The mitigation property will be transferred to the state resource agency, subject to a restrictive covenant to encumber the property as approved by the Corps and the resource agency. The mitigation property only partially satisfied the mitigation obligation. A small credit purchase for the balance was also necessary. In the other instance, the mitigation obligation will again be partially satisfied by the purchase of the mitigation property by the sponsor on behalf of the applicant and then transferred to the federal resource agency. However, the ratio of the credit purchase and the property purchase were approximately equal. This approach seemed to work more effectively because it also provided for the involvement of an approved mitigation bank which did not object to the project.
Why do it – you ask? Time and money – when time is money.
On many large economic development projects there is often resistance from third parties or resource agencies. Working with these third parties and resource agencies to identify desirable mitigation properties can facilitate consensus for securing a 404 permit in a timely manner. The approach only works for the applicant when the permit timeline tracks with the project and the cost of the landscape mitigation approach is essentially equivalent to the cost of purchasing credits from an approved mitigation bank.
Try it, you might like it, Mikey.
Posted on December 8, 2016
In preparing the curriculum for my first environmental law class this coming semester, I thought it would enrich my students’ experience to read certain of the important antecedents of the modern era of environmental statutory, regulatory and case law. Aldo Leopold’s A Sand County Almanac, a classic of conservation literature, came immediately to mind. As a result, I have returned to a book that kindled my appreciation for ecology and the outdoors and, thereby, reinforced my interest in environmental law.
I began by reading the chapter in which Leopold muses about activities that take place during November at his sand farm on the Wisconsin River. (Since my blog is due in early December, jumping in here seemed to make sense.) Leopold recounts a myriad of activities in the mere twelve pages he devotes to describing this month’s developments. One section is devoted to the unintended beneficial consequences that result from diseases that afflict his trees. Various animals take advantage of the shelter and, especially, the food that these diseased and rotting trees provide. Leopold’s insight is to look beyond the misfortune of losing trees; not only is this destruction a natural part of life, but - if only we are able to recognize it – death is offset by the sustenance the dying and dead trees provide to local animals. While this “circle of life” approach is easily understandable these days, such an idea was radical when Leopold was writing in the 1940s.
The heart of the November chapter finds Leopold considering whether to chop down a white pine or a red birch. Indeed, he considers conservation to be “a matter of what a man thinks while chopping, or deciding what to chop. A conservationist is one who is humbly aware that with each stroke he is writing his signature on the face of his land.” Leopold thoughtfully explores his motives in selecting to fell one tree or the other –which of the trees he planted, which is more scarce, which is likely to stand longer if untouched, which wood will fetch more money upon sale, the impact the tree would have upon animals and other plants if left standing … even his ancestors’ tree preferences.
Leopold casually reveals the many species that coexist in a deceptively simple sand farm. He also educates his audience by gently illustrating the interrelatedness of the plants and animals and describing the seasonal impacts of cold and wind on each. The descriptions of vegetation and, especially, the birds that nest in his trees and bushes, are enchanting. One wishes to have Leopold take us by the arm and show us all that he observes and understands.
Leopold’s skill as a stylist, especially his use of a languid and folksy style, masks his considerable scientific knowledge. We know that he was a college professor and that, among other fields, he understood evolutionary theory. While it is obvious that this training informs his many observations and conclusions, yet, Leopold serves up this technical information so lyrically that readers whose experiences with botany and zoology were less than happy will feel at home.
A word about the philosophical aspect of the Almanac is warranted. While Leopold’s observations are presented on the “micro” level, he carries a far broader message. Leopold laments the loss of our natural environment but with an approach that educates more than criticizes. “What is the value of wilderness?” is one of the many deeper questions lurking just beneath the surface. Leopold believes that its value lies in and of itself, but also in its contribution to our wellbeing; the natural world is essential to the moral and spiritual welfare of humanity.
Environmental law began to catch up with Leopold’s ecological vision in the early 1970s. Since then, it would be easy to focus our legal training on the interplay among various elements of so-called “positive” law in the protection of our natural world. But omitting Leopold and others like him from the education of our future lawyers would be a costly error, as doing so would ignore the conservation and ecological ethic that lies at the very root of environmental protection. Rereading Leopold reminds us of how and why our field of law first arose and why practicing it continues to hold our interest. I urge my colleagues in the College to dip (back) into this resonant and loamy book. I’ll bet dinner in Charleston if you, too, don’t come away with a refreshed appreciation of our natural world and a reminder of the part our professional activities play in preserving it for future generations.
Posted on December 2, 2016
Let’s face it – most seasoned bureaucrats (I confess I am one) often don’t react well to change. Over time, there just seems to be an intrinsic inertia that builds in all bureaucracies. Federal and state environmental agencies are, unfortunately, no exception. While we in government do strive to avoid this inherent danger (problem?), the comfort of a routine can sometimes be the enemy of innovation. The catchphrases getting a lot of attention, and gaining some real traction, in government circles these days are “process improvement” and “performance measurement”.
Many state environmental agencies and the US EPA have undertaken a variety of self-examination techniques which fall under the general rubric “business process improvement” (BPI), including Lean, Six Sigma, and Kaizen to name just a few. The articulated objective is to examine key functions and processes with a view towards achieving a host of goals such as reducing costs to the agency, optimizing agency resources, and realizing better value for the agency’s “customers”. BPI may also help transform an organization’s culture to help embrace change and communicate better with the regulated community, the public, and other governmental partners. The Environmental Council of the States (ECOS) recently released a report entitled “State Environmental Agency Business Process Improvement Activity 2010-2016,” which accompanied the launch of an online database describing state BPI activities.
Applying process improvement goals in a meaningful way and tracking performance measurement through metrics helps agencies answer the question, “How are we doing?” Performance metrics can track costs and time saved, and identify areas needing improvement. It is not measuring for the sake of measuring, but rather measuring progress toward achieving identified performance goals, such as issuing an air quality permit or awarding grants within a specified period of time.
While the decision to engage in BPI may come as a top-down mandate, the implementation of actual techniques used to arrive at new goals will have to be tailored to each program’s process and appears in practice to be largely collaborative and creative, encouraging a “think outside the box” mindset. There will always be challenges—that’s probably inherent in the nature of government with the prospect of new leadership every four years or so. Process improvement and performance metrics won’t automatically diffuse the inertia in an organization. Change just for the sake of changing isn’t all that appealing without seeing real progress towards a goal. Working together, however, initiatives borrowed from business may foster an institutional culture and organizational climate in government where personnel are more willing to accept change and perhaps come up with innovative ideas of their own.
(The author is Legal Counsel for the Nebraska Department of Environmental Quality.)
Posted on December 1, 2016
After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere. Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.
Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.
Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.
Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore. Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.
Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.
Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions. Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain.
Some countries are taking steps to limit disturbance of peat deposits. Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming. Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions of carbon dioxide from mining peat for use in compost remain at 400,000 tons. To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats. Peat is protected in federal parks lands of Alaska.
Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally. Emission-trading schemes can help finance transitions from peat abuse to peat preservation.
Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change. Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity. Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases. Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.
United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.” It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.
This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.
Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030. For peat’s sake, let us get on with it.
Posted on November 29, 2016
President Obama’s Clean Power Plan is in trouble, both in the courts and politically. I believe that Plan is a lawful exercise of EPA’s regulatory power and deserves support from the public. But it is far more likely that by January 21, 2017 the new EPA Administrator will, at the direction of the White House, seek to rescind or eviscerate the Clean Power Plan because of both aversion to regulatory action in general and campaign promises to the coal industry. That would be a disaster for the U.S. (and global) environment since coal plant emissions are the largest single source of Greenhouse Gas (GHG) emissions in our nation and our refusal to reduce them will lead other nations to slow their own efforts to cut GHG emissions. The resulting international reaction, perhaps including threatened carbon charges on U.S. exports, will put intense pressure on the White House to take climate change more seriously.
There is, however, a way for the new Administration to reduce GHG emissions even more effectively than the Clean Power Plan – and without EPA regulatory action. The White House could simply ask Congress for authority to purchase the nation’s approximately 350 operating coal plants and then promise to close half of them in five years and the balance in 10 years. Such a plan would do far more than the Clean Power Plan to eliminate coal as a major source of GHGs in the US, and would do it faster and with more certainty than EPA’s complex and potentially unenforceable regulations. Investors in renewable energy projects would also have a clear path forward, without the prospect of continued coal competition, so that such projects could once again accelerate even without large-scale subsidies.
This purchase alternative, which I call “Plan A,” could also be attractive both to existing coal plant shareholders and their workers. Coal plant shareholders and lenders now face the prospect of near-term loss of their entire investment as bankruptcies ripple across the nation’s coal fields. Workers too face near-term unemployment with or without the Clean Power Plan. Under Plan A, workers would receive generous compensation as part of the purchase of their plants, along with assistance in meeting outstanding mortgage, car loan and medical bills, scholarship assistance for themselves and their children at nearby community colleges and priority in filling jobs at new renewable energy projects.
Given the age and condition of the coal plants being purchased and the relatively small number of coal workers still active in the country, the total cost of this Plan A alternative would likely be less than or equal to the public health benefits that EPA estimated would result from closing down only a portion of those plants under the Clean Power Plan. In short, Plan A could be a win-win solution for GHG emissions without relying on EPA regulations but on Executive and Congressional action that would dramatically improve the global environment and challenge other nations to do the same.
Posted on November 28, 2016
Speculation about the environmental implications of the impending Trump presidency is running rampant. That was the case as well when Ronald Reagan was elected President. I served as an attorney in EPA Region 4 during his administration so I have a sense of dynamics that will be in play at the regional offices during the Trump administration. With this historical perspective, I offer the following thoughts on the potential impact of the Trump administration on EPA enforcement at the regional level.
· Initial Frontal Assault – The early years of the Reagan presidency were marked by a robust and concerted effort to declaw EPA, largely carried out through political appointments at Headquarters and at the Regional Administrator level (the oft-repeated refrain was “doing more with less”). Based on his condemnation of the “Department of Environmental Protection” during the campaign, I’m inclined to expect the same from President-elect Trump. However, the list of names currently being floated for the positions of EPA Administrator and Assistant Administrator ranges widely from a climate denier to well-respected former program managers at EPA. So, at this point, the jury is out on whether President-elect Trump will follow the Reagan administration’s lead or, like the George W. Bush administration, take a more restrained approach to regulatory implementation and enforcement, while recognizing the Agency’s fundamental legitimacy.
· Effectiveness of a Frontal Assault – The efforts of the Reagan administration were largely unsuccessful and relatively short-lived. At the regional level, this was due in no small part to muted but resolute resistance to those efforts from career employees. If the Trump administration pursues similar goals, I would expect similar results. I anticipate that rank-and-file enforcement personnel in the regional offices will continue to pursue and prosecute instances of statutory/regulatory noncompliance (consistent with budgetary constraints). In light of the largely completed trend of delegating environmental programs to the states, enforcement actions undertaken these days by the EPA regional offices frequently involve allegations of significant regulatory noncompliance that state programs are unable (or unwilling) to address effectively. Regional political appointees will be hard-pressed to halt or forestall meritorious enforcement actions. In addition to wanting to avoid any appearance of impropriety, those appointees will be subject to an NGO watchdog network that is considerably more developed and vibrant than it was during the Reagan years. If EPA doesn’t enforce, the NGOs will.
· Times Have Changed – Like me, today’s regulatory enforcement landscape bears little resemblance to what it looked like 36 years ago. I can well recall spirited conversations in the late 70’s/early 80’s with reluctant program managers for some of the Region 4 states concerning the states’ adoption and enforcement of a regulatory framework that mimicked the basic structure of the major federal programs (air, water, and waste). Those days are long gone, and I would anticipate that any efforts to suppress enforcement at the federal level will have minimal impact in those authorized states that have active enforcement programs. Also, while some NGOs (e.g., NRDC, Sierra Club, Environmental Defense Fund) were quite active during the Reagan administration, particularly in high profile enforcement matters, the proliferation since that time in the number and variety of well-financed NGOs at the national, regional, and state level will likely compensate for any decrease in EPA enforcement that may occur under President Trump. Ironically, what we may see in some cases is initiation of enforcement actions by EPA that blunt the use of citizen suits by NGOs, followed by settlements on terms considered less stringent than the NGOs would prefer.
Given President-elect Trump’s penchant for unpredictability and the current uncertainties surrounding the ultimate composition of the Trump environmental team, I’m not confident in my predictive powers, other than to say that we are about to embark on what I will gently call an interesting time in the history of environmental regulation. Whether it proves to be déjà vu remains to be seen.
Posted on November 18, 2016
Q: What two things do Jeb Bush, John Kasich, Marco Rubio, Rand Paul, Chris Christie, Carly Fiorina, Mike Huckabee, Bobby Jindal, Ted Cruz, and George Pataki have in common?
A: (1) None of them ever claimed that climate change is a Chinese hoax; and
(2) Every one of them promised to revoke the Obama Clean Power Plan (CPP) if elected.
How Bad Is Bad?
I’ll come back to the CPP. But first, the question so many are asking: how terrible is Mr. Trump’s election going to be for the environment? Let me begin by reminiscing. In 1980, I was in EPA’s Office of General Counsel when the “killer trees” President was elected. I don’t remember actual tears in the office the next day, but people were pretty distressed and many were threatening to leave the agency.
Things really did look bad for a while. Remember Anne Gorsuch Burford, Rita Lavelle, James Watt and many others with similar agendas? But then remember the intense and angry public reaction when it appeared that core environmental protections for clean air and clean water were in jeopardy. These people were forced out of office. William Ruckelshaus returned at the top of EPA, and the ship was essentially righted.
With that history as a guide, I don’t think the Trump Administration (disclosure: I neither supported nor voted for him) will try to make any significant changes to the vast bulk of protective air, water, waste, etc. rules now on the books. I once calculated there are over 20,000 pages of EPA regulations in the C.F.R. That’s millions of words. I think that after four years of a Trump Administration, fewer than 1% of those words will be deleted or amended.
Now back to the CPP. I am pretty sure that will fall into the 1%. Others have written about what might happen to the CPP on judicial review and I won’t try to add to that guessing game. The key thing to remember is that the CPP is currently stayed by the Supreme Court, and that stay will remain in effect until any final Supreme Court disposition – which will be many months from now.
There is a good chance that the Trump EPA will not wait for any final judicial review but rather will soon undertake a rulemaking to revoke at least the more far-reaching and controversial elements of the CPP (i.e., the provisions “going beyond the fence-line” to force wind and solar in place of coal). As explained in one of my recent blogs, there would be no need to develop a new factual record in such a rulemaking. So this process may take a couple of years, but for much of that time the CPP will remain blocked by the Supreme Court stay and the earliest CPP standards aren’t scheduled to take effect until 2022.
As also explained in my blog, thanks to a recent 3-0 D.C. Circuit opinion authored by Judge Merrick Garland (and the Supreme Court precedent that he relied upon), those in the Trump EPA should have smooth sailing on judicial review if they take the time to clearly articulate their policy and legal rationale.
And what would public reaction be to such actions? Cutting the most controversial parts out of the CPP would not jeopardize the legal basis for core clean air and water protections as the early Reagan cutbacks were perceived to do. So even if revisions to the CPP provoke lots of noise from traditional public interest groups opposing any cut-backs in GHG regulation, that noise may not resonate much with a general public much more interested in jobs, health care, and public safety.
Public reaction could be far different, though, if – as indicated in some press reports -- the Trump EPA were to go beyond significantly cutting back on the CPP and deploy a nuclear option: reversing the Obama EPA’s 2009 GHG “endangerment finding.” By doing this EPA would be trying to free itself of any obligation to regulate GHGs under the Clean Air Act. (Note: I am not addressing the more limited August 2016 aircraft emission endangerment finding.)
I think such a reversal would be extremely unwise. First, I think it would be far more vulnerable on judicial review than a significant CPP cutback. Reversing the finding would require the building of a massive new factual record. And with the growing scientific consensus that man-made GHGs are causing at least some adverse effects, even conservative judges may have difficulty upholding such a decision.
Second, having EPA in effect deny there is any climate problem from air emissions could more easily foment the kind of intense and angry public reaction that the early Reagan EPA suffered. Recall from the above that none of the other Republican candidates gunning for the CPP ever said global climate was a Chinese hoax.
Finally, I believe such a reversal is entirely unnecessary as a legal matter. As long as EPA keeps some form of GHG controls on the books, it will have carried out its legal obligations stemming from the endangerment finding. Nothing in the CAA or any judicial decision requires that the degree of GHG regulation be driven by an endangerment finding. There is nothing remotely like the MACT mandate to achieve limits being met by the best 12% in a source’s category. In short, EPA does not need to touch the endangerment finding to accomplish the goal of amending the CPP to remove its more far-reaching and controversial provisions.
More Targets and Concerns
Getting back to the basic question of how much the Trump EPA may change things, there will certainly be more rules targeted in the 1% -- the Obama Clean Water Rule for almost sure. And there are valid concerns about how much EPA’s funding and enforcement efforts may be cut back even if most rules stay on the books. Spoiler alert: I may do blogs on these topics soon.
But my main concern for people at the Trump EPA now is that they remember what happened when the Reagan EPA tried to de-regulate in a manner that was perceived as threatening core values of clean air and clean water.
Posted on November 15, 2016
What will a Trump Presidency mean for environmental law? I’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:
- It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules. I don’t see Clean Air Act amendments happening. Significant amendments might be possible to the Endangered Species Act and Superfund.
- Changing regulations is more difficult than one might think. As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives. For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it. The Clean Power Plan is another matter. All Trump needs there may be a new Supreme Court Justice.
- The easiest target is executive orders. The social cost of carbon? Toast. Guidance on incorporating climate change into NEPA? Toast.
Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.
Deep-six the Clean Power Plan
Goodbye to winter
Posted on November 14, 2016
As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change. On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss.
Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions. Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.
The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings. In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding: “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”
In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable. Although Judge Aiken was undeterred by these considerations, I still believe that to be true. Still, did the election of Donald Trump give new impetus to the case?
The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team. This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.
It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility. Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions? Could the election create a sense of urgency that a court may feel the need to address? Maybe, but this still strikes me as tough case to sustain.
A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax. Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there. California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session. Local environmentalists think the chances of a successful local climate initiative are high. The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.
Posted on November 8, 2016
The American College of Environmental Lawyers annually presents the Herrmann Environmental Writing Award to the individual who has written and submitted what we judge to be the best article from a student-edited law journal or equivalent publication published by an accredited U.S. law school, including an article, note, case comment or essay. The winning piece is selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.
The award is named in honor of our College colleague Stephen E. Herrmann, who is a distinguished, nationally recognized environmental lawyer and who has – for some forty years – been a leader in the area of environmental law as a practitioner, teacher and writer.
This year, there were twenty-nine separate entries for the Herrmann Award. A panel of ACOEL members reviewed and evaluated each entry based on its originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. After completing that review, the reviewing panel announced at the 2016 ACOEL annual meeting in New Orleans that this year’s winner of the Herrmann Environmental Writing Award is Ms. Irene Weintraub Shulman. Ms. Shulman’s article – published in the Cardozo Law Review [link] – is “NEPA and Uncertainty in Low-Risk, High-Impact Scenarios: Nuclear Energy as a Case Study.” In addition to winning the award, Ms. Shulman received a stipend of $3,500, and the submitting law journal (Cardozo) received $500. Ms. Shulman was also invited to attend a portion of the College’s meeting in New Orleans.
ACOEL remains gratified at the level of interest and academic excellence represented by all the submissions we received. And we again congratulate Ms. Weintraub Shulman and the Cardozo Law Review on their fine submission.
Posted on November 3, 2016
It is time not only to plan and prepare, but also to bring human rights and land use policies together into the discussion and much-needed governance reforms. When one thinks of population migrations, one often thinks of international movements. The issues of human rights are front and center in that context, but we don’t yet have a developed language or set of principles to apply when thinking it through here in the U.S. Hence, last week, I co-hosted a 2 and ½ day workshop on the subject with my colleagues in the International Human Rights and Immigration Clinics. We brought together experts on human rights from all over the world to focus on 4 case studies. One was the Horn of Africa where pastoralists are on the move to escape drought conditions; one was Central America/Mexico from which people are fleeing not only gang violence and poverty but increasingly severe climate conditions; a third case study focused on Native Alaskan communities; and, a fourth on coastal cities in the U.S. In addition to international experts, also participating were government representatives of several coastal cities, an expert on the Hurricane Sandy property buy-outs, several climate justice activists (including the NAACP), and people working to relocate Native Alaskans.
Together we brainstormed how to build on the Nansen Initiative and other internationally-developed principles for creating governance structures and funding mechanisms to implement plans to protect displaced persons. (Brief mention was made of imposing a carbon tax and then applying the funds to adaptation measures.) A key point of consensus was the need to use “bottom up” approaches (including local referendums) to ensure that policy makers and decision makers understand the needs of affected communities when pursuing much needed legal reforms and to begin planning now for ultimate displacement instead of waiting for disaster to strike. Many barriers exist, however. A major barrier to effective and cost-efficient planning for and management of dislocations in the U.S. (and elsewhere) is the “siloing” of jurisdiction and expertise between the many tiers of government (domestic and international). Another is the dependency of municipalities on a strong tax base which leads many to resist the notion of “retreat” or “relocation” of at-risk populations. Furthermore, land-use planning is managed separately from disaster relief planning in the U.S. More resources are (inefficiently) disbursed for responding to disasters than avoiding them. Indeed, the sinking of communities into the sea is not even considered a “disaster” under current U.S. law. Many legal reforms are needed, ranging from zoning policies to building codes to jurisdictional issues to preemption. One example: the National Flood Insurance Program not only creates perverse incentives to continue building and re-building along the coast, but it does not require that municipalities adopt zoning codes that take sea level rise or storm surges into account. We discussed legal and policy mechanisms for managing infrastructure in communities that will need to be abandoned and creating infrastructure elsewhere to support people forced to relocate. Alaskan communities are caught in a terrible Catch 22: some still lack fundamentals, such as running water, but the government does not want to invest in infrastructure in communities that will have to relocate and yet the government has been tied up in knots and unable to build the necessary infrastructure in the areas to which these peoples will relocate. And, we discussed climate change gentrification and the need to ensure affordable, sustainable, safe and healthy housing for the dislocated poor.
There is much work to be done. If any member of the College is interested in working on any of these issues with us, please let me know!
Posted on November 2, 2016
Superfund practitioners have long known that unilateral orders issued by EPA under Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), commonly known as the Superfund statute, can be very potent enforcement tools. Recipients of such orders who “willfully” choose to defy them, “without sufficient cause,” face the prospect of potentially ruinous civil penalties under Section 106(b) and treble damages under Section 107(c)(3). The term “sufficient cause” is not defined in CERCLA and has been subjected to very limited judicial interpretation. Making matters worse, by virtue of Section 113(h), Section 106 order recipients cannot obtain pre-enforcement review of such orders. Instead, they must wait until EPA brings an enforcement action, or one of the other triggers listed in Section 113(h) occurs (while the penalties and treble damages continue to accumulate, for a period which could last for years), before they can obtain a judicial determination of whether or not their defiance was “without sufficient cause.” This enforcement scheme has thus far withstood due process challenges on the ground that no penalties or treble damages can be imposed until there is a court hearing. Waiting for that court hearing can produce extreme apprehension on the part of defiant order recipients.
In United States v. Glatfelter, one of the prodigious number of reported decisions relating to the Lower Fox River Superfund Site, the Court of Appeals for the Seventh Circuit, after concluding that permanent injunctions will not be available to enforce Section 106 unilateral orders, suggested how that apprehension might be relieved:
“Nothing we have said prevents the government from seeking declaratory relief to establish that a PRP lacks sufficient cause for noncompliance, such as the arbitrariness of the selected remedy or a defense to liability.”
This suggestion may trigger a whole new round of litigation regarding Section 106 orders. For instance, does a private litigant enjoy the same right to seek declaratory relief?
Posted on October 27, 2016
In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under the Endangered Species Act (“ESA”). Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.
In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play. Specifically, the FWS announced that
"we will be initiating an entirely new status review of the North American wolverine,to determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.
FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including
"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.
This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA. It simply wasn’t designed to solve all of the ecological problems resulting from climate change.
It would be nice if Congress weren’t completely dysfunctional.
Posted on October 26, 2016
ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS? And, why should you care? As the current Past President of ECOS, I acknowledge upfront that I might be biased – but consider the following. ECOS is the national non-profit, non-partisan association of state and territorial environmental agency leaders. ECOS was founded in late 1993 at a time when the relationship between states and the EPA was strained. As Mary A. Gade, then director of the Illinois Environmental Protection Agency, put it: “The times called for states to assume primary responsibility and leadership for environmental protection. As individual states began to articulate this new perspective, state commissioners realized the need to band together for information-sharing, strength, and support.”
Today, reflected in the ECOS 2016-2020 Strategic Plan, much of ECOS’ original purpose remains: “To improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of the United States of America. Our belief is that state government agencies are the keys to delivering environmental protection afforded by both federal and state law.”
While the purpose remains consistent, how ECOS achieves it has evolved.
One example lies in the ECOS-organized forums where states and EPA meet to discuss - and often debate - environmental concerns and our respective roles in implementing and enforcing environmental programs. While the early ECOS years were not without success working with EPA, the tenor of the overall relationship with EPA was uneven. Today, ECOS has a productive relationship with EPA. We still discuss, debate, and disagree, but in a much more constructive way. EPA representatives at all levels routinely attend and engage in the spring and fall ECOS meetings, as well as other ECOS conferences. ECOS members have been invited to internal EPA budget meetings to share our budget concerns and needs. ECOS and EPA have worked on several joint-governance projects, including the creation of E-Enterprise for the Environment. Through E-Enterprise, state, EPA and tribal representatives work to streamline environmental business processes and share innovations across programs to improve environmental results, and enhance services to the regulated community and the public by making government more efficient and effective.
ECOS is fast becoming the “go-to” organization for Congress, the White House, federal agencies, national organizations, and the media to learn about state issues, concerns, positions, innovations and ideas regarding environmental matters. Through engagement with senior government officials, testimony before Congress and many position letters, ECOS has expressed state perspectives on key legislative and regulatory issues, like reform of the Toxic Substances Control Act, funding for state environmental programs and water infrastructure, increased authority over coal combustion residual sites, workload flexibility in state-EPA agreements, enforcement training, expediting federal facility cleanups, and environmental justice tools.
ECOS has developed relationships with the Department of Energy and the Department of Defense: these agencies regularly participate in ECOS. ECOS’ Legal Network brings state environmental agency counsel together with EPA counsel and DOJ’s Counselor, to explore lessons learned from successful enforcement and compliance initiatives, and to discuss best practices and enhanced collaboration.
So, how about the relationship among the states themselves? ECOS has also become a venue for states to explore differences in positions and ideas. Not surprising, membership within ECOS is politically diverse. ECOS has recognized and embraced this diversity by creating a space for states to express their opinions and positions, encouraging members to learn from each other, to reach “across the aisle” to understand differing perspectives, to compromise where needed and to develop strong and lasting relationships. ECOS will pull in experts from within the states and from other organizations to provide valuable and sometimes critical perspectives and analyses on important issues, so that state environmental leaders can better understand the complexities and impacts of environmental programs and initiatives. The lawyers of ACOEL are one source of that expertise, and they have provided valuable legal analyses to ECOS and its members on the Clean Power Plan and WOTUS. ECOS is even reaching across state agency lines, as shown by this spring’s Memorandum of Agreement with ECOS, EPA, and the Association of State and Territorial Health Officials to advance cooperative initiatives pertaining to environmental health, acknowledging that the public health and well-being of U.S. citizens relies on the condition of their physical environment.
So, why should you care about ECOS? Because the vast majority of day-to-day environmental program adoption, implementation and enforcement is done by the states. As Mary A. Gade said when ECOS was first created: “Charged with advancing a state’s environmental agenda, state commissioners strategize daily with governors, state and national legislators, and local government officials to accomplish their goals. State environmental commissioners have political access, substantive expertise and, most importantly, legislative combat experience.” When you organize a group of battle-ready commissioners who lead state environmental programs, and who meet and work together on a regular basis, wouldn’t you want to know what they are doing? My advice: check out http://www.ecos.org and find out what you are missing.
Posted on October 25, 2016
(Best read while humming the theme song from Ghostbusters)
In an unprecedented move (to my knowledge) the Industrial and Hazardous Waste Permits Section of the Texas Commission on Environmental Quality (TCEQ) recently requested permit holders provide the agency with their facility’s primary and secondary emergency response points of contact. Specifically, they ask for the names and office and cell and/or pager numbers.
The information is typically included in a facility’s permit, but my personal experience is a change of phone numbers or even personnel may or may not result in a timely permit modification. The fact the agency intends to keep this information in a spread sheet format should make the data more readily available in an emergency than having to extract the information from one or more permits.
The inspiration for this somewhat unusual request was the recent proliferation of earthquakes in our neighboring state to the north although any other natural (floods, hurricanes, or tornados) or manmade disasters could well result in the same need.
A simple action? Yes. Could it be very beneficial? Certainly; because, as we all know, in an emergency it’s important to know who ya gonna call …
Posted on October 13, 2016
Along with the flood of news coverage of the Flint water crisis comes the flood of litigation. So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the expected plea deals. Here are some highlights.
In April, a federal district judge dismissed for lack of subject matter jurisdiction a §1983 claim for “safe and portable water” as preempted by the Safe Drinking Water Act. The case is on appeal.
Class actions have been filed against state and municipal officials in federal court, the Michigan Court of Claims, and Genesee County Circuit Court, seeking damages for personal injuries, property damages, and relief from water bills. Along with the usual governmental immunity defense, defendants assert a statute of limitations defense, with a fair likelihood of success. The governmental immunity defense is complicated by Governor Snyder admitting fault. That admission strengthens plaintiffs’ gross negligence exception to governmental immunity.
So far, the Attorney General’s criminal charges have resulted in the usual plea deals by underlings. The Flint water quality supervisor whom I lauded in a previous post as the only principled public servant in this mess (a position with which the Attorney General agrees) pled no contest to willful neglect of duty; the plea is essentially nothing, because the court took the plea under advisement with dismissal in one year if the supervisor cooperates with the investigation. A state official reached a second plea deal, pleading no contest to willful neglect of duty regarding an outbreak of legionnaire’s disease with the usual cooperation clause.
Politics saturates the Flint legal landscape. Attorney General Bill Schuette is widely expected to run for governor in 2018 and must therefore appear to be doing something, such as filing an unusual professional negligence and public nuisance claim against the Flint outside engineering firms. And when the Flint mayor notified Michigan of intent to sue the state, the state receivership board with continuing jurisdiction over Flint removed the city’s authority to sue.
Posted on October 12, 2016
I stood staring at the ruins of slave quarters on what had once been a 19th century coffee plantation situated in the northwestern part of Cuba ― Las Terrazas, in the Sierra de Rosario mountains. I was struck by the unabashed preservation of the old with the new. Slave quarters juxtaposed with Algarrabo cententarios trees growing up through the balconies and ceilings of La Moka, an ecological hotel. La Moka is a modern twist on old colonial architecture, with a multi-tiered atrium lobby built around trees that disappear magically skyward. We had journeyed 45 minutes from La Habana above the shores of San Juan Lake and beneath the mountains to another place and time.
Las Terrazas is a biosphere with a protected ecosystem, a buffer zone that supports ecological practices, and an area that fosters ecologically sustainable development. It combines a small community of about 1,200 people, many of them artists, with ecotourism. The hotel and the buildings seem to melt into the mountains by design. In those mountains, even with my Spanish proficiency, I struggled to understand Ariel Gato, in his artist studio, where hanging in the sun was his very own recycled computer paper for drawing, prints, and other art work. Later, I learned his accent was shared by many farmers, or campesinos, influenced by the Haitian settlers who brought coffee, and spoke the French language. Gato is renowned for his art work, but he is clearly more than simply an artist.
In 1968, then-President Fidel Castro founded a green revolution, making Las Terrazas a green project. Architect Osmany Cienfuegos mobilized work brigades that created terraces of timber, fruits, ornamentals and vegetables. Starting in 1971, the brigades carved roads through the mountains to build homes, schools, playgrounds and clinics all surrounding San Juan Lake. Owing to the success of the reforestation project, the biosphere came under UNESCO protection in 1984.
We walked through Las Terrazas and were treated to zip line tours, steel cables whisking people above Las Terrazas; enjoyed coffee that was muy sabroso; and learned something about the art of coffee-making along the way. In the old days, slaves had to turn the coffee beans― red in their original form― every 30 minutes. Still today, this dry method is used where water is scarce. Coffee beans are spread out on huge surfaces to dry in the sun. Beans are raked and turned throughout the day and then covered at night or during rain, in order to prevent the beans from spoiling. From this vantage point on the ranch, we could see the port of Mariel, where the Brazilians and Cubans are building a major container terminal that will have the capacity to handle vessels deeper than Habana Bay, and will have facilities for offshore oil exploration. We are marching toward a new day for Cuba.
Small expressions of sustainable initiatives seem to be on the rise in Cuba. The day before visiting Las Terrazas, we visited a local permaculture project near Cojimar, a seaside village, best known for its setting in Ernest Hemingway’s novel The Old Man and the Sea. Mosquitoes fell in love with me there, but we could have been in any 1950’s fishing village. Nearby, we encountered a family-run business –Planta de Fregado—an ecological car wash that uses plant solids, gravity feed and carbon filtration for a completely organic car wash. The owner was enthusiastically confident of replicating his system all over Cuba.
In Cuba, the legacy of slavery and the old African traditions blend seamlessly with so much of the new world. In some ways they are frozen in time and in other ways, not so much. Little Zika problem here, at least with standing water outside, as we witnessed systemized mosquito spraying throughout the countryside. However, the mosquito problem occurs with water indoors, as no amount of education convinces people not to keep glasses of water under their beds, in the corners of rooms and on dressers to ward off evil spirits or to bring good luck. Officially Cubans are atheists, unofficially Roman Catholic, but in reality most Cubans practice Santeria, a system of beliefs that merges Yoruba myth with Christianity and indigenous American traditions. The Cubans are unabashed in recognizing African influence in their music, their food and their religion. Perhaps it has, too, influenced permaculture projects, and the biosphere reserve ― Las Terrazas.
Posted on October 11, 2016
Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba. My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba. Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.
As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality. But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand. With its socialist roots and communist goals, most important in Cuba is equality: equality between bricklayers and brain surgeons, as well as between women and men. And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices. Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect. For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution. It is simply breathtaking and a great example of Cuban potential. Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.
As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance. Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962. In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement.
Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee. With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including: radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.
With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species. However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry. Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources. Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful. And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation. But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.
I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!
Posted on October 10, 2016
Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba. I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there. We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.
One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life. Most, though, expressed optimism for the future of their country.
You may find some of the notes below inconsistent or contradictory. I think that’s reflective of the differing viewpoints and experiences to which we were exposed.
Sept 7, 2016: Meeting with Political Scientist /Publisher/Editor
• Cuba in transition; you are here at a special time
• Changes had already occurred before December 2014; more changes since then, and more to come
• Electoral system: Citizens vote for representatives to the National Assembly/ Assembly chooses President and Vice President
• Raul Castro has committed to step down in 2018
• Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro
• Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers
• Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals
• In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.
• Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.
• The outside perception of Cuba may be that Cubans have the least available access to world views through the internet. However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.
• Human rights issues remain, including prohibition on founding political parties
• Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.
- This year: expecting the total to be more than 500,000
• Key issues for updating the Cuban socialist model:
- Have to confront increased social inequality & poverty
- About 20% suffering from poverty; 4 times more than 20 years ago
- Yet others are achieving higher overall income with salary plus additional sources of income. Income differential and poverty must be dealt with.
- Severe housing shortage is a critical problem.
- Housing in bad condition/ and housing shortage
- Super centralization as a defensive posture
- Overextended bureaucracy
- Water supply/ energy supply problems
- 20% of Cubans are over 60; by 2025, that will be up to 25%
- Life expectancy is about 80 years
- Population growth rate = -1.5%
- Birth rate has been low since early 70s
- Surge of migration. 65% more than the year before. Up by 45,000 this year.
- Media: all media is currently government media
- Inconsistent economic system
- High dependency on imports
- Low domestic food production and industrial output
• Last of the key issues/problems: U.S. policy toward Cuba
- Negative impact of embargo
- Fortress mentality
- Travel restrictions for U.S. citizens
• Cuban culture is closer to American culture than that of any other country in the region
Sept 7, 2016: Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science
• The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).
• Among other things, it manages protected areas in Cuba.
• Foundation has collaborated with foundations/NGOs in U.S., and there have been visits back and forth
• Biggest problem is that the embargo gets in the way of funding from U.S. institutions
• Over 50 international cooperative projects over the past 21 years
• Goal of conservation of Cuban biodiversity and geographical diversity
• Problems: invasive species/ pollution/ climate change/mining
• Existing environmental legal framework:
- National environmental policies, strategies and legislation
- Article 27 of the Constitution on protecting environment
- Law number 81: Approved 1997
• Cuba has entered three treaties/conventions: on bio diversity, climate change, and drought.
• Most important current issues are seen as:
- Soil degradation
- Loss of biodiversity
- Damage to forest cover and lack of water
- Climate change vulnerability
• Where does Cuba go from here? Varying views expressed:
- Process of last 60 years for environment has been good/big question is how to preserve going forward as things change
- Having to redefine behavior and economy
- Problem of dealing with laws on the books that reflect a former reality
- We are a country rich in spirit and ideas, but we are poor in our economy
- How to organize the economy?
- Challenge: don't take the same directions that others took 100 years ago
- Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
- Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
- Right now it is reactive, not preventive.
• General discussion among them:
- Need to access financing and technology to protect the environment and human settlements
- Existing law based on national/fed strategy and structure. No local structure.
- No legal framework to determine the information you need and which set of regulations applies. There can be conflicting regulations from one ministry to another. This needs to be combined and systemized.
- No unity on legislation, on what it means; you get lost looking for information.
- Same on pollution controls: different regulations from different ministries. Cleanup standards as example: One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
- Implementing ministry does not itself have the power to enforce. Other institutions may have power to enforce. So there is an issue on means of enforcement.
- Current law already has a way to incentivize local application of laws or enforcement of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring
Sept 7, 2016: Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)
• The official worked at CITMA until she retired in 2014. Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.
• Overview of environmental law in Cuba:
- Until 1990, done empirically
- But after 1990, determined to be in interest of the state and the agency to control environmental issues
- Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
- Continues under Ministry of Science
- Within the Ministry, there is an Agency on the Environment
- There are several other institutions within the environmental agency.
- Local administrations propose areas to protect: geographic areas/not topics
- The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
- Ministry works together with local government
- When a company wants to work in one of these areas, it has to pass consideration by a commission that considers what company wants to do
- Ministry of Science issues permits to companies to work in these areas.
- Ministry's model for development requires compliance with permits: risk, air quality etc. within one permit roof
- Ministry follows UNESCO standards for protection of biosphere
- Other ministries also have an interest: geographical and others including tourism
- Other involved institutions: Ministries of Mining, Energy, Tourism, for example, depending on project.
Sept 9, 2016: Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment
• They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better
• But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments
• Since 1992, Cuba has been on path to amend laws to meet international commitments
- As a result of those commitments, have to revamp institutions:
- Such as sustainable development
- But need a clearer legal framework to make it work better
• Biggest problem here has been adaptation, as opposed to remediation
• But now: a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this
• Per the Paris Accord, we have to deal with adaptation as well as mitigation
• Have to regulate technology to regulate environment
• Should look to integrate all of the different laws
- Right now, each agency issues its own regulations
- Would be good to integrate and facilitate within one unit
• Specific focus could be to introduce a legal framework for the verification of remediation, mitigation and adaptation.
• Currently, each ministry issues resolutions: their own general determinations to be followed
• Vertical governmental structure:
- Municipal/provincial/ national
- Local decisions cannot contradict national or provincial decisions
- They don't have equivalent of state legislation
• CITMA decisions have to be observed all over the country
• Each province also has experts in each area, representing the Ministry in the region
• Same at municipal level
• There are civil and criminal penalties in the current environmental laws
• The environmental laws are meant to be preventative but there have been sanctions
• Ministry of Justice tends to have all fines and sanctions in one single act. And they do find efficiencies here, having fines and sanctions centralized within one act.
• There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments
• Almost everything needs an environmental license of some degree: Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical
• Mariel Port district being dealt with very firmly and strictly
• There are municipal/ provincial/national courts, including specialty courts like the environmental court
Posted on October 6, 2016
On Monday, the TVA announced that Watts Bar Unit 2 had successfully completed what is known as its final power ascension test. It is now producing 1,150 MW of power in pre-commercial operation. Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage. It’s been 20 years since the last nuclear facility came online in the United States.
In case anyone has forgotten, we’re trying to reduce GHG emissions in this country. Nuclear power – still – does not produce GHG emissions. Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs. According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.
If we want to be carbon-free in our energy production, that leaves solar and nuclear. Solar has a huge and growing role to play. But are we really going to turn our back on nuclear power as an option? As Robert Heinlein and Milton Friedman noted, TANSTAAFL.
Posted on October 5, 2016
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.
Posted on October 4, 2016
More about that title later, but first let me set the stage. On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor petitioners challenge EPA’s Clean Power Plan (CPP, the Plan, or the Rule). The Plan regulates carbon dioxide emissions from existing power plants under Clean Air Act (CAA) §111(d). I will refrain from addressing issues on which the trade and mainstream press have opined at length (e.g., the judges’ frustration at being asked to make policy decisions because Congress has failed to act and that participants – judges, lawyers, parties, reporters, the public – had to sit through almost 7 hours of argument in one day, in addition to the hours many spent waiting in line). Instead, I offer an ACOEL-centric tour, in non-chronological order, of the five “segments” of the September 27 argument.
Argument Segment #2: The Battle Between CAA §§112 and 111(d). Aficionados of the College’s 2014 white paper on EPA’s §111(d) regulatory authority will recall the difference of opinion over whether – under the 1990 Amendments to the CAA – EPA is prohibited from regulating power plants under CAA §111(d) if EPA already regulates power plants under CAA §112. Plan challengers point to the plain meaning of §111(d)(1)(A) as it appears in the U.S. Code. Plan supporters point to the existence of a “conforming amendment” to §111(d)(1)(A) found in the Statutes at Large but omitted from the U.S. Code, and they argue that EPA’s approach is a valid attempt to reconcile that amendment with the U.S. Code. After listening to the judges express frustration at not being able to satisfyingly reconcile the two versions, I recalled D.C. Circuit Judge Leventhal’s concurring opinion in Citizens to Save Spencer County v. EPA, in which he concluded that contradictory CAA provisions should be viewed as “countermanding.” Quoting from Eugene Field’s poem “The Duel” – about the fight between the gingham dog and the calico cat – he summed up the irreconcilable differences as follows: “The tension between the two animals culminates in these final lines of doggerel: ‘The truth about the cat and pup is this, They ate each other up.’ ”
Argument Segment #3: Constitutional Issues. If forced at knife-point to articulate the first portion of this argument, which began at 2:35 p.m., right after the lunch break, I would be unable to do so, other than to say that the word “commandeering” cropped up a lot. More interesting was how the second advocate for petitioners on this point – Professor Laurence Tribe of Constitutional law fame – was able to expand his separation-of-powers argument into a further analysis of issues argued during the morning session.
Argument Segments #4 and #5: Notice and Record-Based Issues. At the end of a very long day, the panel heard arguments on (a) whether EPA’s standards are “achievable” and whether parts of the Plan’s approach have been “adequately demonstrated” under §111; and (b) whether the final rule is so different from what was proposed that the public lacked notice and an opportunity to comment. Petitioners arguing the former point (the unachievability of program requirements) faced a weary panel, which pondered what the options for state and source relief would be if the Rule is upheld but later turns out to be a train wreck.
A colleague describes as follows the situation that gives rise to parties complaining that they had no notice of what a final rule would require because EPA’s proposal was so different: “EPA may propose an apple and finalize an orange. That’s OK; they’re both fruits. What EPA may not do (and what petitioners argue EPA has done here) is to propose an apple and finalize a pork chop.” Dick Stoll passionately argued – in his June 7, 2016 post for ACOEL – that previous 3-judge panels in the D.C. Circuit have not properly dealt with this lack-of-notice issue. Those panels refused challengers’ attempts to overturn pork chops, saying challengers of pork chops must first file administrative petitions for review under CAA §307(d)(7)(B) and then wait (for what could be years, if ever) for EPA to act on those petitions. Dick argued that the only way the previous 3-judge panel decisions would ever be overturned was by action of the entire court, sitting en banc. I cannot promise Dick the entire court will overturn the previous panels’ reading of §307(d)(7)(B), but I can say that Tom Lorenzen teed up the issue. When asked by Judge Griffith whether this argument appeared in petitioners’ briefs, Lorenzen said it did not because when petitioners wrote their briefs, the case was going to be heard by a 3-judge panel. But said Lorenzen, looking up at Judge Griffith, “Now we are here.” To which Judge Griffith replied, “And who else to ask but an en banc court?” “Exactly,” said Lorenzen.
Argument Segment #1: Core Legal Issues. Although I visit Argument Segment #1 last, the fate of the Clean Power Plan may well rest on how the panel addresses the issue raised at the very beginning of the day: whether or not the Plan is “transformative.” The Supreme Court, in UARG v. EPA, held that EPA cannot engage in a “transformative expansion” of its regulatory authority absent “clear congressional authorization” to do so. Petitioners argue that EPA’s Clean Power Plan amounts to a transformative expansion of EPA’s explicit regulatory authority and thus is illegal. EPA argues the program is not “transformative”; indeed, says EPA, the Rule is very similar to other CAA programs that the D.C. Circuit has upheld. So, is the Rule “business as usual” or is it “transformative”?
And so we return to the title of this post. I cannot predict what the D.C. Circuit will decide, but I think its determination will revolve around how the en banc panel answers the following question about the Clean Power Plan: Is You Is or Is You Ain’t Transformative? And that question prompts me to offer these final lines of doggerel in memory (and honor) of Judge Leventhal:
To predict the end here, it’s informative
To know if C-P-P is transformative.
To prevail in this Court,
One must prove that the sort
Of change caused by that Rule is enormative.
Posted on October 3, 2016
Starting October 1, 2016, Montgomery County, Maryland, requires that before a single family home is sold, it must be tested for radon. The law applies both to existing homes and newly constructed homes being sold for the first time. The law permits either the seller or buyer to perform the test, but both parties must receive a copy of the results, and the test must be performed using a County-approved device. The law does not require that action be taken, or any remediation be performed, regardless of the test results.
Radon hasn’t been in the news much recently, so here’s the CliffsNotes summary: radon is a naturally occurring, odorless and colorless gas that results from the decay of certain radioactive soils and rocks, including uranium and radium. Those substances are present in many areas of the country, including those that have never had a working uranium mine (such as Montgomery County, Maryland, which abuts Washington, DC). People exposed to high levels of radon are at a higher risk for lung cancer, especially if they also smoke. According to the National Cancer Institute’s website, radon is the second leading cause of lung cancer in the United States, and scientists estimate that 15,000 to 22,000 lung cancer deaths in the United States each year are related to radon.
Although the EPA has established guidance levels for radon--currently the agency suggests that people consider taking action if the level of radon in their home exceeds 4 picocuries per liter (pCi/L) of air--there are no enforceable federal radon law laws, and a quick review of state and local laws did not reveal any other jurisdictions that require testing or abatement. Some laws do require disclosure if the seller of a home has knowledge of the presence of radon. The Montgomery County mandatory testing law appears to be one of the first—if not the first--in the nation.
So why is Montgomery County a radon pioneer? The County is affluent, its population well educated, its politicians usually progressive, and as it is home to offices of agencies such as National Institutes of Health (NIH), and National Oceanographic and Atmospheric Administration (NOAA), it has been generally been receptive to environmental concerns. While the County is classified by the EPA as being located in an area with the highest potential for radon (compared to the rest of the country), radon has not been much in the local news.
At the Federal level, in 2015, a number of federal agencies and some private groups (including the American Lung Association) launched the National Radon Action Plan, a long range strategy with the goal (among others) of mitigating 5 million high radon homes by 2020. Still, in the country as a whole, publicity and awareness about radon appears relatively low, compared to other environmental health issues, such as the public water crisis in Flint, Michigan.
So: is the Montgomery County radon law a harbinger of things to come nationally, or it is an outlier? Take a deep breath, then take a guess.
Posted on September 30, 2016
The Environmental Protection Agency’s use of its Clean Water Act 404(c) authority has received a fair amount of attention of late. Congressional hearings, court cases, media attention and, of course, Erik Fjelstad’s recent ACOEL blog.
EPA used this authority in the Mingo Logan coal mining-related situation after a 404 permit had been issued and the permit-regulated dredge and fill activities had been underway for some time. There is no doubt, as Erik points out, that uncertainty on the durability of a permit for a continuing dredge or fill activity, whether it be for coal mining or something else, is not ideal.
That said, there should be a way to revisit a permit if the impact of a continuing dredge or fill activity is severe and was not fully appreciated at the time of permitting. This is one situation that Congress sought to address in 404(c), and, in my opinion, without it, the integrity of the Clean Water Act to achieve its purpose of protecting waters of the United States would be at risk. Indeed, without such authority, those 404(c) permits for ongoing activities would look a lot like property rights. At the same time, this is not a common situation: EPA has finalized only two post-permit 404(c) actions.
Most common, though still rare, is EPA’s use of 404(c) authority to place restrictions on a 404 permit while the U.S. Army Corps of Engineers is processing a 404 permit application. In this time window, permit applicants know that there is uncertainty regarding whether and how their projects might go forward. EPA initiated the 404(c) process 29 times during the Corps’ permitting process, resolved eighteen without need for final 404(c) action, and came to final 404(c) action eleven times.
The final time window in which EPA can exercise its 404(c) authority occurs before a landowner or project proponent applies for a 404 permit. In one case EPA was confronted with a landowner who had three parcels of land in the Florida Everglades which he was planning on filling. As a start, he applied to the Corps for a 404 permit for two of those parcels. Using its 404(c) authority, EPA precluded the applied-for fill activity on all three parcels. Additionally, in the Mingo Logan example first introduced above, EPA not only addressed the existing permits in its decision, but noted that no future and similar 404 permits should subsequently be issued for those waters.
There is also one pending 404(c) action covering this pre-permit time window. It concerns the headwaters of Bristol Bay, Alaska, where a mining company has explored the copper, gold and molybdenum “Pebble” ore deposit. This large ore deposit underlies the largest wild salmon fishery in the world, which has supported the subsistence activities and culture of local people for thousands of years, a commercial fishery for over 130 years (in which the 2 billionth fish was caught this summer!), and a “bucket list” sport fishery. In this instance, EPA has proposed salmon-protective restrictions for 404 permits related to the mining of this ore deposit.
Should EPA finalize the Bristol Bay-related 404(c) proposal, the mining company could expect to get a 404 permit only if it included EPA’s restrictions. In this context, the mining company would have certainty before it applies for a 404 permit as to the applicability of those restrictions to its fill activity. Some have complained that EPA is overreaching in proposing to exercise this authority in advance of a permit application. For my part, this seems like the most ideal time for all interested parties – local people and the mining company most of all – to find out about such restrictions.
For what it is further worth, EPA has revisited some of those final 404(c) actions to allow for some dredge and fill activities. And notably, eleven of the thirteen final 404(c) actions occurred during Republican administrations (Reagan – 9, Bush I – 1, Bush II – 1). So if politics was involved in the actions, it didn’t fit the stereotype.
Disclosure: Bessenyey & Van Tuyn, L.L.C. represents a client that supports EPA 404(c) action to protect Bristol Bay’s wild salmon from the proposed Pebble mine.
Posted on September 29, 2016
When RGGI was 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.