Surprising Solutions for COVID-19 Resource Challenges

Posted on March 30, 2020 by Mary Ellen Ternes

While we are adapting to work at home, zooming happy hours, and learning to live with other virtual interfaces, many of us are wondering what else we can do to help our communities. Currently health care professionals are screaming for personal protective equipment (PPE) and ventilators. You might help connect means with need.width=

For PPE, Forbes reported last week that a network of 3D printers have been engaged to print PPE including the N95 Mask and DIY Face Mask. See, “Calling All Makers with 3D Printers: Join Critical Mission to Make Face Masks and Shields for 2020 Healthcare Workers,” (Tuesday, March 24, 2020). Hewlett Packard (HP) has posted resources providing software “.STL” 3D printing design files for critical parts to help COVID-19 critical containment efforts (the “.STL” is the file extension created by the computer-aided design (CAD) program used in the 3D modeling process). These 3D “.STL” design files include the 3D printed FDA approved nasal swabs, 3D Printable Face Shield, Budmen Face Shield, Hands-Free 3D-Printed Door Opener and a Mask Adjuster Field Respirator. HP’s website even has a link to help find an HP 3D corporate printing partner. But there are other resources as well. Universities, particularly universities with engineering schools, should have 3D printers these days. These 3D printers should be up to the task of printing N95 masks meeting hospital specifications.

Also, as another example of creative problem solving, Vanderbilt University’s Mechanical Engineering Department and the Vanderbilt University Medical Center teamed up to design an open-source ventilator that can be assembled from locally available materials. This is clever, reliable, but simple technology, with the prototype assembled in three hours, allowing production of 100 ventilators in a single week. That’s 100 ventilators from locally available materials without having to first modify a GM assembly plant. Vanderbilt Mechanical Engineer Kevin Galloway says the goal is to “make the design publicly available so that anyone can replicate it.”  Thanks to the FDA for its March 24, 2020 guidance on FDA’s emergency authority to approve this type of equipment!

The Vanderbilt open-source ventilator design may be ready and publicly available soon, but 3D printers should be available now, particularly in urban areas and universities. While 3D printing resources are likely available, healthcare professionals may not be aware of them. Even if there is some general level of awareness, medical professionals are pretty busy and may need help accessing these resources. If your local healthcare professionals need help, consider reaching out and connecting them with your local university’s 3D printing resources, so the university can begin printing the N95 masks the medical professionals need. It may be enough to simply offer the suggestion.

After you’ve helped source your healthcare professionals with PPE, you could try to keep people from flushing wipes. Not only do wipes shut down wastewater treatment plants. Apparently, once people have used up their wipes, they begin flushing t-shirts. This will be a marathon folks.

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

ANNOUNCEMENT OF 2020 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 26, 2020 by JB Ruhl

The American College of Environmental Lawyers (“ACOEL”) announces its annual Stephen E. Herrmann Environmental Writing Award (“Herrmann Award”) for the 2019-20 academic year.  Stephen E. Herrmann is a distinguished, nationally recognized environmental lawyer. For some forty years, Mr. Herrmann has been a leader in the area of environmental law as a practitioner, teacher, and writer. Through this award, the ACOEL honors his leadership in environmental law and his role in the formation of the ACOEL.

The ACOEL is a professional association of distinguished lawyers who practice in the field of environmental law. ACOEL Fellows come from the private bar, not for profit organizations, government, and law schools. Membership is by invitation. Fellows are recognized by their peers as preeminent in their field. The ACOEL is dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice, and the development of environmental law at the state and federal levels. 

Eligibility: Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible annually to nominate one student-authored article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year. The article should be 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 article must have only one author, and the author may be a candidate for the J.D., LL.M., or S.J.D. degree.

Award: The Herrmann Award is a stipend of $3,500 to the author of the winning submission, whether an article, note, case comment, or essay, and $500 to the submitting law journal. The winner of the Herrmann Award will be invited to discuss his or her submission to the Fellows at the ACOEL Annual Meeting, which in 2020 will be held October 1-3 in Santa Fe, New Mexico. 

Judging Criteria: The prize will be awarded to the author of a student article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee. 

Submission Schedule and Guidelines: Please email one electronic copy of a submission to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, to Professor J.B. Ruhl at jb.ruhl@vanderbilt.edu. Entries must be received no later than June 12, 2020. Please include with your entry: (1) a cover letter or e-mail message stating the name of the submitting law journal, (2) email address(es) of author (with post-graduation email address if applicable), (3) year of author’s graduation or anticipated graduation, and (4) a statement that the submission was not written as part of paid employment. If you have questions, please contact J.B. Ruhl by email referencing the same subject to ensure a prompt response.  

MACT Follies

Posted on March 20, 2020 by Adam Babich

Data is in from EPA’s “work practice” requirement that petroleum refineries monitor ambient air for benzene concentrations around their fence lines. The regulations set an “action level” of 9 µg/m3 benzene, using benzene as a “surrogate” for fugitive hazardous air pollutants. The purpose? To “protect the health of the populations surrounding the facility, including minority and low-income populations.” EPA set the action level at a concentration that no refinery would exceed as long as its fugitive emissions estimates were “consistent with the level of fugitive emissions actually emitted.” In other words, if operators reported their fugitive emissions accurately, the benzene action level would be entirely theoretical.

Surprise! Benzene concentrations in air around 10 oil refineries blew the limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero and BPF Energy. Does this tell us something about using unverified industry estimates of emissions as a basis for protecting public health?

In theory, the regulatory structure that governs hazardous air pollutants—such as benzene from oil refineries—is brilliant. It includes elements to appeal to fans of both “technology-based” and “risk-based” regulation. Technology-based standards require that facilities reduce dangerous pollution as much as practical given the state of the art. These standards are relatively straightforward to set and enforce. There is no guarantee, however, that technology-based standards will protect people from all excessive risks. In contrast, risk-based standards are designed to eliminate unacceptable risks, ideally with a margin of safety. Confidence in risk-based regulation, however, requires a leap of faith that risk assessment techniques will generate accurate results. Risk assessments tend to rely on questionable estimates of the amounts of chemical pollutants that people breath, drink, or absorb, and on controversial assumptions about what a safe level of exposure would be. The fact that people are exposed to many chemicals leads to further uncertainty about cumulative and synergistic risks.

Originally, Congress designed the Clean Air Act’s hazardous air pollutant program to use risk-based standards. The Act required EPA to set emission standards that would protect public health with an ample margin of safety. For EPA, this mandate raised the prospect of banning some chemicals completely, at least when “the only level … which would appear to be absolutely protective of health is zero.” The agency essentially froze up. As of 1990, EPA had only promulgated eight hazardous air pollutant standards.

Congress responded in the 1990 Clean Air Act Amendments. At least initially, that law shifted the hazardous-air-pollutant program to rest on technology-based standards. The Act required EPA to determine maximum achievable control technology (MACT) for a list of 191 chemicals. Congress, however, did not stop there. To ensure that a MACT standard is actually protecting the public, the Act mandates an EPA “residual risk” analysis within six years of the promulgation of technology-based limits. This sounds like the best of both the technology-based and risk-based approaches—right?

But look at EPA’s historical approach to residual risk: In Natural Resource Defense Council v. EPA, the D.C. Circuit reviewed EPA’s 2006 analysis of risk from facilities that use or produce synthetic organic chemicals. EPA relied on the results of an American Chemistry Council questionnaire with a 44% response rate. Why? The agency explained, inter alia, that reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. EPA’s approach survived the appeal.

With respect to the 2015 petroleum refineries rule: Hats off to EPA for its innovative work-practice/fenceline-monitoring approach. Because the monitoring results illustrate the fallacy of continued reliance on industry estimates of fugitive emissions, the agency should now expand the fenceline-monitoring approach to other sectors.

The Bad, the Ugly and the Good; The Trump Administration Proposes Changes to the National Environmental Policy Act

Posted on March 13, 2020 by Peter Van Tuyn

Benjamin Franklin wrote that “an investment in knowledge always pays the best interest.”  Just over 200 years later, the United States passed a law that put that sentiment into practice in the context of federal government decision-making that may impact an increasingly stressed environment.  The National Environmental Policy Act (NEPA) marked a turning point in our nation’s relationship with the environment, and it is based on the idea that if we take the time to understand the full effects of our decisions before we make them, we tend to make better decisions.  The Trump administration recently proposed changes to the Council on Environmental Quality’s NEPA regulations that, like its proposed changes to Endangered Species Act regulations, would institutionalize ignorance in federal decision-making that impacts the environment.  These proposed changes are bad, their origins ugly, and yet, fifty years after NEPA was signed into law, they also offer the opportunity to reaffirm our commitment to the pursuit of knowledge and informed decision-making.  In that sense the administration’s attempt to gut NEPA may turn out to be good. 

NEPA requires federal agencies to conduct in-depth analyses of the potential environmental, including human, impacts of “major federal actions that significantly affecting […] the environment.”   Under NEPA, federal agencies analyze the potential impacts of actions that they directly undertake, permit or fund, in order to determine if the potential impacts are significant.  If they are, the agencies must deeply and holistically analyze those impacts, consider alternatives that may have lesser impacts, and run their preliminary analyses through a ground-truthing, often enlightening and sometimes humbling, public review and comment process.  Only once these steps are done can the federal agency make its final decision.  This investment results in final decisions that tend to eliminate or at least minimize the impact of a proposed project on the environment

In myriad ways, the administration’s proposed changes would undercut these fundamental attributes of NEPA.   The proposal includes an attempt to limit the types of federal actions that trigger NEPA, to exclude, for example, the analysis of projects that may require multiple non-federal permits or have only partial federal funding.  The proposal would eliminate the requirement that cumulative effects of a proposed project be analyzed, despite CEQ’s own acknowledgement of the significance of such effects.  Further, using the same sleight of hand from the administration’s ill-considered proposal to change Endangered Species Act regulations, the proposal would exclude climate change from cumulative effects that must be analyzed.  The proposal also eliminates the requirement for review of the indirect effects of an action, such as downstream pollution impacts from an industrial activity.  In another provision rife with potential conflicts of interest, corporations could prepare their own impact analyses, a job now accomplished by the more objective federal agencies (though it is often paid for by corporations).  And the proposal limits public involvement in both time and substance, undercutting NEPA’s critical check against government (and in the future possibly corporate) myopathy or hubris.   

Senator Henry Jackson, upon the introduction of NEPA legislation in Congress, stated the following

The survival of man, in a world in which decency and dignity are possible, is the basic reason for bringing man’s impact on his environment under informed and responsible control. 

The CEQ proposals, individually, and dare I say cumulatively, would gut this vision, and finalizing them would be bad for people and our environment.

Further, the origins of the CEQ proposal appear to be downright ugly.  As one example, the British oil company BP lobbied the Trump administration to weaken NEPA as way to “benefit BP’s operations in the US” and, as reported, “clear[] the way for major infrastructure projects to bypass checks.”   And then, just a short while after the administration revealed its NEPA proposal, BP announced a new initiative aimed at reducing its environmental impact, with its CEO stating that “[t]he world does have a carbon budget, and it is running out fast.”  So on the one hand BP privately lobbies the United States to undercut this most fundamental of environmental laws, and with the other hand it publicly claims it will take action to address the environmental impacts from its operations.  How dreadful.

There is a silver lining in this dark cloud, however.  It exists in the renewed public discussion about the importance of facts to government decision-making, including those that some see as so inconvenient that they would rather not know them.  The groundswell of public opinion that led to Republican President Richard Nixon signing NEPA into law in 1970 will, I predict, result in a reaffirmation of the importance of NEPA and other environmental laws which this administration has sought to roll back, and the rollbacks will themselves be rolled back.  And that is for the greater good.

Modern Day Alchemy: New Help for Treating Acid Mine Drainage

Posted on March 11, 2020 by Robert Uram

Two promising new technologies—recovery of rare earths from acid mine drainage (AMD and conversion of AMD treatment by-products to paint pigments are bringing new hope to remediating AMD polluted streams. These technologies are a kind of modern day alchemy—restoring streams that are orange and lifeless by turning pollution into economically valuable products and creating new jobs for local economies. The development of economically viable treatment processes is a game changer for AMD treatment with potentially huge benefits for national security, local economies, and restoration of the health of thousands of miles of now lifeless streams.

Rare Earth Recovery

West Virginia University’s Water Research Institute director, Paul Ziemkiewicz, PhD, has been at the forefront of researching AMD issues and developing AMD remediation techniques for decades. Dr. Ziemkewicz has developed a process that can extract rare earths from AMD.  As explained more fully in Rare Earths Funded, last fall he received a 5 million dollar grant from the Department of Energy to build a pilot plant in conjunction with the WVDEP that will extract rare earths while treating 500 gallons of AMD per minute. Dr. Ziemkewicz estimates that AMD flows could be the source of as much as 2200 tons of rare earths a year.

Rare earths are a critical component in many products including cell phones.  Rare Earths Funded explains that, “Rare earth metals consist of the 17 chemically similar elements at the bottom of the periodic table, such as cerium and scandium. Despite their name, they're not "rare" because they're often found in other minerals, within the earth's crust or, in this case, in coal and coal byproducts.” Most of the 20,000 tons of rare earths we use are imported, mainly from China. The initial plant will be located on Abrams Creek, a tributary to the North Branch of the Potomac River and will benefit at least 17 miles of stream.

Paint Pigments

Rural Action is a watershed organization that has been involved in restoring AMD damaged streams since 1991. Recently, they have partnered with Ohio University Professor Guy Riefler, and the Ohio Department of Natural Resources to develop a process that transforms iron from AMD into marketable paint pigments in a process called True Pigments, https://www.ohio.edu/news/2019/12/acid-mine-drainage-cleanup-plant-moves-closer-full-scale-thanks-3-5m-award. They have received a 3.5 million dollar grant from the OSMRE to partially fund the development of a treatment plant. The initial plant will treat a large discharge in the Sunday Creek watershed in Athens County, Ohio, that pollutes a seven-mile stretch of Sunday Creek with 2.2 million pounds of iron each year.

The True Pigments process treats polluted water, removing iron oxide, to yield a commercial grade of iron pigment, which can be used in paint production. The United States uses about 224,000 tons of paint pigment each year, most of which is imported from China.  The first True Pigments plant is anticipated to meet one percent of that supply.  Rural Action is still seeking an additional four million dollars needed to build the treatment facility.

In the past 25 years, with the active support of dozens of watershed groups like Rural Action and Friends of the Cheat River in West Virginia and state and federal agencies, hundreds of projects have been implemented and many hundred miles of AMD-polluted streams have been brought back to life. Formerly dead streams are now brimming with fish and other aquatic species. Local communities have the benefit of clean water.

The bulk of the funding for these restoration projects has come in the form of grants to State Abandoned Mine land programs from Surface Mining Control and Reclamation Act’s Abandoned Mined Land Fund and from EPA’s Clean Water Act Section 319 grant program. These funding sources are simply insufficient to address the vast scope of AMD problems (which are only a part of the overall need to address the health and safety and other environmental effects from abandoned coal mines).  In addition, new revenue to the Abandoned Mined Land fund is currently scheduled to expire in 2021.

The rare earth and True Pigment processes can help address the funding shortage by providing an additional, independent source of funding for AMD remediation. They will be important tools in the decades to come as the battle continues to restore more than 7000 miles of streams polluted by AMD from abandoned coal mines continues in Pennsylvania, West Virginia, Ohio, Virginia, Maryland, Kentucky, Tennessee and Alabama.

Little Bear Run, Pennsylvania (Before and after Treatment)

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Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Endangered Species: Migratory Bird Treaty Act -- Scope of Act Rule

Posted on March 9, 2020 by Richard Horder

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty Act, even when those deaths are foreseeable and preventable.

The Migratory Bird Treaty Act (the Act) is a century-old statute with a broad prohibition on the taking and killing of migratory birds by any means and in any manner. It was originally enacted to protect birds from over-hunting and poaching, but has been used to prosecute and fine companies for accidental bird deaths since the 1970s, particularly when such deaths were anticipatable and preventable through conservation efforts.

The U.S. Department of Interior (DOI) has flip-flopped on its interpretation of the Act in recent years. The Principal Deputy Solicitor concluded in early 2017 that the Act’s “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” See Solicitor's Opinion M-37041, “Incidental Take Prohibited Under the Migratory Bird Treaty Act,” issued January 10, 2017. However, that regulation was withdrawn less than a month later as the Trump administration evaluated construction of the Keystone XL Pipeline. President Trump issued a memorandum on January 24, 2017, which called for an immediate review of requests for approvals related to the Keystone XL Pipeline, including requests under the USFWS’s regulations implementing the Migratory Bird Treaty Act. In December 2017, the DOI repealed and replaced the earlier regulation with one that clearly states: “Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” See Solicitor’s Opinion M-37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” issued December 22, 2017. The Proposed Rule published this February is an effort to codify this regulatory change.

Businesses and local governments now face no pressure from regulators to take precautionary measures to protect birds, and in some situations, have even been discouraged from doing so. For example, the state of Virginia underwent a major bridge and tunnel expansion in Chesapeake Bay in 2018, which was inevitably going to destroy the nesting grounds of 25,000 seabirds. While the state considered developing an artificial island as a safe haven for the birds, the Trump administration stepped in and told the state that while it “appreciates” the state’s efforts, the shift in policy now makes such conservation measures “purely voluntary.”

The agency’s emphasis on industry over conservation comes at a time when habitat loss, pesticide exposure, and general climate change threats to bird populations are at an all-time high. In fact, research shows that over the past half-century, North America has lost more than a quarter of its entire bird population— about 3 billion birds.

Though conservation efforts may seem burdensome, they provide unexpected benefits to the national economy. A 2016 study conducted by USFWS, the same agency that issued the Proposed Rule, found that more than 45 million people watch birds, joining other wildlife watchers in contributing a total of $80 billion to the U.S. economy. The importance of healthy bird populations will hopefully be addressed in public comments, which will be accepted until March 19. Comments that have been submitted to date can be found here.

Cleaning Up Nature: The Swift Creek Conundrum

Posted on February 28, 2020 by Andy Fitz

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Dredged spoils along the Swift Creek channel; landslide visible at upper right (author photo).

Swift Creek. The name evokes a clear, fast-moving mountain stream. 

The Swift Creek at issue, however, is hardly clear or swift for most of its length.  A massive, mile-long landslide hangs at the head of its southern fork, in the foothills of Washington’s North Cascades. The landslide has exposed a weak bed of serpentine rock, which weathers quickly into clay and delivers a heavy load of sediment to the creek—some 30,000 to 150,000 cubic yards annually. When the creek reaches the Nooksack Valley below, much of this material settles, clogging the channel, turning the creek sluggish, and creating a constant risk of flooding each winter.

In an effort to protect farms and rural homes, the affected local government, Whatcom County, began periodically dredging Swift Creek in the late 1950s, piling the dredged spoils along the channel. In 1971, the U.S. Army Corps of Engineers undertook its own large-scale dredging of the channel and further shaped the dredged spoils into levees.

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Swift Creek in May 2016 (author photo).

In 2006, however, this work largely came to a halt. In its place, a regulatory conundrum emerged.

Since at least the late 1970s, Swift Creek’s sediment has been known to contain a naturally occurring chrysotile form of asbestos derived from the serpentine bedrock. In 2006, the U.S. Environmental Protection Agency (EPA) sampled the dredged spoils and completed an activity-based risk assessment. That assessment, and a subsequent assessment in 2011, concluded that asbestos levels in dust generated from the sediment pose a human health threat, with the lifetime excess cancer risk approaching 8 in 1,000 under the most intensive exposure scenario. Making matters worse, naturally elevated levels of metals in the sediment retard plant growth, making the dredged spoils an attractive target for local four-wheelers and dirt-bike riders.

Left wholly to nature, there is no environmental liability associated with Swift Creek’s sediment: the “potentially responsible” entity is Mother Earth. And there is no clear environmental authority under which to address threats associated with the sediment. Under Section 104(a)(3)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), EPA cannot respond to a “naturally occurring substance . . . from a location where it is naturally found.” Likewise, under Washington’s Model Toxics Control Act (MTCA), there must be intentional or unintentional “entry” of a hazardous substance “into” the environment in order to have an actionable release. RCW 70.105D.020(32).

Once humans move and reconfigure the sediment, however, potential liability
may arise from those activities. See, e.g., United States v. W.R. Grace & Co.—Conn., 280 F.  Supp. 2d 1149, 1155, 1175 (D. Mont. 2003). Therein lies the conundrum: absent human intervention, there can be unabated exposure to naturally occurring asbestos from the creek channel and flood deposits, but no authority to address the situation under cleanup laws. But any human intervention to abate that exposure is discouraged by the specter of liability under those very same cleanup laws.

For more than ten years, this conundrum stymied efforts to address Swift Creek sediment, despite continued discussion among EPA, the Washington Department of Ecology, and Whatcom County. Neither EPA nor Ecology had the authority, mandate, or resources to address what at its heart is a civil engineering effort. And the entity with the clearest public works mandate—the County—did not want to assume full ownership of a situation it did not have the resources to address by itself, with potentially open-ended liability. This concern was heightened by EPA threats of cost recovery and enforcement under CERCLA.

In 2013, Whatcom County did complete an alternatives assessment and Environmental Impact Statement (EIS) for addressing Swift Creek sediment. The preferred alternative was a series of actions to capture and manage sediment in the upper reaches of Swift Creek, before it reaches the valley floor, including sediment traps, sedimentation basins, periodic dredging of those features, and disposal of the sediment in a constructed repository. The historic dredged spoils lining Swift Creek would also be armored and covered with clean soil.

Two key developments broke the Swift Creek stalemate. First, the Department of Ecology and the Washington State Attorney General’s Office reached agreement with the County on the terms of a proposed consent decree to be lodged under MTCA. With no traditional “site” to clean up, the basis for the decree is creative. It is premised on MTCA’s authority to prevent “threatened releases”—here, releases that would inevitably arise as local government and residents are forced to deal with flood-distributed sediment, but for preventive actions. The covenant not to sue is thus prospective, providing liability protection for the County within the specific areas where sediment will be managed under the decree, for activities to be undertaken by the County under a “Swift Creek Action Plan” that largely incorporates the preferred alternative from the 2013 EIS. The County is responsible for the operations and maintenance costs associated with this sediment management, up to an annual cap.

Second, bolstered by this provisional agreement, Washington’s Legislature appropriated the first installment of capital funding for the project, totaling $6.4 million. With initial construction funds in place, the parties moved to enter the decree, which became effective on December 6, 2019. Based on the plan and decree, EPA has indicated it does not intend to exercise CERCLA authority at the “site,” such as it is.

There are challenges ahead. Full construction of the engineering controls is still dependent on further state capital appropriations, with an estimated remaining cost of $11 million. And it remains to be seen whether the engineering controls are a long-term solution or only a temporary stopgap. Based on a creative application of cleanup law, however, the Swift Creek conundrum appears to have been broken.

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Conceptual layout of engineering controls to be constructed under the consent decree (sediment repository not shown). Source: Swift Creek Action Plan, Washington State Department of Ecology (December 2019).

NEPA at 50: What Lies Ahead?

Posted on February 19, 2020 by Scott Fulton

It seems to be the season for 50th anniversaries. The National Environmental Policy Act, signed into law by President Nixon on January 1, 1970, is now a half-century old. The first day of a new decade was no doubt seen as a symbolic moment for NEPA’s signing, but I wonder whether the statute’s framers could have envisioned the full reach of that symbolic step.

NEPA signaled the beginning of the modern environment era and was the first of many actions that would redefine our orientation toward the environment and attempt to march the country toward a more sustainable future. It also set an important marker for the rest of the world, with environmental impact assessment becoming one of the most imitated and enduring features of the global environmental legal architecture.

Now, 50 years later, change is in the air, as the Administration considers a rather sweeping rewrite of NEPA’s implementing regulations, the comment period for which closes March 10, 2020. The proposed rule may at first blush look like a walk through traditional NEPA terrain. Because it is set out as a wholly revised chapter, it takes a good deal of work to discern where language has been changed, moved, or excised. To that end, the Environmental Law Institute released the Practitioners’ Guide to the Proposed NEPA Regulations to assist commenters and others in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts. On close inspection, the changes are dramatic and potentially far-reaching.  Here are some that in my view deserves a close and searching look.

Importantly, the term “cumulative” has been excised from every point in the proposed regulations, except for the addition of a sentence stating, “Analysis of cumulative effects is not required.” Similarly, categorical exclusions would no longer need to be evaluated for cumulative impacts. Under the proposal, cumulative and indirect impacts are not to be used in determining the threshold of significance (whether an EIS is needed), and are no longer to be analyzed in EAs or EISs.

While climate change is never mentioned in the proposal, the restriction on cumulative or indirect impacts has obvious significance in that context. But cumulative impact concerns under NEPA predated worries about climate change. How would these limitations affect consideration of environmental justice issues? How would they affect watershed, air shed, and landscape protection considerations?

Further limitations on the scope of review will prevent agencies from considering alternatives not within their own jurisdiction. The rule would interpret DOT v. Public Citizen to prohibit agencies from analyzing or considering “any effects that the agency has no authority to prevent.”

The proposed rule would allow applicants themselves to prepare environmental impact statements and assessments (under guidelines from federal officials and ultimately signed by a federal official); would no longer require the lead agency to select the contractors performing EISs and EAs; and would remove existing conflict-of-interest requirements for contractors.

In a novel procedural innovation, the proposed rule would require the lead federal agency to issue a finding itself at the end of the NEPA process that it has adequately considered all “alternatives, information, and analyses submitted by public commenters” and states that this finding and “certification” would create a “conclusive presumption” that is binding on the courts.

The proposal encourages federal agencies to require that commenters and public opponents of an action post a financial bond for a stay if they contest a final agency decision.

Finally, the proposal would expressly preempt existing and future agency NEPA requirements, thus effectively setting a ceiling on federal environmental review: “Agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these regulations.”

There are many other changes scattered across the proposed rule. Some of these are important alterations intended to tighten time lines and increase interagency coordination and accountability. At bottom, if promulgated in this form, the proposed rule may well serve to exclude from NEPA review altogether some actions that would have heretofore gone through the process, as well as eliminate many environmental effects that agencies typically analyze.

In this sense, the proposal stands in fairly sharp contrast to prior reform efforts aimed at making NEPA review function more efficiently and effectively. This much is clear. What emerges from this proposal may well determine NEPA’s fate and role in the next 50 years.

CORONAVIRUS, We Thought We Knew Ye! The Wuhan Potential Pandemic

Posted on February 18, 2020 by Nicholas Robinson

The novel Coronavirus (2019-nCoV) has infected more than 50,000 and killed more than 1,000 persons across China. It has spread in France and England, and elsewhere. We knew “it“ was coming, but naively – if imprudently – we repeatedly hope to dodge the bullet. “It” is the class of viruses exchanged across species, a phenomenon known as zoonosis. These viruses inhabit humans and other vertebrate animals alike and each species can infect the other. Public health officials fear 2019-nCoV may spread like the pandemic of “Spanish influenza” in 1918.

It is virtually certain that humans contracted this coronavirus from another mammal, a Pangolin. Across China, wild animals sold in live meat markets convey viruses, having themselves been infected by other species like mosquitos or bats. Pangolins are an endangered species, still prized for their tasty meat and the supposed medicinal attributes of their scales in China and Southeast Asia. Similar patterns exist everywhere. Viruses, transmitted by bats, mosquitos, or other disease vectors, infect vertebrate mammals. In Africa, bush meat of monkeys, rats, fruit bats, and other animals are often infected with viruses from the adjacent forests. In South America, close human association with dogs and cattle brings on leptospirosis, which causes 1.3 million cases per year with some 58,000 deaths.

Such viruses “plague” us. The World Health Organization estimates that 61% of human diseases are zoonotic in origin and 75% of new diseases discovered in the last decade are zoonotic.  Examples of zoonotic diseases include rabies, anthrax, Hantavirus, tularemia, tuberculosis, HIV-1 and 2/AIDS, West Nile virus, Bubonic plague, salmonellosis, Rocky Mountain spotted fever, MERS and Lyme disease.

What would we give as a society today to have averted HIV/AIDS, whose origins are traced to chimpanzees in Cameroon?  Lifetime medical care for an HIV/AIDs patient exceeds $360,000, and more than one million people live with HIV in the USA alone.  International cooperation prevented widening epidemic of Ebola, which ravaged Sierra Leone, Guinea and Liberia in 2014, at a cost of some $53 billion. The Obama Administration invested $2.34 billion in successfully helping to contain Ebola. Severe Acute Respiratory Syndrome (SARS) emerged much as has the 2019-nCoV, in the live meat markets of China. In 2003, meat from a mammal, the Masked Palm Civet, sold in markets in Guangdong, China, was found to hold the SARS coronavirus. SARS spread to 29 countries, where 8,096 people got SARS and 774 of them died; it resulted in costs estimated at $40 billion

All zoonotic viruses leave the animal kingdom to infect humans.  Had society maintained the ecological health of wild forests, we might have prevented the viruses from leaving the animal kingdom. It is essential to confine these viruses to their wild habitats. Doing so is the job of park managers and nature conservation agencies. Once wild animals are taken into the human world, or domesticated, they become the charge of veterinarians and animal welfare agencies. Think of swine flu and avian influenza. Where endangered species are poached and sold, like Asia’s Pangolins or Africa’s Great Apes, there is an urgent need to educate the public and rigorously enforce unlawful trade in animals. Clear phytosanitary standards, with routine inspections, are needed. Article XX of the General Agreement on Tariffs and trade (GATT) authorizes such prudent controls on trade to avert diseases. Endangered species laws need to be rigorously enforced.     

The economic tsunamis of zoonotic diseases, with their tragic losses of life, cannot be prevented by public health programs alone. Governments invest massively in finding cures to the diseases, and spend a pittance to preventing the disease vectors from infecting humans. Containing zoonotic viruses requires strengthening nature conservation and animal welfare programs. It is cost effective to keep the viruses in their natural reservoirs, in the forests, away from people. As Ben Franklin advised us in 1736, “An ounce of prevention is worth a pound of cure.”

Environmental law can address this imbalance. Zoonosis should be expressly considered in environmental impact assessment. Priority can be given to the IUCN World Commission on Protected Areas or the only international organization focused on cooperation between public health, nature conservation and veterinary science:  the World Organization for Animal Health/OIE (see https://www.oie.int/fileadmin/Home/eng/Our_scientific_expertise/docs/pdf/Globalcooperation_oie1.pdf). Environmental Law can encourage inter-agency cooperation on human/animal health. The Wildlife Conservation Society has long promoted “One World, One Health” programs. Until governments recognize that ecological integrity is as important as national security, public health crises will recur.

Locally, reform of building codes can prevent transmission of such viruses. “Healthy buildings,” with ventilation and filtration systems of public spaces, can be retrofitted to reduce risk of airborne exposures of communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020). Governments need to prioritize efforts to sustain the ecological integrity of our local and regional parks and “wild” areas, to be vigilant to detect diseases, like West Nile virus, as viruses appear in our landscapes.

The “next’ pandemic is upon us.

Plastic Planet

Posted on February 12, 2020 by Mary Ellen Ternes

Plastic is a remarkable material that has forever changed our societal expectations regarding the quality of our food, water, health care, safety and products that improve our lives every day. But all good things remain good within limits. For many years now there has been growing recognition that, because plastic does not degrade like natural materials, it is now present everywhere and our approach to plastic must change. As a result, we’ve seen China’s 2018 rejection of plastic shipments, the May 2019 Basel Amendments to list plastic waste, and while industry, DOE and NGOs have tried to get ahead of the issue, a recent global wave of single-use plastic bans.

We know that we need to turn off the tap of plastic waste leaking into the environment, both macro and micro plastic, through “reduce, reuse and recycle,” and then turn to mopping up the floor. First on the list for turning off the tap: single use plastics. They are ubiquitous in daily life, yet generally are not reused and likely, as a result, represent most of the ocean waste we see. Hence, the single-use plastic bans, though some sector stakeholders, like healthcare, may figure out how to capture post-single use plastics in sector-specific circular economies (managing material from cradle-to-cradle as in closed-loop recycling).

Other sources of environmental plastic are tougher to address, especially microplastics. Microplastics can be created when macroplastics fracture into smaller pieces, so all macroplastics potentially have a future as microplastic. However, the majority of microplastic appears to come from ubiquitous consumer products, such as shreds from tire wear, microfibers from polyester, rayon and other fabrics, and particles from latex and other coatings. The only way to reduce microplastics from these sources may be to reduce plastic in the source itself.

Moving on to recycling, it is evident that, even after collection, cleaning and sorting, recycling is a challenge. Single types of plastic are themselves heterogenous. For example, polyethylene terephthalate (PET) used for a soda bottle is quite different than the PET used for a take-out container. And then there are the additives. Post-use plastic’s variability would render it “inherently waste-like” pursuant to EPA’s “legitimate recycling” factors in Sylvia Lowrance’s 1989 RCRA guidance. Like most inherently waste-like material, post-use plastic currently lacks sufficient value to reliably support management as a product sufficient to keep it out of the environment. Turning off the tap will therefore necessitate different approaches for manufacturing and use, including potential reformulation of current products within defined circular economies to both mitigate sources, increase homogeneity and boost the value of post-use plastic to support financially viable recycling.

Turning to mopping up our floor, our environmental mitigation and remediation tools in the United States are generally triggered by acute or chronic chemical toxicity; plastic is generally inert and not recognized as posing such a threat. Potential imperfect approaches to addressing plastic pollution now, as simple categories of solid material, include: PM2.5 under the Clean Air Act (CAA); turbidity under the Safe Drinking Water Act (SDWA); total suspended solids or other pollutants under the Clean Water Act (CWA); solid waste under Solid Waste Disposal Act (SWDA) (though litter is generally left to municipalities); and as a source of hazardous substances, if not a hazardous substance itself, under the Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA). The Toxic Substances Control Act (TSCA) and the European Union’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) generally exempt plastics due to their high molecular weight and inert nature.

New policy and legal authority may be helpful, but we still have work to do in hazard assessment. Although generally chemically inert, plastics may still pose physical risk. Evaluating physical toxicity sufficient to define a reference dose, or exposure assessments similar to asbestos, may allow application of traditional risk-based approaches as we would other environmental pollutants. Progress is being made in this direction. In February, the National Academy of Sciences gathered international experts to discuss microplastics, potential effects on human health, options for mitigation, and ways to leverage new approaches to inform public health and policy decisions. As we learned, plastics break down into unique shapes, based on their molecular structure and use, which may pose different hazards based on their shape and size. Further research will allow development of approaches that can be used to develop action thresholds and reassure the public regarding acceptable concentrations. Defining the possible scope of potential harm, including when plastic may eventually break down completely and become “mineralized,” will assist in applying existing authority as well as developing new authority.

In addition to defining risk, there have been increasing commitments toward better defined circular plastic supply chains and technological innovation in plastic recycling (including electrifying plastic into instant graphene, which raises its own issues), as well as project funding and other federal and state legislative responses to the issue of plastic waste including public education. The push and pull of progress continues on all fronts, with consumer activism expediting the timeline.

PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

To some, it’s outrageous that PFAS (Per- and Polyflouoroalkyl substances) are omnipresent in the environment, in biota, in drinking water, and in a number of past and present products.  All PFAS are highly dangerous some claim (or at least presumptively so), based on data on a limited number of the thousands of compounds. It is therefore outrageous that some of the compounds are likely present in a vast majority of Americans.

Bypassing issues of dose, cause and effect, the conclusion is that all PFAS are dangerous and unwanted.  Throw in the allegations that companies knew of hazards before phasing out manufacturing or use (of some of the chemicals) and you have a perfect storm for outrage. Ban them all! Contrary views?  The activists’ answer is that the experts have been bought off or are misleading, so public policy should be based on public opinion, right? And what politician in his or her right mind would ignore public outrage?

The fear of many, and the public in general, is undeniable. The presence of a chemical in the human body, without more information, is information of unknown significance.  For most PFAS, since we don’t have data.  Scientists are struggling currently with whether there is any basis for toxicity grouping or classes of PFAS.  For most PFAS, this is “fear of the unknown,” borne of ignorance, but heightened by uncertainty. 

Public outrage doesn’t have to be, and often isn’t, correlated to actual harm or evidence of likelihood of harm.  The media and press don’t cause outrage, but they can and do amplify it.  Add activists who are media savvy and you get the current PFAS crisis.

Here’s an equation (thanks in part to Dr. Peter Sandman):  Risk = (perceived) Hazard + Outrage.  While experienced environmental law practitioners, toxicologists, and regulators know that Risk = Toxicity X Exposure, that is not the calculus of the public.  To the public, the risk equation is fueled by outrage. To be sure, there are data for some PFAS compounds that justify concerns, but I question whether it justifies the hysteria we see.

Believe it or not, public outrage -- whether justified or not -- is never a substitute for a scientific data, or for risk assessment, or for protective environmental policy.  Lack of data and fear of the unknown don’t inform thoughtful decision making. Yet public fear is undeniable, and legislators and regulators are feeling the heat.

To quote others:  Now is the time for facts, not fear. 

Why not work on better risk communication?  The basic tools include:

  • Understanding and acknowledging the outrage
  • Acknowledging the legitimate concerns
  • Avoiding extremes
  • Sticking rigidly to the facts
  • Recognizing and reminding others that actions or decisions without a scientific and rational basis, or that can’t be implemented do more harm than good in the medium and long run, and likely to be successfully challenged in court
  • Being realistic – there are funding limitations, both public and private
  • Remembering we live in a federal system that has independent actors capable of moving at different speeds
  • If testing is to be required, making sure that we can explain to the public and the regulated community the meaning of the environmental test data produced

While I understand some of the EPA’s 2019 PFAS Listening Sessions helped in some communities, better risk communication must be an ongoing task.

Finally, what’s the role an environmental lawyer can play?  While we are advocates and counselors, the experience we bring must contribute to better decisions.  Not the least of these are the skills and lessons from analyzing environmental problems, making sure that there is credible scientific evidence to justify action, and identifying alternatives that efficiently address health and environmental risks without unnecessary costs or other adverse impacts.

We need thoughtful communication and the best information available as we work through the current PFAS regulatory issues.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

Posted on February 5, 2020 by Jonathan Ettinger

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud, Google Drive, Box.com, DropBox, and Amazon actually consume lots of electricity even when they are just sitting idle.  Apparently the servers, which are energy hogs because they require lots of cooling, are actively managed on a regular basis to prevent loss or degradation of data, regardless of whether we are accessing the information or not.

According to one source, uploading data and storing it in the cloud consumes 3-7 kWh per gigabyte, roughly a million times more than storing it on your hard drive.  So storing 100 gigabytes of data in the cloud for one year (maybe a few thousand photos or a few hours of video) would result in the emission of roughly 0.2 tons of CO2

I am not suggesting we all stop using the cloud for storage.  After all, it is convenient, largely safe, and probably more environmentally sustainable than paper file storage.  It’s just that it isn’t carbon neutral.  Everything has trade-offs.  For me, I will keep uploading videos of my dogs playing (turn on the sound) – primarily because I am not sure how to stop it – and sending links to classic rock songs.

Shaping the Future of EPA

Posted on January 29, 2020 by Ridgway Hall

What should EPA and environmental protection look like in the future? A report issued by American University’s Center for Environmental Policy in December, entitled Moving Forward: Future Directions for EPA and Environmental Protection, provides 6 principal recommendations.

The report was written by John Reeder, Executive in Residence at the Center and a 30-year veteran of EPA, based on a conference that was cosponsored last April by AU’s School of Public Affairs (where the Center is housed), its law school and ELI, with a talented and diverse field of speakers including 4 former EPA Administrators.  It was also informed by 5 focus group reports prepared by the EPA Alumni Association, which helped organize the conference.

At ACOEL’s October meeting, Dan Esty issued a challenge to us to undertake a multi-year project to transform our environmental protection framework from the existing “command and control” regulations to one using primarily market-based incentives. On November 21, I posted a blog article titled Dan Esty’s Challenge to ACOEL: Let’s Do It. I pointed out that 25 years ago a wave of thoughtful studies recommended moving away from command and control regulation towards systems featuring multimedia permitting, ecosystem-wide approaches, financial incentives, marketable pollution rights and other innovations, but that very little had come of these.

So what’s changed? Among other things, there appears to be an increasing recognition that when a company acts because it is in its financial interest to do so rather than because a regulation is requiring it to do so, it is more economically efficient (the transaction costs are lower) and the managers are likely to feel better about the fact that they were free to make the choice. Shifting the emphasis in the implementation of environmental laws in this way can yield better outcomes within the underlying regulatory framework. This translates to political acceptance by both industry and the public. In addition, thanks in part to the internet, we have more scientific, technical and economic data regarding environmental issues, we have far more sophisticated methods of using and transmitting that data, and we have more sophisticated abilities to monitor actions and impacts.

Furthermore, the nature of our environmental challenges has expanded to include climate change, energy policies, loss of biodiversity, agricultural practices, water availability and distribution (not just quality), land use, and the environmental behavior and effects of manufacturing wastes like endocrine disruptors and microplastics. Many of these issues must be addressed by multiple federal departments or agencies (Interior, Energy, Agriculture, NOAA  and the Corps of Engineers to name a few). Some, like climate change and the protection of oceans and fisheries, must be addressed on an international basis. Most of these issues cannot be effectively addressed through regulatory controls alone. Finally, issues relating to allocation of costs, environmental justice and public acceptance have become more prominent.

The challenges facing EPA are of two types: 1) threats to the environment or human health, and 2) “system” challenges, reflecting in large part the statutory framework under which EPA addresses those threats. The AU report focuses on EPA’s institutional capacity rather than on  specific policy proposals. The 6 major recommendations are as follows:

  1. Pursue State of the Art Science Capability. EPA will need to keep abreast of rapidly emerging scientific challenges, manage data from numerous sources, and reestablish technical assistance as part of its core mission. Sound science must be a top priority.
  2. Renew the “Environmental Protection Enterprise”. This involves striking the right balance in its relationships with states and tribes between maintaining a level playing field and encouraging flexibility and innovation, partnering with private sector entities, and focusing on outcomes rather than just regulatory compliance. It includes working with other federal agencies and encouraging regional approaches involving multiple layers of government and the private sector (“cooperative federalism”), such as the Great Lakes and Chesapeake Bay initiatives.
  3. Strengthen International Cooperation. Because many of our biggest environmental challenges are global, like climate change and protection of ocean resources, EPA should work with the State Department and other relevant agencies to strengthen relationships with other countries and international organizations to share information and address these issues on an international scale.
  4. Harness the Power of Consumer Choice and the Marketplace.The use of pollution pricing, cap and trade programs and other market-based incentives should be promoted, with existing regulations largely left in place as a backstop. EPA should continue to encourage corporate sustainability programs, public information campaigns like the Toxic Release Inventory and ecolabeling.  
  5. Advance a Forward-looking Regulatory System. EPA’s regulatory programs should anticipate rapid technological change and make use of vastly expanding monitoring and reporting technologies. They should emphasize transparency and public accountability, help reduce the “overhead” costs of regulations, and include market-based approaches wherever possible.
  6. Engage the Public to Raise Awareness About the Environment. EPA should promote public awareness and education from elementary school through college on environmental issues, challenges and opportunities. Its regional offices should work with state and local entities to make scientific information and teaching materials and online instruction available.

There is a lot more in this report than I can summarize here. It is thoughtful and important reading for anyone interested in the future direction of EPA and environmental protection.

A Story of Homecoming: Kisor Helps Auer Find Its Way Back To Seminole Rock

Posted on January 28, 2020 by Sanne Knudsen

Shortly before the new year, when the holidays were in full swing, Kisor v. Wilkie celebrated its half-birthday.  That was quick.  Just six months ago – when short winter days were long summer nights, when peppermint mochas were cold beers served in frosted mugs – the U.S. Supreme Court decided by the narrowest of margins to spare the life of Auer deference, the strong form of deference that for decades had been routinely given to federal agencies for interpretations of their own ambiguous regulations.  In a splintered decision, Justice Kagan penned a decision in Kisor in which Justices Ginsburg, Breyer, and Sotomayor joined. Those four agreed that Auer deference is theoretically justified, that it does not undermine the APA or the Constitution, and that principles of stare decisis counsel for judicial restraint.

Notably, Justice Kagan failed to capture a majority on her justifications for Auer deference. This is important.  Before Kisor, the Supreme Court had never really provided a firm theoretical rationale for Auer deference.  After Kisor, the justifications for Auer deference are even more suspect given that only four Justices even agreed that the doctrine was a theoretically defensible idea.  Given those shaky foundations, it is not surprising that in order to save Auer, in order to earn the critical fifth vote from Chief Justice Roberts, Justice Kagan had to weaken it. She had to articulate a version of Auer that is more cabined in its scope and restrained in its application than has been common practice over the past few decades. In particular, she admonished lower courts to engage in a rigorous and independent review of an allegedly ambiguous agency regulation to determine if it is genuinely as advertised. She describes a framework for review that looks very much like the Chevron doctrine, only with more bite and with a warning label: this is a test that an agency can fail.

After six months, in a time of reflection and resolutions, we can pause from the heft of eggnog and the specter of twinkle lights to ask whether Kisor has made a discernible impact on the landscape of administrative law.  In doing so, we might observe two things: First, there has been an impact. Second, the new Auer is not really new at all.  In order to save Auer, Justice Kagan was not weakening it.  Rather, she was simply helping Auer return to its roots, reminding courts to engage in the rigorous, independent-style review that was commonplace at the time of its creation.  If we are prone to the sentimentality of the season, we might say that Kisor is a story of homecoming.

A bit of history might help us gain some perspective: Auer deference originated not with the 1997 case of Auer v. Robbins, but a half-century earlier with the 1946 case of Bowles v. Seminole Rock & Sand Co.  It began as a doctrine with significant constraints, at a vastly different moment in administrative law under in highly specific circumstances of the post-war era. To that end, it was applied only in the price control context and only to official agency interpretations. And notably, courts applying the doctrine took a heavy hand in examining the text of the regulation—often deferring only after engaging in an independent review of the regulatory text. In other words, the rigorous review that Kisor articulates follows closely the pattern of how courts approached Seminole Rock deference in the early years.

Over the course of thirty years, Seminole Rock became completely divorced from these modest and restrained origins. By the 1970s, it was transformed; it was mechanically applied and reflexively treated as a constraint upon the careful inquiry that one might ordinarily expect of courts engaged in textual analysis. With the transformation of both the doctrine and the administrative state, discomfort with the doctrine grew – first among scholars like John Manning in the mid-1990s and then in the Supreme Court jurisprudence about a decade ago. Eventually, we arrived at the doorstep of Kisor and now appear to have returned nearly full circle to Seminole Rock.

Early signs indicate that Kisor has been more than lip service. Ordinarily, six months is hardly enough time for a change like this to take root in the jurisprudence.  Kisor, however, has already been cited in over 80 judicial opinions.  Influential jurisdictions like the U.S. District Court for the District of Columbia have taken Kisor to heart and are engaging in rigorous textual review of agency regulations before deciding whether deference is warranted.  See, e.g., Stand Up for California! v. DOI  (emphasizing the courts obligation under Kisor to “exhaust[] all the traditional tools of construction to determine the meaning of the regulation”); cf. Am. Tunaboat Ass'n v. Ross (deferring only after engaging in rigorous review). The D.C. Circuit has even cited Kisor for the proposition that Chevron deference should not be “reflexively” given to agency interpretations. Mozilla Corp. v. FCC, (“[W]e do not apply Chevron reflexively, and we find ambiguity only after exhausting ordinary tools of the judicial craft.”).

Other circuits have similarly indicated that Auer deference is to be earned, not afforded as a matter of course. The Ninth Circuit, for example, declined to defer to the Department of Energy in a case alleging a violation of the Energy Policy and Conservation Act's error-correction rule. NRDC v. Perry (engaging in rigorous review of the regulatory language and declining to defer because “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary interpretation.”).  See also Romero v. Barr (citing Kisor to describe the demanding Auer framework, engaging in independent textual analysis, and declining to defer to the agency after finding the regulation unambiguous).

Of course, as with the application of other deference doctrines, the outcomes of cases involving Kisor review will vary greatly.  As the body of cases available for analysis grows, empiricists will undoubtedly have ample data to begin exploring the particular contours of Kisor’s impacts on judicial deference.  For now, however, a bird’s eye view of the early cases indicates that Auer is homeward bound.

The historical analysis provided in this post is based on the work of Sanne H. Knudsen & Amy J. Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L.J. 47 (2015). 

Sanne Knudsen is the Stimson Bullitt Endowed Professor of Environmental Law at the University of Washington.

The PFAS Battle Heats Up In The Northeast?

Posted on January 27, 2020 by Barry Needleman

New Hampshire, like many northeast states, is pursuing a concerted regulatory and litigation approach to address contamination from emerging contaminants in the so-called PFAS suite of chemicals, (per- and poly-fluoroalkyl substances).  Over the last few years, the State has enforced cleanups at certain manufacturing facilities, and required the provision of alternative water supplies in several communities.  Early in 2019, it began a rare, statutorily required rulemaking process to set drinking water and ambient groundwater quality rules for four chemicals - PFOA, PFOS, PFHxS and PFNA.  The new rules were approved in July 2019.

In late May 2019, New Hampshire also filed suit against the manufacturers of AFFF, the firefighting foam used at military bases, airports and fire training facilities.  This case was transferred to the AFFF multi-district litigation in South Carolina.  In a separate case, the State sued 3M, Dupont and Chemours for alleged investigation and clean-up costs incurred under the parens patriae theory, among other claims.  That case is in the initial stages of litigation.

Several plaintiffs (3M Company, a town water and sewer district, a sewage sludge disposal company and a farmer) challenged the new regulatory limits in Court.  In October 2019, the court ruled that the State had failed to perform an adequate cost/benefit analysis as required by statute.  Plymouth Village Water & Sewer District v. Scott, No. 217-2019-CV-00650, (N.H. Super. Ct., Nov.26, 2019). The final rules set standards that were 50-80% lower than the initially proposed limits, and the costs had increased by 1200%.  The State conceded it could not determine the benefits from the lower limits.  Consequently, the court issued a preliminary injunction, enjoining New Hampshire’s drinking water and groundwater quality limits.  The parties are preparing interlocutory appeals to the New Hampshire Supreme Court.  The case presents issues of first impression in New Hampshire, under its rulemaking statute and certain constitutional provisions limiting unfunded State mandates. 

And So It Goes, New WOTUS Rule Final

Posted on January 24, 2020 by Rick Glick

The EPA today announced that the Waters of the United States (WOTUS) rule, jointly proposed by EPA and the Army Corps of Engineers in June 2019, is now final.  The new rule replaces the 2015 Obama Administration’s rule, which EPA and the Corps rescinded last October. 

The Clean Water Act confers federal jurisdiction over “navigable” waters, defined in the Act as “waters of the United States, including the territorial seas.”  Congress left it to the agencies and courts to add meat to this skeletal definition. As it turns out, that has been no easy task. 

The agencies have tried multiple times to bring clarity to the scope of CWA jurisdiction, resulting in an enormous body of litigation and a few Supreme Court cases.  These cases culminated in the 2006 ruling in Rapanos v. U.S., in which a divided Supreme Court agreed that the government had overreached, but could not agree as to how.  Justice Scalia, writing for the plurality, would have limited jurisdiction to running waters and adjacent wetlands.  In a concurring opinion, Justice Kennedy instead would have conferred jurisdiction where there is a “significant nexus” to a navigable water.

The subsequent 2015 rule adopted the Kennedy approach, whereas the new 2020 rule follows Scalia.  As reported here, the new rules are not likely to implement the lofty goals of the CWA, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  That is the conclusion of EPA’s own Science Advisory Board:

At the EPA Science Advisory Board (SAB) meeting on June 5-6, 2019, the SAB discussed the scientific and technical underpinnings of the proposed WOTUS rule and concluded that aspects of the proposed rule are in conflict with established science, the existing WOTUS rule developed based on the established science, and the objectives of the Clean Water Act.

Several states and environmental organizations have announced their intent to challenge the rule’s disregard for what is known about the interconnectedness of wetlands and running waters.  As quoted in the New York Times coverage of the new rule, ACOEL’s own Patrick Parenteau concisely summarized the case:  “The legal standing all has to do with whether you have a rational basis for what you’re doing. And when you have experts saying you’re not adhering to the science, that’s not rational, it’s arbitrary.”

Lawyers advising clients as to the reach of CWA jurisdiction can only recommend caution.  We will not have clarity on the scope of WOTUS any time soon.

Children’s Climate Case Coming to a Close

Posted on January 23, 2020 by Rick Glick

In an extraordinary opinion issued January 17, the Ninth Circuit U.S. Court of Appeals concluded that the redress sought by the Juliana v. United States plaintiffs is beyond the power of federal courts.  It is not the conclusion that is extraordinary, which was widely expected, but rather the court’s extended expression of dismay in having to reach it. 

Plaintiffs in this case are a group of young people alleging that through policies promoting or acquiescing to fossil fuels use, the federal government has violated their constitutional rights to a “climate system capable of sustaining human life.”  The court never reaches the merits of the case.

The basis for the court’s conclusion is that the plaintiffs lack standing, meaning the right to prosecute their case in federal courts.  There is a three-part test for standing.  First, the plaintiffs must show “concrete and particularized injury.”  Second, plaintiffs must show that their injury is caused by defendant.  Third, the plaintiffs must demonstrate that the alleged injury can be redressed by court order.  The court found that plaintiffs satisfied the first two prongs, but not the third.

The court noted that the “plaintiffs have compiled an extensive record” that the government “affirmatively promotes fossil fuel use in a host of ways,” from tax credits to extraction leases on public lands.  These policies “will wreak havoc on the Earth’s climate if unchecked.”  The court had no trouble finding particularized injury to specific plaintiffs and that there is a genuine issue as to whether these government policies are a “substantial factor” in plaintiffs’ injuries.  The harder question is what a court could or should do to remedy the problem.

The court found that the scope of the desired remedy—an injunction to end pro-fossil fuel policies and to direct the government to prepare a plan to reduce emissions—is better left to the political branches to resolve.  The court recognized the harm from government policies, which the government does not refute.  However, such an order is problematic because:

  • Plaintiffs own experts acknowledge that the injunction would not “suffice to stop catastrophic climate change or even ameliorate their injuries. . . . Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”
  • “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
  • “Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’ We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”

The plaintiffs have indicated the case is not over, that they will seek reconsideration of the three-judge panel’s decision before the entire Ninth Circuit en banc, and possibly the Supreme Court.  Reconsideration rarely overturns decisions and bringing the case to the Supreme Court is risky.  If the Court accepts the case, the result may be an even more adverse standing ruling for such cases.  There are cases pending in which the relief sought is not so broad as in Juliana, cases in which states are asking for money damages for harm caused by government fossil fuel policies.  The Ninth Circuit’s denial of standing based on redressability may not be as limiting in those cases, as courts are accustomed to cases seeking damages.

Even if the Juliana case ends here, it will have served an important public service.  The plaintiffs’ tenacity—and the extraordinary advocacy by their attorney Julia A. Olson—have shone a spotlight on the abject failure of the government to address climate change.  The court expressed its sympathy to that effort and its regret at the limited ability of the judiciary to correct the government’s failure:

The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.

It was always unlikely that U.S. courts would feel empowered to issue orders to address so complex and global a problem.  The Trump Administration’s open hostility to aggressive action to restrain fossil fuels use—reaffirmed by the President at the Davos conference just this week—coupled with congressional inaction, suggests leaving the matter to the legislative and executive branches is a slim reed indeed.  But as the court concludes, Juliana and other climate cases make it harder for politicians to ignore the catastrophic consequences and get reelected.  The question is, how much more time do we have to take meaningful action?

Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Posted on January 23, 2020 by Seth Jaffe

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing.  Given where we are, this is about as momentous a decision as I can imagine.  I get the majority opinion.  Under traditional standing doctrine, it may even be right, though I think it’s a close call.

However, this is not a time for timidly falling back on the easy jurisprudential path.  Extraordinary times demand something extraordinary, from our judges as well as our elected leaders.  If our government is even around in a hundred years, I think that this decision will likely be seen as of a piece with Dred ScottPlessy v. Ferguson, and Korematsu

The cruel irony underlying the opinion is that it is the very scope of the climate problem and the comprehensive government response that it demands that is the basis of the court’s decision that courts are not in a position to oversee the response.  Is this the first case ever brought before our nation’s courts in which the court ruled that it could not grant relief, precisely because relief is so necessary?

I’ll note one other issue.  The majority opinion was clearly sympathetic to the plaintiffs, but ultimately concluded that:

the plaintiffs’ case must be made to the political branches or to the electorate at large.

What if, however, our legislative and executive branches are literally incapable of addressing climate change?  That’s pretty much the view of my intellectual hero, Daniel Kahneman.  If we are truly on the eve of destruction and Congress can’t do anything about it, must the courts remain powerless to step in?  And so I’ll leave you with the conclusion of the dissent:

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

COURT-ORDERED REDUCTIONS OF GREENHOUSE GASES? THE URGENDA AND JULIANA DECISIONS

Posted on January 22, 2020 by John C. Dernbach

Two major climate change cases were decided in the last month—State of the Netherlands v. Urgenda (Dec. 20, 2019) and Juliana v. United States (Jan. 17, 2020).  They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions.

The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”  The government’s current goal of a 20% reduction by 2020, the Court held, violates Articles 2 and 8 of the European Convention on Human Rights (ECHR), a human rights treaty to which 47 nations are parties, including the Netherlands.  As our colleague Michael Gerrard has pointed out, this is the first judicial decision anywhere in the world to explicitly require a government to reduce its greenhouse gas emissions.  

Article 2 of the EHCR ‘protects the right to life,” and means that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.”  Article 8 “protects the right to respect for private and family life,” which includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.”  Finally, and significantly, Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.” 

Climate change science, the Court said, compels the conclusion that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.”  In addition, “there is a high degree of international consensus” on the need to achieve at least a 25% reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change.  The government violated its duties under the ECHR with a less ambitious short-term goal, the court held.  (The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050, and there was no dispute about long-term goals.) 

The Supreme Court rejected the government’s argument that “it is not for the courts” to make political decisions “on the reduction of greenhouse gas emissions.”  ”The protection of human rights…is an essential component of a democratic state under the rule of law,” the Court said.  “This case involves an exceptional situation. After all, there is the threat of dangerous climate change.”  The government, not the courts, will decide which measures to employ to achieve the required reduction, the court explained.  

In the Juliana case, 21 young people are the principal plaintiffs in a lawsuit against the United States, claiming, among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.”  They developed a “substantial record” establishing the severity of existing and projected climate change impacts, and showing that the government had not only failed to act but that it “affirmatively promotes fossil fuel use in a host of ways.”  They sought declaratory and injunctive relief requiring the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”

The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, “reluctantly” held that youth plaintiffs did not have standing.  All three judges agreed that climate change caused by human activity presents grave, even existential, risks.  For the majority, Judge Andrew Hurwitz wrote that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions.  But even assuming that there is a constitutional right to a “climate system capable of sustaining human life,” the court said, they do not meet the third requirement because “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”

The plaintiffs had argued that the legislative and executive branches of government can figure out which particular measures to employ to “phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”  But even then, the court said, a court would have to decide whether the government’s response is sufficient.  There is no “limited and precise” standard, the majority wrote, by which a court could determine the adequacy of the government’s response.

Judge Josephine Staton’s lengthy dissenting opinion states that the plaintiffs are seeking to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.”  The discernible standard, she wrote, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.”  This is a scientific question, she said, not a political one.  

Julia Olson, co-counsel for plaintiffs in the case, issued a statement saying the next step would be a petition for en banc review in the Ninth Circuit. 

As both cases indicate, there is no universal answer on the authority of courts to order reduction of greenhouse gas emissions, and this issue is not going away.

MAKING MIRACLES HAPPEN

Posted on January 21, 2020 by Charles F. Becker

I’ve known Drew Tierney since I was 10. I’d call him a friend, but he’d find a way to argue about it.  You know the type, they live to disagree – you desperately want to prove them wrong, but it never happens.

DT (as his friends call him) and I met for lunch last week. He was in fine form and clearly ready for a fight.  We ordered a beer and food and started watching a game.

DT: “So, it’s a good thing we finally got that Soleimani dude, right?”

DT is one of those people that put “right” at the end of every sentence so that you have to agree or become bait. I wasn’t in the mood.

Me: “I suppose, but we’ll just have to see where it goes.”

That seemed to satisfy him as he took a bite out of his chicken sandwich, then said:

“Does it really count as an impeachment if nothing is sent over to the Senate? That wouldn’t be fair, right?”

I chomped down hard on a piece of celery causing a neighboring table to stop talking for a moment. But I bit my tongue at the same time.

Me: “I’ll leave that one to the scholars.”

I could see DT process my comment and he apparently decided that yet another impeachment debate wasn’t worth the effort. He took another bite and said:

“It’s a real shame that the Dems can’t get their act together on that climate change thingy.”

He kind of spit out the word “thingy.” He knew that would do it  . . . and it did.

Me: “Climate change thingy? Are you kidding me? Climate change is a disaster, and everyone knows it!”

DT: “Really? Everyone?”

Finally!  One I could win.  I knew this stuff.

Me: “Do you know that 69% of all Americans believe that we need to take aggressive action to fight climate change?  And that includes 56% of Republicans and 71% of independents.  That’s pretty impressive.”

DT: “Yeah, but 43% say they wouldn’t pay a dime to deal with climate change.  And only 28% overall would be willing to pay even an extra $10 a month to help.  That’s $120 a year!  That means about two-thirds of your support will talk the talk but won’t walk the walk.

Me: “Well, OK, but from 2014 to 2019, the people who saw climate change as an actual crisis went from 23% to 38%. That means more than one-third of the country see it as critical.”

DT: “But for Republicans, it started out at 12% and stayed at 12%. Not what I’d call a burning issue, is it? In fact, the polls of all the voters in 2012, 2016, and 2019 show that of the top issues for voters, climate change has always ranked right near the bottom.”

Me: “That’s because Republicans skew the results!”

I had him. 

Surprisingly, DT seemed unpersuaded.

DT: “I don’t think that word means what you think it means. I think you mean to say Republicans participated in the results. There are as many Republicans as Democrats. The problem is you keep forgetting that. “

Me: “I can’t help it if 88% of them can’t read.”

DT:  “Let me suggest that telling Republicans they’re illiterate doesn’t seem to be a particularly persuasive argument, right?”

This wasn’t going exactly as I planned.

DT: “Whether you like it or not, the difference in the parties’ view on climate change has the biggest gap of any of the priority issues -- there’s a 46% difference between the parties in how important climate change is to the country. Heck, Trump shut down the government over a border wall and the difference between the parties on immigration is a measly 28%.  You’re not going to close the gap by pounding your fist and saying ‘you just don’t get it’ to the people whose vote you need.”

Me: “But DT, it doesn’t matter what the difference is . . . what about our children?”

DT stopped eating, looked at me, and sighed.

DT: “Well, there it is. The ‘you’re-killing-our-children’ argument. The last bastion of the self-righteous. But you know what, I’ll give you that argument. You’re right, we might be killing our children, but all you’ve succeeded in doing is to make both parties dig in deeper. The problem is you believe that climate change is a moral issue.  Maybe it was at one time, but not anymore. You know that whatever the solution is going to be, it will have to be instigated by the federal government. You keep telling me it’s going to cost billions of dollars and will go on for decades.  It seems to me that makes it, by definition, a problem for Congress.  Like it or not, you’ve made it political, right?  And once you make it a political problem, in this day, good luck.”

That really was a show stopper.  DT was right about it being a money issue.  And at this scale, it was going to have to be done by Congress, so clearly it was political. In years past, maybe some sort of middle ground was possible, but not today – or tomorrow.   So does DT win again?

But then I saw it.  I realized DT wasn’t really a bad person, he was just a good arguer.  And he was a good arguer because he always forced you to argue in his ballpark.  The real problem was we were just in the wrong stadium.

Me: “OK DT, you’re right.  The costs are really big.  I doubt that we’ll ever agree on a solution, so it’s not worth arguing about.”

DT was puzzled for a moment, but he seemed satisfied.  We ordered another beer and continued to watch the game.

Me: “By the way, how’s your daughter doing at Southeastern?”

DT: “Don’t get me started.  The cost of that place is killing me.”

Me: “I hear ya.  I’ve got the same problem.  I’m just happy the investments are working out.”

Next to politics, DT’s favorite topic is money and he’s nothing if not a creature of habit – thankfully.

DT: “Really?  What’s working for you?”

Me: “I put a lot into Sunkist Dynamics a few years ago. They’ve been going nuts!”

DT: “What do they do?”

Me: “Solar panels, and they’re American made.  It’s sort of like buying Exxon at $5 a share.”

DT: “So, there’s really money there?”

Me: “Ohhh, yeah.”  And I added an eye roll that implied that you were an idiot if you weren’t already on this gravy train.  DT looked around, leaned over and sort of whispered to me:

“You think I can I get in?”

Me: “Oh, no.  Sorry DT, it was a private placement deal.”  I took a sip of beer and let that sink in for a moment.  “But I do know about a group of investors that are going to fund a wind farm.  The possibilities are huge.  Think about it – you make money whenever the wind blows.”

I saw DT stop for a moment and sort of gaze into the distance.  He was calculating how much money he might make when the primary input was free. 

DT: “That sounds like a pretty good buy . . . right?”

Me: “Well, it’s up to you.  Just don’t tell a lot of people – I want to keep this between us.”

DT: “Not a problem – I get it – too many cooks kind of thing.”  He ran his two fingers across his lips and added: “Zipped tight.” 

Then a minor miracle happened:

DT: “By the way, lunch is on me today.”

I ordered dessert.

In re PennEast Pipeline Company: A New Twist in the Pipeline or Established Constitutional Law?

Posted on January 17, 2020 by Catherine R. McCabe

Adding another chapter to the legal controversies that continue to rage over the siting of new gas pipelines, on September 10, 2019 the Third Circuit upheld the State of New Jersey’s sovereign immunity objection to the PennEast Pipeline Company’s attempt to condemn a right-of-way through state-owned property.   The Court held that, while the National Gas Act delegates the federal government’s power of eminent domain to private pipeline companies, that power cannot be used by private parties to overcome a state’s assertion of sovereign immunity.

PennEast sought to construct a new pipeline to carry natural gas from the Marcellus shale fields of Pennsylvania into central New Jersey.  PennEast’s proposed route would pass through more than 40 properties either owned by the State of New Jersey or protected by state-held easements for conservation, agricultural or recreational purposes.  The route was approved by the Federal Energy Regulatory Commission (FERC), over the objections of the state and many private parties. 

Armed with its FERC certification, PennEast initiated condemnation actions against the state and private property owners along its proposed route.  The state objected, invoking, among other arguments, its right of sovereign immunity from suits by private parties.  The U.S. district court ruled in favor of PennEast, citing the Natural Gas Act’s authorization for private gas companies to use the power of eminent domain to acquire rights-of-way for pipeline routes approved by FERC. 

On appeal, a three-judge panel of the Third Circuit reversed, ruling that the Natural Gas Act does not go so far as to delegate the federal government’s exemption from states’ sovereign immunity to private parties.  The panel cited the Supreme Court’s prior decisions in Blatchford v. Native Village of Noatak and Dellmuth v. Muth holding that Congress can override the sovereign immunity of states only by making its intention to do so “unmistakably clear” in the language of the statute.  The panel found nothing in the text of the National Gas Act to support the argument that Congress did so in that statute.  

Moreover, while not reaching the issue, the court expressed strong doubt that Congress would have the constitutional authority to override states’ sovereign immunity, even if it chose to amend the statute to make that intent clear.  The court pointed out that Congress relied on its Commerce Clause powers to enact the Natural Gas Act and that, under the Supreme Court’s ruling in Seminole Tribe of Fla. V. Florida Congress cannot invoke its Commerce Clause powers to abrogate state sovereign immunity.

PennEast’s petition for en banc review was denied by the Third Circuit on November 5, 2019.  The company has publicly stated its intent to seek Supreme Court review, but has not explained what basis for review it would urge upon the Court.  There is no conflict among the circuits, as no other court of appeals has addressed this issue. 

PennEast may argue that this case presents a new and important question of law that has not been settled by the Supreme Court.  But the Third Circuit opinion rests firmly on established Supreme Court precedent that will be difficult to overcome.

So is this the end of the pipeline for PennEast?  Will the Supreme Court take up an invitation to rule against states’ constitutionally-protected sovereign rights?  Will PennEast turn back to FERC and ask for direct federal condemnation?  It’s too early to tell.  In any case, either route poses significant challenges – including PennEast’s own argument, noted by the Third Circuit, that FERC does not actually have direct condemnation authority under the Natural Gas Act.

What’s in a (Tribal) Name?

Posted on January 16, 2020 by Tom Sansonetti

At the time of the American Revolution in what is now upstate New York, there lived a branch of the Iroquois Nation known as the Oneida Indians.  As the 18th Century came to a close, two groups of Oneidas left the area to seek a better homeland.  One group moved to Canada and the other to Wisconsin.  Approximately one thousand Oneida remained behind.

In the ensuing two hundred years, the Wisconsin Oneidas and New York Oneidas each overcame many hardships.  Despite their shared original heritage, the two tribes have had little to do with one another, until more recently.

The Department of the Interior (“DOI”) through its Bureau of Indian Affairs (“BIA”), is required by law to publish annually an official list of federally recognized tribes.  There are many economic benefits for tribes included on the list.  At the present time, there are 562 federally recognized tribes. 

In 2010, the tribe then known as the “Oneida Tribe of Indians of Wisconsin” (the “Wisconsin Oneidas”) passed a resolution requesting that DOI conduct a special election on its reservation to amend the tribe’s constitution by, among other things, changing the tribe’s name to the “Oneida Nation.”  In 2011, the DOI notified the Wisconsin Oneidas that the proposed election could proceed but noted that the Wisconsin Oneidas should consider the potential that the name change may cause confusion with the New York Oneidas, who then called themselves the “Oneida Nation of New York.”  The Wisconsin Oneidas thereafter voted to adopt the proposed name change and received approval from DOI in a June 2015 document signed by the Acting Assistant Secretary for Indian Affairs, who happened to be an enrolled member of the Wisconsin Oneidas.

In 2016, the revised list of federally recognized tribes published in the Federal Register referred to the Wisconsin Oneidas as “Oneida Nation.”  The Oneida Nation of New York was never consulted or conferred with by DOI about the Wisconsin Oneidas’ name change ambitions.  The New York Oneidas’ realization as to what had happened came only with the publication of the revised list.

The Wisconsin Oneidas wasted no time thereafter by petitioning the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (“TTAB”) to cancel the New York Oneidas’ registration of the marks “Oneida” and “Oneida Indian Nation.”  The Wisconsin Oneidas touted their new federally recognized name “Oneida Nation” – in arguing that the New York Oneidas should not be allowed to limit the Wisconsin Oneidas use of that name.

The New York Oneidas then brought an action against DOI in federal district court in Albany, New York, asserting claims under the Administrative Procedure Act.  The New York Oneidas asserted a lack of due process, and injury due to the confusion caused by DOI’s approval of the Wisconsin Oneidas’ name change.  In addition, the New York Oneidas alleged a conflict of interest considering that a member of the Wisconsin Oneida served as the DOI official that approved the name change.

The federal district court granted the government’s motion to dismiss the case against DOI for lack of subject matter jurisdiction because it determined that the New York Oneida lacked standing. On appeal, the Second Circuit Court of Appeals affirmed the district court ruling on October 21, 2019. Oneida Indian Nation v. United States Department of the Interior, Case No. 18-2607.

The key issue in the New York Oneidas not having standing centered on the redressability of the alleged wrongs.  Because the DOI’s present policy is to allow tribes to call themselves what they want pursuant to a duly called election, remanding the case back to DOI made no sense in the courts’ view.  Both the district and appellate courts noted the lack of notice to the New York Oneidas and the possibility of future confusion by outside entities as to which of the tribes is the “real” Oneida Indian Nation.  Efforts between the tribes to resolve the dispute have proven unsuccessful.

Given the DOI’s policy of allowing tribes to self-name and BIA’s lack of intervention in the Wisconsin Oneidas administrative name change, the New York Oneidas have since decided to change their name to the “Oneida Indian Nation,” leaving out any geographical reference.  It is expected that the 2020 Federal Register will list both tribes preferred monikers. 

In the meantime, the TTAB trademark litigation rages on, and unless and until DOI changes its tribal names policy, any outside entity doing business with one of the Oneida tribes had best determine which tribal nation is which!

WHEN DOES “RESPONSIBLE” MEAN NEVER HAVING TO SAY YOU’RE SORRY TO CERCLA?

Posted on January 15, 2020 by Jeff Thaler

Given the billions of dollars that have been spent at federal Superfund sites, and the billions still to come, it is fascinating how relatively little attention has been devoted to the case of Atlantic Richfield Company (ARCO) v Christian recently argued in the U.S. Supreme Court. Is it because there might not yet be a final judgment in the Montana court case? Or because preemption is an insufficiently dramatic attention-grabbing legal issue? Or because relatively few amicus briefs were filed? Or are people just plain tired of CERCLA?

To the last question, certainly environmental lawyers and engineers are not so fatigued! Indeed, the Christian case raises some interesting issues.  If the Court reaches the merits rather than remands the case for lack of a final judgment, resolution of the issues could impact clean-up cases and the scope of remediation efforts all over the U.S., as well as who is a “potentially responsible party” under CERCLA, and potentially also impact federal-state relations and conflicts in other areas of law.

In 1980—the year that CERCLA was enacted—the Anaconda Smelter ceased its copper refining operations. However, because Anaconda’s smokestacks had emitted arsenic and lead across five nearby towns, 20,000 acres and thousands of homes, in 1983 EPA placed the area on its list of Superfund sites. While ARCO (the then-owner of the smelter) was identified as the lead Potentially Responsible Party (PRP), and has since spent $450 million in carrying out the EPA’s remediation plan, downwind landowners wanted more cleanup work done on their lands than what EPA had ordered. They thus sued ARCO in state court 11 years ago.

In its December 29, 2017 decision, the Montana Supreme Court allowed plaintiffs to bring state law claims for more clean-up at federally designated sites of ongoing remediation. The U.S. Supreme Court granted certiorari in June 2019. Two of the granted issues are particularly interesting and potentially far-reaching: 1) Is a private (downwind) landowner at a Superfund site a PRP who must first get EPA’s approval for remedial action, even if that landowner has not been ordered to pay for a cleanup—in other words, who really is “responsible” under CERCLA? And 2) Does CERCLA explicitly or implicitly preempt or otherwise bar state common law claims for restoration, if such claims seek cleanup remedies at odds with (i.e. exceeding) EPA-ordered remedies?

Public Citizen and a group of 15 states (led by Virginia) filed amicus briefs in support of the Montana landowners and the Montana court decision; the Solicitor General and the Chamber of Commerce (with a group of other trade groups) supported ARCO. Arguments of statutory interpretation and federal-state sovereignty were front and center in the briefs.

The case was orally argued on December 3, 2019. Some of the Justices seemed concerned with precluding the claim in light of CERCLA’s text which allows for states to have a meaningful role in the remediation of hazardous sites. Other Justices seemed sympathetic to EPA and ARCO’s concerns that plaintiffs’ desired remediation might worsen groundwater quality by releasing toxins in the soil. And the Solicitor General’s representative spent much of his time defending the assertion that the plaintiff landowners should be treated as PRPs.

Ultimately, should the Court reach the merits, the Justices appeared to be trying to devise a way for the states to maintain an active role in CERCLA remediations without allowing landowners to “interfere” with EPA’s cleanup plan. Coincidentally, in an ACOEL small world moment, because Vermont and Maine were part of the 15-state amicus team, ACOEL members Pat Parenteau (VT) and Jeff Thaler (Maine) were each interviewed after the oral argument by the same news reporter.

Fortunately, they did not contradict each other, or have to say “sorry” when the article came out.