Posted on March 23, 2017
The news flies fast and heavy from Washington almost daily on the fate of every manner of environmental program, rule or regulation. An exciting time to be an environmental lawyer. The latest entrant into the “what’s next” sweepstakes came from the Tenth Circuit just a few days ago.
The Court of Appeals sent a pointed inquiry to the newcomers at the Department of Justice about the future of the federal government’s (recent) historic efforts to curb hydraulic fracturing:
Given the recent change of Administration and the related personnel changes in the Department of Justice and the Department of Interior, the Court is concerned that the briefing filed by the Federal Appellants in these cases may no longer reflect the position of the Federal Appellants. By statement filed electronically on or before March 15, 2017, the Federal Appellants are asked to confirm whether their position on the issues presented remain the same, or have now changed.
The DOJ’s response will very likely determine the fate of the Obama era Bureau of Land Management hydraulic-fracturing rule. That rule required drilling operators to follow “ . . . widely-accepted” best practices for preventing environmental or resource harm.
In State of Wyoming et.al v. State of Utah et. al, that rule was set aside and its enforcement enjoined by a Wyoming district court in 2016. The district court set aside the rule, holding that the federal government had no authority to set the standards that federal lessees had to follow when extracting oil and gas from federally owned resources through hydraulic fracturing. The DOJ appealed and the Tenth Circuit subsequently instructed the district court to vacate its preliminary-injunction order.
The DOJ spearheaded the appeal of that ruling, asserting that the district court disregarded a central tenet of administrative law by substituting its own judgment for the government’s about the purview of the BLM’s regulatory reach. The DOJ argued that courts “must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority.”
So the obvious question of the day is, will the new administration drop the appeal? The newly appointed Interior Secretary Ryan Zinke has stated publicly he supports fracking. With daily pronouncements from the White House about the surfeit of regulations strangling the economic engines of the country, it’s a good bet that the rule has seen its best and last days.
Perhaps more intriguing, should the appeal go forward, will be the somewhat conservative Tenth Circuit’s take on the now “institutional” Chevron deference embedded in countless appellate decisions over the last thirty-four years. As recently posted by ACOEL Fellow Chris Schraff, the views of Tenth Circuit veteran and Supreme Court nominee Judge Neil Gorsuch on the Chevron question could prove central to the concerns of some about the future of the administrative state,.
For those who might not be familiar with Judge Gorsuch’s perspectives on the subject, review again his concurring opinion in Gutierrez-Brizuela v. Lynch. His concurring opinion in that case begins:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. . . .
And continues in clearly provocative terms:
Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . .
So, what do we in the environmental business expect the position of the federal government to be going forward? Is federal environment protectionism on its way out of the door? Will the EPA be judicially branded a “politicized administrative agent” by courts across the land and denied deference even if the Chevron doctrine survives? Will the courts and the public allow the progress on cleaner air, water and earth we have all witnessed—and even helped bring about over the last fifty years—to be . . . fracked?
Posted on March 22, 2017
In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.
gray wolf, Canis lupus, Gary Kramer, USFWS
Earlier this month, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis. The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing. Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions. The Court of Appeals noted that the:
ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.
Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well. When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.
Maybe I’ll make this a regular feature of this blog. If I miss other cases making the conservative argument for Chevron, let me know.
Posted on March 21, 2017
For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching. Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds. Despite these expected actions by the current administration, there is good news in the renewables sector: battery storage technology has the potential to be a strong contender in the fight against climate change.
In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down. The leak reduced fuel supplies for area power plants. In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories. Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need.
The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months. Within 6 months after the CPUC issued its order, two battery storage facilities were completed. SDGE contracted for the installation of two energy storage projects totaling 37.5 MW. The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours. Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.
These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations. For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources. New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030. The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency. And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.
In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding. The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.
The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff. The report also identifies a utility-driven demonstration project supporting solar-plus-storage. Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time. Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.
Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York. The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs. In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors. By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders. The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction. The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.
These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers. They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester. At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower. Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system. The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.
Posted on March 20, 2017
Our American College of Environmental Lawyers recently has increased its external educational efforts, co-sponsoring programs with the Environmental Law Institute and the American Law Institute. The College has also actively collaborated with other organizations to identify pro bono opportunities for its members in the international environmental arena. The College is now proud to be a co-sponsor of the Environmental Summit of the Americas being held in Los Angeles on March 29.
The lead organizers of this one-day Summit are the American Bar Association’s Section of Environment, Energy and Resources (SEER) and the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL). Our College is joining the Canadian Bar Association’s National Environment, Energy and Resources Law Section (NEERLS) as a co-sponsor.
The topics to be covered in the program are: Climate Change and Energy/Environmental Policy; Extended Producer Responsibility; Officer, Director, Lender and Parent Company Liability; Permitting and Social License; and Trade and the Environment. There will also be a special presentation by representatives of the Inter-American Development Bank on its project assessing the quality of environmental regulation in the Americas. The format for the Summit is intended to be conducive to group discussion for each topic. Each topic will have several discussion facilitators who will be providing a brief overview of the topic and then facilitating discussion among attendees. Facilitators include well recognized lawyers from the United States, Canada, Costa Rica, Brazil, Argentina, Mexico, Chile, and Peru. While registrations are still being received, well over 50 percent of registrants are from Latin America and Canada.
Many of us have had a long-held objective of encouraging and developing this type of cross-border dialogue among our colleagues in this hemisphere. The dialogue already exists in the context of the extractive industries, with groups such as the Rocky Mountain Mineral Law Foundation providing a platform for such discussions. There also has been a long-term, collaborative relationship with ABA SEER and CBA NEERLS that has evolved over the last 15 years and has proven very instructive and beneficial to lawyers on both sides of the border. More recently a relationship has been evolving between SEER and the United Kingdom Environmental Law Association, and between SEER and SEERIL.
It has been more difficult to coordinate such a dialogue with jurisdictions having more loosely organized bar associations, particularly with a focus on environmental law. While there have been some efforts by various international referral networks to develop such a discussion, to my knowledge the Summit will be the first effort by respected bar associations and our College to foster such a broad-based understanding of environmental legal developments.
College members are encouraged to attend. The Summit will be an excellent opportunity for all attendees to learn from each other in a format which encourages discussion. Chatham House Rules control. The Summit is being held the day before the SEER Spring Conference which, hopefully, many of our College members already plan to attend.
I hope to see you there!
Posted on March 15, 2017
Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.
Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”
An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.
Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.
Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.
Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.
One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.
In sum, we live in interesting times. Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned.
Posted on March 14, 2017
Has it really been 36 years! It seems like I have been here before. In 1981, I was Assistant General Counsel with the Texas Department of Water Resources, a predecessor agency of the current Texas Commission on Environmental Quality. Upon Ronald Reagan’s inauguration as the 40th President, I was appointed Regional Counsel of the Environmental Protection Agency in Dallas.
EPA was on the chopping block with proposals to drastically reduce its budget, positions, and programs. The agency lawyers were an endangered species, targeted for elimination. The agency was reorganized to do away with the Enforcement Division. The administration supported the transfer of the implementation and enforcement of the environmental statutes to the states. This was 1981 not 2017.
The early years of the new administration were filled with much anxiety based in part on proposed budgets that had no relationship to existing staffing. Were we to go through a reduction in force and fire attorneys and staff? Such a RIF was not necessary given the atmosphere and morale within the agency. In early 1983, during a Regional Counsels’ meeting, an informal headcount showed that through attrition there had been over a 30% reduction of attorneys in the regional offices since the inauguration.
The effort to dismantle and defang the agency was met by public outrage, and in the midst of the turmoil, Administrator Anne Gorsuch was cited for contempt of Congress. Shortly thereafter, there was change in the agency leadership with the return of Bill Ruckelshaus, whose helmsmanship righted the agency and successfully refocused the agency’s staff on its critical mission.
What did I learn from this experience? Quite simply, don’t overplay your hand. An election may give the President and a new administration a perceived mandate for change, but that mandate must be tempered with an appreciation of the overwhelming public support for the mission of the agency. As my good friend, mentor, and former Regional Administrator, Dick Whittington, would say: “we must be able to separate the public will from the public whim.”
Posted on March 13, 2017
Recently, our ACOEL colleague Bob Percival penned an article in which he notes that Supreme Court nominee Judge Neil Gorsuch is a leading critic of Chevron (and Auer) deference , and suggests that Judge Gorsuch’s separation of powers concerns (and those of other opponents of Chevron/Auer deference) “…are really attacks on the constitutionality of the larger administrative state.” But if Judge Gorsuch is confirmed and his views command a majority of the Court, is his skepticism about the viability of deference to agency interpretations likely to lead to a collapse of the modern administrative state? Is Judge Gorsuch really little more than a judicial extension of Steve Bannon’s and the Alt-Right’s campaign to deconstruct the administrative state and roll back the federal government to a size more appropriate to 19th Century America? I suspect not—and here’s why.
A reading of Judge Gorsuch’s opinions reveals a jurist who is not only an engaging writer, but who digs deep into the facts and details of each case before applying the law in an appeal before him. In one of the few environmental cases which Judge Gorsuch has authored, United States v. Magnesium Corp. of America, Judge Gorsuch duly applied Auer deference to uphold EPA’s interpretation of a RCRA regulation, observing that an agency’s interpretation of its own ambiguous regulation was entitled to deference.
But in other contexts, Judge Gorsuch denied Chevron deference to agency decisions that directly implicate (some might say trample upon) individual liberties and rights. Here’s an example: In 2014, the 10th Circuit took up the case of Andrew Yellowbear, who had bludgeoned to death his 22-month-old-daughter, and was serving a life term in a Wyoming prison. Mr. Yellowbear brought suit against the prison for refusing to allow him access to a sweat lodge to practice his Arapahoe religion, which he claimed violated his rights under the federal Religious Land Use and Institutionalized Persons Act of 2000. Now one might think that Judge Gorsuch, conservative fellow that he appears to be on criminal matters, would give short shrift to Mr. Yellowbear’s claims. But that is not what happened.
In Yellowbear v. Lampert, Judge Gorsuch, writing for a unanimous court, struck down the prison’s efforts (and arguments) to deny Mr. Yellowbear his religious practice. In rejecting the prison’s poorly documented claims of a “compelling governmental interest,” Judge Gorsuch wrote: “the deference this court must extend the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.”
Now that decision hardly seems to presage the dismantling of the administrative state, but does suggest the administrative state had better show it deserves deference.
Judge Gorsuch’s concurring opinion in Guitierrez-Brizuela v. Lynch offers a window into his views on the limits and shortcomings of Chevron deference. Among other things, Judge Gorsuch suggests that the Chevron/Auer doctrines already may have no applicability with respect to agency interpretations of criminal statutes—of which we have many in the environmental law field. Even more to the point, Judge Gorsuch questions how Chevron/Auer deference squares with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. (“…the reviewing court shall decide all questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”). Judge Gorsuch questions whether Chevron, in effect, overrides the APA.
But don’t simply focus on Judge Gorsuch’s concurring opinion: look to the facts of the case, and to an earlier Gorsuch opinion. Guitierrez-Brizuela involved an attempt by the Board of Immigration Appeals (BIA) to retroactively apply a decision of the 10th Circuit deferring to BIA’s reconciliation of two statutory provisions of immigration law. In Padilla-Caldera v. Holder, the 10th Circuit had upheld BIA’s interpretation of the immigration law on Chevron deference grounds, notwithstanding that BIA’s interpretation effectively overruled an earlier 10th Circuit decision interpreting those same laws.
But in Guitierrez-Brizuela, BIA sought to accord retroactive application of the Padilla-Caldera decision in order to deport an illegal alien. Judge Gorsuch, writing for a unanimous 10th Circuit panel, concluded that the BIA cannot use Chevron deference principles to retroactively impose their interpretation of immigration law upon an illegal alien to deport him—not the kind of result which would endear Judge Gorsuch to the Alt-Right.
What resonates in Judge Gorsuch’s opinions is a reluctance to unconditionally embrace Chevron/Auer deference in order to allow administrative agencies to trample on individual liberties and rights. Is that such a bad thing? And Judge Gorsuch is not calling for an end to deference. He acknowledges that some form of deference should be given to administrative agencies, as he notes in Guitierrez-Brizuela: “Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.”
But more fundamentally, will a reconsideration—and even a repudiation—of Chevron/Auer deference signal the end of the modern administrative state? The administrative state survived and grew comfortably for more than fifty years before Chevron was decided.
My guess is that, if the Supreme Court revisits the question of Chevron/Auer deference when (and if) Justice Gorsuch joins the Court, and if his views carry the day, we are likely to return to Skidmore deference, or to a flexible rule of deference of the kind outlined in United States v. Mead Corp, here the degree of deference varies according to an agency’s care, consistency, formality, expertness and the persuasiveness of the agency’s position.
That hardly signals the end of the administrative state as we know it.
Posted on March 10, 2017
The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.
In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.
The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”
Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”
The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups.
PS: As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”
Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.
Posted on March 9, 2017
After years of struggling to implement prompt and cost-effective cleanups of sediment sites under the Superfund program, EPA has adopted a new set of tools. This would be a good time for EPA to conduct an unbiased evaluation of whether recent Records of Decision (“ROD”) issued for sediment sites comply with the Office of the Land and Emergency Management (“OLEM”) Directive 9200.1-130(Jan. 9, 2017), and direct the regions to revise RODs where necessary.
For example, Region 10 recently issued its ROD for the Portland Harbor, a complex, multi-party sediment site, which seems out of sync with the new guidance. In particular, Region 10’s use of unachievable cleanup levels for several contaminants of concern, unwarranted assumptions about current and future land uses in certain areas of the site, and failure to properly assess background levels in some instances conflict with the Directive’s recommendations.
In prior posts, I advocated for actions that could help the agency, potentially responsible parties, and the public achieve success in sediment cleanups. In one post, I recommended that Congress eliminate CERCLA’s bar on pre-enforcement review. In another, I advocated for revision of the dispute resolution provisions in the model Administrative Settlement Agreement and Order on Consent (“ASAOC”) to require the selection of a neutral third party to resolve disputes between EPA and ASAOC respondents. The rationale for these earlier recommendations applies equally to this recommendation; each of them is intended to require EPA compliance with its own guidance and sound legal and scientific principles.
In its directive, OLEM identified 11 recommendations “based on current best practices for characterizing sediment sites, evaluating remedial alternatives, and selecting and implementing appropriate response actions.” In particular, OLEM directed the regions to “develop risk reduction expectations that are achievable by the remedial action.” Most sediment RODs fail to comply with this “best practice.” For example, EPA has repeatedly issued RODs that establish action levels that cannot be met using any current or reasonably foreseeable remedial technology, leading to remedies that are unrealistic and unnecessarily costly. This causes potentially responsible parties to resist, resulting in litigation or delays that perhaps could have been avoided.
EPA should apply its directive. It should systematically review each sediment ROD issued in the last several years, determine whether and to what extent the ROD deviates from the OLEM directive, and instruct regional personnel to revise RODs to comply with the directive. This would require a second look at the RODs at, among other sites, the Lower Duwamish Waterway, Portland Harbor, and the lower 8 miles of the Passaic River. Review of these and other RODs might lead to more realistic cleanup decisions, reductions of risks, where necessary, and implementation of feasible remedies.
Posted on March 8, 2017
The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick. One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader. In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation. Like most presidents since his time, Theodore Roosevelt had a goal of making America great. His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists. President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations. The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.” I am persuaded of this point without reading the book.
The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing. The U.S. National Parks website presents the evidence of President Roosevelt’s legacy. Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state. But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests. The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources.
Today, conservatives seem to be taking a markedly different approach to conservation and public lands. Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands. Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative. Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities.
More recently, however, Zinke has changed his approach to the preservation of public lands. Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities. Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands.
Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences. The legacy, access, and pride in the public treasures would be forever altered. Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests. This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere. Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands.
National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other. Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition. Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit. As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public. Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions.
The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth. Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands. Even from a purely economic perspective, selling public lands would be the worst deal in history.
Posted on March 6, 2017
We environmental lawyers are well-acquainted with the technology-forcing requirements of many statutes. I, however, do not love technology and I hate being forced.
The idea behind “technology forcing” statutory provisions is that if Congress adopts requirements beyond the demonstrated capability of currently available technology, that will cause smart people to develop new technology that will meet the new requirements. Simple. Better technology is just waiting to be developed. The cost or other impacts of new technology are seldom regarded as good reasons to hesitate. There may even be an implication that trying to count that cost or consider those impacts is an unreasonable hindrance to the unlimited and irrepressible march of technology, which is always good, right?
Not so fast. In my standard Dad-think, I bought our youngest daughter a brand-new, highly-acclaimed-for-safety-and-reliability Honda Accord to begin her new post-graduate life of go-everywhere-any-time-of-night independence. The reliable-as-a-hammer reputation of Honda, however, has been seriously tarnished for me because this car won’t always start. One Sunday morning in January as my daughter prepared to depart Birmingham for Washington, D.C., the dashboard of that Accord lit up light a fireworks display before going black and taking the entire electrical system of the auto with it. Because delay was not an option, she took her mother’s less efficient but more reliable old Lexus to DC while Dad spent Monday morning at the dealership. The problem? In pursuit of technology-forcing CAFÉ standards, Honda had a bright idea (all puns intended). Honda added a sensor to detect when the Accord’s battery had sufficient residual charge to switch the car’s alternator out of service until needed. Periodic reduction of the marginal drag of the alternator on the engine’s main drive belt at least theoretically benefited the Accord’s highway mileage rating. Unfortunately, when the new sensor fails, as it did that Sunday morning, the entire electrical system goes haywire and the engine will not run.
When I came to understand that this tiny piece of technology that had been added to my car to chase a microscopic mileage advantage had also become a critical failure pathway for my precious daughter’s car, I was angry. I admit it. I cussed. When the failure occurred again 45 days later on the Sunday morning my daughter was planning to return to DC with her Honda after bringing her Mom’s car home, I really cussed. The earlier fireworks had likely damaged the car’s battery that now became the critical failure barrier to normal operation.
Cooler heads will explain that thousands of Honda Accords have probably operated millions of miles with that microscopic mileage advantage adding up. But the personal travails of one little environmental lawyer at least microscopically demonstrate that there are costs and impacts to technology-forcing requirements. The rest of this story might be even more entertaining. What do you think will happen when a different kind of lawyer figures out that there may be thousands of Accord owners driving around with new technology-forcing battery sensor switches that are prone to failure and might cost you a battery?
Posted on March 2, 2017
With a flourish of his pen, on February 28, President Trump signed an Executive Order aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule. The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act. Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.
The uncertainty begins with the Clean Water Act, which Congress said applies to “navigable” waters and then helpfully defined navigable to mean “waters of the United States.” The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional. The courts have not helped. In Rapanos v. U.S., a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why. Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to “relatively permanent, standing or continuously flowing bodies of water,” excluding intermittent or ephemeral channels and most drainage ditches. In a concurring opinion, Justice Kennedy invoked a “significant nexus” test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated. Later courts have tried to follow both tests, with mixed results.
Justice Scalia’s test is a lot easier to apply: If you can see the water or the land goes squish under your feet, there is jurisdiction. Justice Kennedy’s test requires a case-by-case review and exercise of professional judgment. The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.
Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation—17 District Court complaints and 23 petitions to various Circuit Courts of Appeal. It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.
No doubt the Court will get that chance, but in a drastically different context. The president’s Executive Order has no legal effect, other than to get the process started. The Obama Administration’s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration’s revisions will have to go through the same process. No doubt they will be as controversial and will also be fiercely litigated. That will take a very long time to play out, and won’t likely be completed during a Trump first term.
In the meantime, property owners still would like to develop their property, and the Government still has to apply the law. The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn’t reflect the way jurisdictional determinations are made today. Suffice to say that the Kennedy significant nexus test will still be in play for the near to intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.
Posted on February 24, 2017
Here’s a thought exercise: I’ll give you a budget of 25 words (including conjunctions, articles, and all the other little ones). You use up a word by either deleting, adding, or replacing one in an existing federal environmental or natural resources statute. How much could you transform the field of practice with just those 25 word edits? The answer is, quite a lot.
When we think of statutory reform, we usually think big, right on up to “repeal and replace.” But after more than 25 years of very little legislative action on federal environmental and natural resources statutes—the National Wildlife Refuge Improvement Act, Sustainable Fishing Act, and the recent Toxic Substances Control Act reforms are a few exceptions since the 1990 Clean Air Act amendments—much rides on the accumulations of judicial and agency interpretations of the meaning of a word here and a phrase there. As we enter a period of potential legislative volatility in this field, therefore, the rifle shot may be just as much in play as the nuclear bomb.
Like any statutory reform, rifle shots can make regulatory statutes either more or less regulatory. For example, one could add “including carbon dioxide” or “excluding carbon dioxide” in just the right place in the Clean Air Act and with those three words put an end to a lot of debate and litigation. Given the current political climate, however, it’s reasonable to assume any rifle shot would be aimed at reducing regulatory impacts. But even with just 25 words in the clip, one could transform the impact of several regulatory programs before running out.
For example, delete the words “harm” and “harass” from the statutory definition of “take” in the Endangered Species Act (ESA) (16 U.S.C. 1532(19)) [LINK 1] and you have a very different regulatory program. Much if not most of the land use regulation impact under the ESA stems from the inclusion of those two words; without them, the ESA’s prohibition of unpermitted take would restrict actions like hunting, killing, shooting, and wounding, but could not reach indirect “harming” from habitat modification. Of course, the interagency consultation program under Section 7 (16 U.S.C. 1536(a)(2)) [LINK 2] would still be in place, prohibiting federal agencies from taking actions that “jeopardize” the continued existence of species. But just add “substantially” before “jeopardize” and the practical effect of that prohibition is greatly reduced.
I’ve managed to transform the ESA, vastly reducing its regulatory impact, with just three word tweaks. Twenty-two to go. Here are some more examples. I’ll let readers evaluate the impacts.
· Speaking of evaluating impacts, the environmental impact review process of the National Environmental Policy Act (NEPA) can really slow things down (42 U.S.C. 4332(B)). [LINK 3] To “streamline” the process, add the word “direct” before “environmental impact” in subpart (C)(1), which would eliminate the current practice of requiring analysis of indirect and cumulative impacts, and delete subpart (C)(iii), which requires agencies to evaluate “alternatives to the proposed action,” to remove a factor that bogs down much NEPA litigation. (Six more words down, sixteen to go.)
· Heard all the commotion about which “waters” are subject to the Clean Water Act? Clear that up by changing the statutory definition of “navigable waters” (33 U.S.C. 1362(7)) [LINK 4] to read “waters of the United States subject to navigation.” That would be pretty extreme—it would remove most wetlands from jurisdiction—so one could control how far jurisdiction extends over wetlands by adding and their adjacent wetlands.” This would draw the line much closer to navigable water bodies than current interpretations reflected in Supreme Court opinions and agency regulations—Rapanos and the Water of the United States Rule become history. (Seven more words down, nine to go.)
· And if you also want to put to rest the question whether the Clean Water Act applies to groundwater, edit the front end of the definition to read “surface waters.” (Another word down, eight to go.)
· The Circuits are split over whether the Migratory Bird Treaty Act’s list of prohibited activities (16 U.S.C. 703(a)), [LINK 5] which includes to “take” or “kill,” sweeps within the statute’s reach any “incidental” taking or killing—injury or mortality that is not the direct purpose of the activity, such as strikes by wind turbines. Easy to solve! Add the word “purposeful” before the list of prohibited activities. (Another word down, seven to go.)
· And, while we’re at it, let’s go ahead and add “excluding carbon dioxide” to the Clean Air Act definition of “air pollutant” (42 U.S.C. 7602(g)). [LINK 6] Adios, Clean Power Plan. (Three more words down, leaving just four to go.)
I’ll leave it to readers to think about how to use the last four words. The point here is that the system of environmental and natural resources law has become quite fragile. With Congress out of the picture for so long, courts and agencies have built up an interpretation infrastructure under which a single word or phrase often carries a tremendous burden of substantive and procedural program implementation. As a consequence, a mere tweak here and there can have dramatic effects on the program.
Granted, anyone who closely follows the statutes tweaked above will quickly appreciate the impact of any of the tweaks, and I’ve chosen some powerful examples unlikely to slip by any such experts. But subtler tweaks buried deep in a larger bill could more easily fly below the radar.
It remains to be seen whether Congress takes this rifle shot approach or goes bigger. Rifle shots don’t eliminate or “gut” entire programs, which may be the current congressional appetite, but the above examples show the potency of this approach. I for one will be keeping my eyes out for rifle shots in bills every bit as much as I will be following the big bomb reform efforts. Do not underestimate the power of the tweak!
Posted on February 22, 2017
In Scaramouche, Raphael Sabatini describes the hero of the novel as having been “…born with a gift of laughter and a sense that the world was mad”.
The Angus Macbeth I knew for 38 years had one of the best laughs of all time and a keen appreciation for the occasional absurdity of the world in which he lived. After all, how else to describe a man whose life-long professional endeavor was to attempt to explain EPA to Industry, Industry to EPA, and NRDC to everyone. A Sisyphean task which he approached with skill and aplomb and, above all, a boundless supply of mirth.
I met Angus in 1978 as an aspiring lawyer looking for work in Carter-era Washington. I remember almost nothing about which we spoke. What does stand out is a long conversation filled with loud talk, laughter, an endless stream of staff lawyers entering and exiting during my interview to discuss some issue or other ( think Court of Requests), and cigar smoke. I am pretty sure I got hired because I demonstrated I could stay with the thread of our conversation regardless of the interruptions and, more importantly, my shared love of cigars. That was, truly the beginning of a beautiful friendship.
I watched and learned from Angus, not just then, but throughout our working lives. I watched him mold a group of really smart, sometimes unruly and quirky lawyers at DOJ into an enormously effective team. He made everyone he touched better.
I was amazed as he cajoled and jawboned his primary client ,EPA, into coming round to his way of thinking by the sheer force of his intellect and charm. Angus could quiet the most obstreperous US Attorneys, EPA Appointees, or opposing counsel by asking a few direct, innocent questions and waiting until they either got the lesson or felt the bleeding. In private practice Angus would patiently explain to the outraged client that yes, the government was not being logical; sadly, it didn’t have to be; however, here was a good path forward. It always worked. Angus combined a big brain, cold, clear-eyed analytical skills, and the integrity to tell clients what they needed rather than what they wanted to hear.
Angus loved complex problems and working with smart people to solve them as much as he hated typos (his biggest condemnation of a piece was that it was “riddled with typos”) and slipshod work. He could express convoluted concepts simply and was the master of the one word answer followed by silence and “the look”. Then, he would take over the room as he set out the issues and the answers. He led by his own example and had as little ego as any brilliant lawyer I have ever known. You just didn’t want to let him down or do less than your best. He was the gold standard for what a lawyer should be. And for what a colleague should be. And for what a friend should be.
I saw him angry only once, when a group of Louisiana lawyers thought they could pull a fast one on the government. They came to DOJ to complain about what we staff lawyers were doing and, thanks to Angus and Jim Moorman, left with their tails between their legs.
I traveled with him from San Francisco to England to Alaska. We toodled around Bath and the Salisbury plain and met his cousins who owned a book store and designed jeweled badges for HRH Prince Phillip. I marveled at how everywhere I went, everyone knew Angus or had an Angus story. He was equally comfortable with CEOs and London taxi drivers. His sartorial splendor was legendary. I did actually accompany him to Hackett’s in London where I saw him buy a new jacket which he wore for 30 years. I think he owned the same shirt for most of the time I knew him. It was never tucked in and the front buttons were on the verge of becoming projectiles.
He had perfected the stage whisper mutter which he used at the right time and place to effect. He loved to eat good food, drink good wine, and have the occasional drop of harder stuff. He was, after all, a true Scot. Once, we both decided to do something about our weight and decided to play squash at the DC Y. Truly. Can you imagine? Thank goodness there are no “Access Hollywood” tapes of those somewhat ponderous matches. Think the hippos in Fantasia dancing to the Waltz of the Flowers.
Despite being always on the go and in high demand for his legal skills, Angus always had time for friends. He was at the house with baskets of flowers when Ann and I got married; talked the Woodies store manager into selling him the rocking horse which was part of the seasonal display for Andrew when he was born; composed memorable toasts and through a thousand kindnesses let one know one was valued. And his cooking : fabulous. Dinners at the Macbeths-particularly at Christmas or Thanksgiving- were true creative feasts. I kept a list of the words he used with ease which I had never previously heard. He could actually tell you who Lord Acton was and what he famously said.
He loved being a lawyer. It spoke to his view that the world should be fundamentally fair and that the cause of justice was important. This sense of fairness drove him in his work on the scandal of the incarceration and property seizure which befell Japanese Americans at the hands of their government.
He loved JoAnn and “the boys” beyond measure.
If I had 2 lifetimes, I couldn’t recount every hilarious and touching Angus story I know. I am sure there are hundreds of his friends and colleagues who feel the same. What I know is that the luckiest thing that ever happened to me, professionally at least, was meeting Angus Macbeth. The smartest thing I ever did was to convince him to bring Sam Gutter and join me at Sidley. The second smartest was to hire him to help on GE’s biggest environmental problems. That he was my friend is a blessing to me. That he is gone is heart-breaking. Angus is irreplaceable.
Angus was quite simply a wise and good man. His passing leaves a huge hole in the fabric of the lives of his family, those who loved and worked with him, and the history of environmental law. He was one of a kind and I do not think we shall see his like again.
Angus, ave atque vale.
Posted on February 14, 2017
Citing its deep decline in numbers, on January 10, 2017, the U.S. Fish and Wildlife Service (“FWS”) listed the rusty patched bumble bee, Bombus affinis, as endangered under the Endangered Species Act (“ESA”). FWS estimates the rusty patched bumble bee population has seen as much as a 91 percent reduction since the mid to late 1990s. Twenty years ago, this species was practically ubiquitous in eastern North America, spanning across 28 states. Now its territory covers only small regions in 12 states: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.
This listing is the first for bees under the ESA, but unlikely the last. Like the rusty patch bumble bee, other bee species are facing steep declines in their respective populations. Declining bee populations are troubling, because bees, as pollinators, are vital to the U.S. agricultural industry. According to a study conducted in 2010 by Cornell University, bees and other pollinators are estimated to contribute a total of $29 billion to the industry, with $16.35 billion attributed specifically to pollination.
The direct cause of these dramatic declines in bee populations is undetermined and likely due to a multitude of factors. FWS states the threats to the rusty patched bumble bee include disease, exposure to pesticides, habitat loss, and climate change. This listing will likely intensify the debate over commonly used pesticides, including neonicotinoids, which have undergone additional scrutiny after a 2016 study published in Nature linked the use of neonicotinoids to the decline of wild bee populations in England.
FWS published the proposal for this listing in the Federal Register on September 22, 2016 and the final listing was published in the Federal Regulation on. January 10, 2017. However, due to the Trump administration’s Inauguration Day memorandum halting or delaying any new federal regulations, the ESA’s protection for the rusty patch bumble bee is delayed until March 21, 2017-a stinging result.
Posted on February 13, 2017
Have any of you been feeling like this lately? I certainly have! Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary. Instead, I chose a topic that made me smile.
On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games. The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals. The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze.
Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms. A few host cities previously used recyclable materials in their medals. Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics. The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint. The gold was mercury free and in compliance with sustainability standards from extraction to refining. At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals. The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings.
As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low.
Of course, we face similar obstacles in the United States. On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste. The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public.
At least in New York, things on the e-waste recycling front are more optimistic. New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices. The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day. At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030. As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.
Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.
Posted on February 9, 2017
Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!). It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.
Here are the highlights:
- A gradually increasing carbon tax, starting somewhere around $40/ton.
- Return of all revenue from the tax to citizens through dividend checks. The CLC predicts that the 70% of Americans with lowest income would receive more in dividends than they would pay in taxes.
- Border carbon adjustments.
- Elimination of existing carbon regulations. It’s not clear what this would cover, but it would include at least the Clean Power Plan. It would also include elimination of tort liability (presumably limited to tort liability related to claims concerning climate change).
I’d sign up for this today, but I’m not exactly one of the people that needs convincing. According to GreenWire (subscription required), former Secretary of State James Baker, who led the public presentation of the report, acknowledged that attaining enactment of the proposal would be an “uphill slog.” I think that’s putting it mildly. The CLC members are basically a who’s who of the old-line GOP mainstream – precisely the types that President Trump appears to have consigned to the dustbin of history.
Nonetheless, hope springs eternal and we have to start somewhere.
Posted on February 8, 2017
President Donald Trump’s first weeks in office have seemed like a reality TV show highlighted by frequent signing ceremonies for hastily-drafted executive orders. One of these orders, signed on January 30, is entitled “Reducing Regulation and Controlling Regulatory Costs” (Executive Order 13771). President Trump described it as mandating “the largest cut by far, ever in terms of regulation” and the key to “cutting regulations massively” for businesses. The order requires federal agencies to repeal two existing regulations for each new regulation they issue and it gives each agency a regulatory budget of zero for the imposition of aggregate costs on industry during the current fiscal year.
The words “cost” or “costs” appear 18 times in the executive order; entirely missing from it is any discussion of the benefits of regulation. By focusing solely on reducing the costs of regulation, President Trump is repeating a crucial mistake the Reagan administration made after launching a major “regulatory reform” initiative in 1981. President Reagan’s Executive Order 12291 created a new system of regulatory review centered in the Office of Management and Budget (OMB). It mandated that federal agencies perform cost/benefit analyses to support any major rule likely to cost more than $100 million annually. Subsequent Presidents of both parties have retained this requirement and the centralization of regulatory review in OMB’s Office of Information and Regulatory Affairs.
Unlike Trump’s executive order, Reagan’s order directed federal agencies to consider both the costs and benefits of regulation. It specified that such agencies should seek to maximize net benefits to society and to issue regulations only when their potential benefits outweighed their potential costs. However, the Reagan administration undermined these directives by maintaining that costs and benefits need not be weighed when an agency proposed to repeal a regulation. This contributed to a disastrous effort to repeal limits on the amount of lead additives that could be used in gasoline.
At the direction of Reagan’s Task Force on Regulatory Relief, EPA proposed to repeal the lead limits that had been sustained in the D.C. Circuit’s historic, en banc decision in Ethyl Corporation v. EPA. While this would have saved oil refiners a small amount of money, it would have dramatically increased lead poisoning, costing society far more. Yet, despite the Reagan administration’s new emphasis on cost/benefit analysis, no cost/benefit analysis was performed because EPA was proposing to repeal a regulation.
The rulemaking to abolish limits on lead in gasoline spawned such a firestorm of opposition, even from conservative columnist George Will, that the Reagan administration was forced instead to strengthen the regulation. Three years later, after William Ruckelhaus had returned to lead EPA, the agency performed a cost/benefit analysis of phasing lead out of gasoline entirely. After the analysis found overwhelming net benefits from banning leaded gasoline, EPA did so. Today nearly every country in the world has followed the U.S. in banning leaded gasoline, dramatically reducing lead poisoning. Economists estimate that lead phase-out now generates more than two trillion dollars per year in net benefits globally.
Under President Trump’s new executive order, federal agencies must repeal two rules, regardless of their benefits, in order to take any new regulatory action. And the costs of the new regulation must be offset by the reduced costs from repealing existing rules. Thus, if EPA wants to strengthen regulations on lead in drinking water to protect people like the residents of Flint, Michigan, Trump’s executive order requires it to repeal two existing rules, for example (god forbid) by no longer prohibiting oil refiners from adding lead to gasoline.
President Trump’s executive order has legal qualifiers that offer some hope. It purports not to “impair or otherwise affect” agencies’ existing legal authority and it requires federal agencies to comply with the Administrative Procedure Act (APA) when repealing rules. The APA’s judicial review provisions direct courts to strike down agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If an agency’s only justification for repealing a rule is to comply with President Trump’s new directive, it should be possible to convince a reviewing court that the action is arbitrary enough to be struck down.
President Reagan’s efforts to relax environmental regulation generated a backlash in Congress, which responded by greatly strengthening the environmental laws and adding numerous deadlines for EPA action. But that was because Congress then was controlled by lawmakers who cared about environmental protection. Today’s Congress is controlled by lawmakers who regularly campaign against EPA regulations. Regulations that are outmoded, ineffective, or excessively burdensome should be repealed, as President Obama directed in 2011 when he issued Executive Order 13563. But President Trump’s poorly drafted Executive Order 13771 opens the door to repealing long-established protections for public health, safety and the environment without consideration of the enormous benefits they produce.
Posted on February 6, 2017
In recent months, the Agency for Toxic Substances and Disease Registry (ATSDR) and the “minimal risk levels” (MRLs) established by ATSDR have played a direct role in EPA’s efforts to regulate stationary sources under the Clean Air Act. The ATSDR is an advisory agency created by CERCLA in 1980 to help EPA assess health hazards associated with Superfund Sites. ATSDR’s role was expanded by the 1984 RCRA Amendments to assess risks from hazardous substance releases at landfills and surface impoundments. In 1986 SARA further expanded ATSDR’s responsibilities under CERCLA to assess the health impacts of hazardous substance releases.
In response to its CERCLA mandate, ATSDR has developed MRLs which define the level of daily human exposure to a hazardous substance release that is likely to result in no appreciable risk of an adverse non-cancer health effect. MRLs are designed to be a screening tool and are not intended to identify levels that would trigger cleanup or other action. As a result, exposure to a hazardous substance above an MRL does not necessarily mean that adverse health effects will occur. Rather, MRLs “are set below levels that, based on current information, might cause adverse health effects in the people most sensitive to such substance-induced effect.”
In comparison to the MRLs developed under CERCLA, there are two sets of standards established by EPA under the federal Clean Air Act to address health impacts from air emissions. One of these is the National Ambient Air Quality Standards (“NAAQS”) which define the concentration of a criteria pollutant in ambient air deemed to be protective of human health. State implementation plans are designed to achieve compliance with NAAQS. Likewise, the air emissions from permitted stationary sources are analyzed to ensure consistency with NAAQS. NAAQS are developed through a rigorous process that solicits input from the scientific community and public at large, and are promulgated as rules which are invariably subject to legal challenge and judicial review.
EPA also establishes emission limitations under Section 112 of the Clean Air Act to control toxic air emissions. These standards limit the emissions of hazardous air pollutants from specified categories of stationary sources. EPA assesses the risk to public health and the environment that remains after implementation of these limitations and must promulgate new health based standards to mitigate those residual risks.
In recent months EPA has moved beyond the NAAQS and toxic air pollutant standards to rely upon the ATSDR and its MRLs in identifying the allowable, and ostensibly enforceable, concentration of pollutants in ambient air under the Clean Air Act.
In one case, EPA asked ATSDR to evaluate the ambient air quality surrounding a stationary source. ATSDR concluded that the monitored concentrations of manganese from that source exceeded the pollutant’s MRL. Based on this finding, US DOJ filed a civil complaint against the facility. One of the claims alleged that the monitored manganese concentrations presented an imminent and substantial endangerment to public health and that injunctive action was necessary under Section 303 of the Clean Air Act. The complaint requested a judicial order requiring installation of fence-line air monitors and implementation by the source of all measures necessary to prevent exceedance of the MRL for manganese at those monitors. In effect, EPA identified the MRL as the allowable concentration of manganese to be emitted under the Clean Air Act. The case has settled.
In other matters, EPA Region 5 utilized the information from an ATSDR health consultation to justify issuance of a Section 114 order under the Clean Air Act which required installation of fence-line PM10 monitors around a facility with outdoor storage piles where manganese emissions were also an issue. The company refused to install the monitors and EPA filed a civil complaint seeking to enforce the Section 114 order. EPA sought summary judgment, relying in part upon an ATSDR finding that manganese concentrations in the ambient air surrounding a nearby facility exceeded the MRL. The underlying ATSDR assessment also used PM10 Air Quality Guidelines (AQG) from the World Health Organization (WHO) to conclude that ambient PM10 concentrations might cause respiratory problems for sensitive individuals. Notably, the WHO AQG are more conservative than the NAAQS (the WHO AQG for PM10 is 50 μg/m3 as a 24-hour mean, whereas the NAAQS for PM10 is 150 μg/m3 averaged over that same time period). The case settled.
It’s worth noting that ATSDR has finalized approximately 150 inhalation based MRLs covering pollutants emitted by a broad range of industrial facilities. However, I think it is safe to assume that stationary sources do not view MRLs as imposing any additional Clean Air Act strictures on their operations since the MRLs are not listed as applicable requirements in air permits. Moreover, the Title I and V permitting programs do not require sources to perform dispersion modeling to ensure compliance with MRLs.
It remains to be seen whether EPA under the new administration will continue to reach out to ATSDR and utilize the MRLs in addressing air pollutant emissions, particularly where such limits have never been vetted through a rulemaking process. I wouldn’t bet on it.
Posted on February 3, 2017
On his way out the door, former Director of the U.S. Fish and Wildlife Service Dan Ashe issued an order to establish procedures and a timeline for expanding the use of nontoxic ammunition and fishing tackle to conserve wildlife. The order sets forth policy to require the use of nontoxic ammunition and fishing tackle “to the fullest extent practicable” for all activities on Service lands, waters and facilities by January 2022, except as needed for law enforcement or to address health and safety issues. The order also provides for collaboration with state fish and wildlife agencies in its implementation.
In addition to continued education and research, Ashe set forth three basic steps to achieve this policy. To provide more consistency, the Service is to identify existing state, Federal or tribal requirements to use nontoxic ammunition or tackle and, through amendment of Service hunting and fishing regulations, to apply and enforce those requirements on Service lands. Second, Regional Directors must take steps to require the use of nontoxic ammunition and tackle when available information indicates that the lead content negatively impacts sensitive, vulnerable or trust resources. It also directs the Service, in consultation with National Flyway Councils, to establish a process to phase in the use of nontoxic ammunition for hunting mourning doves and other upland birds. In other words, the order is a measured plan to be implemented through collaboration, consultation and rulemaking over the next five years.
The phase-out of lead ammunition is nothing new. The Service phased out the use of lead shot for hunting waterfowl starting in 1986, but rejected an alternative that would have extended to all migratory bird hunting based on insufficient data. For decades, scientific evidence regarding the detrimental effect of lead ammunition on wildlife has been mounting. A recent Service assessment concluded that numerous lines of evidence in the scientific literature point to spent lead ammunition as the primary pathway for widespread lead exposure to scavenging birds such as bald and golden eagles and the California condor in the United States, that reducing this route of exposure will result in the greatest alleviation of mortality and other adverse effects to these species from lead in the environment, and that lead can be replaced in ammunition by alternative metals that are currently available and present limited environmental threats.
Unfortunately, Ashe’s timing was terrible. Predictably, the National Shooting Sports Foundation and the National Rifle Association characterized the order as government overreach, unchecked politics and not based on sound science. They called for the next Director to rescind the order, and Representatives Jason Chaffetz and Blake Farenthold, Chairman of the House Subcommittee on the Interior, Energy, and the Environment, have instructed the Acting Director of the U.S. Fish and Wildlife Service to produce all documents referring or relating to issuance of the order by February 13, and to provide a briefing on the Service’s outreach efforts to the states and the “sportsmen’s community” in anticipation of the order’s issuance. Montana Congressman Ryan Zinke, poised to become U.S. Secretary of the Interior, is likely to ensure that the order is very promptly rescinded.
Waterfowl hunters have successfully used nontoxic shot for over twenty-five years. Absent further leadership from the U.S. Fish and Wildlife Service, some states are phasing out lead ammunition. Hunters currently have a reasonable choice to avoid unintended harm – wildlife does not.
Posted on February 2, 2017
The state of Oregon has turned up the heat in Hells Canyon. The burning question, so to speak, is whether a state can require passage and reintroduction of anadromous fish as a condition of certification under Section 401 of the Clean Water Act for relicensing of an existing hydroelectric project. The issue gets hotter because the particular project involved -- the Hells Canyon Complex (“HCC”), owned by Idaho Power Company (“IPC”) -- is located on the Snake River, which forms the border between Oregon and Idaho. The State of Oregon has issued a draft 401 certification with detailed conditions for passage and reintroduction of anadromous fish into a tributary on the “Oregon side” of the river. Idaho is opposed to reintroduction of any fish species above Hells Canyon Dam, leaving IPC in the middle.
Making a very long and complicated story short, for more than 13 years IPC has been working with state and federal agencies and stakeholders toward relicensing of the HCC. The project consists of three developments, each with a dam, reservoir, and powerhouse. In 1955, FERC issued a 50-year license with recognition that construction of the project would block fish passage and eventually lead to extirpation of anadromous fish above the dams. As a result, the initial FERC license included mitigation conditions to offset fish impacts, and additional mitigation was provided under a subsequent settlement agreement.
After more than a decade of studies, meetings, and negotiations, it looked like IPC and the states were on track for general agreement as to the terms and conditions of compatible, but separate 401 certifications to be issued by Oregon and Idaho – except as to the issue of fish passage and reintroduction. Despite Idaho’s objections, the Oregon Department of Environmental Quality (ODEQ) issued its draft 401 certification for public comment on December 13, 2016. The draft relies on a number of existing state water quality standards as the legal basis for requiring fish passage and reintroduction, though none of the standards is directly on point.
Public comments on the proposed 401 certification are due February 13. Objections relating to the fish passage and reintroduction conditions are likely to focus on whether such conditions are generally within the scope of 401 certification for FERC-licensed hydroelectric projects, and, if so, whether Oregon’s specific water quality standards provide a sufficient regulatory basis for the proposed ODEQ action. The comments may also raise questions about the baseline for mitigation and whether impacts to fish due to construction of the project – as opposed to on-going operations -- have already been fully mitigated. And then there’s the question of Idaho’s opposition.
ODEQ will consider the comments before issuing a final 401 certification decision. If the states are unable to resolve their differences over the passage and reintroduction issue, it’s likely to get a lot hotter in Hells Canyon.
And finally, a disclosure that the HCC relicensing issues hit close to home for ACOEL: I am part of a team representing IPC, and other College members are very much involved on both sides of the issue. There’s a lot we won’t be able to talk about at the next annual meeting!
Posted on February 1, 2017
The Paris Agreement reached at the 21st Conference of the Parties (COP-21) to the 1992 UN Framework Convention on Climate Change is a tobacco-style mass tort settlement cloaked as a global agreement to control greenhouse gases. Remaining in or departing the agreement involves a host of complex diplomatic, economic, and environmental issues.
Paris is the culmination of ten years’ of negotiations following the 2005 agreement in Montreal by industrial and developing nations to pursue talks aimed at “Long-Term Cooperative Action.” Prior to COP-10 in Montreal, and in the discussions leading to the 1997 Kyoto Protocol, developing nations steadfastly refused to consider taking on any substantive greenhouse gas emission control obligations, citing their need for economic growth, the eradication of poverty, and the historic responsibility of industrial nations for increased global greenhouse gas concentrations. Today, developing nations are the largest source of greenhouse gas emissions.
The U.S. and 174 other nations signed the Paris Agreement in New York on April 22, 2016. The agreement entered into force on October 6, 2016, and has been ratified to date by 122 of its signatories. If all of the emission reduction pledges submitted thus far were implemented, Paris may accomplish a modest reduction in the rate of growth of global greenhouse emissions, but will not come close to achieving its goal of limiting post-industrial temperature increases to 2 degrees Celsius.
More important to many of its signatories is achieving the other central purpose of the Paris Agreement: transferring upwards of $100 billion annually from industrial nations to less-developed countries to support emission mitigation and adaptation programs.
If the Paris agreement falls apart – by the defection of the U.S. or other major emitting nations, or through subsequent recognition that its ambitious climate targets and financial promises are unlikely to be achieved – the result could be mass tort litigation against major sources of carbon emissions such as international oil companies and other fossil fuel interests.
Tobacco and Climate Change
In the late 1990s, tobacco companies were sued by several states seeking compensation for higher health care costs caused by sick smokers. The tobacco companies ultimately agreed to a multi-billion dollar structured payout to the states, to be used for tobacco education programs or other purposes deemed appropriate by the plaintiffs. This financial settlement was reached in exchange for the states’ agreement not to pursue further litigation against the companies.
Now consider the structure of the Paris Agreement. Virtually all participating nations have submitted non-binding pledges to reduce or limit the growth of greenhouse gas emissions. In many cases, these pledges are explicitly contingent upon the transfer of financial and technological resources from industrial nations. The $100 billion annual pledge for developing country support – equivalent to about two-tenths of one percent of the GDP of all OECD industrial nations - was offered by then-Secretary of State Hillary Clinton at COP-15 in Copenhagen in 2009. When those negotiations broke down, the U.S. financial compensation offer was not forgotten. It later became a centerpiece of the talks resulting in the Paris agreement.
Responsibility without Liability
At the opening session of COP-21 in Paris, President Obama accepted “historic responsibility” for the United States’ contribution to increased greenhouse gas concentrations since the industrial revolution. Since 1780, global CO2 concentrations have risen from 280 ppm to more than 400 ppm, largely due to increased emissions from fossil fuel sources and mass deforestation by some developing nations.
While the President was accepting a share of the blame, his lawyers were hard at work. First, they quashed proposals to establish a new “climate court” to adjudicate claims of climate-related damages. Next, they fine-tuned a provision that could help to protect major industrial emitters from future liability for “loss and damages” associated with climate change. The liability provision included as Paragraph 51 of the COP-21 Decision adopting the Paris Agreement states that the Conference of the Parties “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” FCCC/CP/2015/10 Add.1.
Insurance for Parties at Risk
Article 8 of the Paris Agreement establishes an insurance program - the Warsaw International Mechanism - designed to make affordable climate-related insurance available to nations vulnerable to the effects of climate change, such as low-lying island states. To this end, Paragraph 48 of the COP Decision“(r)equests the Executive Committee of the Warsaw International Mechanism to establish a clearing house for risk transfer that serves as a repository for information on insurance and risk transfer, in order to facilitate the efforts of Parties to develop and implement comprehensive risk management strategies.” Id.
If Paris remains in full force and effect, it will serve as the exclusive multilateral entity charged with regulating the causes, consequences and remedies appropriate for climate change. The agreement thus may provide an effective shield against the exercise of subject matter jurisdiction by any court outside the U.S. in cases involving claims for damages associated with the effects of rising sea levels or other environmental consequences of climate change. Within the U.S., the Supreme Court already has decided (AEP v. Connecticut, 564 U.S. 410, 2011) that for federal courts the Clean Air Act displaces federal common law nuisance actions, placing jurisdiction over climate-related remedies in the U.S. Environmental Protection Agency. The AEP Court’s holding was limited to federal common law nuisance actions, thus leaving open the possibility of tort recovery based on state common law nuisance claims.
Should We Stay or Should We Go?
The decision to remain in or depart from the Paris Agreement is a high priority for the new Trump Administration. Some see advantages to simply walking away, or just ignoring the agreement given its lack of enforcement provisions. The President could issue an executive order withdrawing President Obama’s signature, or submit the agreement to the Senate for its advice and consent.
For some proponents, the case for walking away is strengthened by the collateral impact this would have on U.S. EPA’s future ability to exercise authority under Section 115 of the Clean Air Act to impose a carbon cap-and-trade program or similar measures to abate international air pollution. Environmental interests have advocated such a course in light of the legal difficulties besetting EPA’s Clean Power Plan.
Other advocates see a benefit to continuing U.S. participation in Paris to preserve it as a “global” forum for the discussion and resolution of climate-related issues. Through both Democratic and Republican administrations, the U.S. has been an effective interlocutor in all 22 Conferences of the Parties to the 1992 Rio Framework Convention.
Being at the table in international negotiations, especially where the potential liability of mass tort litigation is implicitly at issue, does not entail slavish implementation of unrealistic climate policies. The two degree Celsius target of the Paris Agreement is at the low end of targets considered appropriate by many in the scientific community. Meeting this target implies decarbonization of the U.S. energy sector by 2050, as documented by the Mid-Century Climate Strategy disseminated by the Obama Administration at COP-22 in Marrakech last November. This target, along with the pledge of a future “floor” contribution of $100 billion annually to developing nations, could be revisited and renegotiated in the regular “pledge and review” processes established by Paris.
The decision to withdraw from Paris should be weighed in light of its prospective trade and diplomatic impacts with other major carbon emitters, including the EU, China, Russia and India. The potential legal consequences of disengagement need to be thoroughly evaluated, along with the risks that U.S. withdrawal could precipitate widespread defection by many developing nations more eager to pursue litigation than to purchase insurance.
*The writer is an attorney in private practice (NYU, 1972; Georgetown U. Law Ctr., 1977). He has participated as an NGO representative of U.S. labor interests in all major negotiating sessions of the UN FCCC since 1993. He may be contacted at firstname.lastname@example.org.
Posted on January 30, 2017
With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs. Put simply, I don’t get it. There are at least two good reasons why conservatives should prefer Chevron deference to no deference.
First, the alternative is for courts to decide all questions of agency authority. But haven’t conservatives railed against unelected judges for years? Bureaucrats are unelected, but at least they work for the elected President. Isn’t EPA more likely to be responsive to President Trump than federal judges would be?
Second, the EDFs and NRDCs of this world would laugh hysterically at the notion that they have more sway with EPA than the regulated community. Anyone ever heard of “Regulatory Capture”?
The argument in support of Chevron was made cogently by Ed McTiernan in a recent blog post, but the strength of the argument was really brought home by the decision this past week in Catskill Mountains Chapter of Trout Unlimited v. EPA, in which the 2nd Circuit Court of Appeals – to fairly wide surprise – reversed a district court decision that had struck down EPA’s “water transfer” rule.
The rule was much favored by the regulated community, but there were very good jurisprudential reasons to affirm the District Court. Indeed, the decision was 2-1 and even the majority opinion repeatedly noted that, were it writing on a blank slate, it might well prefer an interpretation that would strike down the rule.
Why, then, did the Appeals Court reverse the District Court and affirm the rule? Chevron deference, of course.
Conservatives, be careful what you wish for.
Posted on January 27, 2017
So said Mark Twain (actually, he didn’t), and now the same can be said for EPA’s rule exempting water transfers from NPDES permitting requirements. When I last addressed this topic nearly three years ago in “Ashes to Ashes; Waters to Waters – The Death of EPA’s Water Transfer Rule”, a federal district court had just vacated the rule seeking to clarify EPA’s position that transfers of water between navigable bodies of water do not require NPDES permits. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency (SDNY, 3/28/2014).
Displaying a prescience that would make Carnac the Magnificent proud, I closed that earlier post with the assertion that “the only certainty is that litigation over the Water Transfer Rule will continue to flow.” I am therefore personally pleased to report that flow it has, the Second Circuit having now overturned the district court decision in a 2-1 opinion issued on January 18, 2017. The majority opinion upheld EPA's interpretation of the Clean Water Act to exempt water transfers, finding it was a “reasonable construction of the Clean Water Act supported by a reasoned explanation” and was entitled to deferential review under the Supreme Court’s Chevron doctrine.
Not content to rest on my laurels, I’m going to make another prediction. The Second Circuit won’t agree to rehear en banc and, if certiorari is sought, the Supreme Court won’t take the case. All of which means that, except perhaps for one last post to gloat yet again about my ability to see into the future, this is the last you’ll hear about litigation over the water transfer rule.
Posted on January 26, 2017
President Trump wasted no time making good on his promise to reverse President Obama’s efforts to reduce greenhouse gas emissions and move U.S. energy policy towards cleaner energy sources. On January 24 Trump signed two executive memoranda, one inviting TransCanada to resubmit its application to build the 800,000 barrel a day Keystone XL pipeline from the Canadian oil sands to the Gulf Coast; the other directing the Army Corps of Engineers to expedite the review and approval of the Dakota Access Pipeline (DAPL) to carry approximately 500,000 barrels per day of crude oil from the Bakken shale in North Dakota to oil markets in the United States. But a close reading raises some sticky legal and economic issues that will have to be resolved before the oil starts flowing. [LINKS to Keystone and DAPL Memos]
In announcing the Keystone Memo, Trump said that approval was contingent on TransCanada’s willingness to “renegotiate some of the terms” – including perhaps a commitment to use US steel and a share in any profits. The problem is that tar sands oil is not only the dirtiest fuel on the planet, it’s also the most expensive to extract. To be profitable oil prices need to be above $80 per barrel; today they sit around $52, and it is unlikely they will rise much higher in the foreseeable future given the competition from shale oil and the fracking boom that is flooding the market in the US. The break-even point for Bakken shale oil is $29 per barrel. Seventeen major oil sands projects were canceled after oil prices crashed in 2014, as companies took major losses. Major investors in the oil sands have begun to leave, including Norway-based Statoil, which pulled out of the oil sands in December 2016. So cutting a deal to the President’s liking may be harder than it looks.
Assuming the deal goes down, the Keystone Memo issues several directives to clear the way for the project. It directs the State Department to make a final decision within 60 days of the date TransCanada re-submits its application, and it further specifies that “to the maximum extent permitted by law” the final supplemental EIS issued in 2014 shall satisfy the requirements of NEPA as well as the consultation requirements of the Endangered Species Act, and “any other provision of law that requires executive department consultation or review.” The Keystone Memo also directs the Corps of Engineers to use Nationwide Permit 12 to summarily authorize the stream crossings needed to complete the project. These fast track measures are sure to be tested in court by the opponents who are not about to let their hard won victory be snatched away without a furious fight—in the courts as well as in the streets. While courts have ruled that the presidential permit itself is not reviewable, there is presumably no bar to challenging the decisions of the Corps and the Department of Interior that are necessary to complete the project.
The DAPL Memo directs the Secretary of the Army and the Chief of the Corps of Engineers to “review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under section 28 of the Mineral Leasing Act.” The Memo also instructs the Secretary to consider whether to rescind the memorandum issued by the Obama administration requiring preparation of an EIS on DAPL’s request for an easement to cross Lake Oahe, and to deem the previously-issued Environmental Assessment sufficient to satisfy NEPA.
The Standing Rock protest over DAPL has become an historic confrontation that has united an Indigenous land-and-water movement and climate activism to confront a fossil-fuel corporation protected by a militarized police force. At one point in December thousands of veterans arrived to provide a safe space for the protesters who call themselves “water protectors.” Litigation filed by the Standing Rock Tribe and other tribes challenging the Corps’ issuance of permits under the Clean Water Act and Rivers and Harbors Act is pending in federal district court in the District of Columbia. Judge Boasberg denied a preliminary injunction but has yet to rule on the merits of the case. At the moment, the court is considering DAPL’s motion for summary judgment to declare that the project already has all of the approvals it needs and the Corps should not be able to reverse its earlier decision that an EIS was not required. Though the Justice Department has vigorously opposed this move, it will be interesting to see whether the Trump administration adopts a different posture. In any event, the Tribe has raised serious questions about whether the Corps properly evaluated threats to its water supply intake and alternative routes that would lessen the risk. One of the allegations invokes environmental justice concerns arguing that the project was re-routed away from Bismarck in response to concerns about threats to its water supply. The Tribe has also raised novel questions about whether granting the easement would violate treaty rights under the 1851 Treaty of Fort Laramie.
At the hearing on DAPL’s motion for summary judgment, Judge Boasberg acknowledged the uncertainty about what the new administration might do but observed that “It’s not my business to guess.” For now the rest of us will have to guess at what the final outcome of this epic confrontation that has galvanized indigenous peoples from all over the world will be.