Regulating Guidance As Though It Were Regulation

Posted on September 18, 2020 by Seth Jaffe

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

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

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

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

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

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

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

Posted on September 14, 2020 by Samuel I. Gutter

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

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

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

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

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

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

Not Quite the Same as Making Mexico Pay For the Wall

Posted on September 9, 2020 by Seth Jaffe

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

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

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

Will wonders never cease?

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

Posted on August 26, 2020 by Gail Port

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

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

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

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

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

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

EV Make Ready Program

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

Competitions

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

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

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

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

Posted on August 12, 2020 by Seth Jaffe

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

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

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

Justice Gorsuch, are you listening?

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

Judge Rogers was not amused.

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

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

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

Hats Off to the Green New Dealers

Posted on August 10, 2020 by Leslie Carothers

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

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

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

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

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

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

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

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

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

Posted on July 30, 2020 by Jeffrey Porter

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

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

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

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

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

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

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

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

Trump Upends NEPA Rules in the Name of Speed

Posted on July 28, 2020 by Rick Glick

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

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

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

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

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

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

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

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

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

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

Full Funding Finally

Posted on July 23, 2020 by Philip Tabas

 

The US’s most important conservation program is about to get the assured funding that its creators envisioned 55 years ago.

The US House of Representatives voted 310-107 on July 22nd to approve the Great American Outdoors Act (GAOA.)  Earlier, on June 17th, the Senate passed the GAOA with a 73-25 vote. This is an overwhelming show of bipartisan support for the bill, which would fully and permanently fund the Land and Water Conservation Fund (LWCF) at $900 million annually and invest $1.9 billion annually for the next five years toward maintenance in national parks and other public lands.

The President has promised to sign the bill when it gets to his desk.

Enacted in in 1964, the LWCF provides funding to protect America’s most treasured places. Over the past five plus decades, it has touched every state, conserving national parks and forests, lands adjacent to rivers, lakes and oceans, working forests, farms and ranches, fish and wildlife refuges, trails, and state and local parks.

LWCF uses revenues from the depletion of one natural resource - offshore oil and gas - to support the conservation of other natural resources – the Nation’s lands and waters. Every year, $900 million in royalties paid by energy companies drilling for oil and gas on the Outer Continental Shelf (OCS) are put into the LWCF fund. The money is intended to protect national parks, areas around rivers and lakes, national forests, and national wildlife refuges from development, and to provide matching grants for state and local parks and recreation projects.  Over the years, LWCF has also grown to include grants to protect working forests, wildlife habitat, critical drinking water supplies and disappearing battlefields, as well as increased use of easements.

The LWCF was permanently authorized in 2019, but that did not guarantee that the $900 million put into the LWCF account every year would actually be spent on conservation. Over the 55 years of the program, billions of dollars have been siphoned from the fund for other non-conservation purposes. In fact, this past fiscal year 2020, only $495 million was appropriated to LWCF—far short of full funding, and yet the highest amount in 15 years. Enactment of GAOA will guarantee that LWCF will finally receive the full funding that was originally envisioned.

 

The “Next” Pandemic : How States Can Avert It.

Posted on July 10, 2020 by Nicholas Robinson

The “next” pandemic in the USA is not a question of “if” but of “when.” Just as States scramble to win or shore up their victories against  COVID-19, a second front appears. Can the USA win a two-front war with microbes?

Two parallel infections now afflict separately humans and pigs. A new strain of the H1N1 swine flu virus, which killed 285,000 people when it merged in 2009, is now spreading among humans working on pig farms in China. The National Academy of Science reported this new threat in June  ( https://www.pnas.org/content/early/2020/06/23/1921186117). How can the risks to humans from this new virus, G4 EA H1N1, be contained? This human infection is emerging at the same time that  the world experiences the raging animal pandemic of African swine fever virus (AFS). AFS is forcing Asians to kill their domestic pig herds. AFS is now in 17 European nations and threatens to spread across all continents. No one knows now how to contain the AFS Pandemic among animals.

Once early surveillance detects such threats, what  precautions are essential to avert the “next” pandemic? Much is at stake. Since February 18, 2020, when ACOEL published its first Blog on COVID-19, (at http://www.acoel.org/post/2020/02/18/CORONAVIRUS-We-Thought-We-Knew-Ye!-The-Wuhan-Potential-Pandemic.aspx ), the virus SARS-CoV-2  has stolen lives and livelihoods. Its impact has vastly exceeded that of the costly HIV-1/AIDs pandemic, or the 2009 H1N1 epidemic. 

Like the plague, these diseases, along with SARS, EBOLA or West Nile virus, are the result of infections  that spill over from the wild animal kingdom, transmitting disease to  humans. This is known as zoonosis. HIV-1/AIDS came from primates in Africa, and since 1983 has killed 38 million humans, and currently sickens 36.9 million persons.  When COVID-19 first appeared, it was thought to have come via Pangolins, but now is linked to bats (Rhinolophus), which live in habitats across SE Asia and China. Earth holds perhaps 700,000 different viruses, most not yet discovered.  Of the 335 human diseases identified between 1960 and 2004, 61% are of zoonotic origin, and 72 % of all recent diseases are zoonotic.

The frequency of human infections from zoonotic diseases is increasing. Illnesses like Denge, chikungunya, or Zika have shown up in the Americas, and will be joined by others in the future. In 1999, West Nile virus, transmitted to humans by mosquitoes, made its first appearance in the Western Hemisphere in New York, after a drought followed by heavy rains. Since then, over 1,600 people have died of the disease.

Simultaneously while coping with COVID-19, it is evident that governments need to organize to avert a new zoonotic infections. Some are already here, others are coming. For example, Lyme Disease is a continuing threat. Other novel microbes can arrive quickly. Locally infected people travel, and airplanes bring the diseases to distant lands. It took months for rats to bring Bubonic Plague, the medieval “Black Death,” to Europe on sailing ships. Today a virus jumps continents in a few hours. As the economy restarts after COVID-19, governments will need new regimes of phyto-sanitary measures for trade, transportation, and tourism. 

Zoonotic diseases are on the rise for several reasons. Escalating declines in  biodiversity are the root cause. Biodiversity loss is a health risk multiplier.  As populations of species thin, many to the point of extinction, the viruses and bacteria that they host spread out looking for new hosts. Deforestation, and other unsustainable developments, disrupt habitats for many species, which in turn shed their viruses. A zoonotic disease, whether bacteria like Lyme Disease, or a novel coronavirus like SARS, then finds new animal hosts, including eventually human beings. Building new roads or suburban subdivisions fragment the landscape,  severs  migration corridors, and disrupt ecosystems, thereby exposing more humans to zoonotic microbes. Since humans interface with these disturbed natural  habitats,  their likelihood of being infected increases. 

Climate Change impacts are exacerbating biodiversity loss and augment humanity’s interface with zoonotic infections. Extreme weather events cause a cascade of other effects that influence disease. Heat and droughts create dry conditions, providing fuel for forest fires that end up fragmenting forests and driving wildlife closer to humans. Increased rainfall and humidity provide favorable conditions for mosquitoes to breed and for adult mosquitoes to survive.

If society waits for hospitals and health departments to cope with a zoonotic disease, it is too late. The most effective way to prevent or minimize zoonotic spillovers from animals to humans is to keep all animals healthy. Doing so requires greater attention to veterinary science and the health of domesticated animals and agriculture.  For environmental law, it means enhancing nature conservation programs that sustain ecosystem health, everywhere. We reduce the likelihood of zoonotic spillovers by sustaining resilient ecosystems in wetlands, in suburbs, in rural countryside, as well as in parks and wilderness. 

An inter-agency, or “whole of government” collaboration, is required. Such collaboration runs against the grain. We promote agriculture as commerce, with insufficient attention to veterinary health of farmed  animals. The pandemic of AFS has destroyed the pork industry in China and impacts food supplies worldwide. Animal health is treated apart from human health. Humans and animals exchange TB, zoonotic tuberculosis. Developed economies tend to forget that the well-being of all plants, animals and humans is intrinsically connected, and profoundly affect by human activity. The reality is that there is only “One Health.”

The World Health Organization (WHO) and Food & Agricultural Organization (FAO) endorse a “One Health” approach. The US Centers for Disease Control does too. Consensus favoring a “One Heath” approach has grown, but has been too marginal to make much of a difference. The  Wildlife Conservation Society and German government’s  2019 “Berlin Principles,”  or the 2017 UN Environment Assembly recommendations, and proposals from the EcoHealth Alliance, have all proposed  the “One Health” approach as essential to successfully manage risks of zoonosis.

To date, however, none of the “One Health” advocates  translate this policy construct  into meaningful action. At most they urge that veterinarians and public health  agencies should cooperate. In truth, cooperation between veterinarians, public health agencies, and nature conservation authorities, whether locally or globally through the International Union for the Conservation of Nature (IUCN), today does not exist. All these entities largely ignore the tools that environmental law offers to effectuate the “One Health” approach.

To avert the spillover of viruses or bacteria from wild animals, it is essential to keep natural habitats healthy.  At the outset, “One Health” should formally recognize the conservation of wild nature as its foundation. Conservation is too often discounted or deemed merely an amenity. Yet if governments at all levels fail to maintain healthy wild habitats, they invite spillovers of virus and bacteria seeking human hosts. Human incursions are increasing disrupting habitat in the forests of Africa, Southeast Asia the Amazon, or the woods of suburban North America. Disease spillovers increase in turn.

Sustaining biodiversity requires maintaining intact and functional ecosystems. These are the fundamental infrastructure for all of life, our health and our socio-economic well-being. Stemming current losses in biodiversity is the front line for protecting human health. Governments need to mainline biodiversity conservation to manage zoonotic disease risks.  

Virtually all governments neglect these tasks. Government budgets reflect an ignorance about the measures that prevent zoonotic spillovers. Budgets invariably assign to Departments of Health more than twice the resources provided for nature conservation and they allocate exponentially more when funding  military or police security.  COVID-19 reveals the folly of this imbalance.  Zoonotic diseases are non-traditional security threats, causing incalculable human and economic loss. The upshot: “Pay me now or pay me later.”

To avert the “next” pandemic, governments can deploy  a number of environmental laws to implement  a “One Health” approach. Environmental laws provide a suite of policies and best practices exists to avert the “next” pandemic. Given what COVID-19 has taught us, there is some urgency in deploying these tools. Would it not be irresponsible to fail to do so?” Will we? The war on COVID-19 has so far precluded debate about preparing to avert the “next” pandemic.  We face  the risk of “business as usual,” and choosing not to learn, as happened after the experience of SARS in 2003-2004. 

Since the “next” zoonotic spillover is underway, it is essential to actively manage the interface between humans and animals. Surveillance of emerging diseases requires collecting data constantly, as a priority. To ensure that warnings from this surveillance are  acted upon,  each level of government needs to provide a strategic, high level coordinating council or executive body to oversee these efforts. Many governments do so now (See the 2019 Trilateral Guidance by WHO, FAO, OiE, at http://www.fao.org/3/ca2942en/ca2942en.pdf).  The USA briefly had such a strategic unit, begun after the Ebola crisis by the Obama Administration. The White House Directorate for Global Heath and Security in the National Security Council addressed these non-traditional security issues.  President Trump discontinued this unit. While the President’s Council on Environmental Quality (CEQ) could be tasked with these coordinating roles, CEQ’s weakened capacity means that Congress and future Presidents will need to do even more in order to coordinate all federal agencies to protect domestic health. 

Every State government should have a gubernatorial body to prepare for and coordinate zoonotic risk management. Such bodies exist already in some cases. For example, New York State can and should activate the Governor’s Council of Environmental Advisors, as is authorized under Article 7 of the Environmental Conservation Law. A statutory body is needed to prevent a future executive from neglecting this strategic cockpit for “One Health.” Where no such authority exists, the legislature should provide for one.  

A top priority for any executive coordinating body will be to address how to manage zoonotic risks while addressing the impacts climate change. For example, New York’s Climate Leadership & Community Protection Act of June 2019 provides tools that could be used to provide “One Heath” safeguards. In §75-0109 of the Environmental Conservation Law, this Act provides for off-setting carbon emissions through extending forests and other ecosystems to enhance the photosynthesis that removes carbon dioxide from the atmosphere. The same healthy habitats serve to avert zoonosis spillover. 

The same Act amended New York State’s Community Risk And Resilience Act in ways that directly also could be deployed to protect against zoonotic diseases.  § 17-A mandates that the Department of Environmental Conservation (DEC)  address impacts on public health and species and to identify the most ”significant climate-related risks,” along with measures to mitigate those risks. § 17-B requires applicants for all permits to identify physical climate-risks and how to handle them and authorizes DEC to mandate mitigation measures. Increased disease spillovers are climate risks. 

Environmental Impact Assessment (EIA) is another readily available tool. The data from environmental assessments can be harvested to identify zoonotic risks. Although President Trump is currently seeking to limit the role of the National Environmental Policy Act, the NEPA Regulations can and should address potential environmental impacts from zoonotic risks. Half the States also have their “little NEPAs” and assess zoonotic risks. The California Environmental Quality Act (CEQA) and the New York State Environmental Quality Review Act (SEQRA) are prime examples. They require all state and local governmental agencies to make a holistic evaluation of potential environmental impacts and risks. EIA effectively enables a “One Health” approach. Beyond collecting data on ecological zoonotic risks, EIA can identify options for sustaining health of ecosystems to contain spillovers of bacteria and viruses, identify the cumulative impacts exacerbating biodiversity loss, and identify how to fragmentation of intact ecosystems and restore migration corridors for species.

State building codes also serve a role to contain the spread of viruses within buildings.  Codes can be revised to mandate “healthy buildings.” For example, ventilation and filtration systems should be retrofitted to reduce risk of airborne exposures to communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020).  

Ultimately, “One Health” is all about sustaining biodiversity. The federal systems of National Parks, Wildlife Refuges and National Forests provide opportunities to enhance stewardship of natural areas. State park systems, and state wetlands laws, do the same. Zoning and land use laws at the state and local level also can provide for care of natural systems to manage zoonotic risks. Municipal land use laws can provide, for example, for migration corridors through overlay zones, or obliging property owners to control mosquito breeding, all to minimize infection risks. When ecological habitats remain undisturbed, the bacteria and viruses in wild nature tend to remain relatively stable in their natural hosts, which dilutes the chances of spillovers to humans.

Finally, the federal government and the states can establish and enhance phyto-sanitary safeguards for their agricultural sectors, and control animal products  imported into or through the states. Since 1947, the General Agreement on Tariffs and Trade (GATT) has respected the rights of countries to impose such safeguards. California has done so for many years to protect its agricultural sector. Theses phyto-sanitary norms need to be expanded robustly to address zoonotic risks. Precautions to prevent microbes entering in our airports and at State borders can be established.   

Once a “One Health” approach is made operational, many state agencies will discover how they help  avert the “next” pandemic. There are key roles for agencies regulating agriculture, produce markets, public health, environmental protection, forestry, wildlife conservation, transportation, and other State agencies are key parts of the “One Health” approach. States have substantial expertise in their universities, organizations like the Wildlife Conservation Society, as well as across their public health sectors. Each state and local agency needs to undertake continuous biodiversity-related heath surveillance in order to detect and manage emerging zoonotic disease spillovers to avert health emergencies. Each can be alert to end habitat fragmentation, and can provide buffer zones that manage disease-risk from human interfaces with animals in shared ecosystems.

Even in the middle of this COVID-19 Pandemic, governments need to be building back better, to be anticipating and preparing for the “next” pandemic. As Ben Franklin said in 1736, “An Ounce of Prevention Is Worth A Pound of Cure.” States cannot wait for Washington, D.C. They each must build their own resilience. Leadership from the States can pilot the nation toward the security of “One Health.”

JUST PLAIN NUTS REDUX

Posted on July 2, 2020 by Dick Stoll

In my ACOEL post of June 10, 2019, I led with this:

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is ‘just plain nuts.’  He points to two recent conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.”

I reinforced the situational nuttiness by noting that after several federal district courts had issued opinions, the Obama WOTUS rule continued to apply in 23 states, but was blocked in 26 states.  (New Mexico was split by counties!)  And to make the situation even crazier, the 23 states where the rule remained in place were hardly contiguous – looking at a map, it would appear someone threw darts.

My 2019 post pleaded with Congress to add “just a few words” to the Clean Water Act to bring it into accord with all the other major federal environmental statutes – by simply providing for direct Court of Appeals review of all nationally applicable CWA rules.  Even if parties filed in several Circuits under such a regime, federal statutes provide a procedure assuring that all filings would be consolidated in a single Court.

Well guess what?  Congress somehow ignored my 2019 post, and the new Trump WOTUS rule became effective recently.  So now we are all set for another round of total craziness. 

To wit, Seth just posted a report of one district court allowing the Trump rule to remain in effect, and another court enjoining the new rule. More rulings from various district courts are almost certain to follow, and they again are almost certain to be inconsistent.

My 2019 post concluded by recognizing the polarized political times we live in.  But I questioned why it should be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid this crazy patchwork of inconsistencies throughout the nation. 

Come on now!  Direct Court of Appeals review for national rules has for decades been the heavy norm in federal environmental statutes.  Should this be considered a liberal vs. conservative, or Democrat vs. Republican, or pro-business vs. pro-environmental issue?  I sure don’t understand how.  Can’t Congress please just do something rational here?

A New Map of Climate Resilient Landscapes

Posted on July 1, 2020 by Philip Tabas

After 12 years of work by more than 150 Nature Conservancy scientists we now have an interactive map of resilient lands that can withstand climate impacts AND protect biodiversity. Using ground-breaking science, conservationists identified a network of special places across the U.S. that have unique topographies, geologies, soils, temperatures and other characteristics that, if properly protected, could provide safe havens for species migrating away from growing climate threats.

We know that plant and animal species are disappearing at an alarming rate as their habitats are altered or destroyed by warmer temperatures, increased flooding and other impacts from the changing climate. One-third of animal and plant species could face extinction in the next 50 years due to climate change, according to a study from scientists at the University of Arizona. We know too that nature is on the move to escape these climate impacts. For example, in North America, studies show that species are shifting their ranges an average of 11 miles north and 36 feet in elevation each decade. Many species are approaching – or have already reached – the limit of where they can go to find hospitable climates. Research has also shown that more than half – nearly 60% – of US lands and waters are fragmented by human development, blocking species movement and preventing species from finding new and more hospitable habitat. 

The Resilient and Connected Network Map (see: http://maps.tnc.org/resilientland/) for the contiguous U.S. provides a new way to prioritize lands for land conservation action. This model offers a roadmap for preserving a network of resilient sites and connecting corridors that could sustain North America's natural diversity by allowing species to adapt to and thrive in the face of climate impacts. By protecting the most resilient landscapes, conservationists hope to double their environmental impact by 2050.

By providing safe havens for diverse species, this network of lands could also protect important sources of fertile soils, clean drinking water, economic resources and other vital services people rely on for survival. Conserving such a resilient network has large benefits for both people as well as nature. For example, resilient areas identified in Eastern North America not only serve as home to more than 30,000 species of plants and animals but also support a $25 billion outdoor recreation industry.  Additionally, protecting these resilient areas would secure over 66 million acres of high-value source water supply land, provide 1.8 billion tons of oxygen annually, and mitigate over 1.3 million tons of air pollution avoiding $913 million in human health costs. Resilient lands could also capture and store higher amounts of carbon than other areas and thus help offset greenhouse gas emissions; in the Eastern US, these lands could store an estimated 3.9 billion tons of carbon.

Of the total acreage represented in the network, approximately 301 million acres are already in some form of protected status. To protect the remainder, we will have to protect as much land as we have protected in the last 100 years of previous land conservation action. Although challenging, if government agencies, land trusts, the private sector and others can be persuaded to use this new science to direct conservation action and resources to these most important lands, it can maximize the impact of conservation funding and actions. Recent Senate passage of the Great American Outdoors Act or "GAOA” which would fully and permanently fund the Land and Water Conservation Fund with $900 million annually for the first time since the program's creation in 1964, gives some hope that we will be able to meet this challenge.

By conserving these environmental strongholds, we can protect the lands best-equipped to sustain threatened species -- and mitigate the adverse effects of climate change in the process. Saving nature from the effects of climate change might seem to be a daunting task. But, by focusing on conserving naturally resilient lands, we can keep the planet habitable for a vast array of species, including our own.

Surprise! New WOTUS Rule Leads to Conflicting Rulings

Posted on June 30, 2020 by Rick Glick

It was clear to everyone, including this humble blogger, that EPA’s new rule defining Waters of the United States (WOTUS) would bring little clarity to this fraught area of law.  The rule took effect June 22, but court challenges were already underway, and already we have conflicting rulings, described in this space by Seth Jaffe with his usual alacrity. 

Regardless of what ultimately emerges from this morass, recall that the states have authority of their own and that is probably where practitioners should be focusing in advising clients.  On the same day the WOTUS rule came into effect, the Oregon Department of Environmental Quality (ODEQ) issued a statement including a not too subtle warning about discharging pollutants into state waters without benefit of a permit. 

The ODEQ statement also speaks to state authority under CWA section 401, the subject of another recent EPA rulemaking, and a continuing source of litigation and uncertainty.  As Seth notes, the new WOTUS and 401 rules are complementary.  In its statement, ODEQ encourages project proponents to meet with the agency early for an evaluation of a “project plan.”  Such pre-application meetings are always a good idea—better to anticipate and address issues before they become controversial. 

All of this is pretty interesting for lawyers, but frustrating, time consuming and expensive for clients trying to discern a critical path for development projects.  Surely there is a better approach to ensuring clean water, but it is hard to see one emerging soon.

 

Woe Is WOTUS, Redux

Posted on June 30, 2020 by Seth Jaffe

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts.  The text of the statute made pretty clear that such challenges did belong in district courts, and the Supreme Court felt no need to address concerns that it was just plain nuts to have multiple courts reviewing this issue, leading to a patchwork of different rulings.  That’s Congress’s problem!

As anyone who remembers those halcyon days can attest, chaos did indeed result, with roughly half the states ending up subject to the Obama rule and half subject to the prior rule and the post-Rapanos guidance.

Now comes the Trump WOTUS rule, which became effective yesterday.  It looks like déjà vu all over again.  On Friday, two courts weighed in, with a judge in California declining to enjoin the rule and suggesting very strongly that EPA would prevail with its argument that the rule is entitled to Chevron deference, while a judge in Colorado enjoined the new rule, concluding that five justices in Rapanos precluded the new rule’s interpretation of WOTUS, thus barring any reliance on Chevron.

Other than saying “I told you so,” I think that the biggest takeaway so far is that, to the extent that the California decision carries the day, it’s also good news for fans of EPA’s recently released rule on section 401 water quality certifications.  It basically adopts lock, stock, and barrel EPA’s rationale for why it can ignore a seemingly contrary Supreme Court decision.  The short version is that the Supreme Court Brand X decision holds that, where the Supreme Court upholds an agency interpretation of an ambiguous statutory provision, that does not preclude the same agency from later adopting a contrary interpretation, so long as the new interpretation is also permissible under Chevron.

Time will tell which position prevails, at least in the lower courts.  This one does seem likely to make it back to SCOTUS.  For better or worse – likely worse – we might finally get some clarity on the definition of the waters of the United States.  Until then, I am confident that chaos will reign.

Welcoming Our New Honorary Member: John Echohawk

Posted on June 29, 2020 by Andrea Field

One of the perquisites of serving as President of the ACOEL is being able to select this year’s Honorary Fellow of the College.  When faced with a stack of nominating papers, I asked my predecessor, Allan Gates, for guidance on how to make my choice.  Our conversation was roughly as follows.

Me:  What are the criteria for choosing an Honorary Member? 

Allan:  You’ll know it when you see it.

Me:  That’s the standard Justice Stewart applied when determining whether certain material was obscene.  As I recall it, his reference point was something he had seen in Casablanca.  Could you be a bit more helpful in explaining how that standard applies here?

Allan:  You’ll know it when you see it.

It turns out that Allan’s advice was spot on.  When I saw the nomination papers for John Echohawk, I knew without a doubt that he was the person who should become an Honorary Fellow of the College this year.  Let me here share with you some of the information that I received from College members about John Echohawk, information that made it very easy for me to choose John as this year’s ACOEL Honorary Fellow. 

John Echohawk – the Executive Director of the Native American Rights Fund – is a giant in the field of Native-American sovereignty, Tribal natural resources and environmental rights, and Tribal water rights.  He was the first graduate of the University of New Mexico’s special program to train Indian lawyers and was a founding member of the American Indian Law Students Association while in law school.  John helped found NARF in 1970 (barely a year after he graduated from law school), and he has served continuously as NARF’s Executive Director since 1977.  Under John’s leadership, NARF has represented Tribal interests in numerous high-profile cases in which his clients have sought, among other things, to protect the Badger-Two Medicine Area, prevent the shrinkage of Bears Ears National Monument, challenge the Trump administration’s plan to open up the Arctic National Wildlife Refuge, and halt the Dakota Access pipeline and the Keystone XL pipeline.

John is now widely recognized as having distinctly shaped and enforced Tribal sovereign rights through his organization’s legal advocacy.  The National Law Journal has listed John as one of the 100 most influential lawyers in America, and he has received numerous service awards and other recognition for his leadership in the Indian law field.  According to a June 24, 1988 profile in the New York Times, John’s success in asserting Tribal interests is so well known that “many public and private interests now seek to negotiate disputes with tribes over energy, water and sovereignty rather than face off in court against [Mr. Echohawk and his NARF colleagues].”  Noting that John is more than just a skilled attorney, the Times quoted from several governors who had been on the opposite side of the negotiating table from him in contentious matters and who came away from their experiences praising John’s collaborative style.  Said former South Dakota Governor Bill Janklow, John “genuinely wants to seek a solution where everyone can live together afterwards.”  And former Arizona Governor Bruce Babbitt then added that “if there is a charisma that emanates from silence, [John Echohawk’s] got it.”

Having started this article with a reference to one Supreme Court Justice, let me close with a reference to another.  I do so with an anecdote shared by Ken Salazar, who – over three decades – worked directly with John Echohawk on environmental and natural resources matters.  “We were both active Presidential appointees to the National Water Policy Commission in the 1990s.  During my time as Secretary of the Interior, I often sought Mr. Echohawk’s advice as we resolved the most complex and significant water rights Tribal cases in the United States and resolved seminal land trust management litigation. . . . John Echohawk is the Thurgood Marshall of Native American law.”

When told about his election as an Honorary Member of the College, John expressed thanks for the recognition and noted that the “Native American Rights Fund has always believed that environmentalists have the same values as traditional Native Americans.”  He said he looks forward to joining us “virtually” at our October 2, 2020 Annual Meeting. 

In addition to asking John to join us for our virtual meeting in 2020, we plan to invite him to join us for our next in-person Annual Meeting program, which is being planned for 2021.  It is a great honor to have John Echohawk become part of the American College of Environmental Lawyers.    

Texas’ Affirmative Defense SIP Provisions: National Policy or Regional Action

Posted on June 23, 2020 by Paul Seals

Why is the legal challenge of EPA’s approval of the affirmative defense provisions in Texas’ state implementation plan (SIP) the subject of a venue battle?  Why did the Sierra Club and eight other environmental groups (Petitioners) sue EPA in the D.C. Circuit when they filed their lawsuit on April 7, 2020?  Why are EPA, Texas and industry intervenors fighting to dismiss the suit or have it transferred to the 5th Circuit?  The answers depend on the construction of the Clean Air Act (CAA) judicial review provisions.  Did EPA’s decision constitute a policy of national applicability or is the decision of local or regional applicability?

On February 7, 2020, EPA approved the withdrawal of Texas from EPA’s 2015 SIP call, which was related to the affirmative defense provisions in Texas’ SIP applicable to excess emissions that occur during startup, shutdown or malfunction.  EPA determined that affirmative defense provisions made the SIP substantially inadequate to meet the CAA requirements.  Texas was one of 17 states subject to the 2015 SIP call, which was based on EPA’s 2015 interpretation of the a 2014 D.C. Circuit decision in NRDC v. EPA, 749 F.3rd 1055, holding that affirmative defenses are unlawful in emission standards established under CAA Section 112.   

EPA’s approval of the withdrawal reinstates Texas’ affirmative defense provisions of the Texas SIP, which had been approved by EPA in 2010 and upheld by the 5th Circuit in 2013.  See Luminant Generation Co. v.  EPA, 714 F.3d 841.  The Court found that EPA’s interpretation of the Clean Air Act (CAA) to allow affirmative defenses in CAA Section 110 SIPs was a permissible interpretation.

In their lawsuit, the Petitioners claim that EPA is setting national policy regarding affirmative defenses and the EPA’s action regarding Texas’ SIP should be reviewed by the D.C. Circuit.  Texas responds that EPA’s action to withdraw of a single state from a SIP call issued to multiple states is locally or regionally applicable.  Accordingly, the D.C. Circuit should have no jurisdiction to review EPA’s action.

Is the Texas SIP decision nationwide in scope or effect?  Alternatively, does the EPA action reflect Texas-specific circumstances – a prior approval by EPA, which was upheld by the 5th Circuit?  Will the D.C. Circuit dismiss or transfer the litigation to the 5th Circuit?

The American College of Environmental Lawyers Announces Newly-Elected Fellows for 2020

Posted on June 22, 2020 by Blogmaster

The American College of Environmental Lawyers is proud to announce the election of twenty-seven new Fellows and one Honorary Fellow to membership in the College. These highly accomplished individuals were selected for their many years of substantial contributions to the field of environmental law and their high standards of practice.

ACOEL President, Andrea Field of Hunton Andrews Kurth LLP, stated, "The twenty-eight lawyers elected as Fellows to the College this year have earned this recognition based on the numerous contributions that – over many years – they have made in diverse areas of environmental law and policy.  Drawn from all parts of the country, they represent the very best environmental lawyers in government service, public interest, academia, and private practice.  I am delighted to welcome each and every one of them to the College.” 

Our newly elected Honorary Fellow – a designation bestowed by the President of the College for sustained leadership - is John Echohawk, Executive Director and founder of the Native American Rights Fund in Boulder, Colorado and a luminary in the development of law at the intersection of environmental and tribal rights.

The newly elected Active Fellows are:

Susan Amron, General Counsel, New York City Dept. of City Planning (NY)
Michael Burger, Executive Director, Columbia University Law School Sabin Center (NY)
Lisa Carlson, Deputy Attorney General, Environmental Quality Section Chief, Idaho Office of the Attorney General (ID)
Steve Chester, Attorney and Counselor at Law, Miller, Canfield, Paddock and Stone (MI)
Nadira Clarke, Partner, Baker Botts (DC)
Stacey Geis, Managing Attorney, CA Regional Office, Earthjustice (CA)
Vinette Godelia, Shareholder, Hopping, Greens & Sams (FL)
Monique Harden, Assistant Director of Law and Public Policy, Deep South Center for Environmental Justice (LA)
Sean Hecht, Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law (CA)
Melissa Hoffer, Chief, Energy and Environment Bureau, MA Office of Attorney General (MA)
Rachel Jacobson, Special Counsel, WilmerHale (DC)
Robin Main, Partner, Hinckley Allen (RI)
David Mandelbaum, Shareholder, Greenberg Traurig LLP (PA)
Deborah Mans, Deputy Commissioner, NJ Department of Environmental Protection (NJ)
Jessica Merrigan, Partner, Spencer Fane (MO)
Jonathan Niermann, Chairman, TX Commission on Environmental Quality (TX)
Jennifer Nijman, a Founding Partner, Nijman & Franzetti (IL)
Hari Osofsky, Dean, Penn State Law and the School of International Affairs, Pennsylvania State University (PA)
Peggy Otum, Partner, WilmerHale (CA)
Gerald Reid, Commissioner, ME Department of Environmental Protection (ME)
David Shorr, Partner, Lathrop GPM (MO)
Bob Stokes, Executive Director, Galveston Bay Foundation (TX)
Timothy Webster, Partner, Sidley Austin (DC)
Dan Whittle, Senior Attorney and Senior Director, Environmental Defense Fund (NC)
LaJuana Wilcher, Partner, English, Lucas, Priest, & Owsley LLP (KY)
Ezekiel Williams, Director, Lewis Bess Williams & Weese (CO)
Sandi Zellmer, Professor and Director of Natural Resources Clinics, University of Montana Law of School (MT)

The Future Is As We Now See It – Environmental Development Resiliency and Disaster Planning

Posted on June 17, 2020 by Kevin Murray

Successful real estate developers and development attorneys must effectively anticipate and manage risk. Management of visible and known risks seem simple; what separates the great from the good is the ability to anticipate, plan for, and develop contingencies for unknown risk scenarios. I have previously written about the importance of resilient development planning for extreme weather conditions and regional/national disasters. It is clear that extreme weather events affect the way we live and must be taken into consideration if we are to plan and develop our environmentally sustainable and resilient communities. Pandemic planning now finds itself a critical part of disaster planning and is likely to have a profound and lasting influence on environmental resiliency.

These environmental conditions affect physical, transactional, and legal aspects of real estate. Physical impacts appear as structural, corporeal, or earthly damages or modifications. Physical impacts present very real safety risks to site occupants such as failing structures and, exposure to life- threatening elements and hazardous substances. The recent pandemic has highlighted what was a subset of physical impacts, that is the health of the occupants as they live, work and occupy spaces.

Over the course of recent decades, mixed use developments became extremely popular with developers, municipal jurisdictions, and users. The notion of sustainable walkable communities has seen a proliferation of “self-contained communities” to support the growing desire for a more compact lifestyle where living, work and recreation coexist. The COVID Pandemic will result in the development of new regulation and a fresh look at development as a whole, but clearly with self-contained walkable communities and mixed use. Especially where users live on top of the commercial, retail, restaurant and recreational spaces they frequent.

Energy efficiency through sealed buildings had already begun to fade, air flow and fresh sources of filtered air will see increased interest and likely regulatory focus. The need to regulate how people congregate and the general flow through space may take on a regulatory aspect. Occupancy limits already exist for general safety, perhaps viral exposure may now factor into those calculations, and the imposition of formal requirements for table and general distancing in floor space. A demand for (and likely regulatory requirements), may extend into amenities that feature no touch surfaces, doors, toilets, sinks, retail checkout, retail goods selection, shelving, clothing racks, elevators, windows. Internet orders and drive up pickup may see a continued demand for convenience and safety. Ever-present hand sanitizer and disinfecting wipes will become required and as common place as a box of tissue.

The importance of all this however is to note that management of risk means mitigation. The traditional legal defenses like force majeure and impractability continue to erode in favor of reasonable foreseeability of extreme events. Successful developers and their attorneys will plan for these contingencies both to protect their uses and themselves in an ever changing regulatory environment. Proper engineering and design are necessary to protect the people that live and work in these communities and the companies and contractors that establish them. Resilient real estate development must adapt and engineer buildings and communities sustainable under foreseeable extreme conditions.

Return to Maui and Upstate Forever

Posted on June 16, 2020 by Patrick A. Parenteau

Despite losing his bid to have the U.S. Supreme Court declare that wastewater  discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino, Law 360 reports,  has vowed to keep fighting . The Court did not rule on the merits of whether Maui’s injection wells do in fact require a permit, but instead remanded the case to the Ninth Circuit, which sent it back to the district court, for it to apply a newly announced test--make that determination applying its new test--whether Maui’s indirect discharge to the ocean is the “functional equivalent” of a direct discharge.

Justice Breyer explained that the “functional equivalent” test comprises  7+ factors. After shelling out a reported $4 M in legal fees (with little to show for it),  Mayor Victorino might have wanted to spare the taxpayers the additional expense of a trial and further appeals and agreed to the settlement that the County Council had approved last year.  But Apparently not.  Perhaps cooler heads may prevail at some point but meanwhile attention shifts to the remand to the Fourth Circuit of the other groundwater discharge case-- Upstate Forever v Kinder Morgan.

Followers of this blog may recall that this case involved a 2014 incident in which a ruptured pipeline owned by a subsidiary of Kinder Morgan Energy Partners spilled 369,000 gallons of gasoline into the soil and groundwater near Belton, South Carolina. Kinder Morgan repaired the pipeline and managed to recover some of the spill but not before it traveled through the groundwater and was detected in nearby wetlands and streams. The plume of gasoline has continued to contaminate surface waters despite implementation of a cleanup plan ordered by the South Carolina Department of Health and Environmental Control.

The Kinder Morgan litigation involved a federal Clean Water Act  citizen suit brought by the plaintiffs--Upstate Forever and Savannah Riverkeeper--alleging that the spill is polluting two tributaries of the Savannah River-- Browns Creek and Cupboard Creek-- and their adjacent wetlands. The pipeline ruptured less than 1000 feet from Browns Creek and 400 feet from Cupboard Creek. Plaintiffs asserted that the resulting spill constituted the unlawful discharge of pollutants from a point source in violation of section 301 (a) of the act.

In a split decision the Fourth Circuit panel ruled in plaintiffs’ favor. Over a stinging dissent by Judge Floyd the panel majority rejected Kinder Morgan’s argument that since the leak had been fixed there was no “ongoing violation,” a prerequisite to a citizen suit under the Supreme court’s Gwaltney decision.. The panel declined to adopt the Ninth Circuit’s “fairly traceable” test in the Maui case and acknowledged the contrary rulings of the Sixth Circuit in Kentucky Waterways Alliance et al v. Kentucky Utilities Co. and Tennessee Clean Water Network v. Tennessee Valley Authority--that leachate from coal ash pits did not constitute discharges from a point source. Instead the 4th Circuit panel cited EPA’s longstanding position (since disavowed by the Trump administration) that discharges from a point source via ground water having a “direct hydrologic connection” to surface water are subject to CWA permit requirements.

The Fourth Circuit is likely to send the case back to the South Carolina district court, which will have the unenviable task of trying to decipher Justice Breyer’s multi-factor test. Justice Breyer provided this not terribly helpful guidance:

Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.

If time and distance are controlling, the Belton pipeline leak would presumably qualify as the functional equivalent of a direct discharge. The leak occurred within 400’ of one stream and 1000’ of another. It reached the first one within two months. The gasoline did not undergo any chemical change and was not diluted to any substantial degree. More than half of the spill was not recovered and is continuing to pollute the surface waters So, it clearly meets the test, right?

And yet it does seem odd that an accidental spill from a broken pipeline that has since been plugged and is undergoing cleanup--albeit not at the pace the plaintiffs would prefer-- would be the functional equivalent of a direct discharge requiring a permit. Frankly the NPDES program seems a poor fit for a release resulting from an accident rather than one resulting from routine and periodic releases from routine operations.

The Maui injection wells, on the other hand, were used as an alternative to a direct ocean discharge via an outfall, which, legend has it, were opposed by the surfers at Kahekili Beach.  The facts of Maui do seem to easily fit within Breyer’s functional equivalent construct. So why didn’t the Court so rule?

EPA Finalizes New Clean Water Act Section 401 Certification Rules—Will States Bite Back?

Posted on June 10, 2020 by Rick Glick

On June 1, 2020, the Environmental Protection Agency released its new rules implementing section 401 of the Clean Water Act (CWA). Section 401 provides that before a federal agency can approve a project that may result in a “discharge to the navigable waters” the applicant must obtain water quality certifications from the affected state. The certification encompasses compliance with water quality standards and “any other appropriate requirement of State law.”

However, the state is deemed to have waived its delegated authority under section 401 if it "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." The rules adopt the D.C. Circuit’s view in Hoopa Valley Tribe v. FERC that one year means one year, and they narrow the scope of conditions that states can impose on a project as part of the certification.

One Year Means One Year

The section 401 process has been controversial in the context of energy infrastructure projects requiring federal approvals, such as natural gas pipelines, LNG terminals and hydroelectric facilities. Historically, states have commonly avoided the one-year limit by allowing multiple cycles of withdrawal-and-resubmittal of 401 certification applications, stretching the review period over many years.

This in part was thought necessary to allow adequate time to assess the water quality effects and appropriate mitigation measures for complex facilities, which would often draw comments from many stakeholders seeking to influence the terms of a new certification. However, in Hoopa Valley the court rejected this workaround and denounced the withdrawal-and-resubmittal practice as a tool “for states to use Section 401 to hold federal licensing hostage.”

Shortly after Hoopa Valley, President Trump issued an Executive Order “Promoting Energy Infrastructure and Economic Growth,” for the stated purpose of making the regulatory process more efficient and creating “increased regulatory certainty.” Among other things, the Executive Order directed EPA to review federal policy and regulations on section 401 implementation in light of the Hoopa Valley decision.

With the new rules, EPA has adopted Hoopa Valley’s position that the one-year limit of section 401 actually means one year, and explicitly rejected state practices resulting in certification processes extending to several years. The rules make clear that upon receiving a complete 401 certification application, a state has one year to grant, grant with conditions, or deny the certification. Failure to do so will result in the state having waived its delegated authority with respect to the project under consideration.

Scope of 401 Certification Conditions

The Supreme Court has ruled that section 401 confers on a state broad authority to impose conditions on a water quality certification. In the 1994 case of PUD No. 1 v. Wash. Dep’t of Ecology, the Court found that water quality certifications could include conditions related to quantity of water flow, holding that a state could require minimum stream flows as part of the section 401 certification. Twelve years later, the Court found in S.D. Warren Co. v. Me. Bd. Of Envtl. Prot. that states have broad latitude in imposing conditions that are not directly water quality-related, such as provision for fish passage or recreation.

However, in the preamble to the rules, EPA found that nothing in the CWA nor section 401 contains any statement suggesting that section 401 “authorize[s] consideration or the imposition of certification conditions based on air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts.”

EPA reasoned that the phrase “any other appropriate requirement of State law,” often used to justify broad state authority, only included “those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States.” The rejection of conditions not directly related to water quality seems to ignore Supreme Court guidance in PUD No.1 and S.D. Warren.

The Rules’ Prospects in Court

The new rules are certain to draw legal challenges from environmental groups and from states concerned that EPA’s interpretation denies them the full authority conferred under the statute.

EPA’s interpretation that one year means one year is consistent with Hoopa Valley and with subsequent decisions and may fare well in court.  However, narrowing the scope of the states’ authority to impose conditions on a certification will face serious judicial scrutiny in light of PUD No. 1 and S.D. Warren. In addition, opponents of the new rules may take issue with EPA’s authority, or lack thereof, to make rules governing how a program delegated to states should be administered.

Remembering that BLM Stands for Black Lives Matter, Not That Government Agency

Posted on June 8, 2020 by Andrea Field

Saying nothing about racial injustice should never have been an option.  And it is not an option now.  Saying I lack the right words should never have been a reason not to try to find those words.  And it is not a reason now.  Fearing I, a white woman, will say the wrong words and make myself vulnerable to criticism should never have been – and is not now – an option.

What finally pushed me past such concerns and fears was the willingness of a colleague of mine, Wendell Taylor, to make himself vulnerable.  Wendell – a black man – is my office managing partner.  In a recent virtual meeting with over 100 lawyers and non-lawyers in our office, he talked directly and personally about the unrest in the nation.  Pointing out the lack of basic human empathy in the officers involved in the killing of George Floyd, Wendell chose to promote more open discussions and empathy by sharing examples of his own negative encounters with law enforcement.  He said he’d always “had the mindset that the adversity you face might shape you but you can’t let it define you.  I’m not defined by these stories but they certainly helped shape me.  So when I’m asked to talk with groups – particularly about leadership – I usually focus on how overcoming adversity has helped me to become an effective leader.  Inevitably, I turn to my negative encounters with law enforcement for examples.”  And then Wendell told of instances when he was in middle school, college and law school – instances when he was doing nothing wrong (indeed, when he was being exceptionally careful not to do anything wrong) – which led to threatening encounters with police officers.

The stories Wendell shared are his and I will not repeat them here.  But his stories are not unique.  Indeed, immediately after he spoke, colleagues of color shared some of their own stories.  And all of you have certainly heard (or experienced) similar things.  You’ve seen similar things in the news.  You’ve read (or, if you have not, you should read) Brenda Mallory’s blog post from August 7, 2019. 

After sharing his stories, Wendell chose to say something more.  He chose to respond to his white colleagues, who have asked what they can do in their daily lives to make a difference in the fight to address such longstanding injustices.  Believing that his response helped me and others, I have summarized it below, adding a few thoughts of my own.  I am confident you will be able to figure out which thoughts were added by the white woman.

  • Resist the urge to turn away.  If you resisted watching the 9-minute recording of George Floyd being slowly murdered, watch it.  It is difficult to watch.  It is gut-wrenching.  But seeing the recording helps foster the empathy that is needed in these times.  Empathy is what others feel.  Allow yourselves to feel the pain.  Make it your pain.  Empathy is not a cure for the structural racism that exists in this country, but it’s a start. 
  • Don’t make the mistake that a conviction of those who killed George Floyd ends the fight against structural racism.  Find ways to keep fighting against injustice.  Contribute your time and/or money to worthy causes.  You’re good researchers:  you can find the cause(s) worthy of your support.
  • Challenge divisive views from people in your circles.  Challenge people to think critically about the issues. Silence is no longer an option.  Silence is complicity.
  • Don’t get discouraged if black people or other people of color are critical of your attempts to lend a hand or otherwise resist your efforts to get from them a comprehensive game plan for what you should do next to show your support.  It’s been a rough time for us all, and it doesn’t have to be the job of black people to help you understand what they’ve lived with all their lives.  Want to read a book?  Try “White Fragility” by Robin Diangelo.  Parts of it are a slog, but after reading it, you will (I hope) never again blithely claim to be “color blind.”  Nor will you resort to “white women’s tears” (or the male equivalent) if your longstanding views on racial justice are challenged.  Instead, perhaps, you will be able to open your heart to feeling the pain of those who’ve felt the brunt of racism their entire lives and be able to open your mind to constructive ways to doing the next right thing to help address that pain.  That’s empathy, and as Wendell pointed out, even if that’s not a cure-all, it’s a start. 

Note:  Andrea Field is the current President of the American College of Environmental Lawyers.  The views expressed in this articles are her own.  She encourages other Fellows to express their views in whatever ways they feel are appropriate.

EPA Is The CERCLA Gatekeeper: Plaintiffs Need EPA Approval To Seek State Court Damages For Restoration

Posted on June 3, 2020 by Theodore Garrett

Landowners seeking restoration damages in state courts, at sites where there is a cleanup remedy previously selected by EPA, may pursue such claims only if they first obtain EPA approval for the proposed restoration work.  Atlantic Richfield Co. v. Christian (No. 17–1498, April 20, 2020). https://www.supremecourt.gov/opinions/19pdf/17-1498_8mjp.pdf

The Atlantic Richfield decision may have the effect of  avoiding collateral attacks on EPA cleanup decisions by placing EPA in the role of gatekeeper for state lawsuits seeking restoration damages.  In the present case, EPA stated that the landowners’ restoration plan, if implemented, would interfere with EPA’s approved cleanup by, for example, digging up soil that has been deliberately capped in place.  The court’s decision in Atlantic Richfield may also have the effect of avoiding the award of windfall profits in cases where plaintiffs seek huge “restoration damages” that go well beyond actual compensatory damages they have suffered.

For many years EPA worked with , the current owner of a former smelter, to implement a cleanup plan expected to continue through 2025 for remediation of contaminated soil.  A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages. The damages sought by plaintiffs were based on a proposed restoration plan that went beyond the measures that EPA found appropriate to protect human health and the environment.  The trial court granted summary judgment to the landowners on the issue of whether CERCLA precluded their restoration damages claim, and the Montana Supreme Court affirmed.  The US Supreme Court reversed and remanded. 

The Supreme Court first needed to decide whether CERCLA deprived the Montana courts of jurisdiction.  The landowner’s claims for trespass and nuisance arise under Montana law not CERCLA, the Court held, and thus are not barred by Section 113(b) of the Act, which provides that federal District Courts have exclusive original jurisdiction “over all controversies arising under this chapter.”  Similarly, the Court held that a suit in Montana state court is not precluded by CERCLA §113(h), which states that “[n]o Federal court shall have jurisdiction under Federal law . . .to review any challenges to removal or remedial action” selected under CERCLA.  In short,  §113(b) deprives state courts of jurisdiction over cases arising under CERCLA, while §113(h) deprives federal courts of jurisdiction over certain challenges to Superfund remedial actions.

The parties conceded that under  §122(e)(6) of CERCLA, when EPA or a responsible party has initiated a remedial investigation and feasibility study for a particular facility, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by EPA.  The court in Atlantic Richfield held that because arsenic and lead are hazardous substances that have “come to be located” on the plaintiffs’ properties, the plaintiffs are potentially responsible parties under  §107(a) of CERCLA.   Therefore, under the statute, the plaintiffs claim for restoration damages may proceed only if the landowners first obtain EPA approval for the restoration work they seek to implement. 

What are the implications of the Court’s ruling?  Justice Gorsuch, joined by Justice Thomas dissented, stating that the Court’s reading of the Act endorses “paternalistic central planning” and turns a cold shoulder to “state law efforts to restore state lands.”  This argument was not compelling to the majority because, as the Court’s opinion notes, cleanup plans generally must comply with applicable or relevant and appropriate state environmental standards and, moreover, states have opportunities for involvement in developing and selecting cleanup plans.  The court’s ruling in Atlantic Richfield may also head off what are, in effect, collateral attacks on EPA’s remedial decisions and the confusion and delay threatened by such lawsuits.  

The Atlantic Richfield decision may serve to avoid unjust awards of windfall profits to plaintiffs who seek so-called restoration damages that go beyond any actual damages.  Indeed, litigation in Montana illustrates the basis for such concern.  In Sunburst School District No.2 v. Texaco, 165 P.3d 1079 (2007), the  Montana Supreme Court approved an award of damages that Texaco claimed would exceed the value of the property allegedly damaged and thus would result in a windfall.  The Court recognized the problem identified by Texaco, citing Montana law that an injured party should be made whole but not profit.  However, the court in Sunburst found that the general rule in favor of diminution in value as the appropriate measure of damages can be overcome where the record shows that an award of restoration damages will actually be used to repair the damaged property rather than simply paid to plaintiffs. 

The Supreme Court’s decision in Atlantic Richfield  may avoid the need for a trial court to deal with “windfall profit” issues in cases where plaintiffs are responsible parties, EPA has selected a CERCLA remedy, and EPA has not authorized the restoration plan.  In Atlantic Richfield, EPA represented that the landowners’ restoration plan would dig up soil that has been deliberately capped in place under the EPA approved remedy found to be protective.  In such a case, one can understand why EPA would not authorize the restoration plan.

The Court’s decision in Atlantic Richfield does not address “restoration damage” claims where the plaintiffs are not potentially responsible parties, e.g. parties owning property that is not contaminated but present common law claims such as diminution of value.  Although “restoration damage” suits were infrequent in the past, the Atlantic Richfield decision may serve to prompt an increase in such claims under state law.  Adjacent landowners could sue for “cleaner than clean” restoration damages, i.e. providing more (and much more expensive) remediation than required under state environmental requirements.  Trial courts in such cases will presumably be mindful of the fact that plaintiffs have other remedies under state law for compensatory damages measured by diminution of value.  Moreover, defendants, aware of  potential “windfall profit” concerns, may ask the trial court to require periodic reimbursement by defendants of actual restoration costs -- instead of a lump sum -- to deal with concerns that plaintiffs may decide to pocket the damage award rather than implement all or most of the restoration plan presented to the court.  

Pandemic Snapshot: Injustice in Salmon Country

Posted on May 29, 2020 by Peter Van Tuyn

Faced with the global pandemic, Bristol Bay’s people, tribes and communities sprung quickly into action.  Bristol Bay, Alaska, has roughly 7,000 year-round residents in 31 villages and communities spread over an area larger than the State of Georgia, with a small hospital in the City of Dillingham and only health clinics elsewhere.  The population of Bristol Bay can triple as people come by plane and boat to work in the largest remaining wild salmon fishery on the planet.  Salmon, of course, know nothing about social distancing, and they are on their way. 

One thing the tribes and communities of Bristol Bay didn’t want or need was distraction from their pandemic preparations.  Many elders in Bristol Bay are children or grandchildren of those who were orphaned in the Spring of 1919, when the Spanish Flu hit Bristol Bay with devastating force.  Bristol Bay lost approximately 40% of its Alaska Native population in the Spanish Flu pandemic, which was the highest rate of death in the Americas.  The people of Bristol Bay know in an intimate way to take the threat of the coronavirus seriously. 

To allow room to undertake critical pandemic-related work, tribes asked the Alaska District of the U.S. Army Corps of Engineers to extend deadlines for expert input on the Corps’ permitting process for a massive hardrock mine proposal.  The proposed mine targets a low-grade, potentially acid-generating ore body, located in the headwaters of Bristol Bay.  In the early 2010s, the Environmental Protection Agency studied the matter and found that the mining of the Pebble ore deposit could have unacceptable adverse impacts on Bristol Bay salmon, and it started a regulatory process using its Clean Water Act Section 404(c) authority to protect the salmon from the proposed mine.  The Trump EPA reversed course, and the Alaska District of the Corps, which has the direct decision authority for the necessary Section 404 permit, is in the midst of a fast-tracked permitting process, with the goal of finishing it up this year. 

The tribal requests for an extension of time concerned cooperating agency comments on a preliminary final Environmental Impact Statement (EIS) for the project.  Cooperating agencies include two local tribes, as well as state and federal expert agencies, and they were under a tight deadline to provide input on the integrity of the EIS.  A previous version of the EIS had been intensely criticized by tribal and government cooperating agencies, with the Department of the Interior stating, for example, that “the [draft] EIS is so inadequate that it precludes meaningful analysis.”  Indeed, the fishery experts commenting on the draft EIS raised concerns about the limitations of the salmon impact analysis in the draft EIS and other permitting documents. 

To say that the stakes are high is an understatement, as the uniquely huge and healthy wild salmon population forms the cultural, subsistence, and economic foundation of Bristol Bay.  The commercial fishery alone supports 14,000 jobs and results in about $1.5 billion in annual economic activity.  Expert input into the preliminary final EIS is thus critical to ensuring a thorough analysis and, ultimately, the protection of the fishery.

A sample of Bristol Bay tribal and government pandemic-related actions underscores the intensity of pandemic response in Bristol Bay.  The complexity of the pandemic response effort in Bristol Bay is also evident from the Bristol Bay Native Corporation COVID-19 Response website, which addresses impacts, risks, resources, and much more.    

In the heat of the early days of the pandemic emergency, tribes and other Bristol Bay leaders sought an extension of a Monday March 23 cooperating agency input deadline.  The Alaska District responded by baldly emphasizing that cooperating agency input on the document remained due on Monday March 23.  Tribes and other cooperating agencies thus submitted what they could by the close of business deadline on that day, with one tribal cooperating agency stating the following: 

… 45 days was not sufficient time to review and provide meaningful feedback on the [preliminary final] EIS given the breadth of changes to the project proposal and EIS analysis, which has been compounded in the last two weeks by the outbreak of COVID-19 limiting tribal resources, as well as distracting from the tribe’s role in important and urgent COVID-19 response measures for our community.  In this time, we have been on multiple teleconferences with the Federal Emergency Management Agency, Health and Human Services, Indian Health Services, Bureau of Indian Affairs, state, military and municipal partners, tribal health care organizations, and others. We have crafted and adopted emergency plans and issued important disaster declarations that open the door to critical aid for our tribal members. In fact, Pebble is the only issue that we work on where deadlines have not been adjusted out of a sensitivity to the current National Emergency; a fact that is inexplicable to us.

An hour or so after close of business on March 23, the Corps announced a one-week extension of the comment period.  As a different tribal cooperating agency stated in yet another request to extend the EIS and other Pebble-related deadlines,

[t]his meaningless one-week extension provided inadequate time for cooperating agencies facing significant obstacles related to COVID-19.

The Corps rejected extension requests, stating that the “Alaska District remains fully operational at this time” and not acknowledging in any way the burden on the tribes and other cooperating agencies. 

A few days later, the Corps sought input from Bristol Bay tribes and others on a draft Cultural Resources Management Plan for the proposed mine, which is required by the National Historic Preservation Act (NHPA), with a deadline of April 27, 2020.  The Corps did this despite the fact that the Advisory Council on Historic Preservation “has encouraged federal agencies to be flexible with [NHPA] deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the [pandemic].”

As one tribe said in response to the comment period,

The Alaska District [of the Corps of Engineers] is making us choose between protecting our cultural resources on one hand and protecting our community from COVID-19 on the other.

In an understatement, the tribe concluded by stating “[t]his is unacceptable.”   One would think that the Corps would acknowledge the challenges that exist in this situation, but the deadline passed without response from the Corps.  

 

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.   

When States Get Serious About Phasing Out Natural Gas

Posted on May 27, 2020 by Michael Gerrard

A decision issued on May 15 by the New York Department of Environmental Conservation (DEC) denying approvals for a new natural gas pipeline is sending shivers through the energy industry.  Though the decision was based primarily on water quality and wetlands impacts, it also demonstrated the force of New York’s new Climate Leadership and Community Protection Act (CLCPA), and New York’s resolve to phase out the use of natural gas.

Transco, a subsidiary of the Williams Companies, proposed to build a pipeline carrying natural gas (mostly from hydraulic fracturing in Pennsylvania) under wetlands and Raritan Bay in New Jersey, then under lower New York Bay, and connecting with an existing pipeline to serve National Grid customers in Brooklyn, Queens and Long Island.

In the bays the pipeline would have been built in a trench four feet under the water bottom in sediments that are contaminated with mercury, copper and other pollutants.   The construction would have stirred up the sediments and released the pollutants.

The Federal Energy Regulatory Commission approved this pipeline on May 3, 2019.  However, under Section 401 of the Clean Water Act the project needed a state certification that it would not  impair the state’s waters.

In its May 15 decision, DEC denied this certification, relying primarily on the impacts that the dispersed chemicals would have on a 1,000-foot wide corridor that included a critical resource area for hard clams..

DEC did not stop there, however.  It also looked at the pipeline’s impact on greenhouse gas emissions, which “cause climate change and thus indirectly impact water and coastal resources.”  DEC found, “GHG emissions associated with the Project include those from the full lifecycle of natural gas that will be transported through the Project. This includes upstream emissions, GHG emissions associated with the construction and operation of the Project, and downstream emissions.”  DEC explicitly stated that its analysis considered leakage of methane at the fracking sites in Pennsylvania, emissions where the gas is burned in power plants and buildings, and any emissions in between.  The look at out-of-state upstream emissions is especially interesting, as these are not usually considered in a state’s GHG emissions inventories.

DEC then stated, “In order to achieve the State’s critical and ambitious climate change and clean energy policies, the State needs to continue its ongoing transition away from natural gas and other fossil fuels. While the Department recognizes that many building assets in the State currently rely on natural gas for heating and other energy uses, the continued long-term use of fossil fuels is inconsistent with the State’s laws and objectives and with the actions necessary to prevent the most severe impacts from climate change. Therefore, the State must continue to support the ongoing transition to renewable and other clean sources of energy, as it works to ultimately eliminate all fossil fuel combustion sources that cannot be counterbalanced by guaranteed permanent carbon sequestration. Without appropriate alternatives or GHG mitigation measures, the Project could extend the amount of time that natural gas may be relied upon to produce energy, which could in turn delay, frustrate, or increase the cost of the necessary transition away from natural gas and other fossil fuels.”

In short, DEC said, “”[t]he use of natural gas … to produce electricity would be inconsistent with” the requirements of CLCPA, which “will ultimately require a transition away from natural gas and other fossil fuels to produce energy.”

The pipeline at issue here is a key part of a larger controversy.  In May 2019 National Grid imposed a moratorium on new natural gas connections.  Many observers felt this was a tactic to pressure New York to approve the pipeline. That led to an uproar, Governor Andrew Cuomo threatened to revoke the company’s franchise, and the Public Service Commission launched an enforcement action related to the moratorium. Pursuant to the resulting settlement agreement, National Grid issued a report on May 8, 2020 that identified energy efficiency, demand response and other measures as a way to meet the need for gas even without the pipeline.  DEC declared, “Critically, as compared to the project, National Grid concludes that this alternative is less environmentally impactful, in terms of water quality, GHG emissions and otherwise, and more consistent with the requirements” of CLCPA.

We will soon see if Transco challenges the New York decisions (and one issued the same day by New Jersey) in court.  Whatever happens, DEC has signaled that it is serious about phasing out most or all use of natural gas in the state, blocking the construction of new natural gas infrastructure, and reducing GHG emissions in accord with the mandates of the CLCPA.  

Has President Trump Just Limited Enforcement To Willful Violations?

Posted on May 22, 2020 by Seth Jaffe

On Tuesday, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery.  I’ll leave to others a discussion of the provisions telling agencies to look for more regulations to roll back.  I’m in general agreement with commenters who have said that those provisions don’t add much to Trump’s prior deregulatory efforts and are likely to face mostly the same reception in the courts as prior efforts.

Instead, I want to focus on this provision:

"The heads of all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law and as appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order, decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling."

I hate to give the President too much credit, but this may be the most significant deregulatory measure he’s taken.  As far as I can tell, Trump is telling agencies that they should only take enforcement action against persons who willfully violate environmental laws.  It is true that the President only tells agencies to “consider” policies “consistent with law,” but I think we all know what President Trump means when he tells agencies to consider cutting regulated entities a break.

Because this provision involves the exercise of agency enforcement discretion, it will be much harder to challenge in court.  Certainly, written policies saying that an entire agency will always exercise enforcement discretion to prosecute only willful violations, even in the case of statutes that plainly provide for strict liability, might cause raised eyebrows among judges, but if the agencies actually care about the outcome and draft the policies carefully, they might well withstand judicial review.

My advice to my clients, and I mean this in all seriousness, is pretty simple.  Take steps to carefully document your good faith efforts at compliance – and keep a copy of this EO in your back pocket at all times.