Posted on October 9, 2015
Does this make sense to you? Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act. Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule. And then, the court acknowledges it may not have jurisdiction but issues the stay anyway! That is exactly what Sixth Circuit did in the case published today.
This case is among many seeking to block the rule. The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.” But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation.
The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly. The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.
The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination. The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making. Pants first, then shoes.
Did the majority consider the situation an emergency that required immediate action? No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule. The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation.
Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal? Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing. Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record. Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.
Posted on October 8, 2015
This week, the Obama administration passed up an opportunity to promote environmental sustainability by incorporating sustainability into the Dietary Guidelines for Americans. The Secretaries of the Departments of Agriculture and Health and Human Services, Tom Vilsack and Sylvia Burwell, announced in a blog post that they would not follow the recommendation of their scientific advisory committee by incorporating environmental sustainability into the dietary guidelines. Their decision is unfortunate, and reflects a crabbed understanding of their authority under the law.
Experts on food systems have long drawn a connection between a healthy environment and food security. The representatives of the 185 countries present at the first-ever World Food Summit in 1996, for example, observed the links between food insecurity and environmental problems such as the loss of biodiversity, desertification, overfishing, degradation of land, forests, water, and watersheds, and ecological changes brought on by global warming. A substantial impetus behind the contemporary food movement is the conviction that our food system, and the security of the food supply it creates, is only as stable as the environment from which it comes. Even the Pope is onto the intimate connection between food security and the environment: the 2015 papal encyclical on the environment and poverty, Laudato Si', emphasizes the importance of a healthy environment to a secure food system. As Wendell Berry, the great agrarian and essayist, has put it, "What is good for the water is good for the ground, what is good for the ground is good for the plants, what is good for the plants is good for animals, what is good for animals is good for people, what is good for people is good for the air, what is good for the air is good for the water. And vice versa."
Federal agencies in the United States have increasingly been urged to recognize the relationship between a healthy environment and secure food. A recent entry in this field is the 2015 recommendation from a scientific advisory committee to the Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), urging that these agencies revise the Dietary Guidelines for Americans to take into account the environmental consequences of industrial agriculture and their implications for future food security.
The Dietary Guidelines for Americans are, as USDA and HHS have described them, "intended to be used in developing educational materials and aiding policymakers in designing and carrying out nutrition-related programs, including Federal nutrition assistance and education programs," and they "also serve as the basis for nutrition messages and consumer materials developed by nutrition educators and health professionals for the general public and specific audiences, such as children." Previous iterations of the Dietary Guidelines for Americans have contained recommendations on intake of fat, sodium, alcoholic beverages, physical activity, and more. The influence of the Guidelines on food assistance programs and educational initiatives has long made them a focal point for political and scientific controversy.
The statutory basis for the Dietary Guidelines for Americans is the National Nutrition Monitoring and Related Research Act of 1990. The Nutrition Monitoring Act requires the Secretaries of Agriculture and Health and Human Services to "publish a report entitled 'Dietary Guidelines for Americans'" every five years. This report is to contain "nutritional and dietary information and guidelines for the general public." The information and guidelines must be "be based on the preponderance of the scientific and medical knowledge which is current at the time the report is prepared."
Information and guidelines concerning the environmental sustainability of our present diet are assuredly "dietary information and guidelines for the general public." The exhaustive report prepared by the scientific advisory committee, reflecting current evidence on the link between dietary choices and environmental sustainability, certainly reflects "the preponderance of the scientific … knowledge which is current" at this time. The secretaries of USDA and HHS would have been well within their range of legal discretion in deciding that environmental sustainability – no less than advice on alcohol consumption or physical activity – should be considered in developing food assistance packages and educational programming for Americans. Indeed, given the huge contribution of agriculture to climate change, incorporating environmental sustainability into the dietary guidelines could well have become an important feature of the Obama administration's legacy on climate change – if the secretaries of USDA and HHS had had the vision and will to make it so.
Posted on October 2, 2015
On September 29, 2015, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. Although I think that the decision was important and largely unobjectionable, it did get one issue wrong, and it happens to be an issue near and dear to my heart – cost-effectiveness analysis. I am regularly surprised by the number of people who oppose its use and the number of people who just plain don’t get it. The 3rd Circuit (and EPA and the plaintiffs) fall into the latter category in this case.
The issue here was what metric to use in measuring the cost-effectiveness of technologies intended to reduce regional haze. Since this case involves compliance with a rule intended to reduce haze, I would have thought it self-evident that cost-effectiveness would be measured by the dollars spent divided by the amount of haze reduced. Silly me.
For those of you who don’t know, there is a measure of visibility; it is known as a “deciview.” Pennsylvania, to its credit, indeed measured cost-effectiveness on a dollars/deciview metric. The plaintiffs argued that cost-effectiveness should be measured on the basis of dollars/ton of pollutant removed. EPA waffled, first agreeing with the plaintiffs, but then concluding that, while its guidelines call for $/ton, it is acceptable to use $/dv. The Court, following the rule of decision that it must evaluate EPA’s decision based on the reasoning used in the rule, rather than on a rationale first provided in litigation, concluded that, because EPA’s own guidelines found the $/dv metric to be “flawed”, EPA’s approval of the $/dv metric was unjustified and must be remanded.
I am not sure I can count the ways this was screwed up, but let me put it simply. If we’re assessing cost effectiveness, and we have a measure of the outcomes we care about, we should use it. To use a proxy – emissions – instead of the actual outcome the rule is intended to affect – visibility – is just plain nuts.
And I have to add that, not only did the Court get this 180 degrees wrong, but it did not even seem to be aware of just how bizarre it is to reject the metric that actually measures the outcomes the rule is trying to achieve.
Posted on September 29, 2015
My wife and I are 6 months into an 18-month adventure in South America. Although we are roaming around a bit, most of our time is spent in Santiago, Chile, a city of 5 million nestled in a valley between the Andes to the east and coastal mountains to the west. Santiago is a modern city, with a highly educated population. It has lots of cars and lots of wood-burning fireplaces and stoves and the typical assortment of manufacturing and power generation facilities for a city of its size. In the winter, high pressure settles in over the valley and the fine particulate pollution builds up, creating serious public health emergencies in which driving is restricted, industrial activities are curtailed, and people are urged not to engage in strenuous activities outside.
In a sense I feel right at home, because along Utah´s Wasatch Front, winter inversions trap emissions from cars and wood burning to create grungy, unhealthy spikes in PM2.5 for days or even weeks at a time much like Santiago. In Utah the issue is addressed through the Clean Air Act, with Salt Lake City and the associated metropolitan areas designated as non-attainment areas for the short-term national ambient air quality standards for fine particulate matter and a comprehensive State Implementation Plan (SIP) developed by the Utah Department of Environmental Quality with thorough stakeholder involvement.
At the beginning of the SIP process, most of the public blamed the relatively few but highly visible industrial facilities (the refineries, the big Kennecott operations, etc.) as the principal culprits. However, as the stakeholder process evolved, public awareness shifted dramatically, with most Utahns now acknowledging that vehicle use and the aggregate effect of individual small sources are major contributors to the problem, and that individual personal choices with regard to vehicle use and lifestyle habits will be key to improving the wintertime air quality.
In Chile, the legal requirements to address winter inversion pollution are just as sophisticated and detailed as those under the U.S. Clean Air Act. The government has identified pretty much the same causes of the pollution as in Utah, i.e., cars, wood-burning, a variety of small businesses, and some but not many larger manufacturing sources. Also, Chilean law specifies a rulemaking process analogous to that in the U.S., with scientific studies, technical and economic analyses, and stakeholder consultation before finalizing an environmental rule. As a result, as in Utah, there is more public awareness in Chile of the role that individual choices play in environmental degradation which in turn leads to more of a shared sense of responsibility for dealing with it.
However, in my conversations with South American environmental lawyers outside of Chile about the legal systems for addressing environmental issues, I have found that they are not so much concerned about the substantive requirements on the books – those are not much different than those in the U.S. – but rather, are concerned that there are not always well-developed mechanisms for participation by the affected stakeholders in the development of environmental requirements.
ACOEL is reaching out to entities around the world to make available the considerable expertise of its members to address environmental challenges. In Latin America, ACOEL can play an important role in helping develop robust participatory processes which will yield great benefits in the development and enforcement of environmental requirements and the broader strengthening of participatory democratic institutions in this part of the world.
Posted on September 24, 2015
Ohio statutes authorize regional sewer districts to collect and treat sewage, including combined sewer overflows, and to charge fees for those services. The regional sewer district in the Cleveland area (“NEORSD”), with a service territory encompassing nearly 60 communities of Cuyahoga County and some nearby counties, took its authority one step further. Nearly fifty years after its creation, the NEORSD added a regional storm water management program that would charge property owners fees on the basis of a formula primarily tied to the square footage of impervious surfaces like parking lots and roofs. The NEORSD envisioned the plan would address the considerable urban sprawl that had occurred since the 1970’s and that had created vast expanses of impervious spaces in the form of parking lots, large clusters of office, shopping, Big Box, commercial and industrial facilities, often in the upland suburban areas to the east and south of the core city (many suburbs’ names end with “Heights”). With the conversion of green space to impervious surfaces, many of the lower lying areas began to experience more flooding and erosion.
Not content to wait for the individual upland communities to control storm water in a decentralized fashion, the NEORSD in 2010 adopted its plan in response to the “regional” flooding that urban sprawl created and exacerbated. But there was immediate and well financed opposition to the expanded storm water program. Opposition came from several communities which maintained their own capital intensive storm water systems and from commercial property owners which feared the hefty fees they would pay as a result of the parking lots and roof structures they had constructed. And the opposition succeeded when, in 2013, the Cuyahoga County Court of Appeals ruled that the statutory charter could not support regional storm water control. See my February 5, 2014 posting, “Storm Water Management by a Regional Sewer District: Was it a Power Grab or a Logical Extension of Existing Powers?”
With that decision, the NEORSD stopped collecting the estimated $35,000,000 per year in fees to implement the regional storm water prevention and abatement measures, but it did not give up. The NEORSD appealed to the Ohio Supreme Court, and received considerable amicus support. [Full disclosure: I authored a supporting amicus brief.]
More than a year after oral argument, the Ohio Supreme Court announced its decision. In a 5-2 vote, the high court reversed, finding that the NEORSD possessed the statutory authority to undertake regional storm water control. But as to the collection of fees, the vote was closer, with four Justices approving of the NEORSD fee plan and three dissenting. One Justice dissented because she believed that the fees are intended to relate to services and are not for the future construction and eventual operation of the infrastructure; therefore, she concluded that the NEORSD is premature in assessing fees until it actually provides a “benefit” or “service” from “water resource projects” already in operation. The other two dissenting Justices found that the regional storm water plan exceeds the NEORSD authority and that the fees are unrelated to services, and therefore, the fees are invalid, un-voted “taxes”. Northeast Ohio Regional Sewer District. v. Bath Twp., Slip Opinion No. 2015-Ohio-3705(decided September 15, 2015.
With the passage of time since the NEORSD plan’s conception in 2010, and the eventual judicial affirmation approximately five years later, a great deal of momentum was lost, with delays in the acquisition of infrastructure to abate storm water runoff and deferral in the collection of funds to implement the program. Nevertheless, the Supreme Court’s validation of the NEORSD regional storm water plan should “greenlight” similar strategies of other regional sewer districts that are grappling with urban-sprawl induced storm water issues.
Posted on September 15, 2015
Few recognize Ohio’s pivotal role in the development of the oil and gas industry in the United States. John D. Rockefeller amassed fortunes in Cleveland with his oil refining business (until Uncle Sam broke up the monopoly). Since then, there have been a number of different oil and gas booms in the state, for example in the mid-1960’s north of Columbus, then again in deeper sandstone formations in suburban areas of Cleveland approximately 10 years ago, and now, the whopping Utica shale play primarily in eight counties in eastern Ohio at depths over 8000 feet below ground surface and horizontal laterals extending a mile or more. The Ohio Department of Natural Resources (“ODNR”) has issued over 2000 Utica drilling permits, and there are approximately 1000 wells in production or drilling (costing millions to complete). Hydraulic fracturing (“fracking” its critics pejoratively call it) has been around a long time, but only recently has it been the focus of media and regulatory scrutiny. All of these historical booms going back to the mid-1960’s have forced the Ohio General Assembly to enact and update comprehensive statutes that regulate drilling activities.
Those in the industry were successful in having the General Assembly confer “sole and exclusive authority” to the ODNR “to regulate the permitting, location, and spacing of oil and gas wells and production operations.” But what about the longstanding, traditional “home rule powers” that the Ohio Constitution conferred on municipalities to take care of health, safety and land-use matters within their jurisdictions? The juxtaposition of the two came to a head in a case that ironically does not deal with the massive Utica shale wells, but more modest gas wells in a shallower formation in a suburb in Northern Ohio.
The ODNR had issued a drilling permit to Beck Energy to drill a well in Munroe Falls in 2011. But Munroe Falls obtained a local trial court injunction prohibiting the permitted drilling until Beck Energy complied with all local ordinances, including the payment of a fee, the posting of a bond, and the holding of a public meeting. Despite having the state’s authorization to proceed, Munroe Falls prohibited the drilling until it issued its zoning certificate, which it would not do (if at all) for at least one year after Beck met the other pre-conditions.
The dispute found its way to the Ohio Supreme Court, which issued a “plurality” opinion (4-3) in favor of Beck Energy (and the ODNR). State ex rel. Morrison v. Beck Energy Corp. The City argued that the state statute regulates the technical aspects of oil and gas drilling while the municipal ordinances address traditional local zoning concerns. The majority seemed troubled by the scope of the “sole and exclusive” language, but seemed content to defer this policy question to the General Assembly. Because the traditional Home Rule powers have enjoyed longstanding and wide ranging judicial respect, the majority in the Beck Energy case limited the decision to the Munroe Falls ordinances before the Court, presumably leaving open some future role for local zoning ordinances.
The initial reaction of the bar was to focus on the separate concurring opinion of Justice O’Donnell, who was reluctant to displace local zoning authority in favor of sweeping state regulatory authority. In his view, the “sole and exclusive” authority was intended to preempt a patchwork of local laws related to the technical and safety aspects of drilling and not to divest local governments of their traditional authority to promulgate zoning regulations that ensure land-use compatibility, preserve property values, and foster long-term community development plans. The dissenting Justices, along with Justice O’Donnell, noted the troubling omission of the word “zoning” when the General Assembly spoke to “exclusivity.” That is to say, if the General Assembly really meant to displace local zoning practices, it could have clearly said so, as it has done with other licensing statutes.
The Ohio Supreme Court’s decision has not put an end to the hotly contested question of the scope of pre-emption. For example, an activist group in suburban Broadview Heights has filed a putative class action lawsuit claiming that the City’s Community Bill of Rights supersedes state laws. And recently, the Ohio Secretary of State refused to certify county-wide ballot initiatives that sought to prohibit fracking and/ or drilling in their respective jurisdictions.
So after I finish this blog tonight, I will drive down Rockefeller Drive, pass the remains of the old Standard Oil refinery, and wonder what John D would have thought of this tension between state preemption and local health and safety regulations.
Posted on September 10, 2015
On Wednesday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register. The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”
Really? Tell me something I did not know.
I’m sorry. The CPP is a far-ranging rule. There are strong legal arguments against its validity. Those arguments may prevail. I see it as about a 50/50 bet. This I do know, however. The sky isn’t falling. The sky won’t fall, even for West Virginia, if the rule is affirmed and implemented. Those opposed to regulation have made these arguments from time immemorial – certainly no later than when Caesar tried to regulate the amount of lead in Roman goblets. And if I’ve got that one wrong, at least no later than Ethyl Corporation v. EPA, when opponents of EPA’s rulemaking on leaded gasoline thought that the rule would mean the end of western civilization.
I’m not naïve. I understand that these arguments are political as well as legal. I just think that opponents of EPA rulemaking undermine their own political position in the long run by repeatedly predicting catastrophe, even though catastrophe never arrives.
Posted on September 9, 2015
California’s “Proposition 65” warning requirements have long been a major concern for businesses that want their products offered for sale in the State’s large marketplace. Businesses whose products contain even a detectable amount of any one of more than 900 chemicals often face enforcement lawsuits brought by for-profit plaintiffs unless their products contain a “clear and reasonable” Proposition 65 warning. Short of eliminating the chemical entirely, the only way for businesses to immunize themselves from such claims has been for companies to label or display their products with a generic warning based on language set forth in the original Proposition 65 regulations. It usually states: “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
Three new developments threaten to make Proposition 65 less predictable and more difficult.
1) New Proposition 65 Warning Regulations Proposed for Adoption: Earlier this year, the California Office of Environmental Health Hazard Assessment (“OEHHA”) formally proposed an extensive set of new rules concerning the requirements for Proposition 65 warnings to be deemed “clear and reasonable.” While Proposition 65’s current regulations allow for compliance with its warning requirements through the type of generic, one sentence statement appearing above, the proposed regulations will, among other things, require:
a. use of a yellow triangle pictogram containing an exclamation point;
b. a more unequivocal warning statement indicating that the product “can expose” a user to chemicals known to the State to cause cancer and birth defects or other reproductive harm;
c. listing particular chemicals if they are among a group of twelve which are the most frequent targets of Proposition 65 litigation;
d. adding a URL to all warnings linking a public website that OEHHA will operate to provide information supplementing the warning for those so interested (see below); and
e. presentation of the warning in languages in addition to English if the product label otherwise uses languages other than English.
The proposed new Proposition 65 warning regulations specify alternative and additional requirements for certain types of products, including for food, restaurants, and several products or facilities that have previously been the subject of enforcement litigation. They also adopt revised and more onerous requirements for warnings for “environmental exposures,” such as for air emissions that arise from the operation of facilities or equipment within the State. As proposed, businesses will have two years from the adoption of a final rule to transition their warnings to meet the requirements of the new regulation, after which they can face enforcement actions and citizen’s suits for products in the California market that still bear the old (or no) warnings.
2) New Proposition 65 Website-Related Requirements Proposed for Adoption: Although not contemplated by the voters when they approved Proposition 65 over twenty-five years ago, OEHHA is also proposing that it operate a website to provide information to the public to supplement and explain the basis for the Proposition 65 warnings given by businesses. Information to be provided on this website may include the routes or pathways by which exposure to a chemical from a product may occur, OEHHA’s quantification of the level of exposure to a chemical presented by a product, and other information that may be of interest to plaintiffs as well as to sensitive consumers and other members of the public.
Significantly, in addition to its potential public education function, the proposed website regulations also empower OEHHA to require that manufacturers, importers, and distributors of products bearing a Proposition 65 warning provide the agency with information if so requested. Such information may include the identities of the chemicals in the product for which a warning is being given, the location or components of a product in which such chemicals are present, the concentration of those chemicals, and “any other information the lead agency deems necessary.” While trade secret protection may be asserted in some circumstances, the requirement to provide information to OEHHA will be enforceable by public prosecutors, including the California Attorney General and District Attorneys.
3) Potential Changes Relative to Proposition 65’s “Safe Harbor” Levels for Chemicals Listed for Reproductive Effects: Lead has been the focus of the vast majority of all Proposition 65 enforcement actions to date and resulted in hundreds, if not thousands, of settlements with national and international implications over the past two decades. Cases have included those concerning trace levels of lead in ceramic tableware, water faucets, candy, mini-blinds, toys, and a wide array of other consumer products and foods. However, in 2013, a trial concerning lead in 100% fruit juices, packaged fruits, and baby foods resulted in a highly significant Proposition 65 defense verdict based on a judge’s finding that the trace levels of lead exposure presented by each of these products was less that the State’s published “safe harbor” warning threshold for lead of 0.5 “micrograms/day.” A California Court of Appeal decision published earlier this year sustained, among other things, the trial court’s finding that it was permissible for defendants’ experts to construct a daily average level of exposure based on real world data concerning the frequency of the consumption of the products at issue over a fourteen day time period. Environmental Law Foundation v. Beech-Nut Corporation, et al., 325 Cal.App.4th 307 (2015).
In anticipation of this type of appellate decision, earlier this year, one of the most historically active Proposition 65 plaintiff’s groups, the Mateel Environmental Justice Foundation, filed a lawsuit seeking a writ of mandate and declaratory relief challenging the 0.5 microgram/day “safe harbor” for lead. Mateel contends that California’s published threshold for lead was not set consistently with Proposition 65’s 1,000-fold safety factor requirement for reproductive toxicants. It therefore argues that this longstanding Proposition 65 safe harbor threshold should be declared illegal and inoperative despite it having been published more than 25 years ago and relied on for thousands of settlements and warning decisions. Mateel further argues in its case that OEHHA should be ordered to promptly establish a dramatically more stringent safe harbor level for lead based on updated science concerning trace level exposures to lead. It also seeks to have OEHHA ordered to adopt a rule precluding the averaging of exposure across multiple days in relation to the lead safe harbor level. A second prominent citizen’s group, the Center for Environmental Health, which also focuses on Proposition 65 enforcement, submitted an administrative petition to OEHHA in early July seeking relief parallel to that sought by Mateel, regardless of the outcome of the lawsuit.
OEHHA has just announced that, in response to this petition, it will soon initiate a rulemaking to update the existing Proposition 65 safe harbor for lead and several related Proposition 65 regulations. The proposals include several major changes in the way the extent of exposure is calculated and how Proposition 65’s regulatory exemption for “naturally occurring” exemption for foods is determined. OEHHA’s new proposals essentially seek to nullify the important Beech-Nut precedents and will likely make it even more difficult for businesses to defend Proposition 65 claims about lead and the nearly 300 other chemicals listed for reproductive effects, especially those that may be present as trace contaminants in food products. OEHHA’s proposals include the following four elements:
A. Revised Safe Harbor for Lead and Other Chemicals. OEHHA proposes to repeal the current safe harbor level for lead (the Maximum Allowable Dose Level or MADL). In its place, OEHHA proposes multiple levels that depend on the frequency of exposure, from exposure once per day to once every 116 or more days. OEHHA asserts that the once-per-day figure should be reduced from 0.5 to 0.2 micrograms/day and that the existing 0.5 microgram/day level should instead apply only to exposures that occur no more than once every third day. For exposures that would occur only once every 6 to 9 days, the lead safe harbor figure would rise to 1.0 microgram/day and to higher amounts as exposure intervals become more infrequent. Plaintiffs’ groups contend that the lead safe harbor should be an order of magnitude lower at 0.03 micrograms per single day and do not want any alternative levels based on frequency of exposure over time. Despite its proposal for lead, as to all other chemicals listed for reproductive effects OEHHA proposes to eliminate any consideration of the frequency of exposure when safe harbor levels are applied.
B. Naturally Occurring Allowances for Lead and Arsenic in Some Foods. OEHHA also proposes to adopt specific naturally occurring allowances for lead and arsenic (but not other chemicals such as cadmium) in some specific types of food ingredients/products. The allowances for arsenic are 60 ppb and 130 ppb for white and brown rice respectively. For lead, they are 8.8 ppb for raw leafy vegetables and 6.2 ppb for raw non-leafy vegetables, fruit, meat, seafood, eggs, and fresh milk. The agency bases its proposal on data regarding background levels of lead in soil in California as well as rates of uptake by relevant plants.
C. Averaging of Product Samples. OEHHA further proposes to expressly prohibit averaging lead or other contaminant levels across different lots of a food product in the final form it will be purchased by a consumer. It would instead require that the level of a contaminant in a lot of food be determined by “representative sampling” from within a particular lot. OEHHA also would define a “lot” on a production basis, apparently by reference to date or production codes, which could significantly increase the amount of testing required. Testing on this scale may be infeasible for most businesses.
D. Average Rate of Exposure. Finally, OEHHA proposes to dictate that, as to any Proposition 65-listed chemical (lead or otherwise), the “average rate of exposure” must always be calculated based on the arithmetic mean and not a geometric mean or some other measure of the central tendency of a data set. OEHHA’s proposal flies directly in the face of the scientific testimony that prevailed in Beech-Nut and the prior position of the California Attorney General’s office on this issue.
OEHHA has scheduled public hearings to further discuss its new proposals on October 14 and 19, 2015. It is also inviting written public comment on the lead safe harbor issue until October 28, 2015, and on the averaging issues until November 2, 2015.
Posted on September 8, 2015
On October 15-17, 2015, the Fellows of the American College of Environmental Lawyers will be gathering in New York City for our 2015 annual meeting.
Registration for the annual event has been strong. Those Fellows who plan to attend, but who have not yet registered, are urged to do so now as deadlines are imminent, particularly for the room block and for the tour described below.
Some of the highlights of this year's meeting are:
- Thursday afternoon, October 15: World Trade Center lecture tour and visit to the 9/11 Memorial: An on-site lecture/tour of the rebuilding of the World Trade Center, emphasizing the environmental aspects of the rebuilding process, followed by a visit to the 9/11 Memorial. (Registration for this event closes the week of September 7.)
- Thursday evening: Welcome Cocktail Reception at the New York Athletic Club, followed by the College's customary dine-arounds.
- Friday, October 16: A full day of business and committee meetings and education sessions at the New York Athletic Club, including:
o Keynote speech by Jody Freeman of Harvard Law School: The Obama Administration's Clean Power Plan: Is it Legal?
o Crude by Rail: Staying Nimble in Times of Unprecedented Change, presented by Eileen D. Millett (Epstein Becker & Green), James A. Bruen (Farella Braun + Martel), Edward F. McTiernan (New York State DEC) and E. Gail Suchman (Stroock & Stroock & Levan)
o Big City, Big Environmental Challenges, Big Opportunities, presented by Eric A. Goldstein (NRDC), Daniel Riesel (Sive, Paget & Riesel) and Nilda Mesa (NYC Mayor's Office of Sustainability)
- Friday evening: Dinner reception at the Lincoln Ristorante, located at Lincoln Center of the Performing Arts, by the Henry Moore Sculpture Pond between the Metropolitan Opera House and Avery Fisher Hall.
- Saturday morning, Oct. 17: A half-day of education sessions:
o Sediment Cleanups: Stuck in the Mud?, presented by John Connolly (Anchor QEA), William H. Hyatt, Jr. (K&L Gates) and Walter Mugdan (U.S. EPA Region 2)
o Leading Cases and Other Highlights of the Past Year, presented by John Cruden (U.S. Department of Justice) and Robert Percival (Univ. of Maryland School of Law)
- Saturday evening: Jazz Dinner Dance at the Martha Graham Center of Contemporary Dance, located at the historic Westbeth Artists Community in West Greenwich Village, featuring the Manhattan School of Music Jazz Orchestra.
Further details for ACOEL Fellows are available on the ACOEL website. Here's to seeing many of the Fellows in New York City!
Posted on September 2, 2015
A whole lot of craziness is going on in federal district and appellate courts all over the country right now. About what? About judicial review of EPA’s recent “WOTUS” rule under the Clean Water Act (CWA). So I can avoid wheel re-invention, see the very recent ACOEL blogs by Seth Jaffe and Rick Glick.
So what’s the problem? You might find a lot to hate about the Clean Air Act, the Resource Conservation Act, the Safe Drinking Water Act, and I could name a few others, but at least they all have one good thing going for them: they all provide in a crystal clear manner that judicial review of EPA’s national rules under those statutes will lie exclusively with the D.C. Circuit. No ifs, ands, buts, or maybes.
For reasons I have never understood (and I have been trying since the 1970s), Congress in its infinite wisdom chose a different path in the CWA. In Section 509, they listed seven types of actions that must be reviewed in a federal Court of Appeal (not necessarily the D.C. Circuit) and left any other type of action to be reviewed initially in federal district court.
Over the years, a lot of mixed case law has developed regarding EPA’s CWA rules that don’t fit neatly within one of the seven types of actions Section 509 has specified for Court of Appeals review. Quite predictably, as reflected in Seth’s and Rick’s recent blogs, three district courts last week reached conflicting results over whether WOTUS fits within the seven types. In its WOTUS preamble, EPA included a discussion about confusion in the courts over the issue and took no position on whether WOTUS should initially be reviewed in a district court or Court of Appeals.
So how crazy is this: right now, we have (1) a ruling from one district court judge in North Dakota finding he has jurisdiction and enjoining EPA from enforcing WOTUS; (2) a statement from EPA saying the agency will honor his injunction only in the 13 States that were plaintiffs in that action; (3) an order from that judge directing the parties to brief the issue of whether EPA has authority to honor his ruling in only those states; (4) decisions from two other federal district judges holding WOTUS judicial review must be brought only in a Court of Appeals; (5) numerous cases filed in several circuit Courts of Appeals that have been transferred (at least for now) to the 6th Circuit; (6) an almost certain EPA appeal to the 8th Circuit in attempt to reverse the North Dakota judge’s injunction; and (7) WOTUS review cases filed in numerous other federal district courts by lots of parties with various motions still pending.
This is early September, and I can’t imagine how this won’t get a lot crazier over the next few months. Congress in its infinite wisdom!
Posted on August 31, 2015
With so many challenges filed in so many venues to EPA’s Waters of the United States or WOTUS rule, it seemed inevitable that some plaintiffs somewhere would find a sympathetic court. And so it is that thirteen states found U. S. District Judge Ralph R. Erickson to preliminarily enjoin the “exceptionally expansive view” of the government’s reach under the Clean Water Act.
This case is interesting from a couple of perspectives. First, Congress conferred original jurisdiction for challenges to EPA “effluent limitations or other limitations” and for permit decisions upon the Circuit Courts of Appeal. In the past two days, district court judges in West Virginiaand Georgiaconcluded they lacked jurisdiction over challenges to the WOTUS rule on that basis. Judge Erickson, however, did not feel so constrained.
The judge found that the WOTUS rule is simply definitional, and neither an effluent limitation nor an “other limitation” on states’ discretion. Further, the judge found that the rule “has at best an attenuated connection to any permitting process.” The conclusion states’ discretion is not affected is a bit odd in that the judge later concludes that the state plaintiffs satisfied all the criteria for a preliminary injunction, including irreparable harm caused by the rule.
Second, Judge Erickson plays on an internecine dispute between EPA and the Army Corps of Engineers in an unusual way. In my first sentence I refer to the WOTUS rule as EPA’s, although the rule was jointly adopted by EPA and the Corps. However, recently leaked internal government memorandaindicate that the Corps disavows much of the technical support and policy choices underlying the rule. Judge Erickson obliquely references these memoranda and seems to rely on them to conclude that plaintiffs are likely to succeed on the merits of their challenge.
Typically, courts are loathe to rely on internal documents of uncertain provenance, as they prefer to leave the government room to openly discuss policies under development without fear its deliberations would be disclosed. But in this case, Judge Erickson notes that he has not been presented with the full record for the WOTUS rulemaking, and so felt justified in citing the Corps memos.
As Seth Jaffe has observed, it seems likely that Judge Erickson’s jurisdictional determination will not stand, and his reliance on the confidential exchanges between the Corps and EPA is a little disturbing. However, his order highlights EPA’s poor management of this rulemaking, which has led to challenges from states, property rights advocates and environmentalists—a kind of anti-EPA trifecta.
As previously noted, EPA released its draft WOTUS rule before the work of the Science Advisory Board was complete, thus raising questions as to the rule’s scientific objectivity. Then EPA seemingly disregarded the technical concerns raised by its rulemaking partner, the Corps. Any WOTUS rulemaking would be controversial, but EPA has unnecessarily raised the bar for public acceptance.
Posted on August 28, 2015
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. Finding that a definitional rule is not an effluent limitation and is not any “other limitation”, because it “places no new burden or requirements on the States”, Judge Erickson concluded that the district courts do have jurisdiction. Addressing the merits, Judge Erickson concluded the states were likely to prevail, and would suffer irreparable harm in the absence of an injunction. He thus enjoined enforcement of the rule in the 13 states involved in the case before him.
I’ll go out on a limb and assert that Judge Erickson’s decision is not likely to survive. Why not?
- Both the Georgia and West Virginia opinions cogently explain why the WOTUS rule is an “other limitation under existing CWA cases.
- Judge Erickson was clearly trying to have his cake and eat it, too. It is, to put it mildly, internally inconsistent for Judge Erickson to conclude that he had jurisdiction to hear the case, because the “rule places no new burden or requirements on the States”, while ruling on the merits that the States will suffer irreparable harm if the rule goes into effect. If they will suffer harm, it is precisely because the rule will limit them in new ways – which is pretty much what his own opinion says.
- As Judge Keeley noted, providing consolidated jurisdiction over all challenges to the rule in one court of appeals furthers
“the congressional goal of ensuring prompt resolution of challenges to EPA’s actions.” That scheme would be undermined by … a “patchwork quilt” of district court rulings.
Based on these three decisions in just the last two days, it would seem that truer words were never spoken.
Posted on August 26, 2015
Autonomous vehicles will almost certainly supplant people-driven vehicles, the horse-and-buggies of the 21st century. Given the pace of technological change, that day is closer than you may think.
As recently as 2004, the Department of Defense’s research arm sponsored a race for self-driving vehicles over a 142-mile desert course. That year, 15 self-driving vehicles entered the race, but none made it to the finish line. The following year, four autonomous vehicles successfully completed a 132-mile desert route within the required 10-hour limit. A short 10 years later, Google’s autonomous cars have traveled nearly 2 million miles and its cars legally drive the roads of Mountain View. Testing centers for autonomous vehicles have been established in Michigan, Sweden and Japan.
Our land-use planning and zoning regimes, however, are tailored to meeting the needs of driven cars. Land-use plans and standards will need to be changed to maximize the benefits of shifts from the two-car family to the shared-driverless-car community. As many people as possible need to share his or her vision of the future as part of this process for change.
Planning rules for housing, stores and offices require parking areas. Roads and streets are sized to accommodate a flow of traffic based on models of driven cars. The needs of cars dominate cities and suburbs, and have done so for decades. Everywhere you look you see vehicles: Not just the hordes of cars moving on streets and highways, but the endless rows of cars parked at the curbs and road shoulders, and vast parking lots that envelop shopping centers, business parks, sports stadiums and other destinations. In some cities, parking makes up a quarter of the land use.
As autonomous vehicles begin displacing the ones requiring a human at the wheel, people will no longer need to keep a car parked near where they live. The parking space will no longer be a valued office perk. Parking areas around shopping centers and stadiums will begin to disappear because autonomous cars can be stored (or used) elsewhere and just come to pick up the passengers when needed. Our land-use standards do not contemplate a traffic pattern where picking up and dropping off passengers is a dominant feature of the transportation landscape and where parking is almost an afterthought.
Over time — perhaps decades, perhaps sooner — as more people turn to autonomous cars for transport from home to work, school and play, it will no longer be necessary for each person or family to own a car. The overall fleet of vehicles can be managed more efficiently to serve more people, much like what is happening with the increased use of car-sharing services and chauffeured services. Fewer personal vehicles will also reduce the need to require parking areas.
It will take a concerted effort over many years by planners, engineers, social advocates and affected communities to decide how to best address changes that will occur. Transit and social service agencies should see the development of autonomous vehicles as a laboratory for experimentation. I see great opportunities for positive change:
- Reduced housing costs and increased capacity by eliminating the need for high rises and homes to build expensive parking garages.
- Land for other, more productive uses as shopping centers give up vast parking areas to areas designed for efficient passenger pick-up and drop-off.
- Improved water quality, as land now covered with concrete for parking is converted to grass.
- More biking and walking paths as street lanes formerly used for parking are converted to these uses, and for lanes for bus rapid transit.
- Enhanced transportation for low-income and underserved communities through use of autonomous microbuses, subsidized access to autonomous cars and other means.
Collective brainstorming will develop ideas that can be discussed, refined and eventually implemented as we enter the era of autonomous vehicles. Everyone has a stake. What are your thoughts on how to adopt land-uses to autonomous vehicles?
This article was originally published in the San Francisco Chronicle on August 16, 2015.
Posted on August 24, 2015
Amid the controversy around the just released EPA Clean Power Plan rule, the impacts of climate change are becoming apparent with a proliferation of heat waves, droughts, floods, wildfires and other extreme weather events and trends, both in the U.S. and globally. While many climate scientists (and world governments in the 2010 Cancun Agreements) have agreed that it is necessary to limit average global temperature rise to 2 degrees Celsius to avoid potentially catastrophic and irreversible effects of climate change, the impacts we’re now witnessing result from a temperature rise of just under 1 degree C. We are currently on a trajectory toward a 3 to 4 degree (or more) increase, which has sobering implications.
In preparation for the COP 21 negotiations in Paris, world governments are engaged in a “bottom up” process of submitting proposed national emission reduction pledges poetically called Intended Nationally Determined Contributions (INDCs). These are not expected to get us to a 2 degree future, but will hopefully form the basis for an international agreement that sets the world on a path toward that target or something close.
The U.S. INDC calls for reducing our emissions by 26-28 percent below 2005 levels by 2025, which will require additional measures beyond those currently proposed or in place (including the EPA Clean Power Plan, CAFÉ and truck efficiency standards, methane and HFC controls). All of these measures are controversial and under attack from various quarters. As the world’s second largest emitter, the U.S. must implement credible and effective emission reduction strategies to convince other major emitters in the developing world (China, India, et al) to control their emissions and to help avoid the worst effects of climate change.
Solving climate change clearly poses huge challenges, but it also presents huge economic opportunities. As highlighted in Ceres’ 2014 Clean Trillion report, International Energy Agency analyses show that the world needs an average of more than $1 trillion in additional annual investment in clean energy technologies (renewable energy, energy efficiency, efficient transport, etc.) beyond 2012 levels of about $250 billion. This creates a massive need for capital, and presents a huge economic and investment opportunity to finance the necessary low carbon, clean energy economy.
A global transition to a low carbon economy is in progress and accelerating, but too slowly. Policies that put a meaningful price on carbon emissions and eliminate fossil fuel subsidies are needed to scale up clean energy investment. Fortunately there is growing business and investor support for such actions, as evidenced by the Global Investor Statement on Climate Change and recent letters from more than 350 companies supporting EPA’s Clean Power Plan. More such voices are needed to make the business and political case for solving climate change, before it is too late.
Posted on August 20, 2015
For those of you who, like me, are becoming more confident as the years go by that you have “seen it all” in the field of environmental law, this strange current event will change your mind.
California’s oil and gas production industry has been on a roll for the past decade. Aided by the price of crude oil in the $100 per barrel range and new technologies, including hydraulic fracturing among others, industry has increased production from previously written-off reservoirs. During this time, the California Division of Oil, Gas and Geothermal Resources (“DOGGR”) has been the lead agency for that industry, issuing the key environmental permits for its regular operations. Those include the underground injection permits that allow the industry to take the wastewater typically produced along with crude oil from subsurface production zones and reinject it underground into other water bearing zones. For nearly thirty years, the issuance of such permits proceeded without major interruption or controversy, but as of the start of this year all that changed.
The story begins in 1982 with California’s application for primacy to implement the Underground Injection Control (“UIC”) program of the federal Safe Drinking Water Act. Historically, in California most crude oil producing formations are comprised of over 90% water. Produced water, generally of poor quality, has been disposed as Class II wastes through underground injection wells often located near the production wells. California’s application for UIC primacy identified those underground aquifers where injection of produced water from oil and gas production was already taking place. These aquifers were exempt from the prohibition on underground injection of Class II wastes either because they contained greater than 3,000 mg/l of total dissolved solids (“TDS”) and as a result were considered to be unfit as drinking water, or they contained less than 3,000 TDS but met stringent standards of the UIC program.
In a memorandum of agreement (“MOA”) between US EPA and DOGGR executed in September 1982, the two agencies memorialized their agreement to allow DOGGR to implement the federal UIC program in California. A list of both exempt and non-exempt aquifers is attached to the MOA. Just a few months later, in December 1982 a second version of the MOA was circulated that transferred 11 of the aquifers from the non-exempt list to the exempt list. Then, in one of the stranger administrative developments I’ve seen, the September 1982 signature page was affixed to the end of the changed MOA and attachment. Thus, there were two MOAs – MOA1 drafted and executed in September 1982 and MOA2 apparently drafted and agreed upon in December 1982, both using the same signature page from September. The 11 aquifers that went from non-exempt aquifers into which there could be no Class II discharge to exempt aquifers allowed to receive Class II discharges included some of the more critical subsurface aquifers used by the oil and gas industry.
As a result of the 1982 MOAs and the transfer of the administration of the UIC program to DOGGR, California’s oil and gas industry was able to secure a much closer (geographically and philosophically) regulatory agency. UIC permits have been routinely issued to oil and gas producers for injection into exempt aquifers – as recognized in MOA2. Today there are approximately 50,000 produced water and enhanced recovery oil and gas injection wells in California. The oil and gas industry has invested hundreds of millions, more likely billions, of dollars in infrastructure and hardware for these wells based in substantial part on the authorizations in their DOGGR permits.
Now we come to the punchline and the strange situation we find ourselves in today.
Beginning in about 2012, US EPA took a hard look at DOGGR’s implementation of the UIC program and concluded that DOGGR may have issued UIC permits for injection into underground formations that either were not, or should not have been, exempt under the standards set forth in the UIC program. That audit culminated this year in a series of letters issued by both EPA and DOGGR setting forth an ad hoc program to re-evaluate many of the underground formations that had been treated as exempt by DOGGR for decades, including the 11 aquifers that had been “switched” from non-exempt to exempt status by MOA2. EPA and DOGGR contend that industry must prove that some of these long-held exempt aquifers really qualify for their exemptions, even though industry received permits from DOGGR based upon the 1982 MOA. This complete reversal of long-held assumptions has caused a substantial amount of angst and uncertainty in the industry.
But perhaps the most astonishing development is the publication of analyses of the validity of the two competing MOAs for the 11 aquifers that appeared on the California EPA website and the dissemination of the competing MOAs on the DOGGR website. In a March 2, 2015 memorandum authored by Matthew Rodriguez, the Secretary of Cal EPA, the strange procedural history of the competing MOAs, with identical signature pages, is detailed and includes a relatively candid admission that “DOGGR and U.S. EPA agreed to exempt the 11 aquifers, but may not have followed regulatory procedures.”
Cal EPA and DOGGR seem to agree that they assumed and treated the 11 aquifers as exempt for 30 years and that MOA2 appears to be the real, and final, MOA. However, US EPA has not issued a final opinion on that issue and continues to leave open the prospect that the 11 aquifers, among others, were never somehow officially exempt under the UIC. They have even adopted a moniker for the 11 and calling them the “11 historically-exempt aquifers.”
The final conclusion to this story is yet to be written. Assuming that re-consideration of the status of the exempt aquifers does not result in the removal of their exemption, then it may not be necessary to determine what legal significance the competing MOAs enjoy, or which one is “right.” But if EPA or DOGGR change the status of aquifers from exempt to non-exempt, their actions may shut down injection operations, thereby imperiling ongoing oil and gas operations. In that event, one or more of the affected industry companies may challenge the validity of MOA1 and seek to compel validation of MOA2.
If that happens, then as an oil and gas industry lawyer, I’m hoping that as between the twin MOAs, MOA2 is Pollux and MOA1 is Castor.
Posted on August 10, 2015
Last year I published an article in Bloomberg BNA entitled “Protection of Judicial Review Watered Down in D.C. Circuit.” I focused on a recent D.C. Circuit ruling (UARG) I hoped would “turn out to be an unfollowed – and eventually forgotten – glitch.” The effect of the “glitch” is to delay interminably judicial review of final Clean Air Act (“CAA”) rule provisions that EPA never hinted might be included in a final rule – even though the un-foreshadowed provisions go into full force and effect.
The Court’s judges must have missed that BNA edition, because they have followed the same rationale at least twice more now – in their Mexichem opinion of May, 2015 and their “Transport Rule” (EME Homer) decision last week.
This regrettable situation arises from the Court’s new interpretation of a CAA provision (§307(d)(7)(B)) which is quoted in full in my BNA article. It begins with the hornbook proposition that you can’t attack a rule’s provision on judicial review on grounds that were not raised during the comment period. It then provides for a process known as a “petition for reconsideration.” If a party can show that it could not have raised an argument during the comment period, EPA must conduct a “reconsideration” process. EPA’s actions in response to the petition are then subject to judicial review. This provision has often been used where EPA supports a final rule with facts or rationale not included in the record when the public comment period was open.
Now consider the following hypothetical. Assume EPA proposes a CAA rule requiring boilers to install a certain type of control device. EPA’s final rule drops the control requirement and simply prohibits boilers from combusting coal, effective two years from the final rule’s issuance. EPA’s proposal never mentioned coal prohibition as an option, and no one suggested it in their comments. So most would assume that boiler owners could then file D.C. Circuit petitions for review and have slam-dunk arguments for vacatur.
As shown in my BNA article, the D.C. Circuit has on many occasions (as recently as December, 2013) done just that. But since then, EPA and DOJ lawyers have advanced what I think is a ludicrous position: when a party believes a final CAA rule provision was issued in violation of notice-and-comment requirements, it cannot pursue judicial review on that issue unless and until it first files a petition under §307(d)(7)(B) and waits for EPA to take final action on that petition.
Unfortunately, the D.C. Circuit has bought this position three times now. Here is how the D.C. Circuit summarized the point in EME Homer last week:
[P]etitioners argue that EPA violated the Clean Air Act’s notice and comment requirements by significantly amending the Rule between the proposed and final versions without providing additional opportunity for notice and comment. Because that argument is an objection to the notice and comment process itself, petitioners obviously did not and could not have raised it during the period for public comment. Under Subsection 7607(d)(7)(B), however, the only appropriate path for petitioners to raise this issue is through an initial petition for reconsideration to EPA.
Note the opinion in effect concedes just how absurd this is. The petitioners “obviously did not and could not” have raised this objection. How can one object to EPA’s failure to propose something that EPA failed to propose?
EPA almost always delays action on §307(d)(7)(B) petitions for years so in the hypothetical above, the coal prohibition would go into effect before judicial review could even begin. Boiler owners would either have to shut down operations or convert to non-coal burning facilities, at which point judicial review would become pointless. The effect: EPA stops coal burning at boilers by declining to propose such a requirement in the first place!
If you think EPA or the D.C. Circuit would out of fairness suspend application of rules in such situations, see the examples to the contrary in my BNA article and read the Mexichem opinion. If you think I am exaggerating about how long it takes for a §307(d)(7)(B) petition to be processed, see the examples in my BNA article. And consider that in last week’s EME Homer opinion, the Court concluded its discussion above by noting that at least one party had filed such a petition but that EPA had not yet acted upon it. That petition was filed in 2011.
Posted on August 7, 2015
Earlier this year, I posted in this blog a discussion of EPA’s 35 year – and still unfinished – journey toward full implementation of the financial assurance (“FA”) mandate of CERCLA Section 108(b). Section 108(b) obligates EPA to identify “classes of facilities” that will be required to demonstrate financial ability to respond to future releases of hazardous substances and to promulgate rules establishing those FA requirements. Inexplicably, Section 108(b) remained dormant for 28 years. Litigation initiated by NGOs in 2009 and 2010 prompted the agency to identify the hardrock mining and several other industries as priority targets for regulation. The task of developing the FA requirements for those industries, however, remained a work-in-progress.
Ever vigilant, environmental advocacy groups filed a Petition for Writ of Mandamus in August 2014 taking EPA to task for its delays and inaction. The theme of the litigation is that (1) Section 108(b) is a critical component of CERCLA’s overall scheme, (2) EPA’s failure to issue FA rules has resulted in cleanup delays, funding shortfalls and increased public health risks, and (3) EPA’s inaction cannot be justified by competing priorities within the agency. In May of this year, the D.C. Circuit Court of Appeals issued an order requiring EPA to expedite implementation of Section 108(b) to the greatest extent possible, update its rulemaking schedule for the identified industries, and disclose to the litigants the regulatory “framework” for the hardrock mining industry, which EPA acknowledged had been completed. EPA’s website suggests that it will publish the hardrock mining rule in August 2016.
In short—the more things change, the more they stay the same. Perhaps the low priority assigned to this CERCLA provision suggests that the cleanup response track-record of even the priority industries may not justify a need to regulate under Section 108(b) - a process that will involve complex issues with significant financial consequences. Nevertheless, Section 108(b) remains the law of the land. Congress must either follow-through with its periodic efforts to amend Section 108(b) or EPA must finish this long journey. No benefit inures to the public, affected industries or the agency from the existing uncertainties and delays.
EPA’s foot-dragging in implementing Section 108(b) is in contrast with its recent action emphasizing FA as an enforcement priority in CERCLA settlement agreements and UAOs. The agency’s April 2015 Guidance to Regional Counsel is touted as the first comprehensive document issued by EPA to assist with the development of FA requirements and provide transparency in the use of its Superfund authority. Space limitations do not permit a detailed review of this 22 page guidance, which includes modified model FA language and sample documents. Some take-aways from a first read of the guidance:
- The Guidance does not address future Section 108(b) requirements.
- It is suggested that the EPA Regions have flexibility to include or exclude certain FA mechanisms at specific sites, BUT headquarters consultation and approval is often necessary.
- The financial test and corporate guaranty mechanisms are perceived by EPA as having a higher risk of not achieving FA objectives and imposing increased administrative burdens on the Agency; therefore, it is suggested that those mechanisms should be used with caution.
- The Guidance recognizes the complications arising at sites involving numerous, dissimilar PRPs, with a preference for requiring jointly-funded versus separate FA mechanisms.
- The Guidance emphasizes the need for agency diligence in the ongoing evaluation of site conditions and costs, with increases in the initial FA amount to be required as appropriate.
- Practical considerations for evaluating the financial test and guaranty FA options are addressed in an appendix.
Notwithstanding suggestions of flexibility in the use of FA tools on a site-by-site basis, this comprehensive new guidance does not appear to include much good news for the settling PRP. In fact, EPA’s stated concerns on the use of the financial test, corporate guaranty and insurance policy FA mechanisms could further complicate an already contentious issue in CERCLA settlement negotiations. What impact the guidance may have on FA negotiations as new sites arise, of course, remains to be seen.
Posted on August 5, 2015
On June 23, 2015, a Superior Court judge in Seattle ordered the Washington State Department of Ecology to reconsider its decision denying a petition for rulemaking on climate change issues. Ecology had earlier decided to deny the petition and instead wait to see if the international community makes progress at the upcoming Paris climate talks. The judge, however, found Ecology’s reasoning inadequate and was especially put off by Ecology’s decision to wait for the outcome of the conference of the parties scheduled to take place in December, 2015 in Paris. The judge ordered Ecology to reconsider its decision, and to report back to the court by August 7. The court presumably hopes the parties will engage in settlement negotiations in the meantime.
A group of eight young people filed the petition for rulemaking in 2014. As the judge noted, they are “[f]rustrated by an historical lack of political will to respond adequately to the increasingly urgent and dire acceleration of global warming.” Their petition asked Ecology to adopt a proposed rule recommending to the Legislature that it update the state’s existing 2007 climate change statute to reflect the most recent science on greenhouse gas reductions. (The most recent science calls for larger reductions than does the statute.)
More important, the petition does not specify particular actions Ecology should take. Instead, it tells Ecology to achieve the reductions science calls for by using all its statutory authorities. This might include new rulemaking under the Clean Air Act, new permits under all Ecology’s programs, broader use of Ecology’s land use and EIS authorities, and perhaps more.
It’s notable that this decision came just two days before a similar one in the Netherlands that John Dernbach discussed July 21 in his blog post.
Looks as though judges all over the world are getting tired of waiting on the other branches of government.
Posted on August 3, 2015
In the latest chapter of Homer’s Odyssey, the DC Circuit, on remand from the Supreme Court, determined that EPA had exceeded its statutory authority by imposing uniform emissions reductions under the Transport Rule also known as the Cross-State Air Pollution Rule. On July 28, 2015, the DC Circuit held in EME Homer City Generation, L.P v. EPA that the 2014 sulfur dioxide (SO2) emissions budgets for Alabama, Georgia, South Carolina, and Texas, as well as the 2014 ozone-season nitrogen oxide (NOx) budgets for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia are invalid. The court remanded without vacatur to EPA for reconsideration.
A brief history of Homer’s voyage so far.
In 2011, EPA promulgated the Transport Rule to address emissions from upwind States that contribute to nonattainment of National Ambient Air Quality Standards (NAAQS) in a downwind State under the Clean Air Act’s “good neighbor provision”. 42 U.S.C. Sec. 7410(a)(2)(D)(i). Upwind States challenged the Rule, contending that it would lead to over-control of emissions in the upwind States. The Rule imposed uniform pollution reductions on upwind States regardless of the actual amount of pollution that individual upwind States contributed to the downwind States.
In 2012, the DC Circuit considered these over-control challenges, agreed with the petitioners, and vacated the Rule. See EME Homer City Generation, L.P. v. EPA, 696 F/3d 7 (D.C. Cir. 2012).
On review, the Supreme Court reversed, holding that the potential for over-control did not require invalidation of the Rule on its face. To address potential over-control in an upwind State, the Court recognized that requiring emissions reductions by more than is necessary to achieve attainment in every downwind State to which it is linked would be impermissible. The Court explicitly authorized an upwind State to contest the emissions reductions under the Rule through “particularized, as-applied challenges.” EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584 (2014).
On remand, the DC Circuit considered the “as-applied challenges” as informed by the Supreme Court decision. The DC Circuit evaluated the challenges by determining whether a downwind location would still attain its NAAQS if linked upwind States were subject to less stringent emissions limits. Based on the record, the Court determined that EPA’s uniform cost thresholds have required States to reduce pollutants beyond the point necessary to achieve downwind attainment, which violated the Supreme Court’s clear mandate.
Although invalidating the 2014 emissions budgets, the DC Circuit remanded without vacatur. The Court stated that on remand, the parties may provide new evidence, data, or calculations for EPA to consider in establishing emissions budgets.
What will be the next chapter in this Odyssey? What effect will the decision have on the emissions trading market developed around the 2014 emissions budget? Will there be further appeals? How and when will EPA reconsider the emissions budgets?
The voyage is not over!
Posted on July 31, 2015
Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. (For a useful summary of the rule and an analysis of some of the legal issues that might be raised in potential litigation, see Susan Cooke’s post from earlier this month.) I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others. If EPA’s purpose wasn’t simply to make the rule more – or less – stringent, why did it ignore the Corps and try to bury the disagreement?
How about hubris?
I noted earlier this year and as far back as 2010, EPA’s tendency towards self-righteousness. I also pointed out how counterproductive that self-righteousness is; it makes it more difficult for EPA to achieve its goals. While I still think that EPA is self-righteous, hubris seems the apt description today.
Posted on July 30, 2015
The College’s International Pro Bono “China Project” reports a very interesting speaking opportunity in Xian, China.
1. Speaking at the All China Lawyers’ Association Annual Training Conference
This speaking opportunity will be for one Fellow to address the All-China Lawyers Association’s annual training session. ACLA is the official professional association for lawyers (the rough equivalent of the American Bar Association) of the People's Republic of China. It was founded in July 1986. All lawyers of China are members of ACLA.
ACLA Director Zhou Saijun reports that the national lawyer training has been scheduled on October 17 and 18, in Xian. These dates conflict with the ACOEL annual meeting in New York, but we have no ability to change the date. On the other hand, we have spoken with officers of the ACOEL and they agree that the opportunity is for just one Fellow, so overall attendance at the annual meeting will not be materially affected. The involved Fellow would accept this opportunity with the College’s full endorsement.
ACLA Director Saijun will forward the detailed agenda for the ACLA conference when the eventually complete it. But, as usual, they hope that the
“…. ACOEL speaker could introduce general US attorney system, environmental law and regulations, as well as how lawyer can play important role in the field of environment, energy and resource law. The topics for this annual training focus on lawyer’s role on oversea investment (relevant to Chinese international development strategy called one road one belt ), on enforcement of environmental law and how lawyer can serve PPP, etc.”.
As usual, we will ask ACLA/NRDC to confirm that they will reimburse the speaker for round trip coach airfare and other reasonable travel expenses. We imagine that the speaker may wish to extend his/her trip a day or more to see Xian’s famous terracotta warriors.
2. To Be Considered for the Opportunity
If you wish to be considered for this opportunity, please promptly send Jim Bruen (email@example.com) a copy of your current curriculum vita. Jim will also answer any questions. He will send all vitae received on or before 5:00 pm PST August 12 to ACLA/NRDC so that they may promptly select the Fellow who they feel best meets their needs as speaker. The selected Fellow will then contact Wu Qi and Grace Gao of NRDC/Beijing to coordinate travel and other arrangements.
Don’t miss this fascinating opportunity.
Posted on July 28, 2015
ACOEL Fellow John Cruden, head of DOJ’s Environment and Natural Resources Division, recently gave this speech to the ABA Litigation Section on the current direction of federal environmental enforcement efforts. The speech focuses on efforts to coordinate with and leverage local, state, regional and international partners.
Posted on July 24, 2015
On July 6, in American Farm Bureau Federation v. EPA, a Clean Water Act case involving important issues of first impression, the U.S. Court of Appeals for the Third Circuit upheld the Chesapeake Bay Watershed Total Maximum Daily Load (TMDL) – the largest and most complex TMDL ever issued. This watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. Its population is 17 million and growing.
Under Clean Water Act Section 303(d), when a water body is not meeting water quality standards, a TMDL must be developed, typically by the state, subject to EPA approval. It specifies the maximum amount of a pollutant that can be discharged to the water body and still meet water quality standards. Under Section 303(e), the TMDL becomes part of a state’s “continuing planning process,” which specifies the measures the state will take to bring the impaired water body into compliance. This plan is designed by the state, with EPA oversight, but EPA has no authority to implement the plan. In addition, the Act does not define a TMDL or spell out exactly what EPA may do to assure achievement of the water quality standards if the plan is not adhered to.
The Chesapeake Bay TMDL was issued by EPA in December, 2010. It was the culmination of over 25 years of unsuccessful efforts by the Bay states and EPA to stem the increasing discharges of nitrogen, phosphorus and sediment which were damaging the water quality of the Bay, causing losses of blue crabs, oysters, and other aquatic organisms – including notably those at the base of the food chain, and impairing a number of uses: commercial, recreational and aesthetic. Because of the interstate nature of the pollution and the complex scientific issues involved, in 2006 the Bay states asked EPA to take the lead in drafting a watershed-wide TMDL, in consultation with them and the public, which EPA did.
In prior blogsI have described the substance and background of the Bay TMDL, the district court decision upholding it and the issues raised on appeal and the large number of amicus briefs from across the country on both sides. In American Farm Bureau Federation, appellants claimed that EPA exceeded its statutory authority by (1) establishing not just the maximum daily and annual loadings of nitrogen, phosphorus and sediment, but also waste load allocations to a number of permitted point sources and load allocations to “sectors” of nonpoint sources (such as agricultural and urban stormwater), (2) specifying target dates for compliance (60% of the necessary measures in place by 2017, and the rest by 2025) and (3) requiring “reasonable assurance” by each state that it is making progress with its plan, to be reviewed at two-year intervals for which “milestones” were to be established.
While the TMDL was in development, interim action has involved an iterative process in which each state developed a “watershed implementation plan” to eventually bring its part of the Bay watershed into compliance, with input from county and local government entities and the private sector. EPA has conducted regular reviews and advised states of any shortcomings. This advice is then discussed, with the states having the final say on implementation measures.
With this background, the Third Circuit first considered the jurisdictional issues of standing and ripeness, which had not been raised by the parties. The court held, as many other courts have, that a TMDL is not a regulation but an “informational tool” which gets implemented when permits are issued or other regulatory measures are taken. If it is not currently impacting anyone, who can have standing to challenge it? The court found that while the TMDL is not itself enforceable, where a petitioner can demonstrate a high likelihood that it will be affected by the implementation that will follow, it has standing. This test was met by the farm community represented by the Farm Bureau. The court then held that the TMDL was ripe for review because it was a purely legal dispute on a well-developed record, and hardship would result to the parties if the merits were not addressed. As the court put it: “If there is something wrong with the TMDL, it is better to know now than later.”
Because the statute neither defines a TMDL nor sets out what EPA must or might do if satisfactory implementation is not undertaken by a state, the court concluded that Chevron deference was warranted so long as EPA’s actions were reasonable and consistent with the purposes of the Act – in this case to substantially improve the quality of the nation’s waters. The court stated, citing extensive case law, that often Congress legislates in broad terms, leaving to the agency the task of filling in the “gaps” based on its expertise and evolving experience. The court then noted that EPA has had regulations in place defining a TMDL as the sum of the loadings from point and nonpoint sources to a water body for over 20 years, they had never been challenged, and had been discussed by numerous courts. The court held this definition reasonable. It further held that since a TMDL is an informational tool, EPA acted reasonably in including loading allocations to point sources and categories of nonpoint sources, especially in light of the interstate nature of the TMDL and the complexity of moving thousands of sources towards compliance with water quality standards.
The court also held that EPA did not err in prescribing target dates (which are hortatory but not enforceable) because Congress clearly intended that water quality standards be achieved with reasonable promptness. Similarly it held that EPA acted within its authority in requiring “reasonable assurance” from the states that they are taking appropriate measures leading to achievement of water quality standards. The court further held that none of EPA’s actions illegally impinged on the rights of the states to make the detailed choices as to which sources to regulate, and how stringently, to achieve the TMDL loadings. Nor did EPA intrude improperly into matters of local land use regulation, which is traditionally the province of the states.
As a result, all of the cleanup and restoration measures being taken throughout the watershed based on the TMDL can continue to go forward, now that the foundation on which they are based is secure. In addition, this decision, by resolving a number of key issues, will provide valuable guidance to practitioners across the country.
Posted on July 21, 2015
On June 25, 2015, The Hague District Court in the Netherlands issued an order and opinion requiring the Netherlands to reduce its greenhouse gas emissions by 25 percent below 1990 levels by 2020. This level is more ambitious than the 17 percent reduction goal to which the Dutch government has currently committed. The case, Urgenda Foundation v. State of the Netherlands suggests what courts may be willing to do when government policy lags behind what climate science indicates is needed.
Urgenda sued the government in tort under the Dutch Civil Code on behalf of itself and 886 individuals, claiming among other things that “the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change.” For U.S. lawyers, accustomed to limited governmental tort liability under federal and state law, the breadth of this claim may be startling. But it was also novel, though less so, to the court, which explained that this legal issue “has never before been answered in Dutch proceedings.”
Although the state has considerable discretion in policy making for climate change, the court said, that discretion is constrained by both the U.N. Framework Convention on Climate Change and the Treaty on the Functioning of the European Union (TFEU). Objectives and principles of the Climate Change Convention and the TFEU that constrain Dutch discretion, the court said, include “protection of the climate system, for the benefit of current and future generations, based on fairness;” the precautionary principle, and consideration of “available scientific and technical information.”
Urgenda’s case was based on numerous scientific reports, including the 2007 report of the Intergovernmental Panel on Climate Change (IPCC), which said that Annex I countries (including both the Netherlands and the United States), need to reduce their greenhouse gas emissions by 25-40 percent below 1990 levels by 2020, and 80-95 percent below 1990 levels by 2050, to limit the global temperature increase to 2.0 degrees Celsius. Parties to the Convention on Climate Change have agreed that a temperature increase above that level (equivalent to 3.6 degrees Fahrenheit) would be dangerous.
After analyzing multiple factors relevant to the appropriate duty of care, the court concluded that the state “has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% percent compared to the year 1990.” It ordered a 25 percent reduction, saying there are “insufficient grounds for the lower limit” of a 40% reduction from 1990 levels specified in the 2007 IPCC report.
Although the case was decided under Dutch legal rules that are quite different from our own, and may be appealed, it has significance to U.S. lawyers. First, it shows great respect for climate change science, describing IPCC and other scientific reports in considerable detail. The case therefore underscores the important role that courts can play in affirming the validity of climate change science.
Second, the court’s willingness to interpret domestic law in ways consistent with international commitments, including those in the Convention on Climate Change as well as the commitment to keep warming to 2.0 degrees Celsius, raises an interesting and important question about whether U.S. domestic laws related to climate change also should be interpreted in ways consistent with international commitments. U.S. courts have often held that statutes should be construed in a manner consistent with treaties and other international obligations.
Finally, the decision indicates the value of judicial intervention as a way of forcing governments and businesses to do more than they are doing. Additional legal support for such cases was provided, in March 2015, by the issuance of the Oslo Principles on Global Climate Change Obligations. These principles were developed by a group of legal experts from around the world. The central idea is that “[s]tates and enterprises must take measures, based on” the precautionary principle, “to ensure that the global average surface temperature increase never exceeds pre-industrial temperature by more than 2 degrees Celsius.” Many sources of local, national, and international law support these principles, the experts said, including “international human rights law, environmental law and tort law.”
According to a report issued on July 16, 2015 by the American Meteorological Society, 2014 was the warmest year on record. As the effects of climate change intensify, there may be more such litigation, and decisions like this could become more common.
Posted on July 20, 2015
I remember as though it were yesterday when the Underground Storage Tank (UST) regulations were finalized in 1988, requiring owners and operators to register existing as well as new tanks, then ensure prevention, detection and remediation of releases into the environment. Owners and operators were also required to perform release detection inspections and demonstrate financial responsibility for cleaning up releases. New tanks were required to meet certain design, construction and installation requirements aimed at preventing releases. While technology for meeting those requirements has evolved over the ensuing 27 years, no significant regulatory changes have been implemented – that is, until this week.
Many owners and operators decided to pull or close USTs in lieu of meeting those regulatory requirements but, because certain tanks are underground for safety reasons, that was not always a viable alternative. Because I was new to private practice and saw an opportunity, I set out to become the “Queen of USTs" in the Carolinas. These days, I still help clients on remediation projects involving releases from USTs and review due diligence reports on real estate where USTs are or have been used, but it has been a long time since I gave a speech or wrote an article about UST regulation.
On July 15, 2015, EPA promulgated a final rule modifying the 1988 UST regulations implementing requirements for secondary containment and operator training applicable to both new and existing USTs, implementing key provisions of the Energy Policy Act of 2005 (which modified Subtitle I of the Solid Waste Disposal Act) and fulfill objectives in EPA’s August 2006 UST Tribal Strategy ensuring parity in program implementation among states, territories and in Indian country. Citing two peer-reviewed but unpublished studies of causes for releases from USTs, along with statistics showing there are still as many as 6000 releases from USTs discovered each year, and touting development of new, the 2015 changes to the original regulations are aimed at ensuring the USTs are still working as intended, by focusing on operation, maintenance and training requirements.
While certain waste water treatment facility and nuclear power facility partial or complete deferrals are continued, this regulation removes deferrals set forth in 1988 for field-constructed tanks, airport hydrant fuel distribution systems that meet the UST definition, and UST systems storing fuel solely for use by emergency power generators. Hospitals, airports, communications providers and utilities should particularly take note of these changes.
This blog would grow to an article if it addressed in detail all of the technical requirements of this 117-page regulation, but there are some that take effect immediately and require attention. For example, regulations disallowing flow restrictors in vent lines to meet the overfill prevention requirement at new installations, and also triggered when an existing flow restrictor is replaced, apply immediately on the effective date of this final regulation, July 15, 2015. Also, testing following a repair is required on the effective date of the regulation. Most of the other implementation deadlines for notification, testing, inspection, recordkeeping, demonstrations of financial responsibility compatibility and required technology upgrades are set at three years after the effective date of the final 2015 UST regulation or July 15, 2018.
There is one exception to the deadline for compliance being either immediately or in 3 years. The secondary containment requirement is implemented for all new UST systems 180 days after the effective date of the rule, and tanks and piping installed or replaced after April 11, 2016 must be secondarily contained and use interstitial monitoring per the regulation. EPA explains that 180 days allows owners and operators to adapt plans for new systems.
Training of owners and operators (definitions for three classes are set out in this regulation) must be completed within the three years after the effective date of this regulation. EPA explained that requirements for implementing walkthrough inspections and release detection equipment testing were adjusted to correspond to the training deadline so inspectors and testers will better understand what to look for. Apparently, many of the deadlines and implementation requirements were adjusted by EPA in response to comments on the proposed rule.
Conversely, in response to comments regarding the potential costs on small business owners, EPA responded that it carefully considered such potential impacts of the proposal; EPA declined to implement recommendations of a small business advocacy review panel under the Regulatory Flexibility Act as some commenters suggested. Finally, while EPA’s final rule allows records to be maintained on paper or electronically, in keeping with the move to electronic filings and submittals, the agency encourages owners and operators to maintain electronic records to “simplify compliance” and utilize “21st century technology tools.”