Vaped and Confused

Posted on September 16, 2019 by Tracy Hester

E-cigarettes have vaulted to the front pages lately, and for tragic reasons.  To date, at least six users have died from severe lung disease tied to vaping, and nearly 400 others have reported serious medical symptoms in 36 states and the Virgin Islands.  The reasons for the outbreak remain murky:  some investigators link the victims’ illnesses to bootleg or counterfeit nicotine cartridges, while others have focused on the addition of “thickeners” or THC and marijuana components.  Heavy abusive use of the devices has also come under suspicion.  But regardless of the explanation, e-cigarettes will likely remain in the spotlight until researchers either identify the cause or the pace of the illness starts to slow.

The furor, however, has distracted attention from another growing regulatory issue with e-cigarettes.  As vaping continues to expand into the workforce, employers have discovered that they now have to manage growing volumes of discarded vaping cartridges.  These cartridges contain residual amounts of nicotine – a deadly substance that figured prominently as a poison in Agatha Christie’s murder mystery Three Act Tragedy.  Nicotine is so hazardous, in fact, that EPA accorded it the dubious distinction of an acute hazardous waste (P075) listing under the Resource Conservation Recovery Act.  EPA listed nicotine originally in 1980, and EPA confirmed on Feb. 22, 2019 that unspent nicotine in discarded e-cigarette cartridges can constitute hazardous waste under its pharmaceutical waste rules.  While EPA exempted used nicotine patches and gums from the listing, e-cigarette cartridges containing unused nicotine failed to earn the same exemption.  And cigarette butts don’t pose the same challenges because their nicotine isn’t the sole active ingredient and isn’t pharmaceutical grade.

Home users, of course, needn’t worry because their discarded vaping cartridges are household hazardous wastes exempt from hazardous waste regulation.  But commercial facilities and industrial operators don’t enjoy that exemption, and as a result accumulated spent cartridges from their employees’ vaping can create big problems.  Because nicotine is a P-listed acute hazardous waste, facilities can quickly become large quantity generators if they accumulate more than 1 kilogram (2.2 pounds) of spent cartridges in a month (although they may argue that only the residual liquid nicotine itself counts towards the waste tally).  Rinsing the cartridges may simply magnify the problem because the rinsate itself counts as a listed hazardous waste under the derived-from rule.  And other possible strategies, such as reverse distribution or reclamation, may not cleanly apply.

Many facility operators are only now realizing the scale of the problem.  Possible compliance strategies may not require any RCRA wizardry at all – for example, some facilities can simply ban on-site employee vaping, while others can require that employees take their spent cartridges home for disposal.  With the Trump Administration’s call to ban flavored e-cigarette cartridges and similar initiatives by Michigan and New York, the problem also may retreat if more states and agencies demand withdrawal of e-cigarettes from the market.  But facilities that can’t rely on these fixes may find themselves struggling for answers in a hazy and confused regulatory environment.

Calling Off the NEPA Hounds – The CEQ’s 2019 Draft Guidance on GHG Emissions

Posted on September 12, 2019 by JB Ruhl

On June 26, 2019, the Council on Environmental Quality (CEQ) published a Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 Fed. Reg. 30097). This new guidance would replace the guidance on that theme CEQ published in August 2016 (2016 Guidance) and which President Trump extinguished by executive order, and CEQ immediately withdrew, early in April 2017 (E.O. 13783 and 82 Fed. Reg. 16576). The much shorter 2019 Draft Guidance bears some similarities to the 2016 Guidance:

  • Both advise agencies to use GHG emissions as a proxy for climate effects.    
  • Both emphasize that agencies should follow the NEPA “rule of reason” for identifying direct and indirect effects and for keeping the depth of analysis proportionate to the scale of the effects.
  • Both allow agencies to use available emission quantification tools, but also to refrain from quantification if the available information is of poor quality or if the analysis would be too complicated, provided they explain why.
  • Both advise agencies not to engage in overly speculative analysis.
  • Both emphasize that NEPA does not require cost-benefit monetization analysis.

From there, however, the two guidances look nothing alike. To begin with, the 2016 Guidance declared that “climate change is a fundamental environmental issue, and its effects fall squarely within NEPA’s purview,” and that “it is now well established that rising global atmospheric GHG emission concentrations are significantly affecting the Earth’s environment.” In short, climate change was the core focus throughout the 2016 Guidance. By contrast, the 2019 Draft Guidance refers only to “potential climate effects” of GHG emissions, and does so only twice in the document. It is perhaps remarkable that any Trump administration guidance actually recognizes that GHG emissions could have “potential climate effects,” but the CEQ skirts the issue so much that one might easily miss the point of why agencies are being asked to conduct GHG emissions analyses in the first place.

More substantively, the 2019 Draft Guidance omits three key features (among others) of the 2016 Guidance. First, there is no mention of mitigation in the 2019 Draft Guidance, whereas that was a focus of the 2016 Guidance. Under the 2019 Draft Guidance, in other words, agencies would estimate GHG emissions of the proposed action but not need to consider action alternatives that generate lower emissions or higher sequestration.

Second, the 2016 Guidance included a section on scope of the action that advised agencies to consider predicate and consequential effects of the action. For example, proposed resource extraction actions should consider GHG emissions from reasonably foreseeable predicates such as clearing land and building access roads, and from reasonably foreseeable consequences such as transportation, refining, and use of the resource. The 2019 Draft Guidance makes no mention of such analyses.

Most glaringly of all, the 2019 Draft Guidance completely ignores the need to assess the impacts of climate change on the proposed action. Recognizing that “GHGs already in the atmosphere will continue altering the climate system into the future” and that “NEPA review should consider an action in the context of the future state of the environment,” the 2016 Guidance included an extensive section advising agencies on how to evaluate the effects of climate change on a proposed action and to consider how adaptation and resilience measures might be integrated into the action. No doubt because it would require acknowledging that climate change is occurring, the 2019 Draft Guidance contains no such guidance.

The bottom line is that, if the 2019 Draft Guidance were adopted as is, agencies will conduct GHG emissions analyses but not need to consider reasonably foreseeable upstream and downstream emissions or how the action could incorporate climate change mitigation, adaptation, and resilience. Of course, that would just be CEQ guidance. The courts may have a different idea for how NEPA engages climate change.

Three Steps Back – DOJ Restrictions on Use of SEPs Are Misguided and Counter-Productive

Posted on September 10, 2019 by Zach C. Miller

The U.S. Department of Justice (DOJ) has taken three steps since June 2017 through August 2019 that severely limit the use of Supplemental Environmental Projects (SEPs) in civil environmental settlements.  Those actions are legally unsound, are generally not sought or supported by the business community or state or local governments, and are counter-productive to the effective enforcement of federal environmental law.  Such actions, and the recent DOJ threat to completely ban use of SEPs in the future, should be revisited and reversed.

A SEP is a consensual, environmentally beneficial project related to an underlying environmental law violation, but not necessary to achieve compliance, that generally results in a reduction in the party’s monetary civil penalty.  SEPs have been widely used in settlements with both businesses and state and local governments since the 1980s and have historically been supported by both parties.  Their use has been governed by a series of EPA policies, most recently updated in 2015.  For example, the 2015 SEP Policy requires that a qualified SEP cannot be a cash payment to a third party, must voluntarily go beyond what is required to comply with law, and must meet one or more specified categories of public environmental benefits.  EPA estimates that, from 1998 through 2012, it negotiated SEPs worth over a billion dollars.

Since 2017, DOJ has unwisely taken several steps that curtail the use of SEPs.  On June 5, 2017, then-Attorney General Sessions issued a one-page Memorandum to DOJ attorneys that broadly prohibited any settlement “that directs or provides for a payment or loan to any non-governmental entity that is not a party to the dispute.”

Questions about whether this new policy prohibited SEPs generally or allowed their continued use with governmental entities were answered by DOJ’s next two steps.  On November 7, 2018, DOJ issued a policy directive that prohibited DOJ from agreeing to any settlements with a state or local government that “extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Then, in a memo dated August 21, 2019, political appointee Assistant AG Jeff Clark made clear that the 2017 and 2018 policies are considered by DOJ to prohibit the use of SEPs in all settlements with state and local governments.  However, in recognition of the strong support for SEPs by many governmental entities, the memo temporarily allows the extremely limited use of SEPs with such entities (“only as a matter of last resort” … and only as “a small component of the overall settlement”) during an unspecified “interim period … pending my [AAG Clark’s] broader review of the SEP policy.”  In other words, the referenced impending “broader review” could and, under the reasoning of the August 2019 memo, likely will conclude that any and all use of SEPs is unlawful and prohibited.

But that reasoning is circular and unsound.  The August 2019 Memo acknowledges that the AG’s June 2017 policy “largely tracks” and in effect implements the 2017 “Stop Settlement Slush Funds Act,” which prohibited settlements allowing payments to parties other than the U.S., and was passed on a partisan vote in the House but was rejected by the Senate.  H.R. 732, 115th Cong., 1st Sess. (2017).  Among other problems, that rejected bill failed to recognize that the 2015 SEP Policy already expressly prohibits cash payments to third parties, and some environmental statutes (not consensual settlements) provide for assessment of attorneys’ fees to prevailing parties, so the perceived “settlement slush fund” problem was illusory.  The November 2018 DOJ Memo then purported to implement that initial 2017 policy, and the August 2019 Memo thereafter concludes that the preceding 2017 and 2018 DOJ policies together mandate that SEPs must be banned.  The 2019 Memo also analyzes at length the narrow 2018 infrastructure-related amendments to the Clean Water Act and concludes they do not expressly authorize the use of SEPs.  But it does not analyze the long-standing, bi-partisan legal conclusions that nothing in federal law prohibits the use of SEPs and that doing so is within DOJ’s and EPA’s broad enforcement discretion.  Rather, DOJ’s conclusions, in a house-of-cards fashion, are based solely on “enforcement” of its own novel policies based in turn on a piece of rejected partisan legislation.  Space does not permit a detailed response here to the August 2019 Memo’s other high-minded but tenuous allegations about SEPs infringing on Congress’ “power of the purse” and on “local democratic processes,” except to say, please see the Administration’s own contrary positions on those points for White House Border Wall funding and restricting State vehicle emission limits.

Sometimes, it’s been said, it’s necessary to take a step back to take two steps forward.  DOJ’s actions restricting SEPs, however, are three huge steps backwards, with a threat of a fourth misstep and disastrous total ban.  Such a ban would preclude consensual, beneficial projects long favored by business and local governments and would unduly hinder and delay resolution of federal environmental enforcement actions.  Those serious missteps should be revisited and reversed.

Climate Whack-a-Mole; or How the Trump Administration Institutionalizes Ignorance in the Endangered Species Act

Posted on August 27, 2019 by Peter Van Tuyn

Given the severity and finality of the extinction of species on this planet, and the myriad adverse impacts on human society and natural ecosystems of such extinction, Congress passed the hallmark Endangered Species Act in 1973.  Since then it has helped save myriad species from extinction and recover many species to healthy population levels.  The success of the ESA in meeting its goals, and strong public support for the law, did not stop the Trump administration from targeting the ESA to ease what it perceives as its negative impact on economic growth. 

As those familiar with the ESA know, a central duty under the law is for federal agencies to consult with the experts within the federal government before undertaking any activity that might jeopardize a species listed under the ESA or adversely modify such a species’ critical habitat.  This consultation helps both to prevent jeopardy and adverse modification and to identify ways in which the activity could proceed without having such effects. 

Among the Trump administration’s controversial proposals was to change the ESA regulations to create a climate change exemption to the ESA’s expert consultation process.  This proposal would have exempted from such consultation any proposed federal action with “effects that are manifested through global processes,” a phrase that is a clear reference to climate change. 

Not surprisingly, this proposal was met with substantial criticism from ESA supporters, who asserted that there was no legal authority to excise climate change from the ESA’s consultation requirements and that to deliberately do so was extremely foolhardy.  These people undoubtedly breathed a sigh of relief when the final rule came out without this proposal, which the Trump administration abandoned “in the interest of efficiency” in the face of that stinging criticism.  

That sigh, however, was certainly followed by a gasp, as those same people found that the final regulations included a wholly new regulatory approach designed to achieve the same effect.  The Trump administration did this by controlling what the expert agencies can consider as they seek to understand the effects of proposed federal action. 

Here is how it works.  First, the final rule defines “effects of the action” as

all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

(emphasis here and elsewhere added).  One layer deeper, the final rule defines the newly-added term “consequence,” in relevant part, as follows: 

Considerations for determining that a consequence to the species or critical habitat is not caused by the proposed action include, but are not limited to:  (1) The consequence is so remote in time from the action under consultation that it is not reasonably certain to occur; or (2) The consequence is so geographically remote from the immediate area involved in the action that it is not reasonably certain to occur; or (3) The consequence is only reached through a lengthy causal chain that involves so many steps as to make the consequence not reasonably certain to occur.

The final rule also defines the term “reasonably certain to occur,” which was not defined in the prior rule, to read, in relevant part, as follows:

Factors to consider when evaluating whether activities caused by the proposed action (but not part of the proposed action) or activities reviewed under cumulative effects are reasonably certain to occur include, but are not limited to:  (1) Past experiences with activities that have resulted from actions that are similar in scope, nature, and magnitude to the proposed action; (2) Existing plans for the activity; and (3) Any remaining economic, administrative, and legal requirements necessary for the activity to go forward. 

Finally, the new rule mandates that the criteria set forth in these new definitions of “consequences” and “reasonably certain to occur” “must be considered by the action agency and the [expert agencies].” 

Although the term “climate change” is not used in the text, the intention to preclude the Services from considering climate change is evident.  To begin with, the definition of “consequences” sets forth three criteria and provides that any one of these would support a non-causation finding.  These three factors – remoteness in time, geographic remoteness, and lengthy causal chain – are classic attributes of climate change.  Indeed, climate change is a global phenomenon that has taken decades to develop from multiple sources, through what may be (or perhaps in some cases may not be) complex causal chains.  Furthermore, the definition of “reasonably certain to occur” takes a retrospective stance, emphasizing “past experiences” and “existing plans,” and thus discounts the possibility of new and novel activities resulting from a proposed action in a climate-altered world. 

By providing that the criteria in these two definitions “must be considered,” the new rule makes it clear that it is creating a mandatory duty for the expert agencies to ignore climate-related impacts in their consultations under the ESA.  Indeed, the preamble to the new rule explains that, in situations where the consequences of activities resulting from a proposed action are “remote in time or location, or are only reached following a lengthy causal chain of events,” the consequences of such activities “would not be considered reasonably certain to occur,” thus removing discretion from the experts to determine the likelihood of occurrence. 

So, the Trump administration reacted to the hammering of its proposed attempt to institutionalize the ignorance of climate change impacts on listed species and their habitat with an approach that appears for the first time in the final rule and is effectively the same. This may not be the end of the matter, however, as I suspect the gasps of ESA supporters will turn to anger, and then to action, as they likely head to the courtroom to challenge the final rule.

Of Robots, Sensors and Drones: ACOEL and ELI Invite You to “Greentech 2019”

Posted on August 26, 2019 by Bradley Marten

Co-authored by Scott Fulton and Rob Kirsch

This fall, on October 1-3, 2019, ACOEL is partnering with ELI and other organizers to convene “Greentech 2019” in Seattle, a first of its kind conference bringing tech industry leaders together with environmental lawyers, policy makers and academics.  Speakers on five industry panels will discuss how environmental laws can promote, and sometimes obstruct, our ability to deploy new technologies that have the potential to be protective of natural resources and the environment.  See www.greentechconference.org.  New ACOEL member Paul Hagen will moderate a panel and is a member of the conference Planning Committee. Speakers include leaders from the energy, manufacturing, transportation, services and food industries.

The Greentech Conference is an outgrowth of a certain amount of whiskey being drunk by the three of us at last year’s ACOEL meeting in Jackson Hole.  We were discussing ELI’s upcoming 50th Anniversary celebration (Scott is ELI’s President) and hit on the idea of hosting a conference in Seattle focusing on the next 50 years of environmental law. That future, we have come to believe, will be informed as much by technology as by environmental regulation. And in shaping it, ELI and ACOEL will want to be at the table. A good and concise summary of some of the ideas that will be addressed at the Greentech Conference can be found in ACOEL Member Dan Esty’s 2017 monograph entitled “Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability,” and in Dan’s forthcoming book, “A Better Planet:  Big Ideas for a Sustainable Future.” Also setting the stage is a related piece that Scott did with tech guru Dave Rejeski called, “A New Environmentalism: The Need for a Total Strategy for Environmental Protection."

Numerous other ACOEL members are thinking about, and acting on, the “big ideas” being discussed at the Greentech Conference. The program can be downloaded here. We hope that you and your colleagues can attend and that you will help get the word out about this important event.

In addition to ELI, and Brad and Paul’s law firms and Rob’s former law firm, the conference is sponsored by a number of other ACOEL member organizations, by major technology companies (Amazon, Google, Microsoft, Intel, and First Solar), innovative manufacturers, universities and NGOs.  Sponsorship information can be found here. If you – or a colleague – are able to join us, you can register here. There are special discounted rates for public sector and academic attendees, and an early-bird discount that is available for all through August 31.

Please feel free to forward this invitation to your clients, students, cohorts and friends.

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Posted on August 23, 2019 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Banning PFAS in Food Packaging – Should states do the job of the FDA?

Posted on August 21, 2019 by Kenneth Gray

In June, Maine joined Washington State in presumptive bans on all per- and polyfluoroalkyl substances (PFAS) in 2022, if their respective state agencies make findings that there are “safer alternatives.” These laws were adopted in response to public and environmental group pressures over the presence of some PFAS in certain food packaging, the general ubiquitous and persistent nature of other PFAS, and the desire to “do something” about PFAS.

These state PFAS laws were adopted despite the fact that the U.S. Food and Drug Administration (FDA) regulates PFAS in food contact applications. Since 2000, FDA has authorized the use of food contact substances through the Food Contact Notification program and certain PFAS are currently authorized for use in specific applications related to their non-stick and grease, oil, and water-resistant properties. For example, the Maine legislature barely considered FDA’s regulations in its deliberations on the state law.  

While some PFAS do indeed pose risks under particular exposure scenarios, these new food packaging laws cast a broad net over the entire class of compounds. Apparently applying the discredited “precautionary principle,” these laws lump all PFAS together, despite known differences in toxicity, persistence, and fate. State legislators and administrators are taking independent action even as the FDA, the U.S. Environmental Protection Agency (EPA) and other national health agencies struggle with whether the PFAS compounds have enough commonalities to even identify appropriate subclasses of PFAS compounds.

In Maine, the law leaves important decisions to the Maine Department of Environmental Protection (DEP) and the sister agencies it may call on, none of which have experience regulating manufacturing of food packaging, much less understanding or regulating health issues related to food. FDA’s work on food additives requires federal funding and expertise. Maine’s law allows the DEP to force manufacturers to provide information on chemicals, potential for harm, and alternatives, but gives the department no additional resources to analyze that information. In its determinations, the DEP may consider the extent to which the food package is adequately regulated by the federal government or a Maine agency.  This begs the question --Can DEP really do FDA’s job better?  As to PFAS regulation, there is no funding mechanism.

A curious feature of the Maine law exempts the manufacturer of a food or beverage product in a food package as long as the manufacturer has less than $1 Billion in annual national sales of such food and beverage products (presumably U.S. sales). Which raises an additional question -- If a package really poses serious risks to food or beverages, is it sensible public policy to allow manufacturers with lower revenues to market those products?

Of course, the larger question is whether we are better off with individual states regulating the components of food packaging, since a significant amount of food packaging is created for national and regional markets. Not only is there no guarantee that different states will arrive at the same levels of concern for the same chemicals, but if the differing PFAS standards for drinking water are any indication, decisions on PFAS bans and alternatives will vary. It is not hard to imagine the difficulties and frustrations that packaging formulators will have trying to get packaging products to market.

To make the future more interesting, the Maine law also creates a new program regulating food contact chemicals, adopting multiple provisions generally modeled on the state’s Toxic Chemicals in Children’s Products law. DEP may create a list of food contact chemicals of high concern (up to 10, but since structurally related chemicals are included, entire classes can be listed), based on toxicity, persistence, and other factors. The DEP may then designate such food contact chemicals as “priority,” which triggers notice to DEP if more than 100 ppm in the package as a contaminant, or if they are intentionally added above a practical quantitation limit. (If there is no notice to the DEP, the package is simply banned.) The DEP may also request information for chemicals of concern and an assessment of alternatives, or may assess a fee and then secure an assessment by a contractor. And the DEP may impose fees for its work, and for managing information it receives. Perhaps most significantly, Maine may ban priority chemicals if there is a “safer alternative.”

Surely, we live in interesting times.

Trump Track: Speed Bumps on the Road to Species Protection

Posted on August 21, 2019 by Rick Glick

On August 12, 2019, the Trump Administration adopted three new rules in an attempt to rein in the Endangered Species Act (“ESA”).  The rules would undo a rule in place since 1978 affording protections for “threatened” species similar to those listed as “endangered”; limit “critical habitat” designations where species do not now occur; and most controversially, inject economic considerations into the listing process.

The ESA was enacted in 1973 and signed into law by President Nixon.  At that time, environmental protection was not seen as the partisan issue it is today.  The Clean Water Act, Clean Air Act and formation of the EPA all came during Nixon’s watch with near-unanimous support in the Congress.  Speaking on the ESA, Nixon said:  “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.”

In enacting the ESA, Congress used uncommonly crisp and unambiguous language.  For example, listing decisions must be “solely on the basis of the best scientific and commercial data available.”  Further, the Act directs federal agencies to “utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.” 

The courts have given these words robust interpretations, beginning with TVA v. Hill, which halted the construction of the Tellico Dam to protect endangered snail darters.  Since then scores of ESA cases have protected listed species.  In the Pacific Northwest, these cases often focus on salmon, northern spotted owls and shore birds at the expense of hydropower and the timber industry.

The ESA still enjoys broad public support, but has been on the Republican hit list for decades due to the economic effects associated with species protection.  Of particular note for this Administration, ESA restrictions stand in the way of oil and gas extraction and pipelines.  Yet in an era when the White House and both houses of Congress were all in Republican hands, the Administration was unable to get passed any limitations on ESA jurisdiction. 

The new rules represent the Administration’s shot at reducing the scope of the ESA through policy and rulemaking.  Here is a brief summary of some key elements:

Section 4(d) Rule

Under Section 4(d) of the Act, the fish and wildlife agencies can establish protections or exemptions for certain activities, known as 4(d) rules.  Since 1978 the agencies used a “blanket rule” that treated “threatened” species the same as those designated “endangered. The new rule reverses that default position, and requires a specific 4(d) rule custom made to provide additional protection for threatened species.  This change benefits industry in that the prohibition on “take” of listed species will not automatically apply to threatened species.  Of additional importance is the fact that the new 4(d) rules will take time to develop.  In the interim, presumably development may proceed without fear of prosecution for take of a threatened species.

Critical Habitat

Historically, the agencies have on occasion elected to list as “critical habitat” areas in which listed species do not now occur, but potentially could.  In Weyerhaeuser v. Fish and Wildlife Service, the U.S. Supreme Court suggested that such designations would not be available for areas that needed improvement to be good habitat, and remanded the matter back to the FWS.  The new rules require designation of areas as critical habitat where listed species currently exist before considering unoccupied areas, and then imposes new standards to demonstrate the species will benefit if the designation is extended to unoccupied areas. 

The new rule would also allow the agencies to decline designation of critical habitat if they find doing so “not prudent.”  This includes changes to habitat from climate change.  The rationale is that the government cannot control climate change, so taking steps to protect such habitat would be futile.

Section 7 Consultation

ESA Section 7 requires federal permitting or action agencies to consult with the fish and wildlife agencies about potential “jeopardy” to listed species.  The new rule would affect the “baseline” used for such determinations.  The jeopardy determination will apply only to the new activity; consultation is not required for ongoing activities that the action agencies lack discretion to change.  

Assessment of ongoing activities is particularly relevant to the continuing litigation over the application of the ESA to the Federal Columbia River Power System, a series of hydropower and flood control dams in the Snake and Columbia Rivers.  At the heart of the litigation is whether the existence of four Lower Snake River dams should be presumed, limiting evaluations for jeopardy to modifications to the projects or operations.  The agencies argued that the Corps of Engineers, which operates the dams, have no discretion to modify their purpose and therefore the status quo is the proper baseline.  Courts to date have not found this argument persuasive.

Listing Determinations

Perhaps the most controversial rule change concerns consideration of economic impacts in making a listing or delisting decision.  As noted above, the ESA mandates that listing determinations must be based “solely on the basis of the best scientific and commercial data available.”  The previous rule added for emphasis that the listing must be made “without reference to possible economic or other impacts of such determination.”  The new rule eliminates that language and would allow consideration of economic effects, but like the statute, also specifies that the designation must be based on the best available science.  The Administration has offered no plans on how this analysis will be conducted.  Environmental groups, not surprisingly, see this as a back door means of inserting economics into the decision-making.

Conclusion

There is broad scientific consensus that biodiversity among plants and animals is essential to long-term survival of life on the planet.  Species go extinct or are imperiled every day, often but not always due to human activity.  The ESA was intended address the manmade impacts to wildlife, and indeed there have been stunning successes—the bald eagle, grizzly bear and gray wolf to name a few. 

But the economic dislocations from ESA implementation in many instances have been substantial, often without concomitant species recovery.  Columbia River salmon are still in trouble after billions of dollars spent.  Protection of old growth timber for northern spotted owl habitat led to severe hardships to communities reliant on the forest products industry, only to find that the predation of spotted owls by barred owls could lead to the former’s extinction. 

There is nothing easy, or cheap, about preventing extinction.  It is hubris to suggest government can fix the problem.  But, having created much of the problem, it seems we have to try.  Our effort must extend beyond only saving the “charismatic mega fauna” that dominate media reports, like salmon and polar bears.  Although the public generally supports saving iconic species, support wanes for lesser known species. That is particularly so in rural communities with natural resource-based economies.  Yet these relatively unknown species also play essential roles in the ecosystem. 

The ESA, as well as the other major environmental statutes, is in need of reform to address the unintended consequences of the Act.  That is a task only Congress can perform, but until they do the executive and judicial branches will fill the vacuum.  In the meantime, environmental groups and some states have announced plans to challenge the new rules, which means another several years of litigation and uncertainty. 

That is not a recipe for sound policy, but is what we have until the national consensus on the environment returns.  And no, I’m not holding my breath either.

The Bureau of Land Management’s NEPA Review of Land Plans: Is Net Zero A Reasonable Alternative?

Posted on August 20, 2019 by Robert Uram

The Federal Land Policy and Management Act (FLPMA) requires the Bureau of Land Management (BLM) to review and revise its land use plans periodically. In the current round of reviews, the BLM is seeking to roll back protections for areas of critical environmental concern, to reduce lands managed for wilderness, and to greatly expand lands available for oil and gas and coal leasing. Since production and consumption of oil, gas, and coal result in the release of vast amounts of carbon, these changes threaten to worsen the outlook for global warming.

Before it can adopt these land use changes, the BLM must, of course, comply with the National Environmental Protection Act (NEPA). Now nearing its 50th anniversary, NEPA is one of the most important federal environmental laws. While NEPA does not mandate that a federal agency take actions that are most protective of the environment, it does require decision makers to fully disclose the environmental impacts of any major federal action in an Environmental Impact Statement. Additionally, an EIS must present and consider reasonable alternatives to a proposed federal action that might mitigate environmental impacts. Consideration of alternatives is at the heart of an EIS. An EIS that does not cover a full range of reasonable alternatives is deficient.

Increased future fossil fuel development on public lands will lead to enormous increases in climate change gases. The fact that fossil fuel development affects global temperatures has long been clear to federal decision makers. Indeed, as long ago as 1979, the Programmatic EIS for the Federal Coal Leasing program warned that coal use was a contributor to greenhouse gases and could result in increased temperatures of 2-3° Celsius. The BLM will certainly make some attempt to disclose these impacts, but mere disclosure is not enough. The BLM needs to present meaningful alternatives that would address climate change concerns.

To date, the BLM has been considering a short list of alternatives in its land use planning EISs,  a no-action alternative that would keep the current land use plan in place, and several alternatives that vary the amount of protection for sensitive lands and the extent of lands open to fossil fuel development. If Judge Skelly Wright (the author of the seminal NEPA case, Calvert Cliffs v. Atomic Energy Commission) were alive today, he would undoubtedly call the BLM’s approach “crabbed.”

In particular, the BLM’s alternatives fail to present the decision maker with an alternative that would directly address the increase of carbon emissions. Many authoritative analyses, including the UN Intergovernmental Panel on Climate Change, have concluded that the world needs to achieve net zero carbon emissions economy-wide by 2050 to limit the temperature rise to 1.5˚C above pre-industrial levels. Net zero carbon dioxide can be achieved by balancing carbon emissions with carbon removal or offsets or simply eliminating carbon emissions altogether.

To comply with NEPA, the BLM needs to add a “net zero” land-use planning alternative that would reduce or mitigate net carbon impacts from activities in the planning area to zero by 2050 or another date certain. This alternative would, by necessity, constrain fossil fuel development and provide for offsetting carbon reductions. A net zero alternative can be fully consistent with FLPMA.

Net zero land use planning is not unrealistic. Many countries, states, local governments, and private businesses have or will adopt net zero policies, and many development projects are being planned to achieve net zero now. Even very large carbon producing projects can achieve net zero emissions. For example, a master planned community in southern California that will build 21,000 homes and 11.5 million square feet of commercial and office space associated with 60,000 jobs was originally planned with little consideration of climate effects. Years of litigation, environmental analysis, and private initiative transformed the project into a net zero project by incorporating a combination of onsite and offsite measures.

To achieve net zero, the project will design homes and business to be energy efficient and use solar power, will install an electric vehicle charging station in every home and build 4,000 other electric vehicle charging stations, half in the community and half offsite. In addition, the project will provide subsidies for converting public transit buses to electric buses and creating an electric school bus program within the community. Offsite, the project will invest in carbon reducing measures in the surrounding area as well as elsewhere in California and other locations.

In these critical times for the planet, NEPA can play an important role in showing a path to net zero. Net zero alternatives for the BLM’s land-use plans and other activities would illuminate the role public lands plays in contributing to (and potentially avoiding) the adverse effects of global warming and identify changes needed to reach net zero for the proposed federal action. It might be too much to hope for that this administration will seize the opportunity to adopt a net zero alternative, but the analysis of what is needed will be informative and can be a blueprint for future administrations.

Does The Mineral Owner’s Dominance Foreclose Environmental Advocacy by the Surface Owner?

Posted on August 8, 2019 by Thomas Hnasko

Since the beginning of recorded mineral law, the owner of the mineral interests has enjoyed an elevated status in its relationship with the surface owner, resulting in the universally accepted notion that the mineral estate is the “dominant” estate.  Based on this long-standing characterization, courts have traditionally declared that, even where the deed creating a split estate is silent, the mineral owner enjoys an implied easement to use so much of the surface estate as is reasonably necessary for the exploration and production of minerals.  A recent, unpublished state court decision explored the intriguing issue of whether the mineral estate’s dominance allows its owner to prevent the surface owner from advocating for environmental protections for the surface in a public forum.     

In the case of Lone Mountain Ranch, LLC v. Santa Fe Gold Corp., No. D-101-CV-2013-02581, in which the author represented the surface estate owner, the mineral estate owner asserted that the surface owner’s participation in public processes designed to impose environmental protections for the surface constituted a violation of, or interference with, the mineral estate’s easement for access to and use of the surface for mineral development. The mineral estate owner claimed that such participation by the subservient surface estate would be detrimental to the development of the minerals and, therefore, contrary to the “dominance” enjoyed by the mineral estate.  At bottom, the mineral estate owner claimed that its easement deprived the surface owner of its right to advocate in a public forum for environmental protection of the surface estate.

Lone Mountain, as the surface estate owner, countered that such an interpretation would transform an access easement into a restrictive covenant and re-write the deed reservation splitting the estates to include promissory and obligatory terms that have nothing to do with physical access.  After hearing from professorial experts in the oil and gas and mineral disciplines, the court agreed with Lone Mountain and held that the dominance enjoyed by the mineral estate refers only to physical access, which the surface owner has no right to obstruct.  The court reasoned that an implied or express easement for access and development does not have the characteristics of a restrictive covenant and thus could not foreclose protected public participation and advocacy for environmental protections of the land.  As a result, instead of acting as a mere bystander to mineral development, a surface owner under a split estate deed may contest and resist mineral development under that estate based on environmental concerns that are unrelated to issues of physical access granted by the easement.

“Go back to where you came from” – a personal journey

Posted on August 7, 2019 by Brenda Mallory

The first time that I remember being told “go back to where you came from,” I was 18. Although not the first time I was targeted because of my race, it was the first time I remember those words. I had just finished my freshman year at Yale and I travelled with three African-American friends from Connecticut to Laconia, New Hampshire for a karate tournament. We were staying in a cabin in an easily forgettable location. In the morning as we loaded the car to leave for the event, we noticed several bunnies grazing in the grass. As kids from an industrialized, urban area, we watched with excitement and nervous laughter as the bunnies did their business and then hopped away. The spell was broken by an angry older white man, who hobbled out of a nearby building, yelling at us to get out of there, to go back to where we came from. We were stunned. The young men in the group responded in protest: we weren’t doing anything and we weren’t going anywhere. Of course, we were leaving but we would not leave until he went back in his cabin. Despite the bravado, we were all shaken and a little on edge when we returned to sleep for the night.

The next time, I was about 23. It was a quiet Sunday morning and I was walking down a major street in my hometown of Waterbury, Connecticut. I was in law school and had escaped for the weekend; I was on my way to the bus station to return to New York. The morning calm was broken by a car screeching around the corner, loud music blaring out the windows, carrying a rowdy bunch of white boys. One of them leaned out the window and yelled, “Hey, Ni*ger,” and some version of “get out of here or go back where you belong.” It was the first time I can remember having the N-word slapped upside my head in such a hostile and aggressive way.

The next time, I was about 25. I was walking through the North End of Boston with my white Jewish boyfriend, now husband, Mark. Mark had been staying with friends and we were picking up his things. As we passed a group sitting on a stoop, someone yelled, “Get out of here,” followed by, “There was a time they would have been killed for just walking down this street.”

Fast forward about 10 years for the last example I will share. More typical of recent encounters, the specific words were not used, but the message of not belonging or being suspect was clear. I’m in my mid-30s, a partner in a fancy law firm, living in an upper-class neighborhood in Montgomery County, Maryland. I am working a reduced schedule to have more time with my child and am at home on a Friday. The doorbell rings and I answer it holding my two-year-old. The woman standing on my porch, seeming a little annoyed, says, “Hi, do you know how long they’ve lived here?” Seriously not understanding, I ask “who?” She says, “the owners.” With the expressive eyes of my father, I say, “I’m the owner.”

My personal experiences are not unlike those of many African-Americans and other people of color—and much less traumatic than many. Yet, the memories sting and they stay with me. I have always viewed my experiences as evidence of isolated pockets of intolerance, with the mainstream arc of justice and equality bending in the right direction. My message to myself was just keep striving for excellence in the spaces you occupy and, one interaction at a time, my success will help overcome stereotypes and calm fears, leading to a better world for others.

At a time when hateful and divisive rhetoric is growing and spewing from our highest political leaders, it is clear that the journey to our more perfect union and the best ideals for this nation will take more concerted efforts, vigilance, and focus.  And so, I was pleased to join my former Obama Administration colleagues in issuing the Washington Post Op Ed, We are African Americans, we are patriots, and we refuse to sit idly by, committing to invest in the hard work to make this a great country, for all. As the Op Ed concludes, “We plan to leave this country better than we found it. This is our home.”

Brenda Mallory is the Director and Senior Counsel for the Conservation Litigation Project, a project created to protect the environmental and conservation values on public lands. During the Obama Administration, Brenda served as the General Counsel for the White House Council on Environmental Quality. Before then, Brenda held various senior positions at the U.S. Environmental Protection Agency, including as the Acting General Counsel and the Principal Deputy General Counsel. She also led the legal office supporting EPA’s pesticide and toxics programs. Brenda spent 15 years in private practice, chairing her firm’s Natural Resources Practice Group. She has been a Fellow in the American College of Environmental Lawyers since 2016.

Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

Because I Didn’t Say So!

Posted on August 5, 2019 by Brian Rosenthal

Major sources of air pollution must obtain a Clean Air Act Title V permit under their state’s EPA- approved implementation plan.  Permits, of course, can be challenged.  By petition to the EPA Administrator, the Sierra Club challenged a Utah permit in part based on a challenge to the standard used when the permit was issued in 1997! 

The challenge was denied.  The D.C. Circuit has exclusive venue for nationally applicable regulations or orders or issues of nationwide scope.  So, Sierra Club appealed to the D.C. Circuit but also filed a protective appeal in the Tenth Circuit in case the D.C. Circuit’s exclusive venue was not controlling.  Good move.  Because the issue involved a single permit from a single state, and because the Administrator used a “novel” interpretation of Title V limited to the specific circumstances presented and did not make a determination of nationwide relevance, venue was found to properly lie in the Tenth Circuit. 

It may be creative to conclude that venue is lacking because “the circumstances presented” by the federal air permit challenge are local in nature, but isn’t that always true in a decision on an air permit source with impacts in a single state?  If the Administrator had used other language intimating general application of a standard without a specific finding of a matter of nationwide effect, one has to wonder whether that would produce the same result.  So a word to the careful practitioner.  File the protective appeal in the issuing state’s circuit! 

“DISCARDED” or “NOT DISCARDED”: That Is the Question (or “Asked and (finally) Answered!”)

Posted on July 31, 2019 by Karen Crawford

On July 2, 2019, the D.C. Circuit Court of Appeals denied a petition brought by an environmental group for review of EPA’s Transfer-Based Exclusion for secondary hazardous materials in California Communities Against Toxics v. EPA (D.C. Cir. July 2, 2019) (No. 18-1163).  The court found that “EPA did not act contrary to RCRA in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily ‘discarded’ each time they are transferred from a generator to a reclaimer along with payment”, and that “EPA has provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem RCRA addresses where they meet conditions EPA concluded were adequate for safe transfer and legitimate recycling.”  This is exclusion is set forth a 40 C.F.R. § 261.4(a)(24).

Background

In 2008 EPA promulgated the Transfer-Based Exclusion, along with the Generator-Controlled Exclusion, to encourage and expand the safe, beneficial recycling of hazardous secondary materials when carried out in accordance with specified “legitimacy factors”.  After challenges to the rule by both environmental and industry groups, EPA replaced the original Transfer-Based Exclusion with a new rule known as the Verified Recycler exclusion.  This new rule was also challenged and was vacated in 2017 when the appellate court reinstated the original rule with requirements added in 2015 to cover emergency preparedness and containment.  American Petroleum Institute v. EPA, 862 F. 3rd 50 (D.C. Cir. 2017).  On rehearing, the court expanded the exclusion to cover spent refinery catalysts.  American Petroleum Institute v. EPA, 883 F 3rd 918 (D.C. Cir. 2018).  Later the same year, without further notice and comment, EPA published the Transfer-Based Exclusion as modified by the D.C. Circuit throughout the 10 years of challenges as a final rule entitled Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule, 83 Fed. Reg. 24,664 (May 30, 2018), resulting in another challenge and the July decision of the D.C. Circuit Court of Appeals.

RCRA Authority

While Petitioners did not contend that the act of transferring the waste or of reclamation constitute “discard,” they did contend that a generator’s payment to a reclaimer to accept such material necessarily indicated the material has negative value to the generator, and thus the transfer constitutes a means of getting rid of, or “discarding”, the material.  RCRA does not define “discarded material” or address payment, but the court found precedent in its own prior decisions which foreclosed petitioners’ contention that payment is determinative of “discard”.

In particular, the court concluded that Congress had not directly resolved whether “discarded material” must include hazardous secondary materials that a generator paid a reclaimer to accept.  It then moved to the question of whether EPA’s interpretation is “based on a permissible construction of the statue,” (i.e., whether or not it is the only permissible interpretation) and found support for EPA’s decision to equate legitimate recycling with lack of “discard”.  The court noted that EPA had considered the payment to reclaimers issue and studied the market forces, and had determined there were various reasons for payments to recyclers, including lack of competition in recycling markets, cost savings compared to compliance with Subtitle C requirements, and the need for capital costs to develop and implement the necessary recycling infrastructure and market.  The court concluded that instead of ignoring the relevance of the payment issue, EPA had addressed it in the Legitimacy Factors analysis but declined to make it dispositive, a permissible interpretation of “discard” that was not contrary to RCRA.

Reasoned Basis

The court also concluded that EPA’s Transfer-Based Exclusion was not arbitrary and capricious as the conditions imposed under the exclusion ensure that the hazardous secondary materials do not end up in a landfill or incinerator but remain in a continuous stream or flow of production within industry processes, and they cover potential risks by requiring third-party reclaimers to handle them properly and safely and to not discard them.  Those provisions address excessive accumulation, requiring reclamation of at least 75% of hazardous secondary materials that a reclaimer obtains over a calendar year.  In addition, residuals must be managed in compliance with applicable regulations, including Subtitle C, when “discarded.”  Because there is no statutory requirement that these conditions be identical to Subtitle C requirements, the court determined that EPA’s response was not arbitrary and capricious.

The court also reviewed EPA’s explanation for its changed position as to whether the Transfer-Based Exclusion’s restrictions and conditions were adequate.  The court noted that recycling management and controls had improved over time due to enforcement and to generator audits of reclaimer performance and financial viability. As a result, EPA’s restrictions and conditions were found to be sufficient to ensure safe recycling activities.

Conclusion

The impact of this decision on the regulated community will depend on whether the Transfer-Based Exclusion, as modified by EPA in 2015, was incorporated into the state’s hazardous waste regulations, as well as the authorization status of the state; however, those states that delayed adoption of the rule, awaiting the final outcome of this long legal battle, now have clearer direction. 

This thoughtful and practical opinion seems to provide EPA with a tutorial on promulgating a defensible regulation, and perhaps even a final answer on a long debated rule!  This author would like to see EPA use the opinion as a template to try again with other important, but now vacated rules.  How about a new comparable fuels rule?

The Supreme Court’s Most Important Environmental Law Decision in 35 Years

Posted on July 30, 2019 by Robert Brubaker

As our esteemed colleague John Cruden is fond of saying, administrative law is a subset of environmental law.  My vote for the most important Supreme Court environmental law decision in 35 years goes to the administrative law case (involving not environmental rules but the interpretation of a Department of Veterans Affairs rule) handed down on June 26, Kisor v. Wilkie.

I believe Kisor will prove to be the watershed case that that marks a consensus on shifting core principles of administrative law for decades to come.  To me, it continues what I saw as Justice Scalia's project to reform reflexive deference to agency “interpretations” (with the GHG Tailoring Rule case, UARG v. EPA, being a notable milestone, and probably also the thinking behind his final vote, on the extraordinary Clean Power Plan stay).  What are the odds that Auer v. Robbins is the unnamed case that Justice Thomas was referring to in his humorous anecdote at former Justice Scalia’s memorial about “Nino’s” outrage at “one of the worst ever” decisions of the Court (that Nino wrote)?   

Kisor goes a long way toward fulfilling Justice Kennedy's 2018 recommendation in his final opinion (Pereira v. Sessions) to reconsider "the premises that underlie Chevron and how courts have implemented that decision."  And, it further cements Justice Kagan's observation, in her 2015 Scalia Lecture at Harvard that "we're all textualists now."  It clearly articulates and shines a bright and permanent light on the concern about administrative agencies pushing too far at times in combining the power to make, interpret, change, administer, and enforce binding law, with too little independent judicial oversight.

The four separate opinions in Kisor distinguish judicial review of agency interpretations of their own rules (Auer deference) from agency interpretations of statutes (Chevron deference), but there are some inevitable parallels.  Kisor establishes a three-step analysis for agency interpretations of its own rules: 1) is the rule genuinely ambiguous? 2) if so, is the agency’s interpretation of the genuine ambiguity reasonable? and 3) even if an agency interpretation of a genuine ambiguity is reasonable, is it of a “character and context” that justifies deference?  Step 1 is strikingly similar to the pre-Chevron deference analysis under Skidmore (acceptance of an agency’s interpretation is commensurate with its “persuasive power”).  As Justice Kagan put it: “serious application of these tools [of construction, such as text, structure, history] therefore has use when a regulation turns out to be truly ambiguous.  The text, structure, history and so forth at least establish the outer bounds of permissible interpretation.”  Steps two and three of the Kisor framework add specificity and rigor to the judicial inquiry not spelled out in Skidmore.  Importantly, Kisor casts a highly skeptical eye on agency interpretations that circumvent appropriate procedural safeguards, or veer outside the lane of the agency’s expertise, or conflict with a prior agency construction.

It is significant that Kisor is authored by Justice Kagan, and joined by Justices Ginsburg, Breyer (noted for his command of administrative law), and Sotomayor, and joined in part by Chief Justice Roberts.  This is not a majority that can be characterized as anti-administrative state or as sponsors of a partisan Republican or conservative agenda.  Chief Justice Roberts wrote a short concurring opinion, expressing his view that the “distance between the majority and Justice Gorsuch is not as great as it may initially appear” because the majority’s catalog of the “prerequisites for, and limitations on” Auer deference has much in common with Justice Gorsuch’s list of the reasons that a court might be persuaded to adopt an agency’s interpretation.  Justice Gorsuch wrote a 42-page concurring opinion, joined by Justice Thomas and in parts by Justices Kavanaugh and Alito, touring the history of the Court’s deference jurisprudence and expressing a preference for overruling Auer and reverting to Skidmore deference.  Justice Kavanaugh wrote a concurring opinion, joined by Justice Alito, opining that “rigorously applying footnote 9” in Chevron (exhorting courts to “exhaust all the ‘traditional tools’ of construction” before concluding that an agency rule is ambiguous) should lead “in most cases to the same destination” as Justice Kagan’s majority opinion and eliminate any basis “to put a thumb on the scale in favor an agency” interpretation.

The boundaries on administrative powers and discretion are placed by Kisor in the hands of the judiciary, with paramount responsibility to judge conscientiously based on a searching and independent inquiry into the relevant legal and factual circumstances involved, and not based on some dogmatic, oversimplified, or wooden formula.  Deference cabined by a diligent judiciary is better than deference too readily or haphazardly granted or denied.  Justice Kagan's detailed instructions ("we mean it" she wrote) to judges handling administrative interpretation cases may well do more good for the opponents of Auer deference than an outright overruling of Auer.  If the Auer precedent had been overruled, instead of being "restated" and "somewhat expanded on," there would be more uncertainty and inconsistency, over a longer period of time, about exactly what replaces Auer deference.  The implicit call to legislators and administrators to pay better attention to the text and clarity of the laws they write is constructive too.  Good work Justice Kagan.

Martha Pagel: Giant of the Oregon Water Bar

Posted on July 25, 2019 by Rick Glick

With great sadness, I write to mourn the loss of my dear friend and ACOEL Fellow, Martha Pagel.  In her long battle with cancer, Martha demonstrated great character, courage and grace, never losing her sunny and defiant outlook.  Those of us who knew her well were not surprised by how she fought that battle, but it was humbling and inspiring to witness.

Martha was at the center of Oregon’s water law community, known throughout the state not just for her legal acumen, but also for her ability to find solutions to challenging water supply problems that were fair to all parties.  She was a great strategist, whether representing small family farms or large public utilities, and enjoyed the respect and friendship of decision makers—agencies, legislators and governors.

Martha’s reputation for excellence and good judgment extended beyond Oregon.  For example, she served as an arbitrator appointed by the States of Kansas, Nebraska and Colorado to resolve a dispute pursuant to the decree entered by the U.S. Supreme Court in an original jurisdiction case, Kansas v. Nebraska & Colorado (No. 126, Original).

She had a deft touch that made people want to follow her direction.  I have had the good fortune of being a supplicant before the agencies Martha ran, on opposite sides of Martha in disputes and, most recently, as co-counsel for a major hydropower permitting process.  Whether one was opposed to her or worked alongside her, the experience was always upbeat and fun, most often resulting in workable outcomes.  It was Martha’s style not to attack opponents, but rather to bring them along to her way of thinking, which often proved irresistible.

Martha had a long and distinguished career.  After graduating from San Diego State University and Willamette University College of Law, Martha served as assistant attorney general with the Oregon Department of Justice’s Natural Resources Section, director of the Oregon Department of State Lands, natural resources advisor to former Governor Barbara Roberts, and director of the Oregon Water Resources Department.  She joined Schwabe Williamson & Wyatt as a shareholder in 2000, where she led the firm’s Environmental Group and mentored many young attorneys.

Martha was a Fellow in the College and served on the Membership Committee.  Among her many other honors, in 2015 Martha received the Oregon State Bar’s Environmental and Natural Resources Section Award in honor of her leadership, service, and outstanding contributions in the areas of environmental and natural resources law in the Pacific Northwest. Martha was consistently listed in The Best Lawyers in America and was recognized by Oregon Super Lawyers for her work in water and natural resources law. This year, Martha was recognized as a Band 1 Environmental lawyer by Chambers USA. 

Martha and her husband Vic loved to dance, and Fellows attending the annual meeting in New Orleans will remember them on the dance floor.  She was graceful on her feet, and graceful in the practice of law. Enviable, but hard to emulate.

Martha’s contribution to Oregon water law and to ACOEL will long be remembered.  We will miss her.

Carbon Taxes and Carbon Offsets -- A Path to Net Zero?

Posted on July 18, 2019 by Jeffrey C. Fort

Two recent press pieces caught my eye.  “UK Signs Net-Zero Emissions Requirement into Law,” and “GOP Pollster pitches Republicans on carbon pricing.” The first reflects recent studies with respect to a potential [or even likely] environmental calamity; the other suggests signs of political reconsideration on climate change.  As welcome as the latter is, and most economists praise the use of a carbon tax, it is likely not nearly enough.

According to the latest scientific forecast, meeting the Paris objective of no more than a 2 C increase in global temperatures from pre-industrial temperature levels will require worldwide net zero emissions of carbon-dioxide-equivalent (CO2e) gases by 2050.  In any event, the UK, France, Norway and Sweden have adopted a net-zero requirement to be achieved no later than 2050 and more than a dozen large US cities have done likewise.

How a net-zero requirement can be met, with all the extant emissions from industry, transportation and buildings, is perhaps the most important research and development task facing us.

Consider whether another approach should be considered. In a 2017 op-ed Wall Street Journal piece, James Baker and George Schultz recommended a “carbon tax” on emissions of carbon dioxide equivalent gases.   This recommendation is the centerpiece of a memorandum to “Interested Parties” by a Republican pollster and strategist suggesting that the Republican Party should heed polling results and embrace the Baker/ Schultz suggestion that the Republican Party ought to support a “Carbon Dividends” proposal. This proposal would feature “four pillars”: a tax (of $42/ metric tonne of CO2e, indexed to rise with inflation), an equivalent “dividend” to working class Americans, a border adjustment for carbon content of imported goods, and elimination of EPA’s regulatory authority concerning climate issues.  The tax revenues would be returned to private citizens with the lowest incomes, as a “Carbon Dividend” to mitigate the increased energy costs.

However, the Carbon Dividend proposal says nothing about reducing emissions other than by raising a “price on carbon.”  But will a tax achieve that goal? Some parties may choose to emit and pay the tax so there is no guarantee that emissions will be reduced and certainly not to achieve net-zero emissions. Any reduction in energy use by businesses would depend on the elasticity of the market for other inputs and competition for the output products. For businesses that have inelastic demand curves the costs just get passed through with no or little emission reduction.  In other words, a carbon tax will not yield significant environmental results, however admirable its intentions.

However, emission reduction credits, or “offsets,” is a tool which has been used for nearly 50 years under the Clean Air Act.  Verified offsets provide real reductions.   Verified offsets have been used to allow large new construction projects in dirty air areas, to reduce the costs of compliance measures in state implementation plans, and now as a means of reducing costs in most of the climate legislation around the world.  Offsets are not easy to create.  Using standard protocols, there must be a scientific method which has been adopted in a public process and adherence to that methodology then for a project to be undertaken.  Both are validated and verified by an independent third party. Only then is the “offset credit” created.  Offsets seem to attract entrepreneurs who have a “better idea” of what projects can be implemented at a much lower cost that an EPA-approved, command and control requirement.   The U.S. now has three independent offset verifiers which have produced millions of tonnes of extra reductions -- proving that the concept can work at scale.   These are real and verified reductions and the current prices are a small fraction of the $42 per tonne price in the Carbon Dividend proposal.  Verified offsets are a much better and cost-effective way to produce reduce real emission reductions.  

For a “tax” on carbon emissions, we would start with an existing and established measuring tool; those sectors covered by the Mandatory Reporting Rule (MRR).  The covered sectors have already been established as the most carbon-intensive industrial activities.  The MRR is established and tested and would not require a new system.

A proposed carbon tax systems could then allow a credit or a “deduction” for other state requirements for GHG controls.  State carbon reductions requirements (e.g. AB32 in California and RGGI in the Northeastern states or other state adopted requirements, see) could be recognized, which would reduce the taxable quantity.  Allowing offsets, including those purchased from sources “outside the [MRR] cap” would provide further reductions, and further reduce net taxable emissions.   But a complete elimination of taxable carbon emissions appears unlikely in the near term.

There are many sectors who now perform “voluntary” projects, at a cost far below $42/ metric tonne.  Among the sectors outside the MRR list, are:

  • agricultural and forestry programs (famers and foresters have produced substantial volumes of offset credits to date);
  • unregulated industrial processes, such as those emitting methane, nitrous oxides and hydrofluorocarbons, which are not subject to the MRR; and
  • abandoned coal and gas well vents.

Not only would using offsets provide an incentive for extra reductions on a voluntary basis, the existing voluntary programs are examples of innovation. Small businesses, new ideas, and new ventures have created most of the offsets now used in compliance and voluntary systems.

Carbon offsets are real reductions, and not just a fiscal policy redistribution.  In addition to providing a “dividend,” a carbon tax offset policy could stimulate new ideas and businesses as well as substantially reduce carbon emissions.  This would align sound climate policy with sound tax policy by using a tool developed long ago, updated based on recent experience.

The Seals of Disapproval, and the Return of Jaws

Posted on July 12, 2019 by Samuel I. Gutter

We are fortunate to live on Cape Cod, where the abundant marine life is a consistent source of joy.  We watch osprey and terns diving for fish, and crabs scuttling along the beach.  The local radio station announces when the blues and stripers are running, and where best to find them.

But all is not well in and on the water.  In the midst of stories about the depletion of marine resources, the Cape, we now know, has an overabundance of a particular marine mammal:  the grey seal.  Once widely hunted by early European settlers and then by fisherman who viewed them as competitors for the fishstock, in recent years the seals have rebounded with stunning success.  An estimated 30,000 to 50,000 grey seals make their home on the Cape, densely clustering in areas like the Monomoy National Wildlife Refuge off Chatham, where the seals are so plentiful that they can be seen from space.

Many people, of course, love the seals, with their sleek fur, woeful eyes, and playful antics.  But people aren’t the only ones attracted to seals:  sharks “love” them, too, for obviously different (and decidedly gustatory) reasons.  And not just any sharks.  We’re talking about great white sharks, the predatory hunters with rows of razor-sharp teeth that inspire primal fear among beachgoers.  After all, while “Jaws” was set in the mythical New York town of Amity, the locals all know that it was filmed on Martha’s Vineyard, a scant few miles off Cape Cod.

Given the huge seal population, even the most inept and myopic shark should have no problem finding something it likes on the seal take-out menu.  And Jaws aside, sharks are not known to intentionally hunt humans.  Shark attacks are rare – generally believed to be the result of human/seal mistaken identity.  But last August, a swimmer in Truro, on the Outer Cape, suffered serious injuries from an attack by a great white 50 yards off shore, and a month later the Cape experienced its first fatal shark attack since 1936, when a man riding a boogie board was attacked and killed by a great white in Wellfleet, close to shore.

While attacks are rare, shark sightings are becoming more common.  The vigilant can even track sightings on The Sharktivity App.  Sightings have forced the temporary closure of popular Cape beaches, likely causing some to consider the appeal of alternate vacations on quiet mountain lakes, where the top aquatic predator is the largemouth bass.  And that presents another sort of problem.  Sharks might thrive on seals, but Cape Cod thrives on tourism, and sharks (other than sales of toothy t-shirts) are bad for business.

Enter Willy Planinshek and his partner Kevin McCarthy of Deep Blue LLC, who have come forward with a plan to use an underwater sound system to scare the seals away from beaches.  Where the seals go, their theory holds, the sharks will follow.  Although Messrs. Planinshek and McCarthy have no particular expertise, funding, prototype or research to back up their proposal, they still managed to draw a capacity crowd to a meeting of the Barnstable County Commission to consider the concept.  They have been invited back in the fall for further consideration.

But as we all know, even the best ideas are often beset by regulatory and bureaucratic hurdles.  In this case, the Barnstable County Commissioners will be well-advised to read the Marine Mammal Protection Act, 16 U.S.C. 1361, et seq.  Under the MMPA, it is illegal to “take” any marine mammal without a permit.  Moreover, “take” is broadly defined to include not only the hunting and killing of marine mammals, but harassing them, as well – which is, after all, the entire point of the underwater sound blast.  Additionally, the ensuing federal permitting process would surely trigger some level of NEPA review.  And let’s not forget potential applicability of the Coastal Zone Management Act, as well as federal and state endangered species laws (grey seals aren’t endangered, but other marine species that frequent the area might be).

Such hurdles aside, the ultimate question remains whether any such plan, if approved, will even work.  Seals eager to get to their mating grounds might habituate to the sounds, or simply swim with their heads above water.  As the fictional Ian Malcolm (played with perfect nerdiness by Jeff Goldblum) proclaimed in Jurassic Park:  “Life will not be contained.  Life breaks free.  It expands to new territories, crashes through barriers, painfully, maybe even dangerously.”  In more colloquial terms, beware the unintended consequences of messing with Mother Nature – seals and sharks included.

Over/Under—Great Environmental Fiction/Nonfiction

Posted on July 10, 2019 by Dick Stoll

I just finished reading two books that I would highly recommend to anyone concerned about the environment and global climate:

—  The Overstory, a novel by Richard Powers.  It won the 2018 Pulitzer Prize for fiction.

—  Underland, a 2019 non-fiction “deep time journey” by Robert Macfarlane.  

Each book is exceedingly sweeping in scope and chock full of scientific information and details that even I (a political science and English major) could essentially understand and find captivating.   An overriding theme of each book is that humans aren’t doing much good for this planet.  

Each book may fairly be called a magnum opus, and I can’t even begin to describe their full sweep in a blog like this.   So I urge you to do a little googling for reviews.   I am linking a good review of each here:

https://www.theatlantic.com/magazine/archive/2018/06/richard-powers-the-overstory/559106/

https://www.npr.org/2019/06/03/729156788/underland-connects-us-to-dazzling-worlds-beneath-our-feet

The Overstory is mainly about trees and people — how trees interact with each other, how people interact with each other, and how people interact with trees.   Lots of bad things get done by some people, some good things get done by some people, and lots of good things get done by trees.   

After reading the book, I am paying a heck of a lot more attention to trees than I ever did before.  In fact, my current iPhone wallpaper is a close-up of a beautiful redwood I recently photographed in northern California.  

Underland primarily focuses on what goes on under the earth’s surface — today, for millions of years before today, and projectively for eons to come. The author relates how humans have used the “underland” over history in various positive and negative ways for all kinds of storage, disposal, and extraction.  He describes intriguing and dangerous underground “journeys” of his own in several places around the world.  His last journey is to a repository being readied for nuclear waste way under Finland.  

Each book is laden with concerns about the future for the global environment and climate.   The Overstory hits hard on deforestation, Underland hits equally hard on melting ice.

I am retired now and have more time to read books like these.   But I encourage those of you still practicing to find the time.

A Hard Look at the Environmental Rule of Law

Posted on June 20, 2019 by Leslie Carothers

Years in the making, the first global report on the Environmental Rule of Law (ERL) was issued by the United Nations Environment Program and the Environmental Law Institute (ELI) in January 2019.  The report is a comprehensive review of worldwide progress in the development and implementation of the key elements of environmental law and is available for free on ELI’s website.  Extensive analysis of data and statistics accompanies a series of color-coded maps showing what the nations of the world had accomplished in 1972, 1992, and 2017. (The Earth Summit of 1992 greatly accelerated the adoption of environmental laws.)   Case studies highlighted in the main text describe innovative practices such as the use of specialized environmental courts in New South Wales, Australia, and Kenya. Their Environment and Land Courts offer flexible and informal procedures that can speed dispute resolution and decisions.

The report is divided into an introduction and five substantive topics:  Institutions, Civic Engagement, Access to Information, Rights, and Justice.  The section on institutions is focused on the challenges of administration more than the specific content of environmental laws and stresses the need for “capacity, accountability integrity, and leadership” by officials.  I would add patience and persistence to those qualifications.  As a former federal and state official, I was not surprised to learn that environmental agencies in other countries deal with “regulatory overlap and underlap” and constant demands for coordination of many actors and interests in implementing environmental decisions.  They all struggle with making technical, multidimensional decisions amid intense economic, social, and political pressures. 

The section entitled “Rights” is likely to be very informative and thought provoking for U.S. lawyers.   The report states that since the 1970s, “environment-related rights have grown more rapidly than any other human right,” and that by 2012, over 66% of national constitutions included a range of environmental rights.  Such provisions usually enable citizens to seek remedies for environmental harms directly from responsible parties and agencies. The report concludes that constitutional law and human rights law can provide an important safety net where there are gaps in legislation, important norms, and forums for addressing climate change.

The report’s thorough review of the recognition of environmental rights abroad is timely.  Today, the U.S. is heading for decisions on whether the due process clause of the Fifth Amendment to the U.S Constitution and the public trust doctrine empower the young plaintiffs in Juliana v. United States to succeed in their claims that the federal government has a duty to adopt a comprehensive plan to prevent grave injury to health and the environment and special harm to their generation from climate change.   

In Juliana, District Judge Ann Aiken denied the government’s motion to dismiss, finding that the Juliana plaintiffs’ claims, though novel, should proceed to trial.  She held that a claim for a due process violation is stated “ where a complaint alleges knowing government action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten life spans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem.”  Juliana v. United States,  217 F. Supp. 3d 1224, 1250. (D. Or. 2016).

Following years of procedural twists and turns, the case was argued before the Ninth Circuit on June 4. The main issue is whether the district court correctly ruled that plaintiffs have stated a legal claim that merits a trial on the facts.  The federal government in both the Obama and Trump Administrations has opposed recognition of any legal basis for such claims warranting a trial.

By contrast, the ERL report describes decisions by courts in Pakistan and the Netherlands ordering the national governments to take stronger action to regulate greenhouse gases at the behest of citizens and organizations suing under constitutional or international conventions construed to confer environmental rights. Other non-U.S. tribunals have been similarly willing to recognize such rights and prescribe sometimes sweeping remedies. 

Will the Ninth Circuit or the Supreme Court also support the Juliana plaintiffs’ claims?  Probably not.   The substantive due process rationale for finding implied rights under the Fourteenth Amendment’s protection for life, liberty, and property cited by judges long ago to strike down state worker safeguards and other economic regulations has been generally discredited as allowing improper legislating by the judiciary. Substantive due process claims are usually successful in preventing government action rather than requiring it.  Since the 1960s, the only new implied rights recognized by the Supreme Court have protected personal privacy in sexual relations, including the choice of abortion, and supported a right to same sex marriage.  Those decisions voided contrary state laws but required little or no affirmative new action by the federal government.   

The plaintiffs’ second substantive due process claim is the common law public trust doctrine defining a duty of government to protect submerged lands and other resources,  which is grounded in historic government ownership of specific  natural resources.   The law on public trust rights and duties is too complex to explain  here.   But so far, the public trust doctrine has not yet been applied to compel action by the federal government, and it seems unlikely that the current Supreme Court, if not the Ninth Circuit, will uphold the claim for the first time in this case. 

The ERL report chapter on rights concludes  that “a rights based approach is more suitable for policy direction and for protecting people from egregious actions, rather than substitute for environmental regulation and enforcement.”  The issue in Juliana is egregious inaction. Whether or not the U.S. appellate courts are willing to break new ground on environmental rights, it will be interesting to see how the judges characterize a serious threat to the well being of the young plaintiffs that the federal government is failing to address or even acknowledge today. 

The overall assessment in the ERL concludes that notwithstanding dramatic growth in the number and scope of environmental laws, their effective implementation has not taken root in most countries   Carl Bruch, Director of International Programs at ELI and one of the ERL authors, agrees that “the culture of environmental compliance is weak or non-existent “ and that the international community and philanthropies need to do more on many fronts to strengthen environmental enforcement.   A most disturbing resistance to environmental laws is harassment and even murder of environmental defenders. In 2017 alone, 197 environmental defenders were killed.

The ERL report offers numerous good recommendations to upgrade performance and to monitor and track indicators of improvement in the environmental rule of law.  Environmental lawyers should be seeking ways to help.  All in all, this ambitious baseline report ably documents notable progress to celebrate, but reveals much more to be done to make environmental law work to secure a sustainable future. 

WHO WINS WHEN FEDERAL MINERAL LESSEES COLLIDE WITHIN THE SAME ACREAGE?

Posted on June 14, 2019 by Tom Sansonetti

Berenergy Inc. has been operating seven oil and gas wells on three federal leases in the Powder River Basin area of Wyoming since the 1960s.  Peabody Energy has been strip mining coal on multiple federal leases in the same area since the 1970’s. Further background of this conflict is found in my previous post.

Peabody’s North Antelope Rochelle Mine is the largest coal mine in the United States with a mine plan that requires it to move in a south-to-north direction over several decades.  The mine has advanced to within a quarter mile of the Berenergy wells.  The wells are spaced as to form a picket-fence like barrier to the mine’s progress.

Berenergy’s well bores extend several thousand feet below the surface.  Peabody’s coal reserves are only 850 feet under the surface.  In order to mine through, Peabody would have to pull the piping and plug each of the well holes.

After passing through the well sites, Peabody could re-drill and replace the piping to allow the oil and gas production to continue. The cost to Peabody would be approximately $500,000. Mining through the well sites would take approximately four years. The cost to Peabody of moving the mining machinery around the seven wells would be approximately $180 million. 

The value of the 91 million tons of coal under or near the wells at current prices is $1 billion. Because of the mine plan’s northerly direction and the mammoth size of the operations, the cost of returning to the bypassed coal years later would be prohibitive. Thus, the coal would remain in place if bypassed.

Peabody offered to purchase the Berenergy wells for their appraised price of $477,000. Berenergy rejected the offer, instead requesting a much larger sum in order to “get out of the way.” Peabody refused to pay the requested amount and both Peabody and Berenergy approached the BLM, as the common lessor, to seek a resolution of the standoff.

As a valid lessee in good standing, Berenergy argued that its leases were “first in time” giving them the “first in right” to continue producing until the wells run dry. Berenergy pointed out that Peabody leased its coal with full knowledge of the existence of the wells and should have to wait to mine unless willing to meet Berenergy’s monetary demands. Berenergy petitioned the BLM to suspend Peabody’s leases.

As a valid lessee in good standing, Peabody argued that the “first in time” theory was not embodied in either statutes or regulations and without statutory guidance or legal precedent the BLM should adopt a “doctrine of accommodation” that would permit maximum recovery of both the oil and the coal. Peabody petitioned the BLM to suspend Berenergy’s leases so it could mine through.

On August 17, 2018, the BLM Wyoming State Director issued a decision allowing Peabody to mine through the well areas based on the provisions of Section 209 of the Mineral Leasing Act. This provision allows the Secretary of the Interior to suspend mineral leases in order to conserve natural resources.

Peabody immediately began pulling and plugging the well closest to its operations. Berenergy obtained a temporary restraining order in Wyoming federal district court and appealed the BLM decision to the Interior Board of Land Appeals. The IBLA ruled against Berenergy’s motion for stay of the BLM order and Peabody demanded that Berenergy post a multi-million-dollar bond in order to continue the litigation before the IBLA. Berenergy was not able to post the bond and dismissed its IBLA appeal, opting to return to the Wyoming federal district court for resolution of its “first in time” claim naming the BLM as the defendant. Peabody intervened in the case to support the BLM decision.

After lengthy briefing and an oral argument, Wyoming District Judge Scott Skavdahl ruled on May 13, 2019 in favor of the BLM and Peabody. The court ruled that the MLA’s Section 209 permitted the BLM to suspend leases in the name of the conservation of natural resources when two valid federal leases developed a conflict over acreage where the minerals in question could not be simultaneously produced. Given the vast disparity between the value of the remaining oil and gas reserves versus the coal reserves to be bypassed, the court found that the BLM’s use of a comparative valuation standard to aid in its decision-making was reasonable. The court noted that it could not find regulatory authority on “first in time” that contradicted the language in Section 209.

On June 11, Berenergy filed its appeal in the Tenth Circuit Court of Appeals. Stay tuned.

HEY CONGRESS: PLEASE FIX THIS “JUST PLAIN NUTS” SITUATION

Posted on June 10, 2019 by Dick Stoll

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is “just plain nuts.”  He points to two recent (May, 2019) conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.

I similarly complained of a “whole lot of craziness going on” regarding WOTUS judicial review in my 2015 ACOEL post.  I related how inconsistent decisions coming out of various courts were leaving the rule in force in some states, yet throwing it out in other states.  Since then, we have seen even crazier situations with some counties left subject to the rule while other counties in the same State are not!

Here is a recent sad summary from the May 29, 2019 Inside EPA: “Due to a variety of district court decisions, the 2015 rule continues to apply in 23 states and 23 of New Mexico’s 33 counties, but it is blocked in 26 states and in the other 10 New Mexico Counties.”  And to make the patchwork even crazier, the 23 states where the rule remains in place are anything but contiguous – looking at a U.S. map, it appears someone threw darts.

As Rick Glick recently reminded us, we will soon have a brand new WOTUS from the Trump EPA folks.  This will inevitably trigger a slew of new judicial review actions in numerous federal district courts, with another crazy-quilt patch of inconsistent results sure to follow.

Seth appears to blame this situation on the Supreme Court, which ruled last year that initial judicial review of the WOTUS rule must lie in the federal district courts – not, as the federal government had urged, in a U.S. Court of Appeals.  Seth notes that “the Supreme Court had the luxury of ignoring the chaos that would ensue” from its decision.

I blame this situation squarely on Congress, however.  Given the way the Clean Water Act is drafted, I just don’t see how the Supreme Court could have ruled otherwise.  And it is telling that the Court’s opinion was unanimous.  That’s right, a unanimous opinion from this Supreme Court! 

The heart of the problem is straightforward.  Under the federal APA, direct judicial review of final agency rules lies in federal district courts except where Congress has provided that certain types of rules are to be reviewed directly in a Court of Appeals.  As I outlined in my 2015 “craziness” post, Congress has provided that all sorts of national rules under the Clean Air Act, the Resource Conservation and Recovery Act, and many other statutes, shall be directly reviewed by a Court of Appeals.

But in 1972 Congress took a different approach in the Clean Water Act, and specified that only seven types of final EPA actions would be directly reviewed in a Court of Appeals.  As the Supreme Court unanimously ruled last year, the WOTUS rule does not fit within any of these seven types of actions.  As a matter of pure (and unfortunate) logic, this means the district courts have initial jurisdiction over the WOTUS rule.

The federal government argued before the Supreme Court that the policy arguments in favor of direct Court of Appeals review are overwhelming.  The crazy-quilt patchwork that would take years (probably decades) to resolve would be avoided, as federal rules would require challenges filed in various Court of Appeals circuits to be consolidated in one Court. 

I wholly agree with these policy arguments, and I believe it is up to Congress to fix this mess. Just a few words added to the CWA would do it.  For example, Congress could simply provide that final rules defining the extent of “waters of the United States” would be the eighth type of action subject to direct Court of Appeals review.  Or many other formulations with just a few words could do the trick.

I know we live in polarized political times, and it is hard to secure Congressional consensus on major issues like reproductive rights, immigration, etc.   But should it be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid “just plain nuts” and “whole lot of craziness” inconsistencies throughout the nation?  If it is, I think that is just plain nuts.

Woe is WOTUS

Posted on June 7, 2019 by Seth Jaffe

When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory.  I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.

Whatever one may think of the merits of the competing theories, two district court decisions in the past week have made clear that it is, indeed, just plain nuts to have these cases before the district courts.

First up, Texas v. EPA, in which Judge George Hanks (an Obama appointee, no less) ruled that EPA and the Corps of Engineers had violated the Administrative Procedure Act in two ways by promulgating the 2015 Rule.  First, while the proposed rule had defined “adjacent waters” based hydrogeological criteria, the final rule used specific numerical distance criteria instead.  The Court concluded that the use of distance criteria was not sufficiently anticipated in the proposed rule and thus EPA violated the APA when it failed to take comment on the new approach.  Judge Hanks also concluded that the 2015 Rule violated the APA because the Agencies relied on what is known as the “Final Connectivity Report,” even though the comment period closed before the Final Connectivity Report was available.  As a result, Judge Hanks remanded the 2015 Rule to the Agencies “for proceedings consistent with this order.”  Of course, the Agencies have already announced that they intend to replace the 2015 Rule, so I think we all know what those proceedings will be.

Next up, Oklahoma v. EPA, in which Judge Claire Eagan (a Bush appointee, no less!), refused to issue a preliminary injunction against the enforcement of the 2015 Rule.  Simply put, Judge Eagan was not persuaded by any of the declarations submitted by the plaintiffs that they would suffer irreparable harm if the 2015 Rule were to remain in effect in Oklahoma.  She described them as “speculative.”  This was particularly troubling because:

the 2015 Rule has been in effect for varying periods of time since this case was filed, and the State can identify no evidence of an aggressive expansion of federal regulation of Oklahoma waters. … This case has been pending for nearly four years, and the Court would have anticipated a showing of substantial, actual harm in support of a motion for preliminary injunction.

We now have a situation where an Obama appointee has remanded the 2015 Rule and a Bush appointee has refused to enjoin its enforcement.  I do get some pleasure from these two judges upsetting preconceived notions in this partisan age about what judges do and how they decide.

Beyond that, however, I have no idea what these cases mean for the enforcement of the 2015 Rule.  I understand that this may all soon be moot, but in the meantime, it’s hard to defend this as a logical system of judicial review of agency action.  Indeed, I might even go so far as to say that it’s just plain nuts.

2019 WOTUS Rule Seeks to Make the Complex Simple—It Won’t Work

Posted on June 6, 2019 by Rick Glick

What is the jurisdictional reach of the Clean Water Act?  The Act applies to “navigable waters”, which are defined as the “waters of the United States, including the territorial seas.” That’s all the CWA says about jurisdiction.  Congress left it to the implementing agencies—EPA and the Corps of Engineers—and the courts to define the contours of CWA jurisdiction.  In the 45 years following enactment, we are not much closer to clarity. 

The 2019 proposed “waters of the U. S.” or WOTUS rule is the latest attempt and, like all its predecessors, it has generated a lot of controversy.  Setting aside for the moment whether the rule is ultimately adopted and survives the inevitable court challenges, will it achieve the CWA’s object “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters”?  Unfortunately, the approach taken in the rule seeks an easy resolution to a complex problem as it avoids the interconnectedness of natural systems.  That approach will be of limited use in meeting the CWA’s objective.

The central strategy underlying the CWA is adoption by the states of water quality standards.  The standards would be protected through grant funding of public treatment facilities on the one hand, and on the other, a regulatory program allowing for limited discharges of pollutants or filling of wetlands to ensure attainment of standards.  Early cases looking at discharges or fills subject to the CWA stressed whether the receiving waters were “navigable in fact,” that is, capable of carrying interstate commerce.  However, regulations adopted by the Corps of Engineers extended jurisdiction to tributaries and adjacent wetlands, as degradation of these results in degradation of the navigable waters.  These regulations also included certain intermittent streams among WOTUS.

In its 2006 decision in Rapanos v. U. S., a majority of the Supreme Court found the regulations too broad, but did not quite agree as to why.  Writing for the plurality, Justice Scalia criticized the Corps for regulatory overreach and argued for a common sense, dictionary understanding of WOTUS:

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. 

In other words, if you can see it and your feet get wet when you stand on it, the CWA applies.  Applying his usual strict constructionist approach, Justice Scalia found no statutory justification for a nuanced approach to jurisdiction.  By Executive Order, President Trump directed EPA and the Corps to replace the Obama WOTUS rule with one based on Justice Scalia’s interpretation, and the proposed rules do just that.

Will this approach serve the stated objective of the CWA to protect our waters?  Justice Kennedy, in his concurring opinion in Rapanos, thought not.  He chastised both the plurality and the dissent for not applying the test established by the Court just five years earlier in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers.  That case pegged jurisdiction to whether there is a “significant nexus” between the wetland in question and a navigable waterway.  In SWANCC, the Court rejected Corps regulations that imposed jurisdiction over isolated wetlands because they served as habitat for migratory birds.  That was not, per the Court, enough to show a significant nexus between those wetlands and a navigable waterway. 

However, in Rapanos, Justice Kennedy argued that the Court must do the SWANCC analysis, with all its inherent complexity, before simply concluding there is no jurisdiction:

Taken together [prior Court opinions show that], the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a “navigable water” under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.

* * *

The required nexus must be assessed in terms of the statute’s goals and purposes. Congress enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a), and it pursued that objective by restricting dumping and filling in “navigable waters,” §§1311(a), 1362(12). With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters—functions such as pollutant trapping, flood control, and runoff storage. 33 CFR §320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

The analysis called for by Justice Kennedy is complex and requires professional judgment.  Granting agencies the discretion to exercise that judgment makes many uncomfortable, but such discretion is inherent in our current framework in which Congress provides vague direction that agencies must implement.  There is much talk about the Supreme Court eviscerating Auer and Chevron deference to agency interpretations of their own rules or statute, but surely there must be some leeway for agencies that courts can find acceptable.  If not, already ponderous and glacially slow regulatory processes will get only more so. 

The Obama WOTUS rule took the Kennedy approach and then tried to put certain sideboards around it to determine CWA jurisdiction, which played to mixed reviews—a million comments and scores of legal challenges were filed.  The Trump WOTUS rule swings the pendulum toward the simplistic Scalia approach, which will also draw broad opposition.

Getting clarity on the scope of CWA jurisdiction has proved elusive.  However, in our zeal for clarity and preventing overly aggressive federal regulation, we must not lose sight of the clarion purpose Congress gave in enacting the CWA in the first place.

Where Is Gundy v. United States?

Posted on May 30, 2019 by Lisa Heinzerling

In the first week of October, the justices heard argument in Gundy v. United States, in which a convicted sex offender argues that the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by giving the Attorney General untrammeled authority to decide whether the law's registration requirements, backed by criminal penalties, apply at all to offenders convicted before the statute was enacted. Gundy is the only case from the Court's October argument session left to be decided.

Around the time of the oral argument in Gundy, I heard several Court watchers predict that the case would be decided easily, and against Gundy, through a narrowing interpretation that would avoid any serious nondelegation issue. The government had argued that the Attorney General's discretion could be limited by finding that "the text and context" of SORNA convey an instruction to the Attorney General to "specify the applicability of SORNA's registration requirements to pre-Act offenders 'to the maximum extent he finds to be feasible.'" Such guidance from Congress would easily satisfy the Court's existing jurisprudence on nondelegation.

As time passes, however, this seemingly straightforward resolution of Gundy seems ever less probable. One problem for the government is that the limiting principle it asserted – "to the maximum extent he finds to be feasible" – does not appear in the statute. Conservative justices wedded to textualism may be hesitant to read into the statute a limitation the text does not identify.

Moreover, the justices have already passed up a chance to interpret SORNA narrowly to avoid the very challenge they now face. In 2013, in Reynolds v. United States, the Court found that SORNA's registration requirements did not apply to pre-Act offenders until the Attorney General said they did. Chief Justice Roberts, who at oral argument had asked counsel for the government whether delegating this degree of authority would create a nondelegation problem, joined Justice Breyer's majority opinion without comment. By interpreting SORNA to require action from the Attorney General before the law's registration requirements may apply to pre-Act offenders, the Court in Reynolds created the constitutional conflict it now confronts.

Another worrisome sign for the government is that four of the Court's current justices have in recent years expressed constitutional anxieties about Congress's broad delegations of power to administrative agencies. Gundy may give them the chance to revive or even expand a constitutional doctrine that has not been used to invalidate a federal statute since 1935.

If the Court invalidates SORNA as an unconstitutional delegation of legislative authority, the consequences could be gigantic. A reawakened nondelegation doctrine could run like a scythe through the scores of statutes – including, of course, environmental statutes – that grant broad authority to administrative agencies. Operating that destructive instrument would be the least politically accountable of all the branches of government.

The Court could try to limit a decision invalidating SORNA, based on such factors as the criminal context; the worrisome power of the Attorney General as both prosecutor and quasi-legislator; and the backward-looking nature of the application of registration requirements to pre-Act offenders. Even a limited invalidation, however, would mark a significant turning point in administrative law, with destabilizing consequences for federal environmental programs. The longer we wait for the Court's decision, the more likely it is that the justices are grappling with the most fundamental questions raised by this case.

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NOTE: A version of this post was published by ACSblog in September 2018.