Supreme Court to Visit Maui

Posted on February 21, 2019 by Patrick A. Parenteau

As anticipated in an earlier post, the Supreme Court has granted review in County of Maui, Hawaii v. Hawai'i Wildlife Fund limited to the question “Whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” The Court took no action on a related petition in Kinder Morgan Energy Partners, L.P. v. Upstate Forever involving groundwater contamination from a ruptured gas pipeline. The Court will presumably hold that petition pending the outcome in the Maui case.

As described in the Ninth Circuit decision, the County of Maui owns and operates four wells at a wastewater treatment plant that processes four million gallons of sewage per day. Treated wastewater is then injected via the County’s wells into the groundwater which flows directly into the Pacific Ocean. Approximately one out of every seven gallons of groundwater entering the ocean near the plant is comprised of effluent from the wells.

Both the District Court and the Ninth Circuit ruled that the wells were point sources, and that the injection of treated wastewater into the groundwater constituted a discharge subject to the permitting requirements of the CWA. Specifically, the Ninth Circuit held that “an indirect discharge from a point source to a navigable water suffices for CWA liability to attach.” The Ninth Circuit adopted a “fairly traceable” test for determining when a discharge via groundwater to navigable water would require a permit. As discussed in my earlier post, the court relied in part on Justice Scalia’s plurality opinion in Rapanosin support of this conclusion.

The Ninth Circuit expressly left for another day “the task of determining when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.”  

The Solicitor General supported the grant of certiorari in Maui (but not in Kinder Morgan) to resolve the split in the circuit courts on whether the CWA covers activities that cause pollutants to be conveyed through groundwater to waters of the United States.

Conventional wisdom suggests the Supreme Court is likely to reverse the Ninth Circuit. However, once the Justices (and their clerks) have had the opportunity to dig into the record, they may find that CWA regulation actually makes sense in this situation. Some of the key facts are these.

  • Maui originally considered an ocean outfall but opted for the less obvious injection wells located within a quarter mile of the shore.
  • A 2013 EPA dye tracer study confirmed that the treated effluent enters the Pacific Ocean at Kahekili Beach - - a popular surfing and snorkeling beach.
  • Monitoring has shown that nutrients, fecal coliform, and other pollutants in the effluent are impacting the reef and exposing the public to potential health risks at Kahekili. EPA studies have confirmed that reef productivity declined 44% over the time the system has been operating, and fecal coliform counts regularly exceed safe levels.
  • EPA Region 9 advised Maui it would need to obtain a discharge permit and communicated that to the Hawaii Department of Health, which failed to take any action. EPA was acting under its 40+ year-old policy that discharges through ground water with a “direct and immediate” hydrologic connection to surface waters (i.e., the ocean) require a permit.

EPA is now reviewing this policy and may well change its position, either by adopting an interpretive rule or issuing guidance in some form. The Agency will no doubt try to complete this process before the Court hears argument in the fall. Should EPA adopt an interpretation that groundwater can never be the “conduit” for conveying pollutants for point sources to waters of the United States, the next question will be whether that new interpretation is entitled to any deference. Given the skepticism that several Justices have shown towards a mechanical application of Chevron, it will be interesting to see how this all “sugars off” as we say in Vermont. 

We may soon get an answer to the question that the 9th Circuit ducked, namely when does the connection between a point source and a navigable water become too tenuous to support CWA liability.

What’s Going on with Keystone XL?

Posted on February 20, 2019 by Mark Walker

As one of his earliest executive actions, and following through on campaign promises, on January 24, 2017, President Trump signed an Executive Memorandum (EM) inviting TransCanada to resubmit its application for an international border crossing permit for the Keystone XL pipeline.  To facilitate prompt action, the EM directed the Secretary of State to make a final decision on the application within sixty days utilizing “to the maximum extent permitted by law” the State Department’s January 2014 Environmental Impact Statement (EIS).

On March 24, 2017, a Presidential border crossing permit was issued for Keystone XL based upon the findings in the 2014 EIS.  The Indigenous Environmental Network and others immediately appealed in federal court in Montana (Case 4:17-cv-00029-BMM, District of Montana, Great Falls Divisions) claiming, among other reasons, that the record of decision (ROD) failed to adequately explain why the State Department had reversed Obama’s denial of the permit in 2015 because approval of the pipeline “would undermine U.S. climate leadership.”

On November 8, 2018, Judge Brian Morris issued a 53-page order which enjoined further construction activities.  This was based in part on the Court’s finding that the 2017 ROD did not provide a “reasoned explanation” for its reversal in policy course.While acknowledging the Trump Administration’s authority to change policy and reverse course, the Court held that, “when reversing a policy after an election, an agency cannot simply discard prior factual findings without a reasoned explanation.” 

The 2017 ROD attempted to justify the shift in policy by finding that, since 2015 “there have been numerous developments related to global action to address climate change, including announcements by many countries to do so” and “a decision to approve [the] proposed Project would support U.S. priorities relating to energy security, economic development and infrastructure.”  The Court held that this was not sufficient because it failed to adequately explain why the climate change findings in the 2015 ROD were no longer applicable.  Quoting from a U.S. Supreme Court decision, the Court held, “an agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”  

The Court also held that the use of the 2014 EIS violated NEPA in several respects, including: (1) it was based upon outdated oil market data (the 2014 EIS predicted $100 to $140 per barrel oil for the next 20 years); (2) it failed to evaluate the cumulative climate impacts from the Alberta Clipper pipeline; (3) it failed to complete the required cultural resources analysis; and (4) it was based on outdated information regarding the frequency of oil spills and, therefore, it also did not adequately assess the potential impact of oil spills on certain endangered species.

The Court’s order gives the Trump Administration the opportunity on remand to supplement the 2014 EIS to address the deficiencies and an opportunity to provide a reasoned explanation for its policy reversal.  The EIS supplementation will likely take several years to complete.  It looks like the Keystone XL border crossing permit is now into the next election cycle, and certainly more appeals will follow.

The Answer is Blowin’ in the FAMGs

Posted on February 19, 2019 by Charles F. Becker

It is well known that Des Moines is, among other things, the most popular city for millennial home buyers and, according to Forbes, the fifth best place for businesses and careers.  However, these accolades are not the reason for Facebook, Apple, Microsoft and Google (“FAMG”) choosing to invest billions of dollars in data centers in the Des Moines area. They are building here because they want to be able to say they are “green” – their services are powered by renewable energy. They can say that because Iowa is the third largest producer of wind energy in the country.

FAMG seem to recognize two fundamental truths: 1) Customers want to purchase from green companies, and 2) renewable energy is cost effective and goes a long way to satisfying #1. In short, environmental awareness means profits.

A 2018 study from Deloitte Resources provides some interesting insights:

1.      69% of businesses said customers are demanding more environmentally considerate solutions – up 7% from one year earlier;

2.      70%  said customers are demanding businesses procure at least some of their energy from renewable resources – up 9% from a year earlier; and

3.      79% of businesses actively promote their environmental efforts to their customers – up 5% from a year earlier.

When you combine these statistics with polling that shows 75% of adults ages 18 to 29 say wind and solar power should be a “more important priority” than fossil fuels, the message is clear – satisfied customers mean more green (both environmentally and monetarily).

Moreover, giving customers what they want also makes economic sense.  Wind and solar power have received a lot of attention, and made a lot of progress, over the past fifteen years.  As a result, the cost of renewable energy is dropping so fast that by 2020 it will be a cheaper source of power than fossil fuels.  At the same time costs are dropping, coal-fired power plants are concluding their life cycle.  In 2018, 42% of the coal-fired power stations worldwide were running at a loss.  By 2030, that number will be 96%. 

In the very near future, it won’t really matter whether businesses want to tout their green credentials by saying they use renewable energy because a least cost power system without coal is an “economic inevitability.” The early adopters are just taking credit (and customers) for what’s coming.

Despite the numbers, the President and a significant number of conservative politicians are doing everything they can to deny climate change, promote coal and increase the cost of renewable energy.  The question is why?  Certainly the politicians recognize that businesses (i.e. donors) are moving away from coal, so the answer must be something else.  Turns out, it’s mostly perspective.

Studies done by the Pew Research Center found that Democratic support for renewable energy is based primarily on environmental protection (it is good for mother earth).  Conservative Republicans reject it because it runs counter to a need to support more coal mining/fracking and because environmental solutions do more harm than good.  This Republican viewpoint, however, is not universally held.  A growing number of Republicans support renewable energy and do so on the basis that it promotes self-sufficiency and is a financially wise decision.  When couched in these terms, Republicans have not only been able to switch positions, but have successfully challenged the President’s position on renewable energy and been elected.  

My point to all this is not to extol the superiority of Des Moines as a city or to praise the environmental impacts of renewable energy. It is to say that perhaps Democrats have been going about the promotion of renewable energy all wrong.  Forget chest beating and yelling “everyone must be green.”  That is a position not everyone believes and using it means the people you want to persuade have already stopped listening.  Instead, talk about how renewable energy reduces costs, promotes self-sufficiency and is what consumers and businesses want.  The side benefit of environmental protection shouldn’t even be mentioned. 

There’s nothing wrong with telling someone what they want to hear . . . if it’s true.

A LAWYER’S GUIDE TO ADDRESSING CLIMATE DISRUPTION

Posted on February 14, 2019 by John C. Dernbach

Co-authored by Michael B. Gerard

Recent scientific reports by the U.S. Global Change Research Program and the Intergovernmental Panel on Climate Change depict the present and future consequences of climate disruption in increasingly urgent terms.  At the same time, according to a new poll, record numbers of Americans believe that climate change is real, that it is human caused, and that it affects them personally. 

But there is good news.  It is possible for the U.S. to dramatically reduce greenhouse gas emissions.  We also have the legal tools to do the job—more legal tools, and a greater variety of tools, than we may have imagined. 

In 2014 and 2015, the Deep Decarbonization Pathways Project (DDPP)  published a technical report and a policy report on deep decarbonization in the United States—reducing U.S. greenhouse emissions by at least 80% by 2050.  The DDPP is a global effort to assess the technological and economic feasibility of deep decarbonization in 16 countries representing 74% of the world’s greenhouse gas emissions.

The U.S. reports conclude that “it is technically feasible” for this country to reduce its greenhouse gas emissions by 80% from 1990 levels by 2050.  They also conclude that the cost of this effort would only be one percent of U.S. gross domestic product, not including the many benefits that would come from doing so.   

Enormous changes would be required to achieve this level of reduction, the reports said.  The U.S. would more than double the efficiency with which energy is used.  Nearly all electricity would be carbon free or use carbon capture and sequestration.  Electricity production would also need to double because gasoline and diesel fuel for transportation, and oil and natural gas used for space heating and cooling and water heating, would be mostly replaced by electricity.  

These reports do not, however, discuss what legal tools would be necessary to achieve these outcomes.  In response, in late 2015, we began planning an edited volume to comprehensively analyze and explain the various laws that could be employed, building on the DDPP reports. The resulting book, Legal Pathways to Deep Decarbonization in the United States is being published by the Environmental Law Institute Press in March.  You can order a copy here.  In 35 chapters authored by 59 experts, adding up to 1,200 pages, the book identifies more than 1,000 federal, state, local, and private legal tools for deep decarbonization.   

To get the key messages of the book to the broadest possible audience, ELI has also published a Summary and Key Recommendations volume.  This book includes a thumbnail summary of each chapter, key recommendations by chapter, and a separate listing of recommendations organized by actor.  You can download this book here without charge.

Legal Pathways describes a dozen different types of legal tools.  As explained in greater detail here, these are not just the usual suspects (additional regulation, market-leveraging approaches, tradable permits or allowances), but also reduction or removal of legal barriers to clean energy and removal of incentives for fossil fuel use.  They also include information/persuasion, facilities and operations, infrastructure development, research and development, insurance, property rights, and social equity.  The wide range of types of legal tools provides great opportunity for building consensus.  One particularly important category, for example, is reduction or removal of legal barriers.

The book is thus a playbook for deep decarbonization.  In fact, various legal tools could be designed and combined to achieve quicker and deeper reductions than 80% by 2050, and even negative overall emissions.

This book is also a resource for lawyers because the laws it describes need to be proposed, drafted, and implemented on behalf of a wide variety of clients in many contexts.  The many types of tools also make clear that a variety of lawyers are important in this effort, including not only energy and environmental lawyers, but also finance, corporate, municipal, procurement, contracting, real estate, and other types of lawyers.

While both the scale and complexity of deep decarbonization are enormous, the book has a simple message: deep decarbonization is achievable in the United States using laws that exist or could be enacted. These legal tools can be employed with significant economic, social, environmental, and national security benefits.

Toward that end, we are launching a project to turn the recommendations into legal language—drafting federal and state statutes and regulations, model ordinances, guidance documents, transactional agreements, and the like.  We are well aware that a great many lawyers are already doing this kind of work, and that many more are feeling the need to respond to the challenges that climate disruption imposes.  We welcome lawyers from all backgrounds to join in our effort, and plan to work with ACOEL as well.  If you are interested, please contact us.

Acronymic Acrobatics: Why Poly- and Perfluoroalkyl Substances (PFAS) are becoming a Problem For All States

Posted on February 13, 2019 by Tom Burack

In an age in which the names of chemicals are so complicated that even scientists refer to them by acronyms, an entire class of manmade chemicals created to improve human lives is now in the midst of performing an acrobatic stunt, back-flipping from being the darling of industrial and consumer products to being the contaminants that are now the nemesis of many communities: Poly- and Perfluoroalkyl Substances -- commonly referred to as “PFAS” – are also coming to be recognized as something else with the same acronym, namely a “Problem For All States”.  Due to their unique chemical properties and the growing public demands for timely regulatory response actions at the local level in the absence of definitive federal leadership, PFAS compounds can be expected to remain a Problem For All States for many decades to come.

Chemical engineers, starting in the 1940s, made some remarkable discoveries: the combination of carbon and fluorine atoms into long-chained synthetic organic molecules results in compounds that variously can repel oil, water, grease or stains, resist high temperatures, and reduce friction.  These properties, combined with high durability, made these newfound PFAS compounds ideal for innumerable industrial and consumer purposes. For example, some of the most commonly used PFAS are: perfluorooctanoic acid (PFOA), as a repellent coating for textiles, paper products and cookware; and, perfluorooctanesulfonic acid (PFOS), in fire-fighting foams, carpet treatments, and mist suppressants in metal plating operations.  As a broad class, there are approximately 3,000 different PFAS compounds, some of which are precursors to other PFAS compounds, and various of which may co-occur with each other. Commonly known household products containing or made with PFAS compounds have included DuPont’s Teflon®, 3M’s ScotchGard®, and Gore’s Gore-Tex®, to name but a few. Unfortunately, some of the most commonly used PFAS compounds are also highly persistent, mobile, and non-biodegradable.  Consequently, worldwide production and uses of PFAS have resulted in their nearly ubiquitous presence throughout the environment, including in soils, sediments, surface and groundwater.

Moreover, because they can also bioaccumulate, PFAS compounds can be found in animals and humans in parts per billion (ppb) concentrations. Laboratory studies of PFAS health impacts on animals point toward elevated cholesterol levels, low infant birth weights, immune system effects, cancer (PFOA), and thyroid hormone disruption (PFOS).  While peer-reviewed human epidemiological studies of PFAS exposure have been less numerous or definitive to date, when combined with the laboratory animal studies there have been sufficient data to support the establishment of Lifetime Health Advisories for PFOA and PFOS by the US EPA in 2016 and the promulgation of regulatory limits to protect drinking water supplies by a growing number of states.

In the United States, the first health and environmental concerns arose in connection with PFAS manufacturing facilities and their waste disposal practices in West Virginia and Ohio in the late 1990’s and in Minnesota in the early 2000’s.  Between 2000 and 2002, 3M voluntarily agreed to phase out the further manufacture of most long-chain PFAS compounds, and DuPont and other US manufacturers followed suit. Today, under a set of Significant New Use Rules (SNURs) promulgated by the US EPA under the Toxic Substances Control Act (TSCA), most long-chain PFAS are allowed to be used or imported only for limited purposes and in select industries or applications.  Further restrictions have been proposed and shorter chain PFAS compounds are increasingly being used as substitutes, but even these may present significant environmental and public health concerns, as illustrated by the ongoing GenX contamination situation in the Cape Fear Watershed of North Carolina. (See, e.g., https://www.northcarolinahealthnews.org/2017/08/17/genx-pollution-what-happened-when/)

Ever-more sensitive laboratory technology can now detect PFAS at parts per trillion (ppt) concentrations, and it’s become evident that the more than five decades of unregulated use of PFAS has left an indelible signature in landfills, wastewater, waterways, and communities far and wide. To date, the New Hampshire Department of Environmental Services has amassed perhaps the largest single dataset on PFAS contamination in groundwater, surface water and soils of any state: roughly 6,000 samples from some 3,500 locations.  This continuously growing dataset already shows some noteworthy trends: sampling of 429 public water supply wells found that 7 (1.6%) contained PFOA or PFOS above 70 ppt (the US EPA LHA value which NH adopted as its groundwater cleanup standard); but NH has now proposed to lower its standard for PFOA to 38 ppt, which once all of NH’s public water systems have been sampled is likely to put another 16 or so in noncompliance.  More than 50% of the existing known contaminated industrial sites sampled so far in NH contain elevated levels of PFAS.  Every NH landfill leachate system sampled to date has a PFAS signature, and the monitoring wells around the older closed but unlined landfills indicate 46% exceed the groundwater standards.  Fire stations and training sites are also potential sources, as are municipal wastewater treatment plants, biosolids storage and application sites, car washes, airports (military and civilian), and a wide variety of other operations. Typical contamination vectors include not only historical releases directly to soils, groundwater or surface waters, but also atmospheric deposition resulting from airborne emissions of PFAS that subsequently contaminate other media, including groundwater.

Due to the combination of their durability, persistence, mobility, multiple possible release mechanisms, and extremely low detection limits, the simple reality is that if you look for PFAS in the environment you will find them.  The corollary is that if you haven’t found them, you’re probably not looking in the right places. While some public officials may believe that PFAS are not a problem in their states or regions, the public and elected officials – sensitized by the story of lead contamination in the water supply of Flint, Michigan – are asking questions, demanding answers, and expecting action. In 2018, the US EPA held a “national summit” on PFAS contamination and announced that it would consider whether to establish public drinking water standards, Maximum Contaminant Levels (MCLs), for some PFAS, and whether to list certain PFAS compounds as hazardous substances under CERCLA.  More recently, EPA officials have indicated that MCLs for PFAS are unlikely, but that EPA is considering broader use of its emergency administrative order authority under Section 1431(a) of the Safe Drinking Water Act to address PFAS contamination situations on a site-by-site basis. In the meantime, members of Congress have introduced bipartisan legislation to require US EPA to list all PFAS compounds as CERCLA hazardous substances and a growing number are joining a bipartisan Congressional PFAS Task Force.

The most consequential regulatory action, however, has been at the state level, which is where considerably more future action should be expected.  As of January 2019, at least eight states had adopted or proposed guidance values or regulations setting acceptable concentrations of various PFAS compounds in groundwater, drinking water, surface water, or soil, including Alaska, Colorado, Michigan, Minnesota, New Hampshire, New Jersey, New York and Vermont.  This list is expanding rapidly, as is the list of state legislatures that have regulated or are considering regulating the use of PFAS compounds, including California, Michigan, Minnesota, North Carolina, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont and Washington.  The Environmental Council of States (ECOS), the national, nonpartisan, nonprofit association of state and territorial environmental agency leaders, has established a PFAS workgroup, and its research arm, the Environmental Research Institute of the States (ERIS) has a large and active technical team that has published a number of fact sheets on PFAS through the Interstate Technology Regulatory Council (ITRC). 

Regulatory strategies and cleanup standards for the same compounds often differ from state to state: for example, in Vermont the groundwater standard is 20 ppt for PFOA and PFOS individually or in combination, while in New Hampshire the standard for PFOA and PFOS individually or in combination is 70 ppt, and a proposed rule would lower the individual standard for PFOA to 38 ppt.  The process of setting health-based regulatory standards varies greatly by jurisdiction, and different standards are typically attributable to differences in which toxicity data are selected and how they are interpreted, differences in toxicity factors (i.e., multipliers or margins of safety), how animal test results are extrapolated to humans, exposure assumptions, life stage used, and sources of exposure (drinking water versus non-drinking water).  Should EPA choose not to adopt MCLs for PFAS compounds, it’s likely that more and more states will find themselves weighing these and other variables as they set their own regulatory standards and seek to explain why they may be either higher or lower than those of their neighboring states.

Because they are ubiquitous, PFAS compounds present a set of challenges that every state will ultimately need to quantify and regulate, all the while communicating with the public, the regulated community and elected officials about the steps they’re taking and why their approach is an appropriately protective risk management strategy.  The lack of a comprehensive national regulatory approach and federal standards for PFAS compounds makes the problem all the more challenging for states, as they will forever need to justify their own approach in comparison with those of other states.  All of which suggests that PFAS are, and for the foreseeable future will remain, a Problem For All States.

Enforcement vs. Education: What the Evolving Role of Forest Rangers and the Government Shutdown Might Teach Us About Environmental Management

Posted on February 12, 2019 by Edward A. Hogan

Two recent, and apparently unrelated, newspaper articles should cause us to focus upon the appropriate balance between law enforcement and education in environmental management.

The first article described a number of deliberate acts of vandalism in National Parks during the recent federal government shutdown.   In the absence of park staff, illegal off-road driving was reported in several National Parks.  In Joshua Tree National Park, delicate and ancient Joshua trees were kicked and Christmas lights strung on others.

The second article reported on a recent proposal to reclassify state civil service job titles.  While on its face it appeared routine, it has resurrected some persistent concerns with the public perception of environmental and natural resource protection. The New York State Department of Environmental Conservation (“NYSDEC”) has requested the New York State Department of Civil Services reclassify its 134 Forest Rangers into the Environmental Conservation Police Officer(“ECO”) title.  Both Forest Rangers and ECOs work within the NYSDEC Office of Public Protection:  the Forest Rangers in the Division of Forest Protection and the 330 ECOs in the Division of Law Enforcement.  Both Divisions were established in the late 19th century:  forest rangers were originally known as fire wardens and ECOs as fish and game protectors. 

While still having the traditional responsibility for prevention and suppression of wildland fires, Forest Rangers are now also charged with organizing and conducting wildland search and rescue operations.  ECOs have had their role of enforcing fish and wildlife laws expanded to include air, land and water quality violations.   Both Forest Rangers and ECOS must complete the same 26-week basic training and are sworn police officers, authorized to enforce all state laws.

While the civil service reclassification has been described as a title upgrade for the Forest Rangers, which would result in a small increase in initial salary, NYSDEC emphasized that it is not a merger of the two Divisions but, rather, a move to ensure that the Divisions are treated equally in the civil service system.  While generally supported by the environmental community, there are those who express lingering concerns with the gradual degradation of public’s attitude towards Forest Rangers and the potential impact on their effectiveness in educating the back country recreational (hiking, whitewater rafting, rock and ice climbing, etc.) community.  As retired Forest Ranger Pete Fish lamented, before becoming sworn police officers and thus always armed, their image was not so closely associated with being police officers: “We used to drive around in these red trucks.  We had a good reputation.  People would wave at us.  Everyone loved a ranger. Once we started driving around in the green trucks like the cops, there was a difference in attitude toward us from the public”.  

As attorneys dealing with the full range of environmental laws, we focus on significant policy issues.  But the most frequent encounter most citizens have with the application of environmental and natural resource laws is at the state level, with front-line staff, and in the recreational context.  Thus, the public’s perception of, and support for, environmental laws is greatly influenced by their experience in the context of recreation use of natural places, and thus their perceptions should be as important to us as they are to retired Ranger Pete Fish.

Each state (and the federal government) has a broad range of natural resource and environmental issues it addresses:  fish and game enforcement, forest fire prevention and suppression, wildland search and rescue, back country recreationalist education, and environmental quality enforcement.   How they organized and staffed these tasks has, and will be, influenced by the evolution of those programs, their historical experience and present and future needs.   

So, what is the right balance of education and enforcement in wildland recreation?  Police officers or ranger-educators?  Or both?

Are the recent incidents in the National Parks evidence that as a society we have failed in our education role and that management of wildlands are better addressed by an enforcement-based approach?

In contrast to the several vandalism incidents that have occurred, there have also been hundreds of volunteers keeping the National Parks open during the government shutdown.  These volunteers were spending their time and their own money hauling out trash and keeping toilets cleaned and stocked with supplies.  Perhaps education has been successful after all.

How Would Your Parents Like This Report Card: The 2018 Chesapeake Bay Health Score Drops to D+ as Massive Rains Increase Pollution

Posted on February 11, 2019 by Lee DeHihns

The Chesapeake Bay Foundation (CBF) released the 2018 State of the Bay Report on January 7, 2019 and the overall grade was not good.  The Bay scored 33 on a scale of 100. The 2018 score is down a point from the last report issued in 2016.  CBF President Bill Baker put as positive a spin as he could on the D+ score saying, “What does it all mean? The summer of 2018 is a stark reminder that the Bay’s recovery is fragile.  We have a long way to go, especially as climate change intensifies.  And, the federal government could significantly undermine our progress by rolling back regulations that would have resulted in nitrogen reductions to the Chesapeake Bay.”

The news is sad for the 18 million people who live in the Chesapeake Bay watershed, which has been struggling to deal with the elusive lack of control over the major pollution source to the Bay: non-point pollution, which was increased by the massive rainfall in 2018.  The report says that such extraordinary weather conditions are consistent with the more frequent and severe storms that climate models predict for the region in the future, meaning that it may only become more challenging to put the Bay’s predominantly non-point sources of pollution in check. 

On a positive note, in June 2018, researchers from the University of Maryland Center for Environmental Science measured continued improvements in the health of the Chesapeake Bay, according to their 2017 Chesapeake Bay Report Card, finding that, “[w]hile the overall grade of “C” has remained the same since 2012, this marks the first year that experts have seen what they call a ‘statistically significant’ positive trend. This suggests that the positive improvements in the grade of the Bay are the result of real progress rather than chance.”  The CBF report reaches a similar conclusion in stating, “[d]espite these effects, there are signs that the Bay is more resilient and better able to cope with extreme weather.  For instance, in August, scientists observed that the underwater grass beds on the Susquehanna flats remained robust and dense, despite the summer’s severe storms.”

The efforts to both protect and restore the Chesapeake Bay are almost as old as EPA, according to the Chesapeake Bay Program, a regional partnership that includes EPA.  According to the Program’s website, the Chesapeake Bay was the first estuary in the nation targeted by Congress for restoration and protection: “In the late 1970s, U.S. Senator Charles “Mac” Mathias (R-Md.) sponsored a Congressionally funded $27 million, five-year study to analyze the Bay’s rapid loss of wildlife and aquatic life. The study, which was published in the early 1980s, identified excess nutrient pollution as the main source of the Bay's degradation. These initial research findings led to the formation of the Chesapeake Bay Program as the means to restore the Bay.”

It is quite obvious that leadership for protecting the Bay must come from local resources and decisions.  The EPA FY 2019 Budget requested a 90% drop in funding from FY 2018 for its Chesapeake Bay Program.  The change cut more than $65 million [OK]  in funds and almost 40 FTE, leaving only about $7.3 million, with the following inadequate justification provided to Congress on the budget submission: “This program change reduces funding for the Chesapeake Bay Program. Remaining resources will support critical activities in water quality monitoring.” 

Just as parents who may wonder why their child got a low grade, at first blaming the school system or teacher, before looking at the child and/or their parental oversight, the solution to protecting the Chesapeake Bay demands action by many players.  Because of the interstate nature of the sources of pollution to the Bay, a greater role from EPA has always been necessary.  Moreover, because land use management is the primary way to address nonpoint source pollution, the primary responsibility rests on the States in the Bay’s watershed. 

We should be shocked that, in 2018, the Bay’s grade is a D+.  In passing the Clean Water Act in October 1972, Congress, in Section 101, 33 U.S.C. 1251, established the Declaration of Goals and Policy for our nation’s waters.  The Acts set two deadlines which have long since passed “(a) (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983”.   If a child failed to advance beyond the first grade with a D+ in 1983, then that child would be 36 now and still living at home.

In a sense we are all parents when it comes to protecting the Bay.  The reduction in federal tax dollars will not yield a better system; nor can it be accepted as an excuse for not doing the right thing for the Bay.  States and other partners must fill the gap.

THE TAX MAN COMETH

Posted on February 5, 2019 by Donald Shandy

The 2017 Tax Cuts and Jobs Act (“Act”) has injected considerable confusion into environmental administrative and judicial settlements.

Since 1969, Section 162(f) of the Internal Revenue Code has not permitted the deduction of fines and penalties.  This would include fines and penalties related to environmental settlements including Supplemental Environmental Projects (SEPs).

Prior to the Act, Section 162(f) allowed deductions of “ordinary and necessary” business expenses related to environmental litigation and settlements.  New Section 162(f) permits deductions for expenses “constituting restitution” (e.g. remediation) or costs “paid to come into compliance with law.”  To qualify as restitution/remediation, two requirements must be met:

1.      The amount that is dedicated to restitution must be set forth in a settlement agreement or court order; and

2.      The governmental agency must prepare and file with the IRS and provide the taxpayer a 1099-series form stating the deductible amounts paid by the taxpayer.

It seems fairly clear that cash penalties and SEPs undertaken in lieu of a cash penalty are not deductible.  However, it is far less clear how remediation activities pursuant to CERCLA or RCRA should be addressed.  For example, how should remediation expenses be addressed where a settlement or court order was entered into prior to the effective date of the Act, but the costs are not incurred (paid for) until after the effective date of the Act?  Problematic case specific-issues under the new law seem almost endless. 

To date, the Treasury Department has not provided any guidance related to this issue.  Practitioners should be very careful when negotiating settlements with administrative agencies or entering into judicial orders.  Absent government guidance, careful drafting and execution of settlements and orders, there is a real possibility of an IRS audit or even a tax court case down the road.

The 2018 Farm Bill is surprisingly climate-conscious.

Posted on January 31, 2019 by Peter Lehner

Roughly every five years, Congress revises and renews the Farm Bill to fund our nation’s food security, nutrition, and farm conservation programs. The 2018 Farm Bill, which passed with large bipartisan majorities in both chambers, is surprisingly climate-conscious. Its successes will serve as a foundation upon which future more aggressive climate-smart farm policy can be built.

The Farm Bill’s climate change benefits stem from a number of provisions that incentivize more climate-friendly practices. For example, the Farm Bill’s federal crop insurance program will now allow — rather than discourage — greater use of cover crops, a practice that has well-proven climate and water quality benefits. This program, which is now the primary federal subsidy to industrial farming, has often inhibited the use of climate-friendly practices such as cover crops and longer crop rotations, while at the same time encouraging planting on marginal lands, which are better suited as habitat for wildlife, buffers for streams, and carbon sinks. The 2018 law takes steps to end these perverse incentives.

The Conservation title of the bill contains a number of programs that will help curb climate change. This title continues to provide about $6 billion annually to the Conservation Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program, all of which saw modest improvements in the 2018 Farm Bill. The changes to EQIP, which generally provides a 75 percent cost-share for installation of approved conservation measures, best illustrate how these traditional programs can pay climate and environmental dividends, with the added twist of garnering the support of fiscal conservatives.

EQIP data from USDA indicated that only 14 percent of EQIP funding went to conservation practices identified as producing the most environmental benefits. To turn the tide, the new law allows states to identify 10 highly effective conservation practices to be eligible for a greater financial incentive. Since climate change induced farm losses harm both the farmer and the taxpayer -- for example, climate-driven natural disasters in 2012 incurred $17.3 billion in crop insurance payments – shifting to more efficient practices is a sound fiscal move as well. 

The Bill also increases funding for organic farming and for a range of practices that help store carbon in the soil and emit fewer greenhouse gases. It also lowers the set-aside for EQIP funds for livestock operators from 60% to 50%, which is critical since livestock operations are responsible for about 80 percent of agriculture's climate change impact.   

CRP pays farmers to take environmentally sensitive land out of production for 10 to 15 years.  Because producers often bring their CRP acres back into production when the contract expires, releasing any carbon stored in the soil during the off years, the benefits are often only temporary.  The bill supports climate-friendly practices like riparian buffer and prairie strips and authorizes 30-year contracts on a pilot basis.  The law also provides a minimum number of acres to be enrolled in the program that targets the most environmentally sensitive lands and pays producers to establish tree and grass buffers along streams.  These water quality provisions both have a climate impact and create a precedent for more climate-change-focused amendments in the future.

Finally, the 2018 Farm Bill increases Conservation Stewardship Program payment levels for cover crops, resource-conserving crop rotations, and management-intensive rotational grazing – all of which reduce water pollution, help slow climate change, and help producers weather climate change.  It also establishes a soil health demonstration program, funded at $15 million, setting a good precedent for larger future action by the federal government and states.

The same provisions that fight climate change, will also encourage practices that protect the drinking water of millions. Industrial-scale agriculture — the large chemical-dependent monocultures where the same crop is planted year after year and the production of grain-fed animals in enormous enclosed facilities — is one of the largest sources of water pollution in the country, such as the dead zone in the Gulf of Mexico or the eutrophication of the Chesapeake Bay. This agricultural water pollution can render water unfit for further human use and impose significant drinking water treatment costs on thousands or millions of communities and homeowners, such as when Toledo had to shut its water supply due to algal toxins, or the nitrate contamination in thousands of drinking water wells that could cause “blue baby syndrome.”  As a result of the clear and present threat, Sen. Debbie Stabenow (D-MI), a lead negotiator of the final bill, was able to build bipartisan agreement to support practices that could reduce this pollution.

As a climate bonus, the 2018 Farm Bill also takes some steps to help reduce food waste, most of which now rots in landfills, releasing large amounts of methane.  The bill funds pilot projects in ten states to develop local composting and food waste reduction efforts and promotes the donation of agricultural commodities.  It also creates a Food Loss and Waste Reduction Liaison in the USDA to coordinate federal programs and clarifies liability protections for food donations, among other measures. 

This legislation comes at a critical moment, when our country must decide whether and how to deal with the dramatic warming of the planet. Two recent climate reports confirm that we must act on climate change quickly, and that the extreme weather climate scientists have been warning us about are here and will worsen in the years ahead.

Our agricultural activities are both contributors to and victims of the changing climate. At the same time that industrial agriculture releases tremendous amounts of greenhouse gases from excess fertilization, tillage, manure, and animal emissions, our farms and ranches are also particularly vulnerable to the floods, droughts, heat waves, pests, and other problems that climate change exacerbates. For example, the 2016 California drought resulted in over $600 million in economic loss; Hurricane Maria in 2017 devastated 80% of Puerto Rico’s agriculture and caused $780 million in losses; heat waves threaten both crops and farmworkers.  It’s to everyone’s benefit to help those who produce our food be ready for the changing weather. 

Moreover, farmers and ranchers are uniquely situated to help slow climate change simply by preparing for it. Sustainable farmers and ranchers around the country have repeatedly demonstrated that many farming practices can help both slow and withstand climate change. There are many practices that increase carbon stored in soil or that use natural systems to reduce chemical needs and thus lower greenhouse gas emissions. At the same time, they increase the amount of water the soil can absorb and enrich the fertility of the soil, thereby helping farmers endure worsening conditions. These same practices also reduce water pollution and save farmers money.

Given the scale and scope of the climate problem we face, more needs to be done in the next Farm Bill — indeed, much sooner — to accomplish the change needed in the agricultural sector so that it can produce sufficient nutritious food in more extreme weather without making climate change and other pollution worse. This won’t be easy given that the Farm Bureau, one of strongest voices shaping US agriculture policy, repeatedly and fiercely opposes any efforts to curb climate change, and the U.S. Department of Agriculture, as part of Donald Trump's administration, never mentions climate change. Yet, it’s necessary.

The 2018 Farm Bill, by lifting up practices known to have multiple environmental benefits, is a promising place to start.

TSCA Implementation is Proving to be Target Rich

Posted on January 30, 2019 by Lynn L. Bergeson

EPA has maintained a frantic pace implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the 2016 amendments to the Toxic Substances Control Act (TSCA).  Less publicized, but as significant, are the spate of judicial challenges occasioned by new TSCA. There are, as reported previously in this space, the ongoing challenges to the foundational TSCA “framework rules,” federal appellate challenges to the core TSCA rules brought under TSCA Section 19(a).  Newer actions under other TSCA provisions have been brought more recently.

On January 14, 2019, in the U.S. District Court for the District of Vermont, the Vermont Public Interest Group and others sued EPA under TSCA Section 20(a) to compel it to perform its “mandatory duty” to address the alleged imminent threat to human health posed by paint removal products containing methylene chloride. This is the first test of the scope of EPA’s mandatory duties under TSCA Sections 6(a) and 7.  Section 20(a) provides that “any person may commence a civil action … against the Administrator to compel the Administrator to perform any act or duty under this Act which is not discretionary.”  Plaintiffs allege that EPA has not performed its mandatory duty under TSCA Sections 6(a) (authorizing EPA to regulate substances that present an unreasonable risk of injury to health or the environment) and TSCA Section 7 (authorizing EPA to commence civil actions for seizure and/or relief of imminent hazards).  EPA proposed a rule in 2017 under TSCA Section 6 to prohibit the manufacture, processing, and distribution of methylene chloride for consumer and most types of commercial paint and coating removal.  Except for extending the comment period multiple times, no further action has been taken to issue the rule in final.

 

In another regulatory action, on December 21, 2018, EPA denied a TSCA Section 21 petition requesting that EPA amend the TSCA Chemical Data Reporting (CDR) rule to increase asbestos reporting, exclude asbestos from certain exemptions, and lift Confidential Business Information claims on asbestos information reported under the CDR rule.  Due to the government shutdown, the notice has not yet been published in the Federal Register, but EPA has posted a prepublication version.  It is unclear whether petitioners will appeal EPA’s decision, but chances are they will.

 

In another TSCA Section 21 denial action, litigation did follow.  In 2017, EPA denied a Section 21 petition requesting that EPA regulate under TSCA Section 6 the fluoridation of drinking water based on petitioners’ concern that ingestion of fluoride poses an unreasonable risk to humans.  EPA denied the petition and petitioners appealed.  On December 21, 2017, the U.S. District Court for the Northern District of California ruled that EPA had wrongly dismissed the petition based on EPA’s argument that petitioners were required to demonstrate under Section 21 that all conditions of use of fluoride posed an unreasonable risk, not just the fluoridation of drinking water.

For TSCA aficionados, the two Section 21 petitions raise a host of interesting TSCA issues beyond the scope of this blog.  These include, among others, EPA’s interpretation of “conditions of use,” a term new to TSCA since Lautenberg, and what standard of review applies under Section 21, whether de novo or review of the administrative record.  The key take-away here is that these actions reflect the commitment of EPA detractors to use TSCA Sections 19, 20, and 21, the courts, and every other means available to oppose the Administration’s TSCA implementation efforts.  When and how the courts will respond is unclear.  These cases will be closely watched, and more are expected.

Deadlines For Permit Issuance Are Double-Edged Swords

Posted on January 29, 2019 by Seth Jaffe

On Friday, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water quality certification requests under § 401 of the Clean Water Act within one year.

The facts are important here and somewhat convoluted.  The short version is that PacifiCorp operates a number of dams on the Klamath River.  In 2010, PacifiCorp reached a settlement with California, Oregon, and a number of private parties – not including the Hoopa Valley Tribe, the plaintiff here – to decommission certain dams and relicense others.  However, the decommissioning was dependent on certain third party actions, including, apparently, federal funding.  Part of the settlement required California and Oregon to “hold in abeyance” their § 401 certificate reviews.  Specifically, each year, PacifiCorp:

sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same . . . in the same one-page letter . . . for more than a decade.

The Court was not pleased.

Such an arrangement does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project. … There is no legal basis for recognition of an exception for an individual request made pursuant to a coordinated withdrawal-and-resubmission scheme, and we decline to recognize one that would so readily consume Congress’s generally applicable statutory limit.

The Court limited its holding to the facts of this case; it does not apply, for example, to applications that are substantively amended and resubmitted.  It only applies to what PacifiCorp and the states unabashedly did here – reach a private agreement to get around the explicit provisions of the statute.

Nonetheless, it’s an important decision.  Based on data reported in the opinion, it may have a significant impact on a number of FERC licensing proceedings, where similar agreements may also be in place.

The decision also highlights an issue with these types of permitting deadlines.  These provisions follow a fairly well-trod path.  Some agency is slow in responding to permit applications.  A legislature responds by demanding that approvals be issued within a certain period of time.  The regulated community is happy.  Then, life moves on and, in the real world, parties realize that, for one reason or another, strict adherence to the statutory deadline is infeasible, impractical, or just plain not in anyone’s best interest.  They thus do what creative people do – they find a way around the deadline that was supposed to be protecting them.  Or, they try to do so until a court says no, no, no.

Be careful what you wish for.

Wildfires and the Winds of Change

Posted on January 24, 2019 by R. Christopher Locke

Renewable energy sources have been rapidly deployed across the nation over the past decade.  In addition to state government mandates for addressing climate change, federal and state tax incentives and technological advances have spurred their growth, as have the reduced cost and improved efficiency of photovoltaic (PV) solar energy, wind turbines, and energy storage systems.

California has led the way with government-mandated renewable energy goals.  Under AB 32, enacted in 2006, the California Public Utilities Commission (CPUC) established a renewables portfolio standard (RPS) for retail sellers and goals of generating 33 percent of electricity from renewable energy sources by the end 2020 and 50 percent by the end of 2030.  Last year, Governor Brown signed SB 100, which stepped up the 2030 goal to 60 percent and added a new goal of 100 percent of electric power from carbon-free energy sources by the end of 2045.  Hawaii, a state that is “off the grid” and entirely dependent on its own generating capabilities, has similarly adopted the goal of generating 100 percent of its electricity from renewable sources by the end of 2045.;

States have also addressed the need to balance the grid through energy storage systems.  These systems can reduce or eliminate reliance on “peaker plants” and other fossil fuel sources when the sun is not shining and the wind is not blowing, and variable sources like solar and wind are producing little or no energy.  Once again, California has led the way.  Enacted in 2010, AB 2514 calls for 1.3 gigawatts of energy storage capacity from the state’s three large investor-owned utilities by 2020, and legislation adopted last year accelerates and expands the deployment of energy storage systems.

Other states across the nation have adopted similar mandates and incentives to promote the development of renewable energy and storage capacity.  And the low cost of PV solar itself provides a significant incentive.  In fact, a recent study by Lawrence Berkeley National Laboratory documented the geographic spread of new solar installations in 2017, with 40 percent being built in the southeastern states and another 17 percent in Texas alone.

Despite the current Administration’s withdrawal from the Paris Climate Accord and its support for fossil fuels, some recent federal actions have also addressed renewable energy and climate change.  Last year the Federal Energy Regulatory Commission (FERC) amended regulations to facilitate development and use of energy storage systems.  And earlier this month, House Speaker Pelosi re-established the Select Committee on Climate Change and appointed Representative Kathy Castor (D-FL) as Chair. 

Given the reduced costs of solar and wind energy systems, government mandates and support for renewable energy, technological advances, and success in expanding reliance on renewable sources and balancing the grid with energy storage systems, we seem on track toward achieving renewable energy goals in many states.  What could possibly go wrong?

Last week Pacific Gas & Electric (PG&E), announced that it would seek Chapter 11 bankruptcy protection from an estimated $30 billion in potential liability resulting from the horrific California wildfires of the past two years.  Ironically, the hotter, drier climate change-related conditions that contributed to these wildfires and affected PG&E’s potential liability could adversely impact attainment of California’s renewable energy goals to combat climate change.  Scenarios similar to the wildfire-related losses and liability for PG&E could be presented for electric utilities elsewhere in the nation due to severe storms, flooding, storm surge, and sea level rise.

Climate change –related losses, liabilities and bankruptcy proceeding for utilities could in turn affect existing long-term power purchase agreements (PPAs) for renewable sources, especially when combined with changes in demand, the declining cost of solar and wind, and changes in rate schedules.  Indeed, PPA rates have declined significantly over the past decade, providing impetus for potential renegotiation of such agreements.  In PG&E’s 2001 bankruptcy, the court took into account the need for continuation of essential services and left the existing PPAs largely in place.  If older PPAs are renegotiated or restructured, the parties and the court should recognize the need to preserve and promote the financial viability of the renewable energy industry.

In recent years, community choice aggregators (CCAs) have been created by some cities and counties and may provide opportunities to help stabilize power supplies that historically have been furnished almost exclusively by investor-owned utilities.  However, reliance remains on the utilities to maintain and control transmission and distribution networks, and there are some uncertainties about the long-term financial viability of CCAs.

Further government action may also help to stabilize energy supplies and commitments to renewable energy sources and goals.  Last year California passed SB 901, allowing PG&E to issue bonds, supported by increased rates, to cover losses and liabilities relating to the previous year’s wildfires.  And last week, Governor Newsom announced his intent to work with the legislature to find a solution that provides continued reliable electric power, addresses fire victims’ claims, and promotes California’s renewable energy goals.

Reducing potential impacts associated with climate-related risks will depend not only on pursuing programs and infrastructure to prevent and respond to wildfires and other climate-related events, but also on maintaining credit-worthy power purchasers and the financial viability of renewable energy project owners, developers, manufacturers, and suppliers.

In California this will require the support of, and coordination with, the CPUC, FERC, the legislature, the Governor, and the courts.  As noted in Liam Denning’s January 16 opinion in Bloomberg: Business News, the issues are “multi-dimensional” and the solution “will be a job not just for a judge but for the regulators and legislators, too.”

Nuclear Power and Preemption under the Atomic Energy Act: Is a New Era Dawning?

Posted on January 23, 2019 by Shane Swindle

The Supreme Court recently heard argument in Virginia Uranium, Inc. v. Warren, a case concerning the scope of preemption under the Atomic Energy Act (AEA).  Based on the questions several justices asked at argument, the Court could be poised to issue a ruling that would allow states to enact new constraints on the generation of nuclear power, even if motivated by nuclear safety concerns that fall squarely within the scope of AEA preemption.

Back in 1983, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, the Supreme Court held that the Atomic Energy Act (“AEA”) “has occupied the entire field of nuclear safety concerns,” and that a state law that is “grounded in [radiological] safety concerns falls squarely within the prohibited field.” And a few years later, in English v. Gen. Elec. Co., the Court held that “the pre-empted field” under the AEA is defined, “in part, by . . .  the motivation behind state law[s],” and specifically whether those laws are animated by concerns regarding radiological safety.

Looking beyond the neutral language of state statutes and beyond the purposes put forward by state legislatures and regulators, lower federal courts have struck down a wide range of state statutes as preempted by the AEA. In Entergy Nuclear Vt. Yankee, LLC v. Shumlin, for example, the Second Circuit struck down a Vermont statute that required state legislative approval to build a nuclear power plant, even though the statute purported to regulate the generation, sale, and transmission of electric power. Noting that courts do not “blindly accept the articulated purpose . . . for preemption purposes,” the court considered “the legislative record” and found “references, almost too numerous to count, [that] reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and belief that the plant was too unsafe to operate.”  Other circuit courts similarly have looked beyond facially-neutral statutory language to find statutes preempted in cases addressing transportation of spent nuclear fuel and storage of radioactive wastes.

This approach to preemption under the AEA may be about to change. The Supreme Court heard argument on November 5, 2018 in Virginia Uranium, Inc. v. Warren and will decide whether Virginia’s ban on uranium mining on private land is preempted by the AEA. As reported on the SCOTUSBlog, multiple justices questioned whether the Court should look beyond the language of the statute at issue to consider the legislature’s motivation.

The nuclear power industry already faces many obstacles to increasing generation of nuclear power. If the Supreme Court holds that courts may not look behind the language and stated purposes of state statutes, the nuclear industry may also face the prospect of non-uniform, checkerboard regulations across the country, as states use their newfound authority to preclude or sharply limit nuclear power production within their borders.

Transnational Environmental Accountability an Elusive Goal

Posted on January 22, 2019 by Robert Percival

Holding multinational companies accountable for environmental degradation resulting from resource extraction in developing countries has proved elusive, despite efforts by the international community. As described below, law students at the University of Maryland are working to address the problem.

At the 1972 UN Conference on Environment and Development the nations of the world pledged to develop “international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”  But scant progress was made in achieving this pledge as illustrated when no liability was imposed or compensation paid for widespread transboundary damage caused by the 1986 Chernobyl nuclear accident. Despite a pledge in the 1992 Rio Declaration to "co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation” for transboundary pollution, effective remedies have not been developed.

Developing countries have struggled to develop their own legal remedies for harm caused to their environment by the resource extraction activities of foreign corporations.This is well illustrated by the decades-long litigation over oil pollution in Ecuador allegedly caused by a U.S. company during the 1970s. In 2011 a court in Ecuador held the U.S. company liable for $9 billion in damages and cleanup costs. While this decision was upheld by the Supreme Court of Ecuador, the plaintiffs have yet to be able to collect on the judgment due to manipulation of corporate structures in countries where the oil company holds assets.

A RICO judgment obtained by the oil company against the plaintiffs’ lawyers has been used to promote a narrative that the litigation was a fraudulent shakedown from the start. But the inconvenient truth undermining this narrative is that the litigation initially was filed in federal court in New York and transferred to the courts of Ecuador only at the urging of the U.S. oil company.

The Ecuador litigation initially was brought in the U.S. under the Alien Tort Statute (ATS), a law enacted by the first U.S. Congress in 1789 that expressly authorizes suits in federal court by foreigners for torts committed “in violation of the law of nations.” But in Kiobel v. Royal Dutch Shell a narrowly divided U.S. Supreme Court in 2013 rejected claims by Nigerian environmentalists by adopting a presumption that the ATS does not apply to conduct occurring outside the U.S.  

Although the UN Human Rights Council has begun negotiations toward drafting “an international legally binding instrument on transnational corporations and other business entities with respect to human rights,” for now prospects for improving accountability depend largely on developing countries improving their own legal remedies.

As multinational corporations have intensified their efforts to exploit natural resources in developing countries, their activities often have caused severe environmental harm and intense conflicts with local populations. Massive infrastructure projects associated with China’s “Belt and Road” initiative have saddled some of the world’s poorest countries with monumental debt obligations that are exacerbating conflicts between the developed and developing worlds. Although the Chinese government has pledged to promote a “green Belt and Road,” Chinese companies operating in the developing world often do not understand or simply disregard local environmental laws and regulations. 

The University of Maryland Carey School of Law’s Environmental Law Program recently launched a Transnational Environmental Accountability (TEA) Project. The project is under the direction of Zhang Jingjing, an award-winning public interest environmental lawyer, who has spent years monitoring the environmental performance of Chinese companies in the developing world.  For nearly a decade before moving to the U.S., Zhang was the litigation director of the Beijing-based Center for Legal Assistance to Pollution Victims (CLAPV) where she won several landmark environmental cases in Chinese courts.

Last July Professor Zhang appeared in court in Cuenca, Ecuador to support the efforts of the Kañari-Kichwa indigenous communities to stop a Chinese company from mining in Ecuador’s Cajas Nature Reserve.  Zhang argued that Chinese law requires companies to abide by both international treaties signed by China and domestic law in the countries in which they operate. In a historic decision in August the court in Cuenca agreed and upheld an order that the Chinese company halt all mining activities. 

Working with Professor Zhang and Professor Seema Kakade, director of Maryland’s Environmental Law Clinic, Maryland law students are helping to assist NGOs in holding multinational corporations accountable for environmental harm they cause in Africa, South America and Southeast Asia.  The Africa team is focusing on Chinese investments in Guinea, including a bauxite mine and a proposed oil refinery. One of the poorest countries in the world, Guinea has one third of the global bauxite reserves and is China’s number one bauxite provider. In June 2019 a team of students from the Maryland’s law school and School of Nursing will travel to Guinea to assist NGOs in documenting the impact of mining on local villages.

In many developing countries bribery is a serious problem undermining enforcement of environmental law.  In July 2017 I took a group of Maryland students to Malawi to assist the University of Malawi’s new Environmental Justice and Sustainability Clinic.  In Blantyre we met with a local NGO whose members complained that officials approving a Chinese company’s construction of a railway arrived at an important hearing in new luxury cars apparently given to them by the company. 

Both the U.S. and China have laws that prohibit companies from bribing officials in foreign countries. To its credit, the Trump administration is beefing up enforcement of the Foreign Corrupt Practices Act (FCPA) and targeting Chinese companies who may run afoul of it.  China has yet to bring any actions to enforce its laws prohibiting bribery of foreign officials, but Chinese environmentalists are hoping eventually to persuade their government to do so.

Maryland students will participate in a conference in China in summer 2020 to help educate Chinese companies on how to comply with the environmental laws in developing countries.  Ultimately transnational accountability will be enhanced when there is greater respect for environmental law and the importance of the rule of law in the developing world.

Ode to Angus: The Macbeth Report

Posted on January 17, 2019 by Scott Fulton

In the Summer of 2017, ELI undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI and ACOEL communities and in cooperation with the Environmental Council of States (ECOS). Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI. As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting report, The MacBeth Report: Cooperative Federalism in the Modern Era, is, I believe, one of the more thoughtful pieces on cooperative federalism that has been rendered. Let me highlight some of the report’s key contributions.  

As the report reflects, there is considerable support at this juncture for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs; but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good of a, job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The report also considers the role that a citizenry — equipped with unprecedented amounts of environmental information and operating in a socially networked world — can play as a driver of environmental behavior going forward.

In terms of opportunities for adjustment or realignment, The Macbeth Report points to a number of options, including:

· Possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

· ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. The report advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can tuned. Permitting decisions may a good place to focus such pilot projects.

· Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice in implementation decisions.

· The report generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

· Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, the report recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give The Macbeth Report a look. Be sure to read again Steve Ramsey’s wonderful tribute to Angus, which we have embedded in the report. Many thanks to all who contributed to the thinking in the report, and, of course, a special thanks to you, Angus. 

EPA Calls for Market-Based and Collaborative Approaches to Achieve Nutrient Reductions

Posted on January 10, 2019 by Todd E. Palmer

Last month, the U.S. Environmental Protection Agency (EPA) and Department of Agriculture (USDA) issued a letter to their state counterparts highlighting plans to improve water quality and seek “meaningful reductions” in nutrient loadings to waterways. EPA and USDA leadership note that while progress has been made, national water quality data indicate that nutrient losses from agricultural lands continue to be widespread, especially in the Mississippi River basin. Moving forward, the agencies plan to identify further opportunities to address nutrient loadings from nonpoint sources, including non-regulatory conservation efforts and market-based programs.

The agencies’ recommitment to these topics should come as welcome news to the regulated and environmental community alike. Existing market-based solutions, such as water quality trading, have helped allocate limited resources toward technologies and practices with a lower cost per unit of nutrient reduction. EPA and USDA state that they have heard that additional regulatory flexibility in areas such as TMDL implementation may be useful in facilitating market-based strategies. EPA’s willingness to engage with stakeholders on how it can remove regulatory barriers to such efforts is commendable.

Perhaps even more significantly, the agencies indicated a desire to partner with local stakeholders to develop local solutions to nutrient-loss challenges. State and local partners are well-positioned to develop innovative approaches to reducing nonpoint source pollution that are both effective and responsive to local needs. For example, since Wisconsin adopted more stringent numeric phosphorous water quality criteria in 2010, municipal and industrial wastewater dischargers have improved water quality and realized compliance savings through one of several market-based phosphorous compliance options. Those options include water quality trading, as well as adaptive management and the phosphorous multi-discharger variance, where sources comply with interim limits and fund local efforts to reduce nonpoint source contributions. Strategies to amplify existing market-based solutions, including creation of a “clearinghouse” to facilitate trades and other compliance strategies, are also being discussed around the country.

EPA’s willingness to support and build on these efforts by evaluating regulatory barriers and providing technical and financial support for local efforts should open the door to innovative nutrient control strategies. Federal support for these efforts is also especially critical in the current farm economy, which finds farmers managing through a prolonged period of low commodity prices that may limit the resources available for voluntary environmental enhancements.

Trees have no tongues, but the Lorax has one

Posted on January 8, 2019 by Eileen Millett

Last month, in Cowpasture River Preservation Association v. Forest Service a panel of the 4th Circuit rejected the U.S. Forest Service approval of a pipeline development that would have crossed 21 miles of national forest land, and the Appalachian National Scenic Trial.   In scolding the Forest Service for not adequately protecting the trees, the court cited Dr. Seuss’ classic The Lorax, saying, “We trust the United States Forest Service to ‘speak for the trees,’ for the trees have no tongues.”  More on the case in a moment, but I find that quote to be particularly heartwarming.

Some years ago, when I left the tree lined streets of Ditmas Park, Brooklyn for the state capital, to join the New York State Department of Environmental Conservation, my boss presented me with a welcoming gift, though it was actually for my young son. The book was The Lorax with an inscription that read “Dear Elliott, ask your mommy to read this book to you and you will learn why she goes to work every day.”  The Lorax like Rachel Carson’s Silent Spring, reminds us that our birds, trees and natural resources, air, water had no one to speak for them, and needed to rely on us to protect them. 

Dr. Seuss’s book resonated with me in a huge way, since my house abutted the Albany Pine Bush, the home of the Karner blue butterfly, an endangered species.   I had left one “Park” area for an area even more verdant. The Pine Bush is one of the best remaining examples of an inland pine barrens ecosystem in the world.  It has come to be seen as a historical, cultural, and environmental asset to the Capital District and Hudson Valley regions of New York.  Yet, despite a valiant fight by a local conservation group, the City of Albany allowed the rezoning enabling the Crossgate mall development adjoining the butterfly habitat.

I had chosen to decamp to Guilderland, a town west of Albany, when the feelings about the then newly built Crossgates mall were still raw.   My tree protectionist stance made it impossible for me to ever shop at what is now the 3rd largest mall in NY State.  In gifting me The Lorax, my boss helped a young boy understand what his mom did, why she loved what she did, and made it impossible for me not to connect with the trees in the Pine Bush nearby.  I have always loved the fact that Dr. Seuss’ book had given the trees a mouthpiece, the Lorax.  Like Aaron speaking for Moses, the Lorax spoke for the trees. “I am the Lorax, I speak for the trees.”

So imagine my validation reading Cowpasture when a three judge panel of the 4th Fourth Circuit blocked the Atlantic Coast Pipeline from a critical crossing of the Appalachian National Scenic Trail through the Blue Ridge Mountains near Wintergreen Resort.  The Federal Energy Regulatory Commission had approved the pipeline route for which the Forest Service issued a Special Use Permit.   In rejecting the U.S. Forest Service authorization for the $7 billion Atlantic Coast gas pipeline to cross national forests, the court said the agency's violations of federal environmental and forest management laws would disappoint even the Lorax, and further found that the National Forest Service had abdicated its responsibility in not speaking for the trees.    The court went further saying that “it is nothing short of remarkable that the Forest Service — the federal agency tasked with maintaining and preserving the nation’s forest land — takes the position that . . . a project specific amendment, no matter how large, will rarely, if ever, cause a substantial adverse effect on a national forest.” The panel went on to say that “ . .[i]t is even more remarkable that the agency is unable to say what would constitute a substantial adverse effect on the forest.”   

The pipeline would have stretched 605 miles through three states from West Virginia to North Carolina.  The ruling also found that the Forest Service had acted arbitrarily and capriciously by changing its forest management plans to accommodate the project and by not fully considering alternative routes that would reduce the pipeline’s damage to national forest land, and violated NEPA by “failing to take a hard look at the environmental consequences” to the national forests it would cross.

This decision demonstrates that agencies cannot simply ignore environmental concerns that were previously raised simply because there is a new federal administration that is more supportive of a development than the previous one.  The court said that based on the sequence of events, the decision to grant the permit appeared to be “pre-ordained” rather than subject to a serious environmental review.  So, at least the 4th Fourth circuit has acknowledged that the Lorax is still speaking for the trees.

A Diverse Chorus of Voices Seek to Be Heard in Utah Monuments Cases

Posted on January 7, 2019 by Brenda Mallory

December 4, 2018 was the one-year anniversary of President Trump’s proclamation disaggregating the boundaries and reducing the size of the Bears Ears and Grand Staircase Escalante national monuments, with Bears Ears being reduced by 85% and Grand Staircase by half, a total reduction of nearly two million acres. As we enter the second year of what many believe are illegal reductions, the litigation challenging the President’s actions continues to inspire broad public interest and controversy. 

On October 1, 2018, shortly after the D.C. federal district court refused the federal government’s request to transfer the lawsuits to the Utah federal court, the Department of Justice (DOJ) filed sweeping motions to dismiss the five pending complaints, three associated with Bears Ears and two with Grand Staircase.  Among the plaintiffs were the coalition of Sovereign Tribes that spearheaded the monument designation of Bears Ears, local businesses, scientists, and environmental organizations. On November 15, the plaintiffs filed their briefs in opposition to the DOJ motions to dismiss. 

On or about November 19, amicus briefs were filed by a diverse array of parties in support of the plaintiffs, including state Attorneys General, members of Congress, natural resources law professors, archaeological associations, Tribal organizations, outdoor user groups, and locally elected officials in Utah. The amicus briefs, if accepted by the court, would provide important context about the impact of monument designations on the resources being protected by those designations and on the user communities. On November 27, DOJ asked the court to deny all amicus briefs other than that filed by the Attorneys General, including the brief filed on behalf of 118 members of Congress. At the time this blog was finalized, the court has not yet ruled on the motion. DOJ filed its reply to the plaintiffs’ opposition briefs on December 13.

The core of the litigation is whether the President has the authority under the Antiquities Act to revoke or substantially modify a predecessor President’s monument designation. The Antiquities Act gives the President the authority to “declare” as national monuments landmarks, historic and pre-historic structures, and other objects of historic and scientific interest and to “reserve” parcels that are “confined to the smallest area compatible” with protection of the objects. All five groups of plaintiffs argue that Congress did not delegate the authority to revoke or modify monuments to the President. The federal government’s motion to dismiss is based in part on traditional arguments about the lack of standing and ripeness. DOJ also makes more sweeping arguments that go to the heart of the case, asserting that plaintiffs’ claims fail as a matter of law, with its brief pointing to legislative history, the text of the statute, actions by previous Presidents, and the lack of action by Congress. Plaintiffs argue each factor the other way.

One highly consequential point on which the parties differ starkly is the impact of monument designations and the practical consequences for resource protection that flow from the Presidential act. DOJ asserts that other federal law provides sufficient protection absent such designation, and that any potential harm from President Trumps’ “UN-designation” will only occur if future activities, subject to future process, are authorized. DOJ further argues that the President has an ongoing, affirmative obligation to shrink the designated area if he believes it is not “the smallest area compatible” with protection of the objects, a key statutory term, as noted above.

The plaintiffs offer a compelling view of the weaker legal protections, imminent threats, and uncertainty that monument objects would face if monument boundaries could be redrawn to exclude them. On this point, in particular, amicus supporters offer context and experience to support Plaintiffs’ position. For example, the brief submitted by 118 Democratic members of Congress explains that the authority Congress delegated to the President under the Antiquities Act was intended to be “one-way” and constituted a logical choice since risks to objects require quick protective action while the removal of protections is better suited to the legislative process retained by Congress. The natural resource law professors offer a detailed description of how the Antiquities Act works in combination with other resource management statutes, including the Mining Law of 1872. Absent the monument designation, this law permits a wide range of ground-disturbing activities on public lands with minimal or no notice and generally with no prior approval.

Similarly, the archaeologists’ brief provides detailed examples of recorded historic sites that are no longer subject to the protections offered by a monument designation, with about half (1,910) of the 4,000 documented sites located within the original boundaries of Grand Staircase no longer having monument protection and approximately 73% of documented archaeological sites having been removed from the Bears Ears monument. The brief filed by the National Congress of American Indians, the oldest and largest national organization of American Indian and Alaska Native tribal governments and their citizens, underscores the importance of the original Bears Ears designation to Native American history and culture and the harm associated with eliminating the Commission of Tribal Sovereigns which was established to ensure that the Tribes had enhanced participation opportunities in the long-term management of their heritage.

Communities and users dependent on monument designations, both in Utah and elsewhere, share how they rely on the monuments and have built systems and infrastructure around them based on an understanding of their permanence. The Attorneys General from Washington, California, Oregon, New Mexico, Hawaii, Maine, Maryland, Vermont, Rhode Island, and New York describe how states enter cooperative management agreements, provide investments in infrastructure, change state rules and regulations, conduct state university research and preservation within monuments, and promote economic and health benefits for citizens. The Mayor of Salt Lake City and other affected officials emphasize the importance and economic reliance of gateway communities on monument designations, as well as the failure of the Trump Administration to hear all the local voices in reaching its decision on the monuments. The Outdoor Alliance describes how the monument designation changes the management of these resources and therefore the user experience. The Outdoor Alliance also counters the government’s suggestion that the lands would be similarly protected without monument status.

I find these points and other arguments made by the plaintiffs and amici supporting the plaintiffs very persuasive as they illustrate the complex array of interests harmed by President Trump’s proclamation. The federal government and its supporters from the State of Utah and the Farm Bureau took the opportunity to present their views in the December 13 filing. That may be a topic for discussion in later blogs.

Carrying Coals to Newcastle … and Katowice

Posted on January 3, 2019 by Zach C. Miller

When Newcastle was the largest British exporter of coal, talk of “carrying coals to Newcastle” meant engaging in something senseless, superfluous, or foolish.  The Trump administration’s recent actions on coal use and climate change have taken the expression to new heights – or depths.

In June 2017, the Trump administration isolated the U.S. by making it the only country in the world to announce plans to withdraw from the 2015 Paris Agreement on climate change.  Last month the administration made things worse by its actions at the U.N. climate conference in Katowice, Poland – an historic, heavily polluted coal mining area.  Instead of joining the signatories to the Paris Agreement in negotiating the “rule book” for implementing that Agreement, the U.S. delegation presented a “side-event” (some say “side-show”) promoting the use of coal and fossil fuels.  Use of innovative, cleaner technologies to burn coal and fossil fuels would be laudable if combined with sound strategies to transition to cleaner, sustainable energy sources, but that was not the thrust of the side-show.  The coal “pep rally” in Katowice thus highlighted that the U.S., as represented by the current administration, is tone-deaf and no longer a leader in international climate discussions. 

The Trump administration staged a similar coal-booster event at the 2017 U.N. climate conference in Bonn, but with important differences.  In Bonn, U.S. representatives worked extensively with other countries on the Paris Agreement’s rule book, with an eye towards the U.S. possibly not withdrawing from the Agreement.  But most of the key Trump administration insiders who then favored staying in the Paris Agreement are now gone, including Secretary of State Rex Tillerson, national security advisor H.R. McMaster, energy adviser George Banks, and economic advisor Gary Cohn.  They’ve been replaced by Paris Agreement opponents:  Mike Pompeo, John Bolton, Wells Griffith, and Larry Kudlow.  As a result, the participation and influence of the U.S. in international climate discussions has become increasingly leaner, weaker and less relevant.

Meanwhile, at the G-20 Summit last month in Buenos Aires, countries led by France and China further isolated the U.S. when the Summit’s final communique stated that all 19 other countries “reaffirm that the Paris Agreement is irreversible and commit to its full implementation.”  The U.S. stuck out like a sore thumb by reiterating there its decision to be the sole nation to withdraw from the Paris Agreement, and instead touting “its strong commitment to economic growth and energy access . . . .”

These U.S. actions come directly on the heels of three significant studies, two from the Trump administration itself, that directly refute the administration’s positions.  The October 2018 Report of the U.N. Intergovernmental Panel on Climate Change warned that the world’s use of coal for generating electricity will need to be reduced dramatically by mid-century – from 40% down to 1-7% – to prevent catastrophic droughts, fires, floods, and storms resulting from climate change.  Then the recent report of DOE’s Energy Information Administration concluded that regardless of the climate debate, over 500 plants and 75 gigawatts of coal-fired power have been or soon will be retired and U.S. coal use is expected to continue to decrease (44% less than 2007 use), due mainly to market forces such as cheaper natural gas and renewable energy.  Finally, the November 26, 2018 Fourth National Climate Assessment – issued by 13 federal agencies and the Trump administration’s own White House – unequivocally states that climate change is already occurring, is partly caused by human activity, and must be urgently addressed to prevent catastrophic impacts.  President Trump’s only response to that overwhelming evidence from his own office: “I don’t believe it.” 

Why does this matter?  Two reasons.  First, if climate change is the severe and urgent problem virtually all climate scientists (and the White House’s own report) conclude it is, the failure of the U.S. to respond to it is an enormous and possibly irreversible blunder.  Second, taking such a position has caused the U.S. to cede its leadership role in the international debate on climate change and the design of creative and appropriate responses to it.  Because others – including China and Russia – are stepping into the resulting void and steering the direction of future actions in this and related environmental and economic fields, the U.S. may never recover that leadership role. 

The Trump administration’s Katowice side-show and similar superfluous actions may pander to the administration’s base.  But these senseless acts are merely “carrying coals to Newcastle” and accomplish nothing, while our most critical environmental problem goes unaddressed by the federal government.

Using a Jack-Hammer When a Screw Driver Would Do

Posted on December 17, 2018 by Kevin Murray

I grew up an auto-mechanic’s son. My father was one of the best, and he taught me a great deal about selecting the appropriate tool for the job. Despite efforts over many years to streamline the CERCLA remedial process, the program seems not to have grasped this basic concept.

On one occasion, I recall working with my father to diagnose a troubled engine. As I was hooking up the engine to a computer that could perform many diagnostic tests and generate lots of data to identify the nature of the problem, my father stopped me and said, “That is like using a jack hammer when a screw driver will do.” He continued, “I have seen this many times before, the problem is this cylinder.” He then took a three-foot-long screwdriver placed one end on a rocker panel and the other on his ear. After listening for a moment, he then proceeded to describe the problem and solution saving a great deal of time and money.

After decades of working on the remediation of mine tailings and waste rock under CERCLA, I am convinced that the current process utilizes a jack hammer when a screwdriver would do. Most of the time remediation related to tailings and waste rock will take a familiar form. The remedy will either be (i) do nothing and utilize institutional controls, (ii) cover the material in place, (iii) consolidate and cover in place, or (iv) excavate the material and dispose offsite. Yet the current process requires years of study and data collection, and millions of dollars, to make a remedy selection that will consist of one or a combination of the four options.

Former Administrator Pruitt's establishment of the Superfund Task Force continues the search for greater CERCLA efficiency, and while the goal is a good one, developing new initiatives may not be the best use of resources. It would be well to look at idle programs that held some promise, but for whatever reason have gone the way of policy changes. One such program is the concept of presumptive remedies. Presumptive remedies are preferred technologies or remediation strategies for common categories of sites. The preferred remedy is based on historical patterns of remedy selection, aggregated engineering evaluations, and multiple periods of data collection.

The presumptive remedy approach grew out of the Superfund Accelerated Cleanup Model, developed in the early 1990s, to streamline the Remedial Investigation and Feasibility Study, and even the Remedial Design/Remedial Action stages of the CERCLA process. For example, EPA developed presumptive remedies for contaminated sites involving, among others, metals-in-soils, VOCs in soil and groundwater, municipal landfills, and groundwater, and played with manufactured gas sites. While the application was occasionally clumsy, it was a sound idea. For some reason, presumptive remedies were not heavily used and lost momentum in the late 1990s but never wholly disclaimed by EPA.

The concepts of remedy efficiency and presumptive remedies are ripe to merge, and while it could be more broadly applied, it seems specifically right for certain types of mine sites. For waste rock and tailings remediation there exists a robust cumulative data set, a mature pattern of remedy selection, as well as experienced and sound engineering designs. The existence of this empirical information is exactly what was intended as the basis for establishing a presumptive remedy, and doesn’t require creation of new policy.  

It is clearly inefficient to spend millions of dollars and years of data collection and analysis when a remedy is usually apparent. The program tools are available. EPA should put the jack hammer away, pick up a screw driver and get straight to the task at hand. Quicker remedial resolution would likely lead to a greater willingness on the part of potentially responsible parties to undertake actions and see the productive re-purposing and restoration of hundreds of thousands of acres of property.

2018 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD WINNER – EMILY HUSH

Posted on December 12, 2018 by JB Ruhl

Co-Author: Mary Ellen Ternes

For those Fellows who were not able to attend the Annual Meeting in Grand Teton National Park, this is to fill you in on the winner of the Herrmann Award this year, Emily Hush.  Emily is a recent graduate of Columbia University Law School and a student of our own Michael Gerrard (although we did not learn of the Gerard connection until after completion of the award selection process). The title of Emily’s winning article is Where No Man Has Gone Before:  The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements, Columbia Journal of Environmental Law, Vol. 43:1 (link).

In the time Emily spent with us, she met many College Fellows and ably presented her winning article, which is an analysis of the recent trade agreement between Canada and the EU, the Comprehensive Economic and Trade Agreement (or CETA), as it pertains to sustainable development. As noted in the summary of the paper, in free trade agreements, a country’s power to protect the environment depends on the scope of its right to regulate, as interpreted by investment dispute resolution bodies. This right determines to what extent the State may regulate in the public interest without incurring the obligation of compensating investors for an indirect expropriation of their property. Some scholars have argued that arbitration panels and trade agreements define the sovereign right to regulate too narrowly, unduly favoring investor interests. In response, the EU has spearheaded the development of the so-called New Generation Free Trade Agreements. New Generation Agreements combine traditional free trade agreements with international investment agreements and add sustainable development as a guiding principle to create a new, all-inclusive type of bilateral agreement. These Agreements seek to recalibrate the power balance between investors and States by strengthening the right to regulate. CETA represents the culmination of the EU’s aspirations for New Generation Agreements thus far. Emily’s paper asks whether the right to regulate as granted by this progressive agreement will enable Canada and the EU to successfully defend regulation undertaken to further sustainable development against investor claims of indirect expropriation. She concludes that CETA provides a useful framework for expanding the reach of the principle of sustainable development and effectively shields the Parties’ right to regulate, without contradicting existing case law.

Emily earned her law degree from Columbia Law School in May 2018, where she was the winner of both the Harlan Fiske Stone Moot Court and the European Law Moot Court in Luxembourg. Prior to law school, Emily earned a Bachelor’s degree in French horn performance from McGill University. Emily is now an associate of Debevoise & Plimpton. She will be clerking for Judge Wendy Beetlestone in the Eastern District of Pennsylvania in 2021-2022, and for Judge Robert E. Bacharach in the 10th Circuit from 2022-2023. 

The Stephen E. Herrmann Environmental Writing Award is a prize presented to the author of a student article, note, case comment or essay published in a law journal during the current academic year, or scheduled for publication in the next academic year, that best presents a current topic in the field of environmental law.  Submissions are judged on the basis of originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. The Herrmann Award includes a stipend of $3,500 to the author of the winning article, note, case comment or essay, and $500 to the submitting law journal. The winner of the Herrmann Award is invited to present his or her submission to the Fellows at the College at their Annual Meeting. Emily is the third winner in a row to attend.

Channeling Scalia: Does the Clean Water Act Regulate Indirect Discharges “to” Navigable Waters Via Groundwater?

Posted on December 11, 2018 by Patrick A. Parenteau

On December 4 the Supreme Court signaled its interest in this question when it requested the views of the Solicitor General on whether to grant review in two pending petitions for certiorari. In County of Maui v. Hawai'i Wildlife Fund, the Ninth Circuit held that wastewater injection wells are point sources requiring NPDES permits because the “pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” In Kinder Morgan Energy Partners LP v. Upstate Forever the Fourth Circuit held that gasoline from a ruptured underground pipeline that was seeping into a nearby waterway was subject to the CWA due to a "direct hydrological connection."

By contrast the Sixth Circuit as well as a different panel of the Fourth Circuit have ruled that leachate from coal ash pits that is polluting rivers and lakes is not a “discharge from a point source” requiring a permit under the CWA. Though a majority of the thirty-odd decisions on this issue have found in favor of CWA jurisidiction, there is a definite split among the lower courts as described in a handy chart and accompanying article published by Greenwire. In looking over the decisons it appears that the “conduit” theory, evaluating time and distance between the source of the pollutants and the receiving water, and often supported by a dye test, is perhaps the most defensible methodology for asserting jurisdiction over discharges to “tributary groundwater.”   

Meanwhile EPA is pondering whether to change its longstanding position, reiterated in the Clean Water Rule (aka WOTUS), that the CWA does cover, on a case-by-case basis, point source discharges to groundwater that are directly connected to navigable waters. Back in February EPA published a request for comment in the Federal Register on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” The comment period closed in May and since then there has been no futher announcement.

The SG’s response is due January 4, which is an unusually short turnaround time that indicates four Justices may be in favor of granting one or both of the petitions in time for argument this term. The SG could cite EPA’s ongoing review with the prospect of a new policy statement or rulemaking as a reason to deny review at this time, but it is unlikley the Court would accede to that. This issue has been kicking around for decades; it has generated a good deal of confusion among the lower courts and conflicting rulings not only among but within the Circuits; it adds to the uncertainty and controversy that plagues the implementation of the CWA; and it has significant economic and environmental implications. Awaiting further word from EPA is unlikely to clarify or resolve any of this. Nor is a re-interpretation of the statute by the current EPA likely to garner much deference from a Court that has shown signs of cutting back on the scope of the Chevron doctrine.

That leaves the question how should the Court resolve the issue. In the Maui case the Ninth Circuit relied fairly heavily on Justice Scalia’s plurality opinion in Rapanos in which he  recognized the CWA does not forbid the addition of any pollutant directly to navigable waters from any point source, ” but rather the “addition of any pollutant to navigable waters.” (547 U.S. 715, 743 (2006)) Though Rapanos was a splintered decision on many points there was no disagreement with Scalia’s view that the text of the statute clearly encompassed an indirect discharge that simply “washes into” navigable waters. Whether that view prevails this time around is of course unknown.

Any rule this Court would adopt would have to be narrowly tailored to situations where the source of the pollutant was clearly a “discrete conveyance” and the evidence of a direct hydrological connection to navigable water was convincing. But assuming those predicates were proven it would be hard to justify on either scientific or policy grounds excluding such discharges from the ambit of the permit program. Indeed it would create a pollution loophole that no other existing regulatory program --federal or state--would adequately fill.

Two Strikes Against the Administration’s WOTUS Suspension Rule

Posted on December 10, 2018 by Seth Jaffe

In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule.  Now, a judge in Washington has gone even further.  Judge John Coughenour has vacated the rule.

The core of the new decision is the same as that in South Carolina.  By refusing to take comment on the impact of the delay in the effective date of the WOTUS rule, the Administration acted arbitrarily and capriciously and thus violated the Administrative Procedure Act.

For my non-lawyer readers wondering what the difference is between a nationwide injunction against the Suspension Rule and vacatur of the Rule, I’m picturing a petulant President Trump, sitting in a corner.  First, his teacher tells him that he can’t play with his shiny new toy – that’s an injunction.  Then, still not satisfied, another teacher comes by and takes the toy away completely.  That’s vacatur.

Two Wrongs Don’t Make a Right for the Dusky Gopher Frog

Posted on December 3, 2018 by Jeffrey Porter

You don’t see a unanimous decision of the United States Supreme Court very often, especially in an environmental case.  But that’s what happened last week when the Court held that in order for an area to be a “critical habitat” of an endangered species, it first has to be a habitat.

The case is Weyerhaeuser Company v. United States Fish and Wildlife Service, et al, 586 U.S.      , (November 27, 2018) and it revolves around 1500 acres in Louisiana where the dusky gopher frog, an endangered species, once lived but hasn’t been seen for over a half century.   The United States Fish and Wildlife Service designated the area as “critical habitat” for the endangered frogs even though everyone agreed that they could not live there without “some degree of modification,” including replacing the timber plantation currently occupying the area with a different type of forest, something the property owner, Weyerhaeuser, did not want to do.  The District Court upheld the Fish and Wildlife Service’s “critical habitat” designation and a divided Fifth Circuit Court of Appeals did as well.

The Supreme Court sent the case back to the Fifth Circuit for reconsideration in light of the Court’s holding that an area can be designated as “critical habitat” of an endangered species only if it is first actually a habitat for that species.  While that certainly makes sense, there are two other less obvious aspects of its decision that are worthy of note.

First, although the Endangered Species Act requires the designation of “critical habitat” for an endangered species at the same time the species is listed as an endangered species, the dusky gopher frog was listed in 2001, when there were only 100 of them left at a single pond in southern Mississippi, and the Fish and Wildlife Service didn’t designate any “critical habitat” for them until 2010, after it was sued by the Center for Biological Diversity for failing to do what the law requires.   This disregard by an agency of the Federal Government of its unambiguous statutory mandate is at least as disturbing as its misapplication of the law when it was forced to honor that mandate.   While two wrongs don’t make a right, the first blatant wrong should not be lost in the shuffle.

Second, the Supreme Court went to great lengths to make clear that the courts can, and should, review the Fish and Wildlife Service’s decision not to exclude an area from a “critical habitat” designation even though the statute leaves the decision of whether or not to exclude an area to the agency’s discretion.  In its unanimous opinion, the Supreme Court said that courts “must assess whether the agency’s exercise of that discretion was based on consideration of the relevant factors, including costs and benefits.

It is striking that the Supreme Court opinion went this far since it is pretty clear from the record that the area in question does not qualify as “critical habitat”, and so whether or not it would be appropriate to exclude that area is likely irrelevant in this case.   Indeed, it is hard not to read this substantial part of the Court’s opinion without wondering about the future of the 35 year old Chevron doctrine of deference to agencies which touches every aspect of environmental law, and not just dusky gopher frogs.

Impact of Midterm Elections on Environmental Protection - A Green Wave, and a Green Wall

Posted on November 26, 2018 by Joseph Manko

Environmental protection was “federalized” in 1970 under President Nixon, with the creation of the EPA and the launch of several decades of federal statutes and regulations designed to make uniform the states’ environmental compliance requirements. 

During the past almost 50 years, I have seen the politicization of environmental protection and the best and the worst of federal leaders who were trusted with protecting our environment.  This politicization has grown more extreme since Donald Trump’s election in 2016.  Given the federal government’s important role in protecting the environment, it’s worth examining the impact of the midterm elections on environmental protection during his next two years in office. 

 One way of reviewing the election results is to consider the campaign conducted by the League of Conservation Voters (“LCV”) at both the federal and state levels, and LCV’s conclusions regarding that effort.  LCV publishes a National Environmental Scorecard covering the most important environmental legislation considered and the corresponding voting records of all members of Congress, as well as a list of the “Dirty Dozen” legislators at both the federal and state levels.  For the first time this year, LCV published two such lists at the federal level, one for the House and another for the Senate. 

Here are the numbers: 

 

·         Was it a blue wave or a blue flood?

·         Flipping the House - 39 changes, 26 targeted seats with 12 of 13 Dirty Dozen House members defeated

·         Successfully defending a number of pro-environmental Senators in six targeted seats

·         Defeating 10 of the 12 state Dirty Dozen in the 2017/2018 elections

·         Successively supporting 10 new green governors

·         Successively supporting candidates in 16 state legislatures

·         Advancing clean energy initiatives at the state level (eight of 10 critical ballot measures passed)

·         Positively impacting redistricting and gerrymandering in two states

·         Achieving effective Blue/Green Alliance (LCV and labor unions, and environmental organizations combined))

In addition, many states have expressed their intention to enact clean energy programs (e.g., carbon tax which is a tough sell, cap and trade, and renewable energy) to replace Obama’s Clean Energy Plan which EPA intends to repeal and replace.  Unlike Congress, there are essentially single-party legislatures in a number of states, with 30 Republican-controlled and 18 Democratic-controlled, and such party control could impact the scope and content of state programs.  The party affiliation of the governor could also be important.  There are now 26 Republican governors and 23 Democratic governors. 

 LCV’s analysis of the midterm elections is summarized in its post election tweet:  “For our clean air, clean water and public lands, this changes everything.”  However, divisive issues remain and could result in considerable controversy and debate.  Here are some examples:


·         Climate Change projections, as evidenced by the recent controversy about the rate of ocean warming

·         Most efficacious measures for reducing CO2 emissions and preserving existing reductions, such as from non-farmed soil and trees

·         Whether to exempt cross border traffic from environmental regulations

·         How to address catastrophic events such as floods and fires exacerbated by Climate Change

 

Last week’s NY Times editorial headline is entitled “Midterm Climate Report:  Partly Cloudy”.  And that may be a good summary of where things stand. 

At the federal level, for the next two years the Republicans will continue to control the Senate and Donald Trump will continue to live in the White House.  The unresolved question therefore is what impact the Democrats controlling the House will have on unwanted legislation and regulations. 

Perhaps more important, at the state level, there is little doubt that many states will fill the Trump-created vacuum as we return to pre-federalization days, with the states becoming environmental protection laboratories.  That of course raises even more questions regarding the future of environmental legislation and regulations and what standards – and how many – will emerge.