Places

Posted on June 20, 2018 by Jonathan Z. Cannon

On vacation on Sanibel Island, FL, three hour’s drive from the central Florida town I grew up in, I’m thinking about place.  When I vacationed here as a child, Sanibel was a sleepy island, with primitive bungalows for tourists, insatiable hordes of mosquitoes, mephitic drinking water, and glorious shell beaches, refreshed daily by the tides. Like most of Florida’s West Coast, Sanibel has undergone a sea change since then, transformed into a high-end resort community with luxury accommodations and expensive homes – and, yes, points of public access to the beach. There’re fewer good shells, because so many more people are hunting them.

A visitor from the early days might say the island had been spoiled, but in fact people who cared about Sanibel and its sister island, Captiva, worked to protect it even as it morphed under intense development pressure. The local land trust, the Sanibel-Captiva Conservation Foundation (SCCF), begun in 1967 with the first flush of the modern environmental movement, is the largest private landowner on the islands and manages over 1200 acres of conservation lands on Sanibel and another 600 on Captiva. That’s in addition to the conservation lands managed by the State of Florida and the U.S. Fish and Wildlife Service, which include the 6400-acre J. Ding Darling Wildlife Refuge. Established in 1945, through the efforts of J.N. “Ding” Darling, a Pulitzer-prize winning political cartoonist and conservationist who kept a winter home on Captiva, the refuge protects a part of “the largest undeveloped mangrove ecosystem in the United States” and “spectacular migratory bird populations.”

We all live in places, vacation in places; we care about them –their people and their nature. There are over 1300 active land trusts in the United States, most of them local or regional. These organizations protect and manage over 56 million conservation acres largely though private donations.  Local governments protect additional land through easement acquisition programs, open space zoning, and protections for ecologically sensitive areas. These actions go on largely under the radar of the divisive politics that infects national environmental and natural resource policy. There are still conservatives and liberals, Republicans and Democrats in these local settings, but they are joined by a common interest in their place – the qualities that make that place worth living in for everyone.  This common commitment is more elusive at larger geographic scales, where red and blue segregate along lines of rural/urban, coast and heartland.

The power of place to mobilize action to protect and defend is no panacea for environmental ills. Rootedness in place can cause people to overlook the larger consequences of their actions, as in NIMBY cases. It also may fail to be an effective motivator for addressing issues at larger scales, such as climate change. But there’s evidence that politically diverse communities that are seeing the effects of global change, such as cities and counties in Southern Florida, are moving toward meaningful climate change policies – with both adaptation and mitigation components. A common threat to “home” might help lift even climate change into the realm of common commitment.

Big Tribal Victory in Culvert Case, Big Implications for Taxpayers

Posted on June 13, 2018 by Rick Glick

On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.

The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.

The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.

A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?

The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."

Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.

The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Ending Secret Science or Censoring Science?

Posted on June 7, 2018 by Chester Babst

On April 30, 2018, EPA issued a Notice of Proposed Rulemaking entitled “Strengthening Transparency in Regulatory Science.” Although EPA’s stated intent is to increase transparency and public confidence in the Agency’s regulations, a number of its critics have described the proposed rule as “exquisitely opaque,” “vague,” and “lacking data transparency.” Even supporters of the proposed rule seem to recognize that it may need some work before it is issued in final form.

Critics of the proposed rulemaking argue that some scientific studies cannot be released publicly because they may include personal health information and identifiers or they may involve trade secrets.  Proponents of the proposed rulemaking note that the proposed rule allows EPA to make studies available in a manner that protects privacy and confidential business information. However, it does not provide how this would be accomplished. If personal identifiers could be redacted from studies examining health effects, who would perform this data removal and who would pay for the costs associated with this removal? Proponents also note that the proposed rulemaking would give the Administrator the power to grant exemptions to these disclosure requirements if the Administrator deems it impractical or not feasible to release the research in a manner that protects privacy and other private interests, but critics are concerned that the proposed rule does not provide what factors would govern this type of discretionary exemption.

Although the concept that environmental regulations should rely on data, information and methods that are publicly available and sufficiently transparent to meet a “standard of reproducibility” is laudable, the initial reactions to the proposed rule suggest that finding a path to that end will not be easy.

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate? 

From Graduation to Earth Day

Posted on May 31, 2018 by Charles F. Becker

“Ben, I just want to say one word to you. Just one word.”

                        “Yes, sir.”

“Are you listening?”

                        “Yes, I am.”

“Plastics.”

                        [Pause] “Exactly how do you mean?”

“There’s a great future in plastics. Think about it. Will you think about it?”

                        “Yes, I will.”

“Enough said. That’s a deal.”

The Graduate - 1967

Mr. McGuire’s sage advice to young Ben Braddock advanced an era of plastics that continues to this day. Once considered to be a miracle product, it is not possible to avoid it in everyday life—it is everywhere, in one form or another. Yet, as we now know, plastic presents certain environmental problems – it won’t go away and there is a lot of it:

The focus of Earth Day 2018 (April 22nd) was on plastic — educating everyone on the environmental impact of plastic disposal.  Education is always worthwhile, but it isn’t as though we don’t know the dangers.  Moreover, this is a world-wide problem, with China being the major contributor and the U.S. a distant 12th.  So what is the solution?

One possibility is to use less plastic.  That could be by governmental mandate, business choice or societal shaming.  But if history is a teacher, “just say no” will not work. Plastic production has increased steadily at a compound average growth rate of 8.4% per year since 1950.  As of 2017, we have created 6.3 billion metric tons of plastic waste; by 2050, that figure is expected to be 26 billion.  

Perhaps we could use a biodegradable form of plastic—something that will break down in the environment. Regrettably, business hasn’t shown much interest.  Capacity for such production is less than 0.2 percent of petrochemical-based plastic.

Recycling is perhaps the most commonly suggested solution. But with decades promoting the recycling of plastics, it is still the case that at least 85% of all plastics are not recycled.  Further, a recent study on recycling plastic into clothing indicates we may actually be making the situation worse by causing the shedding of micro-fibers of plastic that get to waterways.

So is all lost? Scientific ingenuity—and some luck—tells us no.

Like the discovery of penicillin, x-rays, and plastic itself, it may be that the solution has been stumbled upon by accident. In 2016, a Japanese team identified a plastic-eating bacteria as a possible natural solution to plastic pollution. In 2018, while trying to reproduce the results, a team from the University of Portsmouth accidentally created a more potent form of the released enzyme.  The enzyme breaks down the plastic to its original building blocks. It may even be possible to spray it on huge floating plastic ocean islands to break up the material. 

Is this the silver bullet we need?  It appears promising, but research is ongoing.  We can only hope it turns out to be the solution because the alternatives seem to be the equivalent of stopping a freight train with a pillow.

As a postscript, I should give time to another view – let nature take its course.  George Carlin figured it out when he said:

The planet will be here for a long, long, LONG time after we’re gone, and it will heal itself, it will cleanse itself, ’cause that’s what it does. It’s a self-correcting system. The air and the water will recover, the earth will be renewed. And if it’s true that plastic is not degradable, well, the planet will simply incorporate plastic into a new paradigm: the earth plus plastic. The earth doesn’t share our prejudice toward plastic. Plastic came out of the earth. The earth probably sees plastic as just another one of its children. Could be the only reason the earth allowed us to be spawned from it in the first place. It wanted plastic for itself. Didn’t know how to make it. Needed us. Could be the answer to our age-old egocentric philosophical question, “Why are we here?” 

Plastic… a**hole.

I’m rooting for the enzyme.

Paving a Legal and Regulatory Path to America’s Clean Energy Economy

Posted on May 30, 2018 by Kenneth Berlin

A clean energy revolution is underway in this country, buoyed by market forces making renewable energy sources increasingly cost-competitive with fossil fuels. Wind and solar are now cheaper than coal and natural gas in much of the country, and their costs will continue to drop. This stunning decrease in the price of wind and solar generation has created a new paradigm in the energy industry.

Similarly, the cost of energy storage is falling fast, and batteries will soon eliminate – at fully competitive prices – the intermittency issues around wind and solar. Meanwhile, electric vehicles are projected to become both cheaper to purchase and cheaper to run than gasoline cars by 2025.

Despite these extremely favorable economic trends, legal and regulatory barriers that protect fossil fuels continue to slow the transition to a clean energy economy. Removing these obstacles is a critical step toward securing a clean, safe and prosperous future.

At the outset, new clean energy projects face potential challenges around siting and transmission, including permitting restrictions, utilities’ unwillingness to enter into the necessary contracts, and a lack of support from public officials.

Once a project has cleared those hurdles, additional legal, regulatory and policy barriers may remain. Some of the primary impediments include:

o   Non-existing, limited, or even preventative legal frameworks for independent power producers – like homeowners – to sell energy to utilities or third parties. These power purchase agreements are currently allowed in only 26 states, the District of Columbia and Puerto Rico.

o   Utility interconnection, or connection of home or commercial renewable energy systems to the regional grid, that may be limited or severely restricted by regulation or laws.

o   Lack of or insufficiently priced net metering policies that make renewable investments much less attractive. In 2016, for example, Nevada’s Public Utilities Commission (PUC) sought to triple fees for solar customers while at the same time reducing credit for net excess generation by approximately three-quarters. After pushback from solar manufacturers and installers, as well as the prospect of hundreds of solar jobs leaving the state, the PUC approved new rules, partially restoring the net metering rate.

o   Tariffs on components of renewable energy systems like those recently announced by the Trump Administration on solar panel imports.

These obstacles don’t even touch on the fact that fossil fuel companies are not held financially responsible for the global warming pollution they dump into our shared atmosphere, leaving everyday Americans to foot the bill for these extraordinary health and economic costs. They also don’t factor in the uneven playing field that well-funded lobbyists tilt in favor of the fossil fuel industry, including enormous government subsidies.

The good news is that many individuals and organizations are working to build the political support needed to remove these barriers, including my organization, The Climate Reality Project, and our Founder and Chairman, former US Vice President Al Gore.

With enough voices working together across many sectors, we can eliminate these challenges and allow market forces and popular support to usher in a new clean energy economy.

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Posted on May 29, 2018 by Seth Jaffe

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.  EPA said that they were.  However, the petitioners pointed to cross-sections in the record that showed a confining layer existed between the bedrock and overburden aquifers.  More importantly, the record showed that EPA did not even attempt to explain why the cross-sections did not undermine its determination.  That’s a no-no.  As the Court noted:

It was arbitrary and capricious for EPA to rely on portions of studies in the record that support its position, while ignoring cross sections in those studies that do not. … Although EPA ‘is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’

Counsel from DOJ tried to repair the damage in the litigation, to which the Court replied that:

These arguments come too late. We may only uphold a rule “on the basis articulated by the agency” in the rule making record.

Lesson for EPA?  Don’t ignore comments in the record – and don’t count on your lawyers to fill in the gaps.

Lesson for potential petitioners?  Make sure that the record looks as good as possible – and focus like a laser beam on EPA failures to respond to your evidence.

And who knew that there was a band called The Substantial Evidence?

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

If, as held by the Fourth Circuit in the recent decision in Upstate Forever v. Kinder Morgan,

  • A release from a point source to groundwater that reaches jurisdictional surface waters in measurable quantities is an unpermitted discharge in violation of the Clean Water Act, and
  • The unpermitted discharge is deemed to be “continuing” so long as the seepage through groundwater continues to add pollutants to jurisdictional waters, even though the discharge to groundwater has ceased

then, indeed, the potential for citizen suit liability has been vastly increased and, most troubling, the requirement for an “ongoing violation” has been significantly eroded.

The recent decision of Upstate Forever v. Kinder Morgan, L.P. (4th Cir. April 12, 2018), addressed a citizen suit arising out of a spill of gasoline from an underground pipeline. The pipeline operator repaired the pipeline shortly after the spill, implemented remediation and recovery measures required by state regulators, and recovered much of the gasoline from the spill site. NGOs brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the CWA. The district court dismissed the suit, finding that (1) the CWA does not regulate the movement of pollutants through groundwater, and (2) the alleged violation was not ongoing because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters.

The Fourth Circuit reversed on both points and allowed the citizen suit to move forward. The decision has two key holdings:

  • First, while acknowledging that the CWA does not generally regulate releases to groundwater, the Fourth Circuit panel held that discharges to groundwater with a “direct hydrological connection” to surface waters may be regulated by the CWA, so long as the  discharge results in pollutants reaching jurisdictional waters in “measureable quantities.”
  • Second, the Court found that the repair of the pipeline breach was not sufficient to render the alleged CWA violations “wholly past,” because the continuing seepage of gasoline was continuing to add pollutants to jurisdictional waters.

Assuming the majority opinion stands, the implications are very troubling.

The first holding makes even an accidental release to groundwater an unpermitted discharge under the CWA, if the pollutant makes its way to jurisdictional waters. This “groundwater as a conduit” theory, also adopted in County of Maui v. Hawaii Wildlife Fund, 2018 WL 1569313 (9th Cir. Feb. 2018), is the subject of much debate in the courts, in Congress and at EPA, which has solicited comment on the issue. 

The second holding is at least as problematic. Even assuming that the accidental discharge to groundwater was an unpermitted discharge to jurisdictional waters in violation of the CWA,    one must wonder how the party responsible could ever cut off liability. According to the decision in Upstate Forever, stopping the point source release and even remediation to state standards does not make the violation “wholly past.” Depending on the amount released, the amount remaining after remediation, the distance to jurisdictional waters, the soil characteristics, the speed of groundwater movement, and other factors, it is possible that the risk of citizen suit liability could continue for years—long after the incident has been corrected, repaired and remediated.

There is a strong, well-reasoned dissent that concludes that there is no ongoing discharge of pollutants from a point source because “the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Slip Opinion at 40. The defendant pipeline operator has filed a petition for rehearing and rehearing en banc, arguing that the panel decision is erroneous on both issues and emphasizing the inconsistency with Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

If it stands, however, the Upstate Forever decision could indeed create the risk of citizen suit liability almost “forever.”

TSCA Implementation: A Catalyst for Litigation

Posted on May 22, 2018 by Lynn L. Bergeson

Extensive revisions to the Toxic Substances Control Act (TSCA) were signed into law almost two years ago and the U.S. Environmental Protection Agency (EPA) has been extraordinarily busy implementing the many Congressional mandates set out under the law that amended it, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The new law was one of the last acts of Congressional bipartisanship and, given the rancor that is now rooted in our hyper-partisan Congress, agreement on environmental legislation this sweeping is not expected again anytime soon.

Unsurprisingly, the three core rules outlining critically important aspects of the revised law, referred to as the TSCA “framework rules,” have all been judicially challenged.  In August 2017, Safer Chemicals, Healthy Families and 11 other organizations sued EPA in the U.S. Court of Appeals for the Ninth Circuit challenging the Risk Prioritization and the Risk Evaluation final rules.  Other organizations similarly filed suit over the same rules in the Second Circuit (Environmental Defense Fund (EDF) in New York) and in the Fourth Circuit (Alliance of Nurses for Healthy Environments in Virginia).  The challenges to the Risk Prioritization rule were consolidated in the Ninth Circuit on November 27, 2017 (Safer Chemicals, Healthy Families v. EPA, Nos. 17-72260, et al.) and the challenges to the Risk Evaluation rule were consolidated in the Ninth Circuit on December 11, 2017 (Alliance of Nurses for Healthy Environments v. EPA, Nos. 17-73290, et al.).  Industry trade association and other chemical interests motioned to intervene in these challenges, which the Ninth Circuit granted.  The remaining framework rule, the Inventory Notification rule, was judicially challenged by EDF last September in the U.S. Court of Appeals for the D.C. Circuit (EDF v. EPA, No. 17-1201).  Industry trade groups and others have been granted leave to intervene in the case.

Of particular note is another challenge filed on January 5, 2018, by the Natural Resources Defense Council (NRDC) in the U.S. Court of Appeals for the Second Circuit (Second Circuit) of what it characterized as an EPA “final rule” that was released on November 7, 2017, titled “New Chemicals Decision-Making Framework:  Working Approach to Making Determinations under Section 5 of TSCA.”  The draft Framework Document, as it has come to be called, is the final rule at issue and was posted in EPA’s docket opened for comments related to its two TSCA public meetings that took place last December.  It is reasonable to assume that the Framework Document is decidedly not referred to by EPA as a final rule and was not published in the Federal Register as a final rule because EPA believes it is a document that outlines a “conceptual approach” to how EPA may go about making decisions on new chemicals.  The document appears in the “supporting & related material” section of the meeting notice.  EPA specifically states that the document, referred to as a “draft” in the Federal Register notice that announced the two public meetings, “outlines EPA’s approach to making decisions on new chemical notices submitted to EPA under TSCA section 5, as amended,” and includes EPA’s “general decision framework for new chemicals” and a breakdown of how EPA “intends to approach each of the five types of new-chemical determinations required under the statute.”

NRDC’s opening brief was submitted on May 1, 2018.  It is an excellent read on the topic of why NRDC believes the draft Framework Document is actually a final rule in disguise that EPA implemented without the requisite process required under the Administrative Procedure Act.

The law suit raises novel and interesting procedural issues.  Is the draft Framework Document a final, reviewable rule amenable to judicial appeal as final agency action?  If the Court chooses to address the substantive TSCA issues, a key one relates to how EPA interprets “not likely to present an unreasonable risk” in reviewing TSCA Section 5 new chemical notifications, and what exactly Congress meant by “the circumstances … under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  Is EPA misapplying the new language in Section 5 that NRDC claims is mandatory, or is EPA properly exercising its authority under Section 5 in identifying conditions of use as outlined in the Framework Document in conducting its Section 5 reviews?

These are hard questions and much depends on their outcome.  For TSCA new chemical aficionados, understanding “conditions of use” is the Holy Grail, and any judicial gloss a reviewing court offers is expected to have a profound impact on how EPA reviews new chemicals and, thus, how and when new chemicals will be commercialized in the U.S.

NOT VERY NEIGHBORLY

Posted on May 17, 2018 by Linda Benfield

Southeast Wisconsin’s continued relief from nonattainment rules is not assured yet. And did we mention we are about to build a large new factory just over the Illinois border?

Southeast Wisconsin labored under some form of ozone nonattainment status for 20 years – but in July 2012 the area was declared to be in compliance with the then-applicable 8 hour ozone standard. The region has enjoyed five years of relief from the enhanced permitting, emission offsets, and other restrictions on expansion that come with Nonattainment New Source Review.

That glorious period appeared to be coming to a close when, on December 20, 2017, EPA informed Governor Walker that the proposed nonattainment areas for the more restrictive 2015 ozone standard would include all of five southeastern Wisconsin counties, and parts of four other counties bordering Lake Michigan. The Walker administration and the business community were not pleased.  

In public comments filed with EPA, the State of Wisconsin and every major business group for the state and affected counties pushed back on EPA’s policy decision, with arguments based heavily on the scientific data collected during the past 20 years. Commenters emphasized that the air quality and meteorological data does not support including the entire geographic boundaries of all of the counties, there is a seasonal component to the nonattainment data, and as the state has emphasized for years in nearly every context involving air emissions, most of the ozone impacting southeast Wisconsin is transported from outside Wisconsin, including from our neighbor to the south – Illinois.

EPA listened, and on May 1, 2018, released a substantially pared down final list of counties designated as nonattainment for ozone –the list only includes the lakeshore areas of six counties. Notably, because of gaps in the certified data, Racine County, which will be home to a new $10 billion development by Foxconn Technology Group, will not be included in the nonattainment area. Foxconn and its affiliated vendors will manufacture liquid crystal display screens at the Racine location, which was chosen over other contenders, including sites in Illinois.

Stirring up trouble in our Midwest neighborhood, on Friday, May 4, 2018, Illinois Attorney General Lisa Madigan announced that she will file suit in the D.C. Circuit challenging the ozone designations. Her announcement ties the designations to the Foxconn development and  complains that EPA’s action puts “a company’s profit ahead of our natural resources and the public’s health.”   

The new designations have not yet been published in the Federal Register, but this neighborhood dispute may be headed to court. Responding to Ms. Madigan’s press release, Governor Walker said “The State of Wisconsin will push back.” If Illinois wants to pick a fight, Wisconsin could consider a counter claim, or its own suit against Illinois under Section 126 of the Clean Air Act, which allows downwind states to pursue out of state upwind emission sources. Ozone monitors in southeastern Kenosha County have shown for years that emissions from Illinois are the primary source of nonattainment on the Wisconsin side of the border.

Hoping All Your Consequences Are Happy Ones

Posted on May 3, 2018 by Kenneth Warren

Those of us who remember Bob Barker’s years as host of the game show Truth or Consequences recognize the title of this blog as his customary closing line.  His desire to limit the ramifications of bad decisions has a corollary in Pennsylvania law.  As the Pennsylvania Supreme Court recently held, statutory provisions may be construed narrowly “substantially in consideration of the consequences of a particular interpretation.” 

In EQT Production Co. v. Pa. Dep’t. of Envtl. Prot., an energy company operated an impoundment to contain hydraulic fracturing wastewater.  Wastewater leaked through holes in the impoundment’s liner into the underlying base layers, soils and “waters of the Commonwealth” which include “underground waters, or parts thereof.”    

The release from the impoundment into groundwater clearly violated the prohibition in the Pennsylvania Clean Streams Law on discharging or permitting the discharge of industrial wastes into the waters of the Commonwealth.  Anticipating that the Pennsylvania Department of Environmental Protection (PADEP) would seek a penalty for each day that contaminants remained present in the environment, EQT sought a judicial declaration that civil penalties may be imposed only for days that pollutants were actually discharged from the impoundment.   

As the declaratory judgment action progressed, PADEP acknowledged that the mere presence of contaminants in groundwater would not alone support the imposition of penalties.  But it contended that a violation occurred on each day that the contaminants initially released from the impoundment passively migrated from soil to groundwater (the “soil-to-groundwater” theory) or moved from one part of the waters of the Commonwealth to another (the “water-to-water” theory).   

The Pennsylvania Supreme Court concluded that the language of the Clean Streams Law, which prohibits any discharge of an industrial waste “into” a water of the Commonwealth, is ambiguous.  The language could be interpreted to cover only movement of a pollutant from outside the waters of the Commonwealth into these waters, but could also be read to include movement of a previously released contaminant from one part of the Commonwealth’s waters into another part.   

In resolving the ambiguity, the Court noted that even after remediation occurs, a small quantity of contaminants may remain present in groundwater and continue to migrate.  If each day constitutes a violation, massive civil penalties would result.  Principally because it believed this consequence to be unreasonable, the Court rejected the water-to-water theory.  By excluding water-to-water mitigation from the ambit of the Clean Streams Law’s prohibitions, the Court created Pennsylvania’s version of the “unified waters” approach.  At least in this context, it makes good sense.    

But EQT still suffered serious liabilities.  It was required to remediate the contamination that it caused.  And the soil-to-groundwater theory remains in play; the Court chose not to rule on its validity because EQT’s pleadings and application for summary relief did not raise that challenge.  Penalties in excess of $1 million were assessed against EQT and will be reviewed on appeal.  In a fictional game show world, all consequences are happy ones.  In real life, even a solicitous state Supreme Court will not guarantee an entirely happy ending for a party who has violated environmental laws.

A 2-Fer Update

Posted on May 1, 2018 by Mark Walker

Seth Jaffe and I have both previously blogged about Public Citizen v. Trump. It is the lawsuit challenging Trump’s Executive Order 13771 which, with some exceptions, mandates two existing federal regulations be eliminated for every new regulation. Several public interest groups challenged the EO asserting that it will block or repeal regulations needed to protect the environment, health and safety and that it directs federal agencies to engage in decision making that is arbitrary, capricious and contrary to other existing laws.

Since its filing, no substantive issues have been addressed. Instead, the case has been mired in addressing the issue of standing. Standing requires that the plaintiffs demonstrate a personal stake in the outcome of the controversy. In order to demonstrate Article III jurisdiction, the plaintiff associations must either show “associational standing” or “organizational standing”. Associational standing requires that the plaintiffs demonstrate that the EO will substantially increase the risk that at least one of their members will either be harmed or face a substantial probability of harm once such increased risk is taken into account. Organizational standing requires that the plaintiffs demonstrate that they have standing to sue in their own right which requires that they show the EO will have a chilling effect on their missions.

On February 26, 2018, Judge Moss ruled that the plaintiffs had failed to demonstrate standing and that, therefore, the court did not have jurisdiction to entertain their lawsuit. In a lengthy decision, the judge held that the plaintiffs had not identified a specific member who had yet suffered an injury as a result of the EO. The plaintiffs brought this action before any specific regulatory actions had been taken pursuant to the EO. Therefore, they could not identify any specific regulations that had been repealed or were likely to be repealed as a result of the EO. The court held that plaintiffs’ allegation that it was “likely” that the EPA and other agencies would stop seeking new regulations in order to protect existing ones was overly speculative.

Most of plaintiffs’ arguments in support of associational standing related to their claims that the EO had already delayed the issuance of new regulations. For example, the plaintiffs alleged that the EO had already delayed an unspecified regulation on greenhouse gas emissions. One of the NRDC’s members asserted that global warming and the resulting rise in sea level would deprive him of water supply and the use of his home. However, as Judge Moss noted, the plaintiffs had not identified any proposed rule or putative regulatory action that addressed this concern or that had been delayed by the EO.

As to organizational standing, the plaintiffs claimed that the EO would cause them harm by chilling their advocacy activities. The advanced basis for this claim was that the plaintiffs would now have to “think twice” about advocating new regulations with the knowledge that a new regulation could result in the elimination of two regulations which plaintiffs believe are necessary protections, thus imperiling their ability to advocate thereby chilling their First Amendment right. However, the plaintiffs could not point to any specific regulation which had yet presented this alleged Catch 22. Instead, they merely claimed they were now forced to consider the issue. Judge Moss held that this “think twice” argument did not establish an injury in fact.

This case is a text book example of the difficulties public advocacy groups face in demonstrating standing, particularly where the new proposed regulation has not yet been adopted or implemented. Although the plaintiffs amended their claims once before to address standing, Judge Moss has allowed them to amend again to try to establish standing. Of course, if subsequent agency actions pursuant to the EO demonstrate standing, the plaintiffs will then be allowed to pursue a lawsuit. It is noted that the Trump Administration is now proposing a 3-for-1 plan for 2018.

How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

State Attorneys General Act as Checks and Balances on Federal Environmental Rollbacks

Posted on April 26, 2018 by Lemuel M. Srolovic

Three priorities of the Trump Administration are driving an effort to roll back federal environmental laws and regulations on an unprecedented scale. First, the President ordered executive agencies to rescind two existing regulations for every new one promulgated. At the end of 2017, environmental rollbacks won first prize, with EPA reporting 16 final deregulatory actions and the Department of the Interior reporting 12. Second, the administration has pursued a goal of energy dominance by the United States, with fossil fuel energy at the top of the list. This priority led the Secretary of Energy to issue an order directing the Federal Energy Regulatory Commission to adopt a tariff subsidizing the generation of electric power with coal. Third, the administration seems determined to reverse, to the extent possible, the regulations adopted by the Obama Administration, which was active in the environmental protection arena. While the Clean Power Plan and the Clean Water Rule are the marquee targets, many other rules have been delayed, suspended, and placed under reconsideration.

State attorneys general have a long history of pushing and pulling the federal government on environmental protection under law where federal regulation is needed to protect their citizens and the environment. Climate change, interstate air pollution, interstate water pollution, and energy efficiency standards for electrical equipment and appliances are primary areas for legal actions by state attorneys general against the federal government to hold it accountable for fulfilling its statutory duties to protect human health and the environment.

Now, in this period of federal environmental rollbacks, state attorneys general are performing a different function as well. As the federal government seemingly pursues a race to the bottom on environmental protection, state attorneys general are bringing legal actions to operate as checks and balances on federal environmental rollbacks. The list is long, and includes:

  • Opposing the repeal of the Clean Power Plan;
  • Challenging the suspension of the Clean Water Rule;
  • Challenging EPA’s delay of implementing the 2015 national ambient air quality standard for ozone;
  • Challenging EPA’s decision to allow tolerances on food for the neurotoxic pesticide chlorpyrifos to remain in effect;
  • Challenging the Department of Energy’s delay of national energy efficiency standards for ceiling fans, portable air conditioners, commercial boilers, air compressors, and backup power supply equipment;
  • Challenging the National Highway and Traffic Safety Administration’s delay of a rule adjusting for inflation the penalties levied on car manufacturers who violate the national corporate average fuel economy (CAFE) standards;
  • Challenging EPA’s delay of a rule requiring new oil and gas development sources to limit their emissions of methane and other pollutants; and
  • Challenging the Department of the Interior’s delay of a rule to augment federal royalty payments and to prevent waste of oil and gas extracted from federal lands. These and other actions by state attorneys general are discussed in more depth in a recent report for the NYU School of Law’s State Energy & Environmental Impact Center, State Attorneys General: 13 Months of Critical Actions (Feb. 2018).

A number of these actions already have been successful. The D.C. Circuit summarily vacated EPA’s 90-day stay of compliance deadlines in the Clean Air Act rule requiring new oil and gas facilities to limit emissions of methane and other pollutants, in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017). The day after the attorneys general filed an action challenging EPA’s 1-year delay of ozone non-attainment designations, the agency reversed course and withdrew the delay. Similarly, the Department of Energy released the national energy efficiency standards for ceiling fans a few weeks after attorneys general took legal action in the U.S. Court of Appeals for the Second Circuit, and subsequently, a federal district court in California ruled that the Department had acted unlawfully by not publishing final efficiency standards for the additional categories of electric equipment challenged by the attorneys general.

Many of the attorneys’ general actions remain pending in the courts. Others likely will be filed. Whatever the ultimate outcome in any particular matter, these legal actions by state attorneys general collectively will operate as checks and balances on the Trump Administration’s efforts to roll back federal laws and regulations protecting public health and the environment.

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

BROWNFIELDS ON STEROIDS

Posted on April 24, 2018 by George von Stamwitz

Everybody loves Brownfields. Local, State and Federal agencies provide an array of tax credits, grants, expert support, statutory liability protections and contractual liability protections to developers of contaminated land. Brownfield buyers generally are looking to avoid assuming liability for pre-existing conditions and for a few incentives to sweeten the pot. The public sector is eager to help.

Less well known, and virtually ignored by the public sector, is a small but growing segment of the Brownfield ecosystem where buyers of contaminated land “run to the fire.” These buyers willingly take liability for pre-existing conditions, known and unknown, and provide the seller with a broad, collateralized indemnity. From the public sector’s perspective, these buyers are user–friendly, as they rarely seek government grants, incentives or liability protections. In recent years these “risk transfer” transactions have been particularly popular with owners of decommissioned power plants with ash ponds.

Indeed, these transactions have ingredients that EPA and the States typically love: tons of financial assurance for the benefit of the seller, an accelerated schedule for demo and cleanup with sanctions, engagement with the local community regarding future use, and job creation. Sometimes the risk transfer buyer turns the project over to a Brownfields buyer once the liability is managed.

Perhaps EPA, the States and NGOs can get to know the risk transfer portion of the Brownfield ecosystem a little better, add their expertise, and help get more sites cleaned up faster.

THE GREAT LAKES OF NORTH AMERICA AND THE GREAT BARRIER REEF OF AUSTRALIA; MORE IN COMMON THAN ONE MIGHT THINK

Posted on April 18, 2018 by David Ullrich

Although separated by over 8,000 miles and representing vastly different ecosystems, the Great Barrier Reef of Australia and the Great Lakes of North American share much in common.  As globally significant resources, they not only help define the countries so fortunate to host them, they are major contributors to the social, economic, and environmental vibrancy of their cultures.  They are both very big and visible from space, with the Great Lakes having well over 10,000 miles of shoreline and the Great Barrier Reef stretching over 1200 miles of coast in Queensland.  At the same time, many similar challenges face the communities that are charged with the stewardship of the resources to make sure their integrity is preserved for future generations.

At the top of the list is climate change.  For the Great Barrier Reef, the warmer ocean temperatures have resulted in significant bleaching events over the past twenty years and have caused damage to major portions of the Reef, although much of its beauty remains intact. The increase in severity and intensity of cyclones has also caused major physical damage to the Reef all up and down the coast of the Coral Sea.  As the storms travel inland with heavy rains, the runoff from agriculture brings vast quantities of sediment and nutrients to the nearshore areas of the Reef.  The siltation can smother the coral and the nutrients are thought to contribute significantly to the explosion of the indigenous crown of thorns starfish that attack and destroy coral. 

Climate change is also putting extensive stress on the Great Lakes.  The warmer temperatures are leading to less ice cover, more evaporation, and lower lake levels.  However, the more frequent and intense rainfall events are putting more water back into the system.  Experts differ on the long term implications.  In the short term, lake levels seem to be going up and down more rapidly and to a greater degree than before, leading to navigational and erosion problems.  In addition, the heavy rains have increased nutrient runoff from agriculture and urban areas, leading to alarming algal blooms and drinking water crises like those in Toledo, Ohio and Pelee Island, Ontario on Lake Erie.  The nutrients also contribute to the formation of low oxygen dead zones that can result in fish kills.  In addition to climate change, the battle against invasive species such as sea lamprey and zebra and quagga mussels seems endless, while grass, silver, bighead, and black carp continue as major threats to the $7 billion fishery of the Great Lakes.

As strategies and approaches to dealing with these challenges are developed in Australia, Canada, and the United States, we would be well served to share ideas with one another on how best to meet them.  We have a tremendous responsibility as stewards of these global treasures to protect and preserve them for future generations.  It would be a tragedy to be resigned to renaming them the “Pretty Good Barrier Reef” and the “Pretty Good Lakes.”

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

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

Common Sense Species Mitigation Policy Shouldn’t Be Reversed By Trump DOI

Posted on March 29, 2018 by Melinda E. Taylor

Depending on one’s political persuasion, the Endangered Species Act is either a glaring example of federal overreach or a critical safety net for scores of plants and animals that are at risk of extinction. Its impact is felt across the country in regulations that protect the spotted owl and salmon in the Pacific Northwest, the red-cockaded woodpecker in the Southeast, the Mojave Desert tortoise in the Southwest, and the whooping crane on the Gulf Coast. 

Thanks to the act, over 220 species have avoided extinction and remain in the wild, including the bald eagle, brown pelican, American alligator, peregrine falcon, and northern right whale.

When Richard Nixon signed the law in 1973, few expected it to be as controversial as it eventually became. It was passed by Congress with little opposition, but by the 1990s, the Wise Use movement and extractive industries like forestry, mining, and oil and gas were bristling at the land use restrictions that accompanied federal decisions to list endangered species, while at the same time, environmental groups were filing lawsuits to force the federal government to use the law even more aggressively.

To varying degrees, the Clinton, Bush, and Obama administrations each adopted policies designed to reduce the conflicts between the warring sides and make it more appealing for private landowners to protect rare species. Those efforts were important, because 75% of endangered species occur on private land. Without the cooperation of landowners, their chances of rebounding were slim.

Because of incentive-based policies, over 130 conservation “banks” have been established on private lands to protect 70+ species, including the Florida panther, golden-cheeked warbler, American burying beetle, and gopher tortoise. Private investors, as well as ranchers, farmers, and forest owners, have invested millions of dollars in land management practices that help rare species in return for the right to sell “credits” to companies that destroy the species’ habitat elsewhere. Regulated industries benefit from a streamlined permitting process.

The Obama Administration crafted policies to clarify and improve the incentives. It also worked with states, ranchers, industries, and conservation groups to formulate ambitious, large-scale conservation plans intended to preclude the need for federal protection altogether and give more flexibility to state governments. Unfortunately, the Trump Administration appears determined to undermine these efforts.   

On March 28, 2017 President Trump signed an Executive Order on Energy and Climate Change that reversed key parts of the Obama Administration’s agenda. The intent was to unleash fossil fuel development, especially on public lands, by relaxing environmental requirements applicable to oil, gas, and coal that were supposedly holding the industry back.

Among the several actions that the executive order rescinded was a relatively obscure Presidential Memorandum dated November 3, 2015 titled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.”  Unlike the other actions rescinded by the order (Power Sector Carbon Pollution Standards, Climate Change and National Security, and Preparing the United States for the Impacts of Climate Change), the 2015 Obama Memorandum did not address climate change or energy development.

Rather, it directed federal agencies to formulate policies that would encourage private investment in natural resource conservation, a goal that should be appealing to conservatives and liberals alike.

The 2015 Obama Presidential Memorandum had ordered agencies to refine their species mitigation programs, including conservation banking, to ensure they produced measurable outcomes. It required an increased level of transparency and consistency for the regulated industries and landowners. It was designed to level the playing field among conservation bankers and other providers of species mitigation. In short, it was intended to create conditions in which the free market could work efficiently for endangered species. It is hard to imagine a rational justification for abandoning this common sense policy; like a number of other environmental decisions by the Trump Administration, this one appears to be driven by the notion that, regardless of the merits, if the previous administration put the policy in place, it must be reversed.

The Endangered Species Act has become highly politicized, despite the fact that polls show a core of strong, unwavering public support for the law. Republicans in Congress have introduced dozens of bills in the last year that would undermine its protections. A far better approach, a win-win for private landowners and industry, would be to fine-tune the tools developed by previous administrations to harness the power of the marketplace and the willingness of private landowners to protect the nation’s natural heritage.

Infrastructure, Deficits and Climate Change

Posted on March 28, 2018 by Mark R. Sussman

America’s infrastructure is deteriorating as the result of insufficient investment by federal, state and local governments.  In 2017, the American Society of Civil Engineers gave our Nation’s infrastructure a grade of D+, stating that “Deteriorating infrastructure is impeding our ability to compete in the thriving global economy, and improvements are necessary to ensure our country is built for the future.” The President and both the Republicans and Democrats in Congress seem to agree that we need to improve our Nation’s infrastructure.

The problem is “how do we pay for infrastructure improvements?”  In February, the President proposed a plan to invest $1.5 trillion in infrastructure improvements, but the plan relies mostly on privatization of government-owned infrastructure, and on state and local governments, whose resources are already stretched thin.  The federal government’s share of costs would be “only” $200 billion.  Congress is unlikely to agree to a significant investment in infrastructure given the massive deficits predicted to result from the recent Republican tax cuts and the bipartisan budget plan enacted in February.  The tax changes will reportedly increase the deficit by more than $1 trillion over the next ten years, and the bipartisan budget is expected to add at least $300 billion to the deficit.

Paying for the infrastructure improvements that almost everyone seems to agree upon will require either new sources of revenues, or enormous cuts in entitlements or other domestic programs.  Although Speaker Ryan and other proponents of smaller government might want to cut Social Security, Medicare and Medicaid, how likely are they to do so, especially in light of the huge tax give-away to our wealthiest citizens in the recent tax legislation?  Moreover, if they are successful in cutting the country’s safety net, what will that do to the tremendous income inequality that the United States is already experiencing?

One solution to this dilemma may be found in legislation optimistically called “America Wins Act” (H. R. 4209) proposed by Connecticut Congressman John Larson and 20 co-sponsors in November 2017. The bill, like the Carbon Dividends Plan offered by the Climate Leadership Council in February 2017, relies on a gradually increasing carbon tax of over $40 per ton, with some amount paid back to lower income Americans.  Our colleague and frequent blogger, Seth Jaffe, described the Carbon Dividend Plan in a post last year.  The main difference between the Carbon Dividend Plan, proposed by mainstream conservative Republicans, and the plan embodied by the America Wins Act, co-sponsored by Congressional Democrats, is that the former is specifically designed to be revenue neutral, while the later proposes to invest $1.8 trillion over ten years to fund infrastructure improvements.  Of course, since the Climate Leadership Council proposed its Carbon Dividends Plan, Congress blew a huge hole in the federal budget, so a completely revenue neutral plan no longer seems practical if we are to find revenues to support the rebuilding of our infrastructure.

The key elements of the “America Wins Act” include: (i) the imposition of a gradually increasing carbon tax imposed at the first point where fossil fuels enter the economy; (ii) a border adjustment fee on imports to maintain a level playing field with US producers; (iii) establishment of an infrastructure investment fund to finance highways, transit, airports, waterway and flood protection facilities, water pollution facilities, and broadband development; (iv) an energy refund program to provide “carbon dividends” to lower income households; and (v) a fund dedicated to supporting workers and communities heavily reliant on carbon-intensive industries, such as coal, to ease the transition to a new energy future. 

Unlike the Climate Leadership Council’s Carbon Dividend Plan, Congressman Larson’s proposal does not specifically include steps to reduce energy and climate change regulation that should not be needed if a market-based carbon fee program is adopted.  Nor does the “America Wins Act” contemplate the use of carbon offsets, like those suggested by our colleague, Jeffrey Fort, in his post of August 21, 2017.  These good ideas and others can certainly be incorporated into any legislation proposing to reduce carbon emissions, while simultaneously improving our Nation’s infrastructure without further exploding the deficit.  Such legislation offers a genuine opportunity for a true bipartisan approach to these critical issues facing the Nation.  Wouldn’t it be great if the President and our representatives in Congress actually worked in a bipartisan way to enact legislation that does not look to the past, but instead addresses policies that will strengthen our Nation’s economy and protect the World’s environment in the 21st Century and beyond?   Is it too much to ask our leaders to focus on implementing innovative, market-based solutions that can be supported by both conservatives and liberals, instead of spending all of their time trying to make partisan political points to be re-elected?

The Bible Tells Me What?

Posted on March 26, 2018 by Dennis M. Toft

Over the past few months the intersection of religious principles and environmental protection has become a topic of public dialogue.   Religious beliefs have also been invoked in recent cases seeking to block pipeline projects or protect endangered species.  Even more recently, the press has reported on statements by EPA Administrator Scott Pruitt which suggest that religious freedom could now form the basis of challenging permit denials.  Are we at the point where environmental lawyers need to study religion in order to represent their clients?

The recent public discourse about the intersection of environmental protection and religious principles started in 2015 when Pope Francis published his encyclical Laudato Si. The Pope explained that protection of the environment is part of God’s plan.  In this context the Pope argued that it is important to address global warming because of its impact on the planet and disproportionate effect on the poor and disadvantaged.

EPA Administrator Pruitt is reported to have a different view.   This is based upon a literal reading of the Book of Genesis.  It says God has given humans dominion over the earth, and the belief that as a result humankind has the right to manage and cultivate the earth’s resources for its benefit.   This New Republic explained these differing viewpoints in an article by Emily Atkin entitled “Scott Pruitt vs. The Pope” dated February 27, 2018.

The religious principles proffered by Pope Francis are reflected in legal theories advanced in a number of recent cases.  For instance in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission  (EDPA, Case No 5:17-cv-03163 JLS)  a religious order challenged FERC’s approval of a pipeline crossing the order’s  property by asserting that the property is sacred to their beliefs and that the pipeline would contribute to global warming.  Similarly, in Crowe Indian Tribe v. Zinke (D Mont. Case No. 9:17-cv-00089DLC-JCL) the plaintiffs challenged a regulation delisting the Yellowstone Grizzly Bear as an endangered species asserting the importance of that species to the practice of their religion.  These cases assert claims under the Religious Freedom Restoration Act, 42 U.S.C.  2000bb.  This statute prohibits the government from substantially burdening a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of furthering that interest.  Another example is Standing Rock Sioux Tribe v. Army Corps of Engineers, 239 F.Supp. 3d 77 (D.D.C. 2017).  In that decision, the Court rejected a request for an injunction seeking to block construction of a pipeline across a lake, finding that construction of the pipeline did not create a substantial burden on the plaintiffs’ exercise of their religious beliefs.

Looking at the legal theory in these cases and invoking the religious views attributed to EPA Administrator Pruitt, is it possible that someone could challenge the denial of a permit on the grounds that it imposes a substantial burden on their religious belief that natural resources are subject to human dominion and are there to be exploited? While case law to date would not seem to support such a theory, in 2018 it seems less farfetched than in the past.

LAND CONSERVATION AND THE NEW TAX LAW

Posted on March 20, 2018 by Philip Tabas

The sweeping tax law enacted last December changes the U.S. tax code in ways that affect individuals, businesses, corporations, and tax-exempt entities. The law, the Tax Cuts and Jobs Act of 2017 (TCJA), enacts comprehensive tax reform and was crafted and passed by Congress along party lines. What will it mean for charitable giving and particularly for land conservation?

Tax policy has long been an important incentive to foster land conservation in the US. Indeed, there is evidence to show that the tremendous growth of the land trust conservation community resulted largely from the enactment of the 1980 Federal tax deduction for conservation easements. The TCJA retains that deduction but alters the incentive to use it and other tax strategies for land conservation.

Here’s how:

The charitable deduction:  The TCJA retains the charitable deduction but increases the standard deduction while repealing and limiting many itemized deductions, all while reducing marginal tax rates for individuals, corporations, and certain pass-through business entities. The Act raises the percentage limit on cash donations for those who itemize deductions to 60% of adjusted gross income (AGI), up from the current 50% of AGI. Finally, the “Pease rule” limiting all itemized deductions, including but not limited to charitable deductions, by certain high-income earners is repealed. No specific changes were made to IRC section 170(h) regarding gifts of conservation easements or to the ‘enhanced’ tax deduction for gifts of conservation easements (designed to encourage conservation easement donations by enhancing the ability of “land rich, cash poor” taxpayers to claim a tax deduction for such gifts).

What are the implications?

These changes have given rise to significant speculation that the TCJA will reduce charitable giving in general and adversely impact the charitable sector, including land trusts and conservation organizations. Gifts of land or easements for conservation are likely to continue to be made but the changes in marginal tax rates may diminish the after-tax value of such gifts.

It is likely that higher income taxpayers will continue to have financial incentives to donate easements while taxpayers of more modest means could have the tax value of their easement gifts reduced; this might alter the types of land conservation and ecological outcomes that can be incentivized by easement donations.

Estate tax changes: The TCJA also doubled the credit against the estate, gift, and generation skipping transfer tax effectively eliminating many estates from being subject to tax, although this provision will only be in effect from 2018 through 2025. Consequently, the Act is likely to weaken the tax incentive to make charitable contributions at death, including gifts of land or conservation easements, at least during that period.

Real estate changes: The TCJA retains the like-kind exchange tax deferral for real property under current law, but repeals such treatment for exchanges of personal property. Thus, easements or land with conservation significance may continue to be exchanged for other like kind property enabling the landowner to defer the recognition of otherwise taxable gain.

Syndicated conservation easement transactions: Over the past few years, there has been a dramatic increase in the number and valuations involved in so-called syndicated conservation easements transactions. These arrangements essentially are tax shelters designed to generate profits to investors in pass-through entities from a charitable donation of a conservation easement typically at inflated appraised values. The IRS recently issued Notice 2017-10 describing these transactions as “listed transactions” and requiring disclosures by participants and material advisors involved in these transactions. 

While It remains to be seen whether anything in the new tax law will affect such tax shelter transactions, the reduction in the highest marginal individual income tax rates and a new deduction for partnerships, Subchapter S corporations, and sole proprietorships are likely to combine to mean that syndicated easement promoters will have to have more aggressive easement valuations to make the after-tax returns comparable to what they were under the old law. This may make it harder to find investors. Hence, buying into one of these tax shelters may not bring the tax savings it used to, but that may simply prompt promoters to rebut that with bigger write-offs.

The conservation community is working to address such syndicated easement transactions by advocating for a bill currently before Congress (S. 2436, Charitable Conservation Easement Program Integrity Act) which would directly target the abusive transactions while continuing to reward true philanthropy that helps to conserve farms, ranches, working forests, wetlands and wildlife habitat for future generations.

STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 19, 2018 by ACOEL Admin

The American College of Environmental Lawyers announces its annual Stephen E. Herrmann Environmental Writing Award for the 2017-18 academic year.  The Herrmann Award is a stipend of $3,500 to the author of the winning submission (whether an article, note, case comment or essay) and $500 to the submitting law journal. The winner of this year’s Herrmann Award will be invited to present his or her submission to the Fellows at the 2018 ACOEL Annual Meeting in Jackson Hole, Wyoming.

We urge College members – particularly our members in academia – to spread the word on this opportunity.  In addition to the amount of the award, those interested should know the following:

  • Submitting Candidate Notes/Articles:  Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible to submit annually a single student authored candidate article, note, case comment or essay selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.

  • Evaluation Criteria:  The prize will be awarded to the author of a student article, note, case comment or essay published by the submitting law journal during the current academic year, or scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law.  Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee.

  • Submission Logistics:  Those interested in participating should email one electronic copy of their submissions to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, c/o J.B. Ruhl and Mary Ellen Ternes with the email addresses below.  Entries must be received no later than June 10, 2018.  Each entrant should include with the entry a cover letter or e-mail message stating the name of the submitting law journal, email address(es) of author (with post-graduation email address(es) if applicable), year of author’s graduation, and a statement that the submission was not written as part of paid employment.

Anyone having questions about the award or process for submitting a piece for consideration should contact J.B. Ruhl (jb.ruhl@Law.Vanderbilt.Edu) or Mary Ellen Ternes (Maryellen.ternes@earthandwatergroup.com). To ensure a prompt response, please reference the Stephen E. Hermann Environmental Writing Award in your communication.

Federal Common Law Controls California Climate Actions: Never a Dull Moment

Posted on March 12, 2018 by Seth Jaffe

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v. Connecticut and subsequent decisions, such as Native Village of Kivalina, it seemed pretty clear that the federal Clean Air Act had displaced federal common law, leaving only potential state law claims in its place.

Judge Alsup had a different idea.  The cities’ claims were only brought against fossil fuel producers, not electric generators.  The claims were based on the allegations concerning the companies’ conduct in selling fossil fuels into the stream of commerce, while at the same time allegedly making misrepresentations concerning the risks of climate change.

Judge Alsup concluded that this was a distinction with a difference.  The Clean Air Act displaces federal common law regulating operations that emit GHGs.  The Clean Air Act, however, does not regulate the sale of fossil fuels.  Thus, it does not displace the type of public nuisance action at issue in this case.  (Of course, this leads to the odd result that the companies’ sale of fossil fuels is subject to public nuisance claims, even though methane emissions from oil wells and refineries are not, because those are subject to regulation under the CAA!)

Having made this critical distinction, the rest of the decision was relatively easy.  As Judge Alsup noted:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making. The range of consequences is likewise universal. Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is not to say that the ultimate answer under our federal common law will favor judicial relief. But it is to say that the extent of any judicial relief should be uniform across our nation.

I’m not sure that Judge Alsup is right, though I appreciate his creativity.  And if appellate courts decide he is right, the defendants may come to regret removing the action from state courts.