Posted on November 17, 2015
In a string of recent decisions, the U.S. Court of Appeals for the District of Columbia Circuit appears to be shifting away from the long-standing general presumption that standing is self-evident for target entities of a regulatory program — Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, Alliance of Automobile Manufacturers v. EPA, and Delta Construction Company v. EPA.
In Coalition for Responsible Regulation v. EPA, the D.C. Circuit held industry had “failed to establish that the [Greenhouse Gas] Rules caused them ‘injury in fact,’ [or that] injury … could be redressed by the Rules’ vacatur.” The court found that although “Industry Petitioners contend[ed] that they are injured because they are subject to regulation of [GHGs],” they lacked standing because several aspects of “the … Rules … actually mitigate Petitioners’ purported injuries.”
In Grocery Manufacturers and Alliance of Automobile Manufacturers, EPA decisions concerning the ethanol regulatory program were challenged by a multitude of trade groups – automakers, oil companies, food suppliers – each claiming its members were harmed by the regulations. In twin decisions separated by over two years, the D.C. Circuit held none of this broad universe of industry petitioners had standing to challenge EPA’s actions.
In Delta Construction Company v. EPA, the D.C. Circuit held all petitioners lacked standing to seek remand of EPA’s Greenhouse Gas (“GHG”) emission standards for heavy-duty trucks. Some Petitioners had attacked the Rule because the emission standards would drive up the price of the trucks they purchased; another Petitioner alleged the rule made its products—modified diesel engines to run on vegetable oil —“economically infeasible.” The Court found the Purchaser Petitioners’ standing failed on both the causation and redressibility prongs of the standing test. The Manufacturer Petitioner was determined not to fall within the “zone of interests” intended to be protected by the Clean Air Act.
These four D. C. Circuit rulings all found technical defects in the industry petitioners’ standing. They may signal a lasting shift away from the basic assumption that a regulated industry has standing to challenge regulations aimed at its activities.
Given this new, strict scrutiny of industry standing, practitioners would be well advised not to take for granted the standing of their clients. In the docketing statement for a regulatory challenge, industry counsel should substantively focus on the “brief statement of the basis for the … petitioner’s claim of standing” and reference materials in “the administrative record supporting the claim of standing.”
Posted on November 13, 2015
For those of you who are becoming exhausted by the opinions in the Fox River case, it is time to suggest that the fundamental underpinning of the case – the toxicity of PCBs to humans and to fish – may be in jeopardy.
Twice under the auspices of the World Health Organization “consensus toxicity factors” for dioxin-like compounds including PCBs have been published. These factors were based on analysis of laboratory animals, typically rodents. The lead author of both reports was Martin van den Berg.
Recently an article was published in Chemical Research in Toxicology, “Consensus toxicity factors for PCPDs, PCDFs, and PCBs combining in silico models and extensive in vitro screening of AhR-mediated effects in human and rodent cells,” where van den Berg was the second author on the article who reported on the results of dosing human cells with PCBs and found that PCB 126 was the only PCB congener that produced a measurable response from human cells and that the result was more than 30 times lower than the WHO TEF value for PCB 126. Similar results have been reported in other papers.
As to fish, T.B. Henry has recently published analysis in Critical Reviews in Toxicology , “Ecotoxicology of polychlorinated biphenyls in fish – a critical review.” He concludes: “Biological activity of PCBs is limited to a small proportion of PCB congeners [e.g., dioxin-like PCBs…] and occurs at concentrations that are typically orders of magnitude higher than PCB levels detected in wild fish… Overall, there appears to be little evidence that PCBs have had any widespread effect on the health or survival of wild fish.”
What would the District Court and the Seventh Circuit make of this adjustment to the facts of the case?
Posted on November 12, 2015
On November 3, 2015, President Obama issued a Presidential Memorandum establishing policies that are a significant departure from existing practice regarding compensatory mitigation for effects to natural resources from most federally approved projects. The Memorandum, entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment,” applies to all permits and authorizations issued by the Department of Defense (e.g., the U.S. Army Corps of Engineers), the Department of Agriculture (e.g., the Forest Service), the Department of Interior (e.g., BLM, USFWS, Bureau of Ocean Energy Management, etc.), EPA and National Oceanic and Atmospheric Administration (e.g., National Marine Fisheries Service (NMFS) ), including actions taken by USFWS and NMFS pursuant to the Endangered Species Act. Although it cannot be known today how the new policies will ultimately be implemented, the Memorandum is, at least as written, both anti-development and potentially draconian.
The new Memorandum states that it is establishing certain policies premised upon “a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.” In furtherance of this moral obligation, the President has established it to be the policy of the identified federal bodies (and all bureaus and agencies within them):
· To avoid and to minimize harmful effects to land, water, wildlife and other ecological resources (natural resources), and to require compensatory mitigation for, the projects they approve.
· To establish a net benefit goal or, at a minimum, a no net loss goal for mitigation of the natural resources each agency manages that are important, scarce or sensitive.
· To give preference to advance compensation mechanisms in establishing compensatory mitigation. “Advance compensation” is defined to mean a form of compensatory mitigation for which measurable environmental benefits (defined by performance standards) are achieved before a given project’s harmful impacts to natural resources occur. This policy preference appears to somehow contemplate that compensatory mitigation will be achieved before the project is constructed and operated.
· To use large-scale plans to identify areas where development is most appropriate, where natural resource values are irreplaceable and development policies should require avoidance, and where high natural resources values result in the best locations for protection and restoration.
The Memorandum also establishes certain deadlines for action, principally by the agencies of the Department of Interior (e.g., one year deadline for BLM to “finalize a mitigation policy that will bring consistency to the . . . application of avoidance, minimization and compensatory actions [f]or development activities and projects impacting public lands and resources.”; one year deadline for USFWS to finalize compensatory mitigation policy applicable to its Endangered Species Act responsibilities).
Some federal laws (e.g., Clean Water Act Section 404 permitting for filling of waters of the United States) already have well-developed compensatory mitigation programs; however, most federal permitting schemes have not been interpreted or implemented to authorize or require compensatory mitigation, let alone at no net loss or net benefit levels. Accordingly, to the extent that the Memorandum is intended to require net benefit or no net loss compensatory mitigation through many/most federal permitting programs, such a directive would be a significant departure from existing practice, of untested legality, and arguably contrary to existing law.
Moreover, to demonstrate that compensation has occurred at a net benefit or no net loss, unless the adverse effects are offset through generation or preservation of in-kind resources (e.g., a duck for a duck), the “damage” to affected natural resources must first be valued. Accordingly, if implemented so that compensatory mitigation is broadly required, the policy could lead to an extensive, time consuming and complicated valuation process. One worst case scenario would be for this policy to result in some form of new natural resources damages assessment, the time and expense for which would be challenging to rationalize in the context of a development proposal where cost and time are relevant (i.e., for every development project).
Unless the Memorandum is rescinded or feebly implemented, or its implementation is held unlawful, it has significant strategic, permitting, legal and financial implications for many, if not most, major development projects. Of course, it is likely to be difficult or impossible to challenge the new policies established in the Memorandum, except on a project-by-project permit-by-permit basis. As such, the pressure for project proponents to navigate (rather than litigate) the new policies will be substantial.
Posted on November 3, 2015
The Clean Water Act’s judicial review provision is bizarrely phrased and at times impenetrable. It can force litigants into lengthy threshold battles over jurisdiction that delay and sideline the actual challenges to EPA’s action. Nowhere is this better showcased than in the recent litigation over EPA’s new definition of “waters of the United States” (“WOTUS”). Companies, industry groups and public interest organizations have filed dozens of suits in district and circuit courts across the country to cover all the possible jurisdictional possibilities. The circuit court cases were filed under the Clean Water Act’s judicial review provision that automatically centralizes the cases in a randomly selected circuit court (here, the Sixth Circuit). The district court cases were filed under the Administrative Procedure Act, which contains no mechanism for consolidating the numerous cases.
In a heroic attempt to combine the district court cases and litigate in only one court, EPA looked to the multidistrict litigation process designed for coordinated discovery among cases sharing common facts. The circus that ensued was a mini-caricature of the WOTUS litigation and highlighted the intrinsic problems with the Clean Water Act’s judicial review process. The hearing before the multidistrict litigation panel began at 8:00 a.m. in a large courtroom filled beyond capacity with hundreds of lawyers representing the litigants in the fifteen matters scheduled for oral argument that day. Clerks of the court spread across the room calling each matter, and lawyers fought through the crowd to form a bunch in front of their clerk, struggling to hear over the noise. The clerks doled out oral argument time in minute increments, giving some lawyers as few as two minutes of argument time. Once the schedule was set and after a brief recess, the panel called each of the thirteen cases preceding the WOTUS matter on the docket – the Amtrak derailment, airline anti-trust, various medical device and product liability matters, etc. – moving from one matter to the next with seamless agility.
DOJ (Martha Mann) presented oral argument for EPA, and met with stiff resistance from the panel. The panel challenged EPA’s attempt to fit an APA case, to be decided on the record and the law with minimal discovery, into the MDL process designed mostly for coordinated discovery. Ultimately the panel commended Ms. Mann for a noble effort in an exceptionally uphill battle. Elbert Lin, the Solicitor General of West Virginia, presented argument for the plaintiffs and, sensing the favorable persuasion of the panel, highlighted only the diverse procedural postures of the various matters. The various jurisdictional and preliminary injunction rulings in the district courts and an appeal already before the 11th Circuit would all greatly complicate any attempted consolidation.
On October 13th, the panel issued its ruling, deciding not to consolidate the district court cases. The panel agreed that not only was the MDL process not applicable to the predominantly legal WOTUS challenges, but consolidation would only further complicate the already chaotic litigation.
Jurisdictional questions are now pending before the 6th and 11th Circuit Courts of Appeals. The 6th Circuit offers EPA its last hope of litigating the WOTUS challenges in one court. If the 11th Circuit were to disagree, the jurisdictional issues could continue to eclipse the merits of the litigation for months, if not years, pending final resolution by the Supreme Court.
Posted on November 2, 2015
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management. What a grand name; surely it is an improvement.
I don’t think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace), but one does get the sense of a bureaucracy beginning the long, hard, slog of trying to figure out how to perpetuate its existence as Superfund – mercifully – begins to fade away.
It’s probably a vain hope, but mightn’t EPA determine instead how to reallocate those functions of OSWER that need to continue, but actually try to figure out a way to shrink this element of the bureaucracy, instead of repurposing it?
Posted on October 26, 2015
The Environmental Protection Agency has released a framework for its future financial responsibility rulemaking under CERCLA 108(b). Although this framework states EPA’s current thinking only in general terms, this document represents the clearest public statement of the agency’s intentions since it announced its intention to develop such rules for hardrock mining facilities in 2009. This framework also informs of EPA’s intentions toward other classes of facilities in future rulemakings under this authority. This framework appeared as part of a court filing on August 31, 2015 and was the subject of an EPA webinar on September 29, 2015.
EPA states that the regulatory approach it is considering has five foundational components. First, the universe of facilities to be regulated are hardrock mines and “primary processing activities located at or near the mine site that are under the same operational control as the mine.” Second, the flow of funds from the financial responsibility instrument to the CERCLA would supplement existing CERCLA sources of funding, as EPA intends to use its existing CERCLA enforcement processes first to clean up sites. Third, the scope and amount of financial responsibility would consist of three components: (1) response costs, calculated based on a model being developed by EPA to reflect the primary site conditions; (2) a fixed amount for natural resource damages and (3) a fixed amount for health assessment costs.
Fourth, EPA does not intend to preempt state, tribal and local government mining and reclamation closure requirements. EPA intends to avoid preemption under CERCLA 114(d) by adopting financial responsibility requirements that are “in connection with liability for a release of a hazardous substance” in contrast to “many” state regulatory requirements designed to assure compliance with reclamation and closure requirements. Fifth, EPA likewise intends that its CERCLA financial responsibility requirements will be distinct from federal closure and reclamation bonding requirements imposed by other federal agencies under other laws with jurisdiction over mining on federal lands.
The morsel of information provided in EPA’s framework leaves interested parties hungry for more information by what is left unsaid. Particular concerns are the response cost model and its inputs and the path that EPA intends to tread around the multitude of existing financial assurance mechanisms that already apply to hardrock mining to avoid duplication and preemption. In this regard, EPA could not have picked a more difficult place to begin drafting CERCLA 108(b) rules than for this industry, which has in place many and extensive financial assurances governing the impact of its operations.
Posted on October 23, 2015
So the Clean Power Plan has been published in the Federal Register. For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP.
Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue. West Virginia apparently won the race and is the named plaintiff in the main petition filed so far.
Perhaps because Oklahoma has been one of the most persistent, and vocal, opponents of the CPP, this called to mind the origin of the Sooner State’s nickname – which seems particularly apt, since Oklahoma was one of the states that couldn’t wait for the rule to be promulgated to sue.
Oklahoma is not actually among the plaintiffs in the West Virginia suit. Oklahoma filed its own petition today. One wonders whether Oklahoma was banished from playing with the other states as a result of its impatience. Unlikely, since most of those in the West Virginia suit also filed early, but it did call to mind that other famous event in the history of the west, as recorded in Blazing Saddles.
Posted on October 14, 2015
Many organizations have announced voluntary greenhouse gas emission reduction goals by which they aim to reduce their emissions of greenhouse gases despite the absence of any legal requirement to do so. Meeting these goals implicates the concept of additionality when the goals are to be met, in part, through off-site actions, such as the purchase of carbon offsets, retirement of renewable energy credits, or construction of off-site renewable energy projects. The concept of additionality seems simple: in principle, emission reductions attributable to an organization’s actions should only be recognized or “counted” if such reductions are more than what would have been achieved absent the action. Applying the concept of additionality in the real-world, however, is complicated. Perhaps unnecessarily so?
First, the “proof” of additionality required by many of the certifying bodies can be confusing and conflicting. For the faint of heart, the concern about proof discourages any action other than the purchase of “certified” paper offsets. A second, confounding problem results from the greening of the grid itself. Emissions have been falling for many organizations simply because the electricity they procure from the grid is becoming less carbon intensive. How to square these emission reductions with the concept of additionality leads one to question how the concept of additionality should be applied to voluntary emission reduction goals.
In the context of regulated organizations, the idea of additionality makes sense. Organizations that must comply with a regulatory scheme to reduce their emissions of greenhouse gases should not be allowed to claim credit for off-site actions if such actions do not, in fact, lower emissions beyond what they would have been absent the organization’s actions. No organization (regulated or unregulated) wants to waste money paying for off-site actions that do not in fact lower emissions. Establishing that a particular organization’s action will, in fact, lower emissions more than would have occurred absent that organization’s action turns out to be much more difficult than it at first appears given the multiplicity of variables that come into play: who else might be inclined to take the same action? When? For what reason? Is the action occurring in an area governed by a renewable portfolio standard or not? Many different criteria are used by regulatory agencies and voluntary verification programs. Three examples are helpful.
The California Air Resources Board treats emission reductions as “additional” if they exceed what would be required by law or regulation and if they exceed what would “otherwise occur in a conservative business-as-usual scenario.” 17 CCR § 95802(a)(4). The American College & University Presidents' Climate Commitment (“ACUPCC”) replaces “conservative business-as-usual” with “reasonable and realistic business-as-usual.” The Verified Carbon Standard adds a requirement that the reductions are additional only if they would not have occurred “but for” the offsite organization’s investment. These different definitions have real consequences for the types of offset projects (i.e., emission reductions) qualifying as “additional.” Energy efficiency projects at a school in an economically disadvantaged city might count as additional under ACUPCC’s definition because the schools are unlikely to undertake the energy efficiency measures themselves. In contrast, such measures are unlikely to count as additional under the Verified Carbon Standard definition because the schools would save money from the efficiency measures if undertaken by themselves.
For unsophisticated organizations with limited resources, using the most conservative criteria for additionality that have been developed by other parties, whether regulatory agencies or voluntary verification programs, makes sense – emission reductions are assured and at minimal transactional cost to the organization. For more sophisticated organizations with resources to experiment and innovate, strict adherence to conservative additionality criteria can be counterproductive. Many large municipalities, large research universities and corporations have the in-house capacity to invest in bold and innovative experiments and to assess whether a given project or investment is in fact reducing emissions. Organizations such as these could use their in-house talent and money to develop creative, bold, innovative and novel projects that could reduce emissions, but will they do so if such projects might fail a strict additionality test? At a university, such projects have the added benefit of complementing the core mission to teach, research, and demonstrate ideas that others beyond the university could leverage. Should an organization abstain from pursuing such projects simply because they would fail a strict additionality test, which the organization is not legally obligated to apply? Should we re-think the circumstances in which strict observance with additionality is necessary to avoid a public relations nightmare (i.e. being accused of not really meeting the voluntary goal)?
The application of additionality in the context of voluntary goals is also complicated by the fact that the electric grid itself is becoming greener. Most organizations include in their greenhouse gas emission calculation the emissions resulting from their electricity consumption. Many organizations first announced their voluntary emission reduction goals five to ten years ago when few predicted that the electric grid would become significantly greener so fast. Here in Massachusetts, largely because of the increased use of natural gas, the electric grid now emits 20% less carbon dioxide per MWh consumed than it did ten years ago. That means that an organization in Massachusetts that has not taken any action designed to reduce its emissions will nevertheless have lowered its emissions by consuming electricity from the local grid. Crediting such emission reductions towards a voluntary goal is in tension with the concept of additionality because the reductions occurred without the need for the organization to take any action designed to reduce its emissions.
Hence, the greening of the grid should cause an organization to re-think the nature of its voluntary emission reduction goal: is the goal simply an accounting objective that can be met by actions external to the organization, such as the greening of the grid by electric utilities, or is it a a bigger, perhaps even moral, commitment to undertake a minimum level of effort to reduce emissions in addition to those resulting from the greening of the grid? If the former, an organization committed to a voluntary goal can celebrate that the utilities have made its commitment cheaper to attain. If the latter, perhaps an organization should make its goal even more stringent to avoid taking credit for emission reductions achieved by others. Is this second approach more consistent with the concept of additionality? Should we applaud an organization that is not required by law to make any emission reductions but that purchases some carbon offsets and declares it has accomplished its voluntary goal of emission reductions? Should we applaud an organization that designs, invests in or otherwise makes an effort to create a project that actually achieves emission reductions even though it is possible that someone somewhere might also have the same idea and be willing to make the same investment?
I do not pretend to have the answers to these questions. But, I do know that many organizations that have set voluntary goals are grappling with these questions now, and others will face them in the future. I welcome your comments.
Posted on October 12, 2015
The U.S. Environmental Protection Agency (EPA) is proposing two new hazardous waste rules that EPA believes will strengthen environmental protection and reduce regulatory burdens. The first is an update to the hazardous waste generator rules; the second is a new set of management standards for hazardous waste pharmaceuticals.
These proposed rules have had a long gestation, and the generator proposals have been decades in the making. Both proposed rules were signed by EPA on August 31, 2015 and will be published in the Federal Register for public comment within the next few weeks.
While touted as providing needed flexibility, the rules are far from simple. The axiom of environmental regulation holds true: complex rules only become more complex over time.
Hazardous Waste Generators
The proposed updates to the Hazardous Waste Generator Rules include more than 60 changes. Among the more notable changes is EPA’s proposal to allow a waste generator to avoid changes in generator status when generating larger amounts of waste only occasionally, provided the episodic waste is properly managed and additional notifications are submitted. In addition, the rules would explicitly allow a conditionally exempt small quantity generator facility to send hazardous waste to a large quantity generator facility under common control. In this case, a company could transfer waste from one of its locations to another. That sounds logical, but there are “strings attached” to both proposals in the form of additional requirements or conditions for access.
There are numerous other changes proposed, or highlighted for comment, some of which are likely to make waste management and compliance more complicated. These provisions include:
- New provisions on documenting waste determinations
- Regular reporting by Small Quantity Generators
- Additional labelling of containers for contents and hazards
- Longer record keeping period for inspection logs
- Required arrangements with responders (not just attempts)
- Additional procedures for closure
- Additional training for employees at Satellite Accumulation Areas
These proposed changes are sure to provoke comments and controversy. In several of these areas, there will be more “opportunities for environmental excellence” (also commonly referred to as opportunities for violations).
Hazardous Waste Pharmaceuticals
The newly proposed Hazardous Waste Pharmaceuticals Rule includes a tailored, sector specific set of regulations for the management of hazardous waste pharmaceuticals by “Health Care Facilities” (including pharmacies) and “Reverse Distributors” (businesses that accept the return of pharmaceuticals). The rule would only apply to pharmaceuticals that already meet the definition of RCRA hazardous waste and that are generated by health care facilities. However, for the first time, “Reverse Distributors” would be regulated under hazardous waste rules.
EPA is not proposing to change the list of pharmaceutical wastes that are considered hazardous wastes, with the exception of possible changes to address low-concentration nicotine products. The Agency is also generally requesting comment on what criteria it might use to identify new pharmaceutical wastes. The Agency abandoned its 2008 proposal that would have added new pharmaceuticals and applied new universal waste standards. In fact, EPA has announced that universal waste management is prohibited.
Although already prohibited under most circumstances, EPA is adopting an explicit ban on flushing pharmaceuticals down the sink and toilet. The Agency estimates that this will prevent the flushing of more than 6,400 tons of hazardous waste pharmaceuticals annually. (Really? That seems pretty high…)
EPA hopes that the new rule will make hazardous waste management easier for health care professionals by removing the traditional manufacturing-based hazardous waste generator requirements and instead providing a new set of regulations that are “designed to be workable in a health care setting.” The Agency was sympathetic to the view that the existing hazardous waste rules were viewed as complex and difficult to comply with in a health care setting. (Gee, haven’t all generators reached that conclusion for their industries?) While these may be simplified as compared to existing hazardous waste rules, complying with the management standards will still require effort and diligence.
The pre-publication versions are available on EPA’s website:
Posted on October 9, 2015
Does this make sense to you? Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act. Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule. And then, the court acknowledges it may not have jurisdiction but issues the stay anyway! That is exactly what Sixth Circuit did in the case published today.
This case is among many seeking to block the rule. The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.” But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation.
The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly. The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.
The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination. The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making. Pants first, then shoes.
Did the majority consider the situation an emergency that required immediate action? No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule. The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation.
Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal? Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing. Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record. Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.
Posted on October 8, 2015
This week, the Obama administration passed up an opportunity to promote environmental sustainability by incorporating sustainability into the Dietary Guidelines for Americans. The Secretaries of the Departments of Agriculture and Health and Human Services, Tom Vilsack and Sylvia Burwell, announced in a blog post that they would not follow the recommendation of their scientific advisory committee by incorporating environmental sustainability into the dietary guidelines. Their decision is unfortunate, and reflects a crabbed understanding of their authority under the law.
Experts on food systems have long drawn a connection between a healthy environment and food security. The representatives of the 185 countries present at the first-ever World Food Summit in 1996, for example, observed the links between food insecurity and environmental problems such as the loss of biodiversity, desertification, overfishing, degradation of land, forests, water, and watersheds, and ecological changes brought on by global warming. A substantial impetus behind the contemporary food movement is the conviction that our food system, and the security of the food supply it creates, is only as stable as the environment from which it comes. Even the Pope is onto the intimate connection between food security and the environment: the 2015 papal encyclical on the environment and poverty, Laudato Si', emphasizes the importance of a healthy environment to a secure food system. As Wendell Berry, the great agrarian and essayist, has put it, "What is good for the water is good for the ground, what is good for the ground is good for the plants, what is good for the plants is good for animals, what is good for animals is good for people, what is good for people is good for the air, what is good for the air is good for the water. And vice versa."
Federal agencies in the United States have increasingly been urged to recognize the relationship between a healthy environment and secure food. A recent entry in this field is the 2015 recommendation from a scientific advisory committee to the Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), urging that these agencies revise the Dietary Guidelines for Americans to take into account the environmental consequences of industrial agriculture and their implications for future food security.
The Dietary Guidelines for Americans are, as USDA and HHS have described them, "intended to be used in developing educational materials and aiding policymakers in designing and carrying out nutrition-related programs, including Federal nutrition assistance and education programs," and they "also serve as the basis for nutrition messages and consumer materials developed by nutrition educators and health professionals for the general public and specific audiences, such as children." Previous iterations of the Dietary Guidelines for Americans have contained recommendations on intake of fat, sodium, alcoholic beverages, physical activity, and more. The influence of the Guidelines on food assistance programs and educational initiatives has long made them a focal point for political and scientific controversy.
The statutory basis for the Dietary Guidelines for Americans is the National Nutrition Monitoring and Related Research Act of 1990. The Nutrition Monitoring Act requires the Secretaries of Agriculture and Health and Human Services to "publish a report entitled 'Dietary Guidelines for Americans'" every five years. This report is to contain "nutritional and dietary information and guidelines for the general public." The information and guidelines must be "be based on the preponderance of the scientific and medical knowledge which is current at the time the report is prepared."
Information and guidelines concerning the environmental sustainability of our present diet are assuredly "dietary information and guidelines for the general public." The exhaustive report prepared by the scientific advisory committee, reflecting current evidence on the link between dietary choices and environmental sustainability, certainly reflects "the preponderance of the scientific … knowledge which is current" at this time. The secretaries of USDA and HHS would have been well within their range of legal discretion in deciding that environmental sustainability – no less than advice on alcohol consumption or physical activity – should be considered in developing food assistance packages and educational programming for Americans. Indeed, given the huge contribution of agriculture to climate change, incorporating environmental sustainability into the dietary guidelines could well have become an important feature of the Obama administration's legacy on climate change – if the secretaries of USDA and HHS had had the vision and will to make it so.
Posted on October 2, 2015
On September 29, 2015, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. Although I think that the decision was important and largely unobjectionable, it did get one issue wrong, and it happens to be an issue near and dear to my heart – cost-effectiveness analysis. I am regularly surprised by the number of people who oppose its use and the number of people who just plain don’t get it. The 3rd Circuit (and EPA and the plaintiffs) fall into the latter category in this case.
The issue here was what metric to use in measuring the cost-effectiveness of technologies intended to reduce regional haze. Since this case involves compliance with a rule intended to reduce haze, I would have thought it self-evident that cost-effectiveness would be measured by the dollars spent divided by the amount of haze reduced. Silly me.
For those of you who don’t know, there is a measure of visibility; it is known as a “deciview.” Pennsylvania, to its credit, indeed measured cost-effectiveness on a dollars/deciview metric. The plaintiffs argued that cost-effectiveness should be measured on the basis of dollars/ton of pollutant removed. EPA waffled, first agreeing with the plaintiffs, but then concluding that, while its guidelines call for $/ton, it is acceptable to use $/dv. The Court, following the rule of decision that it must evaluate EPA’s decision based on the reasoning used in the rule, rather than on a rationale first provided in litigation, concluded that, because EPA’s own guidelines found the $/dv metric to be “flawed”, EPA’s approval of the $/dv metric was unjustified and must be remanded.
I am not sure I can count the ways this was screwed up, but let me put it simply. If we’re assessing cost effectiveness, and we have a measure of the outcomes we care about, we should use it. To use a proxy – emissions – instead of the actual outcome the rule is intended to affect – visibility – is just plain nuts.
And I have to add that, not only did the Court get this 180 degrees wrong, but it did not even seem to be aware of just how bizarre it is to reject the metric that actually measures the outcomes the rule is trying to achieve.
Posted on September 29, 2015
My wife and I are 6 months into an 18-month adventure in South America. Although we are roaming around a bit, most of our time is spent in Santiago, Chile, a city of 5 million nestled in a valley between the Andes to the east and coastal mountains to the west. Santiago is a modern city, with a highly educated population. It has lots of cars and lots of wood-burning fireplaces and stoves and the typical assortment of manufacturing and power generation facilities for a city of its size. In the winter, high pressure settles in over the valley and the fine particulate pollution builds up, creating serious public health emergencies in which driving is restricted, industrial activities are curtailed, and people are urged not to engage in strenuous activities outside.
In a sense I feel right at home, because along Utah´s Wasatch Front, winter inversions trap emissions from cars and wood burning to create grungy, unhealthy spikes in PM2.5 for days or even weeks at a time much like Santiago. In Utah the issue is addressed through the Clean Air Act, with Salt Lake City and the associated metropolitan areas designated as non-attainment areas for the short-term national ambient air quality standards for fine particulate matter and a comprehensive State Implementation Plan (SIP) developed by the Utah Department of Environmental Quality with thorough stakeholder involvement.
At the beginning of the SIP process, most of the public blamed the relatively few but highly visible industrial facilities (the refineries, the big Kennecott operations, etc.) as the principal culprits. However, as the stakeholder process evolved, public awareness shifted dramatically, with most Utahns now acknowledging that vehicle use and the aggregate effect of individual small sources are major contributors to the problem, and that individual personal choices with regard to vehicle use and lifestyle habits will be key to improving the wintertime air quality.
In Chile, the legal requirements to address winter inversion pollution are just as sophisticated and detailed as those under the U.S. Clean Air Act. The government has identified pretty much the same causes of the pollution as in Utah, i.e., cars, wood-burning, a variety of small businesses, and some but not many larger manufacturing sources. Also, Chilean law specifies a rulemaking process analogous to that in the U.S., with scientific studies, technical and economic analyses, and stakeholder consultation before finalizing an environmental rule. As a result, as in Utah, there is more public awareness in Chile of the role that individual choices play in environmental degradation which in turn leads to more of a shared sense of responsibility for dealing with it.
However, in my conversations with South American environmental lawyers outside of Chile about the legal systems for addressing environmental issues, I have found that they are not so much concerned about the substantive requirements on the books – those are not much different than those in the U.S. – but rather, are concerned that there are not always well-developed mechanisms for participation by the affected stakeholders in the development of environmental requirements.
ACOEL is reaching out to entities around the world to make available the considerable expertise of its members to address environmental challenges. In Latin America, ACOEL can play an important role in helping develop robust participatory processes which will yield great benefits in the development and enforcement of environmental requirements and the broader strengthening of participatory democratic institutions in this part of the world.
Posted on September 24, 2015
Ohio statutes authorize regional sewer districts to collect and treat sewage, including combined sewer overflows, and to charge fees for those services. The regional sewer district in the Cleveland area (“NEORSD”), with a service territory encompassing nearly 60 communities of Cuyahoga County and some nearby counties, took its authority one step further. Nearly fifty years after its creation, the NEORSD added a regional storm water management program that would charge property owners fees on the basis of a formula primarily tied to the square footage of impervious surfaces like parking lots and roofs. The NEORSD envisioned the plan would address the considerable urban sprawl that had occurred since the 1970’s and that had created vast expanses of impervious spaces in the form of parking lots, large clusters of office, shopping, Big Box, commercial and industrial facilities, often in the upland suburban areas to the east and south of the core city (many suburbs’ names end with “Heights”). With the conversion of green space to impervious surfaces, many of the lower lying areas began to experience more flooding and erosion.
Not content to wait for the individual upland communities to control storm water in a decentralized fashion, the NEORSD in 2010 adopted its plan in response to the “regional” flooding that urban sprawl created and exacerbated. But there was immediate and well financed opposition to the expanded storm water program. Opposition came from several communities which maintained their own capital intensive storm water systems and from commercial property owners which feared the hefty fees they would pay as a result of the parking lots and roof structures they had constructed. And the opposition succeeded when, in 2013, the Cuyahoga County Court of Appeals ruled that the statutory charter could not support regional storm water control. See my February 5, 2014 posting, “Storm Water Management by a Regional Sewer District: Was it a Power Grab or a Logical Extension of Existing Powers?”
With that decision, the NEORSD stopped collecting the estimated $35,000,000 per year in fees to implement the regional storm water prevention and abatement measures, but it did not give up. The NEORSD appealed to the Ohio Supreme Court, and received considerable amicus support. [Full disclosure: I authored a supporting amicus brief.]
More than a year after oral argument, the Ohio Supreme Court announced its decision. In a 5-2 vote, the high court reversed, finding that the NEORSD possessed the statutory authority to undertake regional storm water control. But as to the collection of fees, the vote was closer, with four Justices approving of the NEORSD fee plan and three dissenting. One Justice dissented because she believed that the fees are intended to relate to services and are not for the future construction and eventual operation of the infrastructure; therefore, she concluded that the NEORSD is premature in assessing fees until it actually provides a “benefit” or “service” from “water resource projects” already in operation. The other two dissenting Justices found that the regional storm water plan exceeds the NEORSD authority and that the fees are unrelated to services, and therefore, the fees are invalid, un-voted “taxes”. Northeast Ohio Regional Sewer District. v. Bath Twp., Slip Opinion No. 2015-Ohio-3705(decided September 15, 2015.
With the passage of time since the NEORSD plan’s conception in 2010, and the eventual judicial affirmation approximately five years later, a great deal of momentum was lost, with delays in the acquisition of infrastructure to abate storm water runoff and deferral in the collection of funds to implement the program. Nevertheless, the Supreme Court’s validation of the NEORSD regional storm water plan should “greenlight” similar strategies of other regional sewer districts that are grappling with urban-sprawl induced storm water issues.
Posted on September 15, 2015
Few recognize Ohio’s pivotal role in the development of the oil and gas industry in the United States. John D. Rockefeller amassed fortunes in Cleveland with his oil refining business (until Uncle Sam broke up the monopoly). Since then, there have been a number of different oil and gas booms in the state, for example in the mid-1960’s north of Columbus, then again in deeper sandstone formations in suburban areas of Cleveland approximately 10 years ago, and now, the whopping Utica shale play primarily in eight counties in eastern Ohio at depths over 8000 feet below ground surface and horizontal laterals extending a mile or more. The Ohio Department of Natural Resources (“ODNR”) has issued over 2000 Utica drilling permits, and there are approximately 1000 wells in production or drilling (costing millions to complete). Hydraulic fracturing (“fracking” its critics pejoratively call it) has been around a long time, but only recently has it been the focus of media and regulatory scrutiny. All of these historical booms going back to the mid-1960’s have forced the Ohio General Assembly to enact and update comprehensive statutes that regulate drilling activities.
Those in the industry were successful in having the General Assembly confer “sole and exclusive authority” to the ODNR “to regulate the permitting, location, and spacing of oil and gas wells and production operations.” But what about the longstanding, traditional “home rule powers” that the Ohio Constitution conferred on municipalities to take care of health, safety and land-use matters within their jurisdictions? The juxtaposition of the two came to a head in a case that ironically does not deal with the massive Utica shale wells, but more modest gas wells in a shallower formation in a suburb in Northern Ohio.
The ODNR had issued a drilling permit to Beck Energy to drill a well in Munroe Falls in 2011. But Munroe Falls obtained a local trial court injunction prohibiting the permitted drilling until Beck Energy complied with all local ordinances, including the payment of a fee, the posting of a bond, and the holding of a public meeting. Despite having the state’s authorization to proceed, Munroe Falls prohibited the drilling until it issued its zoning certificate, which it would not do (if at all) for at least one year after Beck met the other pre-conditions.
The dispute found its way to the Ohio Supreme Court, which issued a “plurality” opinion (4-3) in favor of Beck Energy (and the ODNR). State ex rel. Morrison v. Beck Energy Corp. The City argued that the state statute regulates the technical aspects of oil and gas drilling while the municipal ordinances address traditional local zoning concerns. The majority seemed troubled by the scope of the “sole and exclusive” language, but seemed content to defer this policy question to the General Assembly. Because the traditional Home Rule powers have enjoyed longstanding and wide ranging judicial respect, the majority in the Beck Energy case limited the decision to the Munroe Falls ordinances before the Court, presumably leaving open some future role for local zoning ordinances.
The initial reaction of the bar was to focus on the separate concurring opinion of Justice O’Donnell, who was reluctant to displace local zoning authority in favor of sweeping state regulatory authority. In his view, the “sole and exclusive” authority was intended to preempt a patchwork of local laws related to the technical and safety aspects of drilling and not to divest local governments of their traditional authority to promulgate zoning regulations that ensure land-use compatibility, preserve property values, and foster long-term community development plans. The dissenting Justices, along with Justice O’Donnell, noted the troubling omission of the word “zoning” when the General Assembly spoke to “exclusivity.” That is to say, if the General Assembly really meant to displace local zoning practices, it could have clearly said so, as it has done with other licensing statutes.
The Ohio Supreme Court’s decision has not put an end to the hotly contested question of the scope of pre-emption. For example, an activist group in suburban Broadview Heights has filed a putative class action lawsuit claiming that the City’s Community Bill of Rights supersedes state laws. And recently, the Ohio Secretary of State refused to certify county-wide ballot initiatives that sought to prohibit fracking and/ or drilling in their respective jurisdictions.
So after I finish this blog tonight, I will drive down Rockefeller Drive, pass the remains of the old Standard Oil refinery, and wonder what John D would have thought of this tension between state preemption and local health and safety regulations.
Posted on September 10, 2015
On Wednesday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register. The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”
Really? Tell me something I did not know.
I’m sorry. The CPP is a far-ranging rule. There are strong legal arguments against its validity. Those arguments may prevail. I see it as about a 50/50 bet. This I do know, however. The sky isn’t falling. The sky won’t fall, even for West Virginia, if the rule is affirmed and implemented. Those opposed to regulation have made these arguments from time immemorial – certainly no later than when Caesar tried to regulate the amount of lead in Roman goblets. And if I’ve got that one wrong, at least no later than Ethyl Corporation v. EPA, when opponents of EPA’s rulemaking on leaded gasoline thought that the rule would mean the end of western civilization.
I’m not naïve. I understand that these arguments are political as well as legal. I just think that opponents of EPA rulemaking undermine their own political position in the long run by repeatedly predicting catastrophe, even though catastrophe never arrives.
Posted on September 9, 2015
California’s “Proposition 65” warning requirements have long been a major concern for businesses that want their products offered for sale in the State’s large marketplace. Businesses whose products contain even a detectable amount of any one of more than 900 chemicals often face enforcement lawsuits brought by for-profit plaintiffs unless their products contain a “clear and reasonable” Proposition 65 warning. Short of eliminating the chemical entirely, the only way for businesses to immunize themselves from such claims has been for companies to label or display their products with a generic warning based on language set forth in the original Proposition 65 regulations. It usually states: “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
Three new developments threaten to make Proposition 65 less predictable and more difficult.
1) New Proposition 65 Warning Regulations Proposed for Adoption: Earlier this year, the California Office of Environmental Health Hazard Assessment (“OEHHA”) formally proposed an extensive set of new rules concerning the requirements for Proposition 65 warnings to be deemed “clear and reasonable.” While Proposition 65’s current regulations allow for compliance with its warning requirements through the type of generic, one sentence statement appearing above, the proposed regulations will, among other things, require:
a. use of a yellow triangle pictogram containing an exclamation point;
b. a more unequivocal warning statement indicating that the product “can expose” a user to chemicals known to the State to cause cancer and birth defects or other reproductive harm;
c. listing particular chemicals if they are among a group of twelve which are the most frequent targets of Proposition 65 litigation;
d. adding a URL to all warnings linking a public website that OEHHA will operate to provide information supplementing the warning for those so interested (see below); and
e. presentation of the warning in languages in addition to English if the product label otherwise uses languages other than English.
The proposed new Proposition 65 warning regulations specify alternative and additional requirements for certain types of products, including for food, restaurants, and several products or facilities that have previously been the subject of enforcement litigation. They also adopt revised and more onerous requirements for warnings for “environmental exposures,” such as for air emissions that arise from the operation of facilities or equipment within the State. As proposed, businesses will have two years from the adoption of a final rule to transition their warnings to meet the requirements of the new regulation, after which they can face enforcement actions and citizen’s suits for products in the California market that still bear the old (or no) warnings.
2) New Proposition 65 Website-Related Requirements Proposed for Adoption: Although not contemplated by the voters when they approved Proposition 65 over twenty-five years ago, OEHHA is also proposing that it operate a website to provide information to the public to supplement and explain the basis for the Proposition 65 warnings given by businesses. Information to be provided on this website may include the routes or pathways by which exposure to a chemical from a product may occur, OEHHA’s quantification of the level of exposure to a chemical presented by a product, and other information that may be of interest to plaintiffs as well as to sensitive consumers and other members of the public.
Significantly, in addition to its potential public education function, the proposed website regulations also empower OEHHA to require that manufacturers, importers, and distributors of products bearing a Proposition 65 warning provide the agency with information if so requested. Such information may include the identities of the chemicals in the product for which a warning is being given, the location or components of a product in which such chemicals are present, the concentration of those chemicals, and “any other information the lead agency deems necessary.” While trade secret protection may be asserted in some circumstances, the requirement to provide information to OEHHA will be enforceable by public prosecutors, including the California Attorney General and District Attorneys.
3) Potential Changes Relative to Proposition 65’s “Safe Harbor” Levels for Chemicals Listed for Reproductive Effects: Lead has been the focus of the vast majority of all Proposition 65 enforcement actions to date and resulted in hundreds, if not thousands, of settlements with national and international implications over the past two decades. Cases have included those concerning trace levels of lead in ceramic tableware, water faucets, candy, mini-blinds, toys, and a wide array of other consumer products and foods. However, in 2013, a trial concerning lead in 100% fruit juices, packaged fruits, and baby foods resulted in a highly significant Proposition 65 defense verdict based on a judge’s finding that the trace levels of lead exposure presented by each of these products was less that the State’s published “safe harbor” warning threshold for lead of 0.5 “micrograms/day.” A California Court of Appeal decision published earlier this year sustained, among other things, the trial court’s finding that it was permissible for defendants’ experts to construct a daily average level of exposure based on real world data concerning the frequency of the consumption of the products at issue over a fourteen day time period. Environmental Law Foundation v. Beech-Nut Corporation, et al., 325 Cal.App.4th 307 (2015).
In anticipation of this type of appellate decision, earlier this year, one of the most historically active Proposition 65 plaintiff’s groups, the Mateel Environmental Justice Foundation, filed a lawsuit seeking a writ of mandate and declaratory relief challenging the 0.5 microgram/day “safe harbor” for lead. Mateel contends that California’s published threshold for lead was not set consistently with Proposition 65’s 1,000-fold safety factor requirement for reproductive toxicants. It therefore argues that this longstanding Proposition 65 safe harbor threshold should be declared illegal and inoperative despite it having been published more than 25 years ago and relied on for thousands of settlements and warning decisions. Mateel further argues in its case that OEHHA should be ordered to promptly establish a dramatically more stringent safe harbor level for lead based on updated science concerning trace level exposures to lead. It also seeks to have OEHHA ordered to adopt a rule precluding the averaging of exposure across multiple days in relation to the lead safe harbor level. A second prominent citizen’s group, the Center for Environmental Health, which also focuses on Proposition 65 enforcement, submitted an administrative petition to OEHHA in early July seeking relief parallel to that sought by Mateel, regardless of the outcome of the lawsuit.
OEHHA has just announced that, in response to this petition, it will soon initiate a rulemaking to update the existing Proposition 65 safe harbor for lead and several related Proposition 65 regulations. The proposals include several major changes in the way the extent of exposure is calculated and how Proposition 65’s regulatory exemption for “naturally occurring” exemption for foods is determined. OEHHA’s new proposals essentially seek to nullify the important Beech-Nut precedents and will likely make it even more difficult for businesses to defend Proposition 65 claims about lead and the nearly 300 other chemicals listed for reproductive effects, especially those that may be present as trace contaminants in food products. OEHHA’s proposals include the following four elements:
A. Revised Safe Harbor for Lead and Other Chemicals. OEHHA proposes to repeal the current safe harbor level for lead (the Maximum Allowable Dose Level or MADL). In its place, OEHHA proposes multiple levels that depend on the frequency of exposure, from exposure once per day to once every 116 or more days. OEHHA asserts that the once-per-day figure should be reduced from 0.5 to 0.2 micrograms/day and that the existing 0.5 microgram/day level should instead apply only to exposures that occur no more than once every third day. For exposures that would occur only once every 6 to 9 days, the lead safe harbor figure would rise to 1.0 microgram/day and to higher amounts as exposure intervals become more infrequent. Plaintiffs’ groups contend that the lead safe harbor should be an order of magnitude lower at 0.03 micrograms per single day and do not want any alternative levels based on frequency of exposure over time. Despite its proposal for lead, as to all other chemicals listed for reproductive effects OEHHA proposes to eliminate any consideration of the frequency of exposure when safe harbor levels are applied.
B. Naturally Occurring Allowances for Lead and Arsenic in Some Foods. OEHHA also proposes to adopt specific naturally occurring allowances for lead and arsenic (but not other chemicals such as cadmium) in some specific types of food ingredients/products. The allowances for arsenic are 60 ppb and 130 ppb for white and brown rice respectively. For lead, they are 8.8 ppb for raw leafy vegetables and 6.2 ppb for raw non-leafy vegetables, fruit, meat, seafood, eggs, and fresh milk. The agency bases its proposal on data regarding background levels of lead in soil in California as well as rates of uptake by relevant plants.
C. Averaging of Product Samples. OEHHA further proposes to expressly prohibit averaging lead or other contaminant levels across different lots of a food product in the final form it will be purchased by a consumer. It would instead require that the level of a contaminant in a lot of food be determined by “representative sampling” from within a particular lot. OEHHA also would define a “lot” on a production basis, apparently by reference to date or production codes, which could significantly increase the amount of testing required. Testing on this scale may be infeasible for most businesses.
D. Average Rate of Exposure. Finally, OEHHA proposes to dictate that, as to any Proposition 65-listed chemical (lead or otherwise), the “average rate of exposure” must always be calculated based on the arithmetic mean and not a geometric mean or some other measure of the central tendency of a data set. OEHHA’s proposal flies directly in the face of the scientific testimony that prevailed in Beech-Nut and the prior position of the California Attorney General’s office on this issue.
OEHHA has scheduled public hearings to further discuss its new proposals on October 14 and 19, 2015. It is also inviting written public comment on the lead safe harbor issue until October 28, 2015, and on the averaging issues until November 2, 2015.
Posted on September 8, 2015
On October 15-17, 2015, the Fellows of the American College of Environmental Lawyers will be gathering in New York City for our 2015 annual meeting.
Registration for the annual event has been strong. Those Fellows who plan to attend, but who have not yet registered, are urged to do so now as deadlines are imminent, particularly for the room block and for the tour described below.
Some of the highlights of this year's meeting are:
- Thursday afternoon, October 15: World Trade Center lecture tour and visit to the 9/11 Memorial: An on-site lecture/tour of the rebuilding of the World Trade Center, emphasizing the environmental aspects of the rebuilding process, followed by a visit to the 9/11 Memorial. (Registration for this event closes the week of September 7.)
- Thursday evening: Welcome Cocktail Reception at the New York Athletic Club, followed by the College's customary dine-arounds.
- Friday, October 16: A full day of business and committee meetings and education sessions at the New York Athletic Club, including:
o Keynote speech by Jody Freeman of Harvard Law School: The Obama Administration's Clean Power Plan: Is it Legal?
o Crude by Rail: Staying Nimble in Times of Unprecedented Change, presented by Eileen D. Millett (Epstein Becker & Green), James A. Bruen (Farella Braun + Martel), Edward F. McTiernan (New York State DEC) and E. Gail Suchman (Stroock & Stroock & Levan)
o Big City, Big Environmental Challenges, Big Opportunities, presented by Eric A. Goldstein (NRDC), Daniel Riesel (Sive, Paget & Riesel) and Nilda Mesa (NYC Mayor's Office of Sustainability)
- Friday evening: Dinner reception at the Lincoln Ristorante, located at Lincoln Center of the Performing Arts, by the Henry Moore Sculpture Pond between the Metropolitan Opera House and Avery Fisher Hall.
- Saturday morning, Oct. 17: A half-day of education sessions:
o Sediment Cleanups: Stuck in the Mud?, presented by John Connolly (Anchor QEA), William H. Hyatt, Jr. (K&L Gates) and Walter Mugdan (U.S. EPA Region 2)
o Leading Cases and Other Highlights of the Past Year, presented by John Cruden (U.S. Department of Justice) and Robert Percival (Univ. of Maryland School of Law)
- Saturday evening: Jazz Dinner Dance at the Martha Graham Center of Contemporary Dance, located at the historic Westbeth Artists Community in West Greenwich Village, featuring the Manhattan School of Music Jazz Orchestra.
Further details for ACOEL Fellows are available on the ACOEL website. Here's to seeing many of the Fellows in New York City!
Posted on September 2, 2015
A whole lot of craziness is going on in federal district and appellate courts all over the country right now. About what? About judicial review of EPA’s recent “WOTUS” rule under the Clean Water Act (CWA). So I can avoid wheel re-invention, see the very recent ACOEL blogs by Seth Jaffe and Rick Glick.
So what’s the problem? You might find a lot to hate about the Clean Air Act, the Resource Conservation Act, the Safe Drinking Water Act, and I could name a few others, but at least they all have one good thing going for them: they all provide in a crystal clear manner that judicial review of EPA’s national rules under those statutes will lie exclusively with the D.C. Circuit. No ifs, ands, buts, or maybes.
For reasons I have never understood (and I have been trying since the 1970s), Congress in its infinite wisdom chose a different path in the CWA. In Section 509, they listed seven types of actions that must be reviewed in a federal Court of Appeal (not necessarily the D.C. Circuit) and left any other type of action to be reviewed initially in federal district court.
Over the years, a lot of mixed case law has developed regarding EPA’s CWA rules that don’t fit neatly within one of the seven types of actions Section 509 has specified for Court of Appeals review. Quite predictably, as reflected in Seth’s and Rick’s recent blogs, three district courts last week reached conflicting results over whether WOTUS fits within the seven types. In its WOTUS preamble, EPA included a discussion about confusion in the courts over the issue and took no position on whether WOTUS should initially be reviewed in a district court or Court of Appeals.
So how crazy is this: right now, we have (1) a ruling from one district court judge in North Dakota finding he has jurisdiction and enjoining EPA from enforcing WOTUS; (2) a statement from EPA saying the agency will honor his injunction only in the 13 States that were plaintiffs in that action; (3) an order from that judge directing the parties to brief the issue of whether EPA has authority to honor his ruling in only those states; (4) decisions from two other federal district judges holding WOTUS judicial review must be brought only in a Court of Appeals; (5) numerous cases filed in several circuit Courts of Appeals that have been transferred (at least for now) to the 6th Circuit; (6) an almost certain EPA appeal to the 8th Circuit in attempt to reverse the North Dakota judge’s injunction; and (7) WOTUS review cases filed in numerous other federal district courts by lots of parties with various motions still pending.
This is early September, and I can’t imagine how this won’t get a lot crazier over the next few months. Congress in its infinite wisdom!
Posted on August 31, 2015
With so many challenges filed in so many venues to EPA’s Waters of the United States or WOTUS rule, it seemed inevitable that some plaintiffs somewhere would find a sympathetic court. And so it is that thirteen states found U. S. District Judge Ralph R. Erickson to preliminarily enjoin the “exceptionally expansive view” of the government’s reach under the Clean Water Act.
This case is interesting from a couple of perspectives. First, Congress conferred original jurisdiction for challenges to EPA “effluent limitations or other limitations” and for permit decisions upon the Circuit Courts of Appeal. In the past two days, district court judges in West Virginiaand Georgiaconcluded they lacked jurisdiction over challenges to the WOTUS rule on that basis. Judge Erickson, however, did not feel so constrained.
The judge found that the WOTUS rule is simply definitional, and neither an effluent limitation nor an “other limitation” on states’ discretion. Further, the judge found that the rule “has at best an attenuated connection to any permitting process.” The conclusion states’ discretion is not affected is a bit odd in that the judge later concludes that the state plaintiffs satisfied all the criteria for a preliminary injunction, including irreparable harm caused by the rule.
Second, Judge Erickson plays on an internecine dispute between EPA and the Army Corps of Engineers in an unusual way. In my first sentence I refer to the WOTUS rule as EPA’s, although the rule was jointly adopted by EPA and the Corps. However, recently leaked internal government memorandaindicate that the Corps disavows much of the technical support and policy choices underlying the rule. Judge Erickson obliquely references these memoranda and seems to rely on them to conclude that plaintiffs are likely to succeed on the merits of their challenge.
Typically, courts are loathe to rely on internal documents of uncertain provenance, as they prefer to leave the government room to openly discuss policies under development without fear its deliberations would be disclosed. But in this case, Judge Erickson notes that he has not been presented with the full record for the WOTUS rulemaking, and so felt justified in citing the Corps memos.
As Seth Jaffe has observed, it seems likely that Judge Erickson’s jurisdictional determination will not stand, and his reliance on the confidential exchanges between the Corps and EPA is a little disturbing. However, his order highlights EPA’s poor management of this rulemaking, which has led to challenges from states, property rights advocates and environmentalists—a kind of anti-EPA trifecta.
As previously noted, EPA released its draft WOTUS rule before the work of the Science Advisory Board was complete, thus raising questions as to the rule’s scientific objectivity. Then EPA seemingly disregarded the technical concerns raised by its rulemaking partner, the Corps. Any WOTUS rulemaking would be controversial, but EPA has unnecessarily raised the bar for public acceptance.
Posted on August 28, 2015
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. Finding that a definitional rule is not an effluent limitation and is not any “other limitation”, because it “places no new burden or requirements on the States”, Judge Erickson concluded that the district courts do have jurisdiction. Addressing the merits, Judge Erickson concluded the states were likely to prevail, and would suffer irreparable harm in the absence of an injunction. He thus enjoined enforcement of the rule in the 13 states involved in the case before him.
I’ll go out on a limb and assert that Judge Erickson’s decision is not likely to survive. Why not?
- Both the Georgia and West Virginia opinions cogently explain why the WOTUS rule is an “other limitation under existing CWA cases.
- Judge Erickson was clearly trying to have his cake and eat it, too. It is, to put it mildly, internally inconsistent for Judge Erickson to conclude that he had jurisdiction to hear the case, because the “rule places no new burden or requirements on the States”, while ruling on the merits that the States will suffer irreparable harm if the rule goes into effect. If they will suffer harm, it is precisely because the rule will limit them in new ways – which is pretty much what his own opinion says.
- As Judge Keeley noted, providing consolidated jurisdiction over all challenges to the rule in one court of appeals furthers
“the congressional goal of ensuring prompt resolution of challenges to EPA’s actions.” That scheme would be undermined by … a “patchwork quilt” of district court rulings.
Based on these three decisions in just the last two days, it would seem that truer words were never spoken.
Posted on August 26, 2015
Autonomous vehicles will almost certainly supplant people-driven vehicles, the horse-and-buggies of the 21st century. Given the pace of technological change, that day is closer than you may think.
As recently as 2004, the Department of Defense’s research arm sponsored a race for self-driving vehicles over a 142-mile desert course. That year, 15 self-driving vehicles entered the race, but none made it to the finish line. The following year, four autonomous vehicles successfully completed a 132-mile desert route within the required 10-hour limit. A short 10 years later, Google’s autonomous cars have traveled nearly 2 million miles and its cars legally drive the roads of Mountain View. Testing centers for autonomous vehicles have been established in Michigan, Sweden and Japan.
Our land-use planning and zoning regimes, however, are tailored to meeting the needs of driven cars. Land-use plans and standards will need to be changed to maximize the benefits of shifts from the two-car family to the shared-driverless-car community. As many people as possible need to share his or her vision of the future as part of this process for change.
Planning rules for housing, stores and offices require parking areas. Roads and streets are sized to accommodate a flow of traffic based on models of driven cars. The needs of cars dominate cities and suburbs, and have done so for decades. Everywhere you look you see vehicles: Not just the hordes of cars moving on streets and highways, but the endless rows of cars parked at the curbs and road shoulders, and vast parking lots that envelop shopping centers, business parks, sports stadiums and other destinations. In some cities, parking makes up a quarter of the land use.
As autonomous vehicles begin displacing the ones requiring a human at the wheel, people will no longer need to keep a car parked near where they live. The parking space will no longer be a valued office perk. Parking areas around shopping centers and stadiums will begin to disappear because autonomous cars can be stored (or used) elsewhere and just come to pick up the passengers when needed. Our land-use standards do not contemplate a traffic pattern where picking up and dropping off passengers is a dominant feature of the transportation landscape and where parking is almost an afterthought.
Over time — perhaps decades, perhaps sooner — as more people turn to autonomous cars for transport from home to work, school and play, it will no longer be necessary for each person or family to own a car. The overall fleet of vehicles can be managed more efficiently to serve more people, much like what is happening with the increased use of car-sharing services and chauffeured services. Fewer personal vehicles will also reduce the need to require parking areas.
It will take a concerted effort over many years by planners, engineers, social advocates and affected communities to decide how to best address changes that will occur. Transit and social service agencies should see the development of autonomous vehicles as a laboratory for experimentation. I see great opportunities for positive change:
- Reduced housing costs and increased capacity by eliminating the need for high rises and homes to build expensive parking garages.
- Land for other, more productive uses as shopping centers give up vast parking areas to areas designed for efficient passenger pick-up and drop-off.
- Improved water quality, as land now covered with concrete for parking is converted to grass.
- More biking and walking paths as street lanes formerly used for parking are converted to these uses, and for lanes for bus rapid transit.
- Enhanced transportation for low-income and underserved communities through use of autonomous microbuses, subsidized access to autonomous cars and other means.
Collective brainstorming will develop ideas that can be discussed, refined and eventually implemented as we enter the era of autonomous vehicles. Everyone has a stake. What are your thoughts on how to adopt land-uses to autonomous vehicles?
This article was originally published in the San Francisco Chronicle on August 16, 2015.
Posted on August 24, 2015
Amid the controversy around the just released EPA Clean Power Plan rule, the impacts of climate change are becoming apparent with a proliferation of heat waves, droughts, floods, wildfires and other extreme weather events and trends, both in the U.S. and globally. While many climate scientists (and world governments in the 2010 Cancun Agreements) have agreed that it is necessary to limit average global temperature rise to 2 degrees Celsius to avoid potentially catastrophic and irreversible effects of climate change, the impacts we’re now witnessing result from a temperature rise of just under 1 degree C. We are currently on a trajectory toward a 3 to 4 degree (or more) increase, which has sobering implications.
In preparation for the COP 21 negotiations in Paris, world governments are engaged in a “bottom up” process of submitting proposed national emission reduction pledges poetically called Intended Nationally Determined Contributions (INDCs). These are not expected to get us to a 2 degree future, but will hopefully form the basis for an international agreement that sets the world on a path toward that target or something close.
The U.S. INDC calls for reducing our emissions by 26-28 percent below 2005 levels by 2025, which will require additional measures beyond those currently proposed or in place (including the EPA Clean Power Plan, CAFÉ and truck efficiency standards, methane and HFC controls). All of these measures are controversial and under attack from various quarters. As the world’s second largest emitter, the U.S. must implement credible and effective emission reduction strategies to convince other major emitters in the developing world (China, India, et al) to control their emissions and to help avoid the worst effects of climate change.
Solving climate change clearly poses huge challenges, but it also presents huge economic opportunities. As highlighted in Ceres’ 2014 Clean Trillion report, International Energy Agency analyses show that the world needs an average of more than $1 trillion in additional annual investment in clean energy technologies (renewable energy, energy efficiency, efficient transport, etc.) beyond 2012 levels of about $250 billion. This creates a massive need for capital, and presents a huge economic and investment opportunity to finance the necessary low carbon, clean energy economy.
A global transition to a low carbon economy is in progress and accelerating, but too slowly. Policies that put a meaningful price on carbon emissions and eliminate fossil fuel subsidies are needed to scale up clean energy investment. Fortunately there is growing business and investor support for such actions, as evidenced by the Global Investor Statement on Climate Change and recent letters from more than 350 companies supporting EPA’s Clean Power Plan. More such voices are needed to make the business and political case for solving climate change, before it is too late.
Posted on August 20, 2015
For those of you who, like me, are becoming more confident as the years go by that you have “seen it all” in the field of environmental law, this strange current event will change your mind.
California’s oil and gas production industry has been on a roll for the past decade. Aided by the price of crude oil in the $100 per barrel range and new technologies, including hydraulic fracturing among others, industry has increased production from previously written-off reservoirs. During this time, the California Division of Oil, Gas and Geothermal Resources (“DOGGR”) has been the lead agency for that industry, issuing the key environmental permits for its regular operations. Those include the underground injection permits that allow the industry to take the wastewater typically produced along with crude oil from subsurface production zones and reinject it underground into other water bearing zones. For nearly thirty years, the issuance of such permits proceeded without major interruption or controversy, but as of the start of this year all that changed.
The story begins in 1982 with California’s application for primacy to implement the Underground Injection Control (“UIC”) program of the federal Safe Drinking Water Act. Historically, in California most crude oil producing formations are comprised of over 90% water. Produced water, generally of poor quality, has been disposed as Class II wastes through underground injection wells often located near the production wells. California’s application for UIC primacy identified those underground aquifers where injection of produced water from oil and gas production was already taking place. These aquifers were exempt from the prohibition on underground injection of Class II wastes either because they contained greater than 3,000 mg/l of total dissolved solids (“TDS”) and as a result were considered to be unfit as drinking water, or they contained less than 3,000 TDS but met stringent standards of the UIC program.
In a memorandum of agreement (“MOA”) between US EPA and DOGGR executed in September 1982, the two agencies memorialized their agreement to allow DOGGR to implement the federal UIC program in California. A list of both exempt and non-exempt aquifers is attached to the MOA. Just a few months later, in December 1982 a second version of the MOA was circulated that transferred 11 of the aquifers from the non-exempt list to the exempt list. Then, in one of the stranger administrative developments I’ve seen, the September 1982 signature page was affixed to the end of the changed MOA and attachment. Thus, there were two MOAs – MOA1 drafted and executed in September 1982 and MOA2 apparently drafted and agreed upon in December 1982, both using the same signature page from September. The 11 aquifers that went from non-exempt aquifers into which there could be no Class II discharge to exempt aquifers allowed to receive Class II discharges included some of the more critical subsurface aquifers used by the oil and gas industry.
As a result of the 1982 MOAs and the transfer of the administration of the UIC program to DOGGR, California’s oil and gas industry was able to secure a much closer (geographically and philosophically) regulatory agency. UIC permits have been routinely issued to oil and gas producers for injection into exempt aquifers – as recognized in MOA2. Today there are approximately 50,000 produced water and enhanced recovery oil and gas injection wells in California. The oil and gas industry has invested hundreds of millions, more likely billions, of dollars in infrastructure and hardware for these wells based in substantial part on the authorizations in their DOGGR permits.
Now we come to the punchline and the strange situation we find ourselves in today.
Beginning in about 2012, US EPA took a hard look at DOGGR’s implementation of the UIC program and concluded that DOGGR may have issued UIC permits for injection into underground formations that either were not, or should not have been, exempt under the standards set forth in the UIC program. That audit culminated this year in a series of letters issued by both EPA and DOGGR setting forth an ad hoc program to re-evaluate many of the underground formations that had been treated as exempt by DOGGR for decades, including the 11 aquifers that had been “switched” from non-exempt to exempt status by MOA2. EPA and DOGGR contend that industry must prove that some of these long-held exempt aquifers really qualify for their exemptions, even though industry received permits from DOGGR based upon the 1982 MOA. This complete reversal of long-held assumptions has caused a substantial amount of angst and uncertainty in the industry.
But perhaps the most astonishing development is the publication of analyses of the validity of the two competing MOAs for the 11 aquifers that appeared on the California EPA website and the dissemination of the competing MOAs on the DOGGR website. In a March 2, 2015 memorandum authored by Matthew Rodriguez, the Secretary of Cal EPA, the strange procedural history of the competing MOAs, with identical signature pages, is detailed and includes a relatively candid admission that “DOGGR and U.S. EPA agreed to exempt the 11 aquifers, but may not have followed regulatory procedures.”
Cal EPA and DOGGR seem to agree that they assumed and treated the 11 aquifers as exempt for 30 years and that MOA2 appears to be the real, and final, MOA. However, US EPA has not issued a final opinion on that issue and continues to leave open the prospect that the 11 aquifers, among others, were never somehow officially exempt under the UIC. They have even adopted a moniker for the 11 and calling them the “11 historically-exempt aquifers.”
The final conclusion to this story is yet to be written. Assuming that re-consideration of the status of the exempt aquifers does not result in the removal of their exemption, then it may not be necessary to determine what legal significance the competing MOAs enjoy, or which one is “right.” But if EPA or DOGGR change the status of aquifers from exempt to non-exempt, their actions may shut down injection operations, thereby imperiling ongoing oil and gas operations. In that event, one or more of the affected industry companies may challenge the validity of MOA1 and seek to compel validation of MOA2.
If that happens, then as an oil and gas industry lawyer, I’m hoping that as between the twin MOAs, MOA2 is Pollux and MOA1 is Castor.
Posted on August 10, 2015
Last year I published an article in Bloomberg BNA entitled “Protection of Judicial Review Watered Down in D.C. Circuit.” I focused on a recent D.C. Circuit ruling (UARG) I hoped would “turn out to be an unfollowed – and eventually forgotten – glitch.” The effect of the “glitch” is to delay interminably judicial review of final Clean Air Act (“CAA”) rule provisions that EPA never hinted might be included in a final rule – even though the un-foreshadowed provisions go into full force and effect.
The Court’s judges must have missed that BNA edition, because they have followed the same rationale at least twice more now – in their Mexichem opinion of May, 2015 and their “Transport Rule” (EME Homer) decision last week.
This regrettable situation arises from the Court’s new interpretation of a CAA provision (§307(d)(7)(B)) which is quoted in full in my BNA article. It begins with the hornbook proposition that you can’t attack a rule’s provision on judicial review on grounds that were not raised during the comment period. It then provides for a process known as a “petition for reconsideration.” If a party can show that it could not have raised an argument during the comment period, EPA must conduct a “reconsideration” process. EPA’s actions in response to the petition are then subject to judicial review. This provision has often been used where EPA supports a final rule with facts or rationale not included in the record when the public comment period was open.
Now consider the following hypothetical. Assume EPA proposes a CAA rule requiring boilers to install a certain type of control device. EPA’s final rule drops the control requirement and simply prohibits boilers from combusting coal, effective two years from the final rule’s issuance. EPA’s proposal never mentioned coal prohibition as an option, and no one suggested it in their comments. So most would assume that boiler owners could then file D.C. Circuit petitions for review and have slam-dunk arguments for vacatur.
As shown in my BNA article, the D.C. Circuit has on many occasions (as recently as December, 2013) done just that. But since then, EPA and DOJ lawyers have advanced what I think is a ludicrous position: when a party believes a final CAA rule provision was issued in violation of notice-and-comment requirements, it cannot pursue judicial review on that issue unless and until it first files a petition under §307(d)(7)(B) and waits for EPA to take final action on that petition.
Unfortunately, the D.C. Circuit has bought this position three times now. Here is how the D.C. Circuit summarized the point in EME Homer last week:
[P]etitioners argue that EPA violated the Clean Air Act’s notice and comment requirements by significantly amending the Rule between the proposed and final versions without providing additional opportunity for notice and comment. Because that argument is an objection to the notice and comment process itself, petitioners obviously did not and could not have raised it during the period for public comment. Under Subsection 7607(d)(7)(B), however, the only appropriate path for petitioners to raise this issue is through an initial petition for reconsideration to EPA.
Note the opinion in effect concedes just how absurd this is. The petitioners “obviously did not and could not” have raised this objection. How can one object to EPA’s failure to propose something that EPA failed to propose?
EPA almost always delays action on §307(d)(7)(B) petitions for years so in the hypothetical above, the coal prohibition would go into effect before judicial review could even begin. Boiler owners would either have to shut down operations or convert to non-coal burning facilities, at which point judicial review would become pointless. The effect: EPA stops coal burning at boilers by declining to propose such a requirement in the first place!
If you think EPA or the D.C. Circuit would out of fairness suspend application of rules in such situations, see the examples to the contrary in my BNA article and read the Mexichem opinion. If you think I am exaggerating about how long it takes for a §307(d)(7)(B) petition to be processed, see the examples in my BNA article. And consider that in last week’s EME Homer opinion, the Court concluded its discussion above by noting that at least one party had filed such a petition but that EPA had not yet acted upon it. That petition was filed in 2011.