Court Rules EPA Cannot Set TMDL For Stormwater

Posted on April 30, 2013 by Ridgway Hall

On January 3, 2013, the District Court for the Eastern District of Virginia ruled that EPA lacks the statutory authority to set a Clean Water Act (“CWA”) total maximum daily load (“TMDL”) for “stormwater flow rates” as a surrogate for sediment deposition. Virginia Dep’t of Transportation et al v EPA et al.  EPA has decided not to appeal.  The case has received national attention because of its implications for other TMDLs that use surrogates. This article will discuss the decision and its significance for the TMDL and water quality regulatory regime.

The relevant statutory framework is CWA Section 303, under which each state establishes water quality standards for waters within its boundaries.  These consist of a designated use (trout fishing, contact recreation, etc.) and numerical or narrative “water quality criteria” necessary to support that use.  For “impaired waters” where the criteria are not being met, the state must set a TMDL (think “pollution budget”) for each pollutant for which the criteria are exceeded, and implement a “planning process” leading to achievement.  Where the state fails to act, or sets a TMDL which EPA regards as insufficient, CWA Section 303(d)(2) directs EPA to set the TMDL.

Accotink Creek is a 25 mile tributary to the Potomac River in Virginia, in which the benthic organisms were impaired, primarily because of sediment deposited by stormwater running off impervious urban and suburban areas.  In April 2011, after Virginia failed to set a TMDL, EPA set one which limited the flow rate of stormwater into Accotink Creek to 681.8 cu ft/ acre-day.  The court said that the parties agreed that “sediment is a pollutant, and that stormwater is not” (Slip op. 3). While EPA’s brief contains a fallback argument that stormwater can be viewed as a “pollutant”, it did not dispute that stormwater flow was being used as a surrogate for sediment.  Thus the question addressed by the court was whether EPA has the statutory authority to set a TMDL for a “surrogate” which is not itself a “pollutant”. 

EPA has used surrogates in a number of circumstances where, in its view, the surrogate would provide appropriate reduction of pollutants, and would be either easier to measure or provide other benefits (such as, in this case, reduction of stream bank scouring caused by heavy stormwater discharges), or both. The court rejected EPA’s argument that since the CWA does not expressly address the use of surrogates, EPA’s use of them should be upheld as reasonable “gap-filling”, consistent with the broad remedial objectives of the CWA, and entitled to substantial Chevron step 2 deference. The court held instead that because the CWA instructed EPA to set TMDLs for “pollutants”, not “surrogates”, the statute was clear.  The court distinguished EPA’s use of surrogates in this case from other instances  in which surrogates have been used under other CWA provisions (notably Sections 301, 304 and 402) where EPA appears to have greater latitude.

EPA and states have used stormwater surrogates in TMDLs in Connecticut, Missouri and North Carolina. They have also used other types of surrogates, such as impervious surface area limits and secchi disc readings.  Some of those have been challenged, and this decision will no doubt provide ammunition for those who oppose their use.  Nationally, however, this amounts to a very small percentage of the TMDLs that are in place, even if one focuses only on sediment (for which, the court noted, EPA has issued approximately 3700 TMDLs).

In addition, this ruling will have no effect whatever on EPA’s permitting of  industrial and municipal stormwater  discharges, including municipal separate storm sewer systems (“MS4s”), or its ongoing development of stormwater regulations, because these activities are expressly authorized under CWA Section 402(p).  This is especially important, because EPA and many states now recognize stormwater as a major source of contamination and water quality impairment.  For a thoughtful article on this subject and emerging approaches, see Dave Owen, Urbanization, Water Quality, and the Regulated Landscape82 U. of Colo. L. Rev.  431 (April 2011).

Game, Set, Match

Posted on April 29, 2013 by Michael Hardy

On September 14, 2011, I posted a blog piece that was entitled “A Tug of War: How Can the State Satisfy Its Burden of Proof?” This posting discussed the diametrically opposed decisions of an Ohio trial court and an appeals court on the important issue of the kind of evidence necessary to prove a violation of an air emission limitation in an operating permit.  This closely watched case in Ohio eventually reached the Ohio Supreme Court, which finally announced its decision on December 6, 2012.

In State ex rel. Ohio Attorney General v. Shelly Holding Co. the Ohio Supreme Court sided with the appellate court and ruled that the civil penalty calculation started on the date of the violation, as demonstrated by the failure of a stack test, and continued until the permitted source demonstrated compliance with the emission limitations.  Over the objections of Shelly and several industry amicus filings, the Ohio Supreme Court concluded that the state enforcement agency need not prove that the facility was operating out of compliance for each intervening day; such noncompliance can be presumed.

The issue arose, in part, because Shelly failed stack tests that were conducted under unrealistic, maximum-possible conditions when in fact day-to-day operations were likely to generate lower emissions.  The state argued that Shelly should have discontinued operations until a subsequent stack test successfully demonstrated adherence to the permit’s emission limitations.  Alternatively, the air pollution source could apply for and receive a new permit with different limits, or it could make intervening facility modifications that would enable it to pass the stack test.  Shelly felt that it was improper to presume that the facility would exceed its emission limits unless the state makes a prima facie showing that the violation is likely to be ongoing or continuing.

After concluding that the burden is on the violator to prove by a preponderance of the evidence that there were intervening days on which no violation occurred or that the violation was not continuing in nature, the Ohio Supreme Court found no constitutional problem with extending the penalty to those subsequent days after the failed stack test.  Thus, in Ohio, the beginning date for calculating a civil penalty for an air pollution control violation is the first date of demonstrated non-compliance (the failed stack test) and continues, even at lower operating rates, until the facility demonstrates a return to compliance.

While this decision arose in the context of an air permit, the State of Ohio is likely to cite it in other programs, such as NPDES permits.

Another Temporary Truce in the Arkansas/Oklahoma Water Wars

Posted on April 25, 2013 by Allan Gates

After decades of sparring over nutrient loading in the Illinois River, and following several short term extensions of a previous truce, Arkansas and Oklahoma recently executed an agreement, the “Second Statement of Joint Principles and Actions”, that establishes a procedural framework for attempting to resolve their long running trans-boundary water quality dispute.

The Illinois River heads up in a rapidly developing section of Northwest Arkansas and flows west into a comparatively undeveloped portion of Northeast Oklahoma, where the river is designated by state statute as a scenic river.  For more than two decades Oklahoma has worked to reduce the amount of nutrients, and particularly phosphorus, discharged into the Illinois River watershed.  In 2002 Oklahoma adopted a numeric water quality criterion for Total Phosphorus that many considered impossible to attain in a developed watershed.  In an effort to avoid litigation over the validity of the numeric criterion, Arkansas and Oklahoma entered into an agreement in 2003 known as the Statement of Joint Principles and Actions.  This agreement provided, among other things, that:  (i) Oklahoma would postpone for 10 years the date on which the numeric criterion would be fully effective; (ii) Arkansas sources would take a number of steps to reduce phosphorus discharges; and (iii) Oklahoma would review the existing numeric criterion, with an opportunity for Arkansas representatives to participate, before the end of the ten year period to determine whether the numeric criterion should be changed.

The ten year truce created by the Statement of Joint Principles and Actions was originally scheduled to expire in July 2012.  During the ten year period Arkansas sources made significant progress in reducing the amount of phosphorus they discharged in the watershed.  As a result, phosphorus levels in the Illinois River began to decline and most observers agreed that conditions in the river were significantly improved.  Towards the end of the ten year period Oklahoma undertook a review, with full participation by representatives of Arkansas, EPA, and the Cherokee Nation.  The review ended in a sharply divided report, with Oklahoma representatives stating that no change in the numeric phosphorus criterion was warranted and Arkansas representative stating that significant change was necessary.

As the end of the ten year truce approached, officials from Arkansas and Oklahoma began negotiations once again on how to avoid litigation.  Focus on the potential for costly litigation was sharpened by the fact that EPA had publicly commenced work on a Phosphorus TMDL for the entire Illinois River watershed.  After several agreements on short term extensions of the July 2012 deadline, Arkansas and Oklahoma reached agreement in February 2013 on a Second Statement of Joint Principles and Actions.  This new agreement provides, among other things, that Arkansas and Oklahoma will fund a joint three year water quality study using EPA protocols to determine the threshold Total Phosphorus levels at which shifts in algal species or biomass production occur that result in undesirable aesthetic or water quality conditions.  Oklahoma and Arkansas agree in the Second Statement to be bound by the findings of the joint study, and Oklahoma agrees to adopt a new numeric criterion for Total Phosphorus in the Illinois River if the results of the joint study are significantly different from the existing criterion (i.e., more than -0.010 mg/l or +0.010 mg/l than the existing .037 mg/l criterion).  During the term of the Second Statement of Joint Principles and Actions, both states agree not to initiate or maintain litigation contrary to the terms of the agreement, and the statute of limitations on all claims is extended.  Oklahoma agrees that it will postpone for the duration of the new agreement the date on which its existing, hotly disputed numeric criterion is to be fully effective.

EPA was not a party to the negotiation of the new agreement and it has not announced any formal position on its effect.  It is not clear what impact the new agreement will have on EPA’s work to develop a TMDL for Phosphorus in the Illinois River watershed or on the various NPDES permits for POTWs on the Illinois River that are currently pending review in EPA Region 6.

Can We Please Talk About Outcomes For A Change???

Posted on April 22, 2013 by Rick Glick

I get it that environmental groups place strict compliance with regulatory controls at a premium.  After all, the standards are designed to be protective of the resource, and they are The Law, which must be obeyed. 

But I sometimes find it dismaying when people conflate immediate, measured, and guaranteed compliance with ecological outcomes.  They are not the same.  I have been in settlement discussions in which I propose that we first come to agreement on what’s best for the resource, and then figure out how to make that fit into the regulatory framework, but have had few takers.  The number is the number is the number.

A recent example arises in the context of water quality trading.  EPA policy promotes alternative means of achieving regulatory compliance that promise environmental results at least as good as conventional, engineered approaches, and at lower cost.  For example, if discharge water temperatures are the problem, riparian shade tree planting could substitute for mechanical chillers.  Of course, measureable cooling would be deferred by many years while the trees grow, but the ancillary benefits of watershed restoration to habitat and ecosystem function are intuitive and compelling.  This approach is supported by academia, government, and many in the NGO community.  Some though are skeptical.

The City of Medford, Oregon, is embarking on a riparian vegetation approach to reduce temperatures at its wastewater treatment outfall, in full cooperation with Oregon DEQ.  A regional NGO, Northwest Environmental Advocates, however, has raised objections.  In a letter dated March 15, 2013, NEA asks EPA to examine DEQ’s implementation of the water quality trading policy with reference to Medford.  NEA questions allowance of “credits” for watershed restoration work that upstream nonpoint sources would have to do anyway, and asserts that no credits should be allowed until the new trees actually yield shade.

The problem is that the upstream nonpoint sources are not obligated by law to restore riparian vegetation; they just need to adopt best management practices to avoid further degradation.  More to the point, restoration of the watershed will simply not occur without the funding provided by a point source with a regulatory problem to solve, such as Medford.  By denying the City credits, the incentive to use a watershed approach disappears.  Similarly, if no credits are awarded until the trees are grown, funds that could go toward watershed restoration will be diverted to engineered controls on temperature.  As DEQ Director Dick Pedersen so aptly puts it, “[i]f we ever build a chiller at the expense of ecosystems, we’ve failed.”

Can’t We All Just Get Along? … Genuine Bipartisan Support Mustered For Climate Change Legislation

Posted on April 18, 2013 by Rodney Brown

You may know that Washington State Governor Jay Inslee is a climate champion, first as a long-serving member of Congress and now as Governor.  But you may not know that he just finished leading a bipartisan effort that succeeded in passing climate change legislation. 

His climate action bill passed the State House March 25th on a bipartisan 61 to 32 vote. The bill earlier passed the Republican-controlled State Senate on a 37 to 12 vote. And a few days ago it headed to Governor Inslee’s desk for a well-earned signature.
 
The bill commissions an independent evaluation of climate pollution reduction programs in other states and Canadian provinces, and of opportunities for new job-producing investments in Washington relating to cleaner energy and greater energy efficiency. Then it requires the Governor and legislative leaders to use that survey data to plot out together what set of policies will get the State to hit its climate pollution limits established by earlier legislation, including a greenhouse gas emission reduction to 1990 levels by the year 2020.

“The Governor’s climate action bill keeps our state in the game – requiring leaders to map out a strategy to grow our clean energy economy and reduce climate pollution,” said Joan Crooks, executive director of Washington Environmental Council.

And here — in sharp contrast to the other Washington — Republicans and conservative Democrats agreed.

Interstate Air Transport - The Next Steps

Posted on April 12, 2013 by David Flannery

The August 21, 2012 decision of the D.C. Circuit Court in EME Homer City Generation LP v. EPA, Case No. 11-1302, not only vacated the Cross State Air Pollution Rule (CSAPR), it also provided a detailed framework (including the math) for how future plans should be developed by States to implement national ambient air quality standards (NAAQS) through the “good neighbor” provisions of the Clean Air Act.  This case has already been the subject of various posts to this Blog.  This article will provide an update of activities that have occurred in recent weeks as state and federal agencies, NGOs and the regulated community respond to the decision and its implications for implementing the various NAAQS (past, present and future). 

Let me begin by noting that on March 29, 2013, EPA and various environmental organizations filed for a writ of certiorari with the U.S. Supreme Court. Even as EPA was filing for such a writ, EPA has scheduled two meetings this month with states to obtain input on technical and policy decisions. In these meetings, EPA is offering its interpretation of the court decision and its views about various options that exist for conducting the required analyses through the shared responsibility of EPA and the states. 

Finally, the Midwest Ozone Group (MOG), a coalition of electric power generation interests, has developed a position statement on how the court opinion might be implemented including the identification of the following seven rules taken from the court opinion. 

1.    Basic rule - An upwind State’s obligation is limited to its own significant contribution and it cannot be directed to reduce emissions to account for any other factors impacting a downwind State’s nonattainment.
2.    Proportionality of Downwind States - A downwind State is responsible for above-NAAQS amounts that are not attributable to significant contributions from upwind States.
3.    Proportionality of Upwind States - The ratio of an individual upwind State contribution to the total contribution of all upwind States should be used as scalar to determine how the total upwind contribution is allocated among upwind States.
4.    The Role of Costs - EPA may reduce some or all of the obligations of upwind States to avoid the imposition of unreasonable costs.
5.    Insignificance - Once contributions are determined, a State is not required to address more than that contribution amount minus the significance threshold. 
6.    NAAQS Attainment - Once an area meets the NAAQS, no additional upwind emission reductions are required.
7.    Over-Control - When multiple downwind areas are concerned, reductions associated with one downwind area should be reviewed in other areas to ensure unnecessary over control is not achieved

The full position statement can be found here.

The MOG position statement is accompanied by a presentation prepared by Alpine Geophysics which applies an example set of modeling data to these rules to illustrate how the rules might be applied as well as the significant technical and policy questions that remain.  The Alpine Geophysics presentation can be found here.

Offsets Against Carbon Taxes: Using Ercs For Greenhouse Gas Policy

Posted on April 11, 2013 by Jeffrey C. Fort

Climate Change and the deficit are at the top of the legislative and policy agenda for the country.  Some economists love the “carbon tax.”  Senators Sanders and Boxer recently proposed the Climate Protection Act of 2013 -- to impose a tax on fossil fuels and high carbon intensity products sold in the US.  Many in the popular press are now advocating for a carbon tax, to reduce the deficit and to provide for reductions in carbon emissions.

Rather than believe that a tax can create just the right mix of incentives and funds to promote de-carbonization measures, I would argue that the ability to offset ought to be included in any such measure.  Carbon offset credits are based on one of the most significant legislative changes in the 1977 Clean Air Amendments --the requirement to get Emission Reduction Credits.  While ERCs were limited to requirements for a new or modified major emitting facility in a “non-attainment area,” the principles of ERC of ERCs can be found in the documentation now known as “carbon offsets.”  Scores of methodologies or protocols are now recognized as scientifically valid for activities which are not required by law and which do not represent business as usual. The proof required to earn a valid carbon offset credits is considerable, at least as exacting than even what EPA requires for ERCs.  Because it is the regulated industry which chooses whether to use an offset or not, offset credits have another level of proof -- that of the end user - to satisfy.  And Innovation and entrepreneurs are characteristic of carbon offset credits.

Not only are carbon offsets a recognized cost containment tool in many GHG control programs, it allows different approaches to carbon reduction to compete against each other.  The most efficient and most effective will have the lower price; and hence be more attractive than other ways of reducing. And it will bring in sectors with GHG emissions which would not be reduced otherwise.  From livestock wastewater operations to improved forestry management, from rice cultivation practices to coal mine methane, emission reductions will occur which would not otherwise. A more detailed discussion of this topic can be found at www.Dentons.com.

Reuse of Contaminated Groundwater- Is It Time To Be More Innovative?

Posted on April 10, 2013 by Charles Efflandt

According to the recent U.S. Drought Monitor, approximately 65% of the contiguous United States is currently experiencing “abnormally dry” to “exceptional drought” conditions. In my part of the country, a recent projection indicates that a reservoir supplying a significant portion of our municipal water supply could dry up within 3-4 years if severe drought conditions persist. Although an “Aquifer Storage and Recovery” program was previously developed to enhance the available supply of groundwater, it is only designed to replenish the drinking water aquifer from excess river flow during flood conditions—a rare occurrence during a severe drought.

I am not capable of allocating percentages of fault for this persistent drought between anthropic climate change and extreme climatic occurrences that are “normal” in the context of geologic time. However, I am persuaded by the argument that “climate change,” by whatever definition you choose to give it, is a problem not only of causation and prevention, but also of adaptation. A previous posting on the need to prioritize adaptation to climate change states the argument well. Is it time we give more thought to groundwater replenishment as an adaptation tool?

My practice includes representing clients at various hazardous substance release sites, under both state and federal law. The default remedy for contaminated groundwater at many of these sites remains extraction and treatment (commonly using air stripping technology) to both contain and clean up the extracted groundwater to “unrestricted use” quality. At most of these sites, however, treated groundwater is discharged to a ditch, creek or similar conveyance where the value of the groundwater as a critical natural resource is largely lost.

An environmental consultant at one such site recently calculated that, over the period of two years, the pump and treat system had removed and discharged to a nearby ditch approximately 110 million gallons of treated groundwater. During a period of severe drought, the system was depleting a drinking water aquifer by over two feet annually. In addition, it was estimated that the quantity of groundwater being treated, and largely wasted, was equivalent to the water used by 1,850 residents (27% of the population) of the city in which the site is located.

Beneficial reuse of “contaminated” water resources is obviously not a new concept, particularly the reuse of nonpotable water. Examples include the reuse of treated nonpotable water for industrial, municipal and agricultural purposes. Potable water reuse is less common for reasons related to water quality requirements, technical issues, cost and community and regulatory acceptance.

Notwithstanding the obstacles and additional costs, it may now be time for environmental professionals, regulators and attorneys to more systematically and creatively consider potable reuse options at contaminated groundwater sites. This would include an evaluation of discharging treated groundwater through infiltration basins, infiltration galleries and injection wells to replenish the drinking water aquifer from which it was extracted. Consideration should be given to partnering site regulators and responsible parties with nearby municipalities to revitalize drinking water aquifers or supplement other potable water resources. Another issue worthy of discussion is community acceptance, which may be more likely when treated contaminated groundwater is beneficially reused indirectly through aquifer replenishment, rather directly through discharge into water supply pipes.

I submit that all too often we accept without much thought the default option of permitted surface discharge of groundwater that has been treated to “non-detect”. Potable reuse through groundwater recharge and restoration involves significant cost and technical issues. But in our effort to add weapons to the climate change adaptation arsenal, all interested parties should more carefully consider such options notwithstanding the challenges.

They Were Paying Attention in Math Class

Posted on April 9, 2013 by Brian Rosenthal

Late last year, the United States Supreme Court used a mathematical hypothesis to solve a takings question involving environmental damage.  Remember the transitive property of equality?      

                                                A=C,  B=C, so A=B [and =C]

The Court summarized its opinion by noting: 

a government-induced flooding can constitute a [compensable] taking (A=C);
a temporary act can be a compensable taking  (B=C); so
a government-induced flooding even as a temporary act (A=B) may be a compensable taking [=C].

In takings analysis, flooding cases hold no special exempt footing.  Floodings need not be permanent or inevitable to result in a constitutional taking.  Seasonal, recurring flooding (similar to a repetitive flight overhead that interrupts a property’s intended use) can be a taking based on the facts and circumstances, like time and degree of interference, character of the land, reasonable investment-backed expectations and foreseeability.  See Arkansas Game and Fish Commission v. United States.

Alaska Courts Clarify Application of Antidegradation Procedures

Posted on April 8, 2013 by Eric Fjelstad

Courts in Alaska issued two decisions upholding agency practice in carrying out antidegradation review under the Clean Water Act.  The federal court concluded that adoption of water quality standards does not, itself, require antidegradation review.  In the second case, a state court concluded that guidance may be developed to implement antidegradation regulations and need not be promulgated as a regulation provided it does not contain substantive criteria.

In Native Village of Point Hope v. U.S. Environmental Protection Agency, Alaska native and environmental organizations challenged EPA's approval of the State of Alaska's adoption of a site-specific water quality criterion ("SSC") for total dissolved solids ("TDS").  The SSC was challenged on a number of grounds, including on the basis that neither the State of Alaska nor EPA analyzed the SSC under the relevant antidegradation policy.  The issue before the U.S. District Court for Alaska was whether antidegradation review applied to the adoption of water quality standards ("WQS") or, conversely, only when WQS are translated into permits through effluent limitations.  In a case of first impression in the federal courts, the court ruled for EPA, holding that agencies are not required to undertake antidegradation review for the adoption of WQS; the obligation is only triggered when a WQS is incorporated into a permit through effluent limitations.

In Alaska Center for the Environment v. State of Alaska, environmental organizations challenged the State of Alaska's adoption of antidegradation implementation procedures through guidance, arguing that the procedures should have been promulgated as regulations.  As background, several NPDES permits in Alaska were withdrawn by EPA in the face of arguments from environmental organizations that the State of Alaska lacked antidegradation implementation procedures.  To address this alleged deficiency, the State of Alaska developed a guidance document  which EPA found was consistent with EPA's own antidegradation regulation.  The primary issue in the litigation was whether the State of Alaska was required to promulgate the guidance in the form of a regulation or whether it was permissible rely upon guidance to implement its regulations.  In a decision that turned largely on the State of Alaska's Administration Procedures Act, the court held that it was appropriate for the State to develop the guidance to implement its regulatory program, reasoning that the guidance did not add substantive requirements to existing regulations.

Three Cheers for the FDA!!!

Posted on April 5, 2013 by Robert Falk

In the wake of salmonella, e-coli, and listeria outbreaks in the nation’s food supply, and driven by fears concerning contaminants like melanine and lead being imported in foods from developing countries like China, the U.S. Food and Drug Administration’s (“FDA’s”) food safety assurance programs have fallen under much criticism in recent years.  In a rare instance of bipartisan consensus in this day and age, in 2010, Congress overwhelmingly passed and, on January 4, 2011, President Obama signed, Public Law 111-353, the Food Safety Modernization Act (“FSMA”).  FSMA, in turn, required FDA to provide the first comprehensive update to its food safety programs in decades. 

On January 16, 2013, almost a year behind the schedule set by Congress, FDA published two significant draft rules and accompanying preambles to implement FSMA’s upgraded food safety system requirements (78 Fed. Reg. 3504 ; 78 Fed. Reg. 3646).  In these two significant rulemakings, FDA essentially proposes to:  (1) add to an updated set of its longstanding “good manufacturing practices (“GMP”) requirements (found in 21 C.F.R. Part 110), a mandate that all food processors implement hazard analysis and critical point of control (“HACCP”) programs, and (2) to require growers of food commodities that will not be subject to extensive processing to implement programs of good agricultural practices (“GAPs”).

Kudos to the FDA for proposing such a sensible approach to addressing Congress’s goal of ensuring enhanced food safety in America.  Rather than making requirements more prescriptive, FDA instead has essentially proposed to require food processors not already subject to HACCP requirements to conduct these disciplined analysis of food safety hazards “reasonably likely to occur” and then have the results of that risk-based analysis drive the processors to further identify, implement, and track the additional compliance measures necessary to address the potentially significant hazard presented.  In the GAP context, FDA has taken the additional step of itself analyzing the food safety hazards that are “reasonably likely to occur” in fresh produce and concluded (subject to public comment) that microbiological risks are the hazards at the farm level warranting the imposition of GAP requirements under the law for the first time (rather than merely as recommendations as has been the case until now).

Politicians, regulators, and environmental lawyers and activists too often dismiss or merely give lip service to risk-based analysis and regulation, but, at least here, FDA proposes to meaningfully embrace and apply the approach so as to allow food safety management and control resources to be best allocated to protecting the public’s health and safety.  Hat’s off to the FDA!!!

in Just-spring

Posted on April 4, 2013 by Andrea Field

As E. E. Cummings reminds us, “in Just-spring . . . the world is mud-luscious . . . and . . . puddle-wonderful. . . . and the goat-footed balloonMan whistles far and wee.”  Inspired by the whimsy of Mr. Cummings’ poetry and the wit of April Jester’s blog posting earlier this week, I offer ACOEL members two bits of verse.  When you read them, I hope you hear the balloonMan’s whistle and smile. 

First, a sonnet.  You may remember from English courses in high school and college that a sonnet is a 14-line poem written in iambic pentameter.  A typical rhyming scheme for a sonnet is abab cdcd efef gg.  Shakespeare’s sonnets were inspired by love, death, and nature.  My sonnet (below) was inspired by the propensity of a certain regulatory agency to charge full steam ahead in doing what it believes is right, regardless of statutory or other obstacles in its path. 

Certainty

How grand to be so certain that you know
Exactly what is wrong and what to do;
To reach your goals straight out – no quid pro quo –
Undaunted there might be another view.
When certain, you can march on undeterr’d
By precedent or by the facts or laws.
No countervailing views need e’er be heard,
Nor far-fetched deadlines ever give you pause.
Just sit and write your rules from iv’ry towers
And justify them based upon the creed
That doing what you “know” is right gives powers
To let yourself go where your hunches lead.
Jump to the finish line, no in-betweens:
The end – to save the world – is worth the means.   

And now a limerick or, actually, a string of three limericks.  Recall that a limerick is five lines long, it is written in anapestic meter, and it has a strict rhyme scheme:  aabba.  A true limerick must be humorous and profane, and it should violate some taboo, for example the taboo against actively lobbying for recognition by those who want to be wooed but don’t want to be seen as encouraging such wooing.  And just to be clear here, I am indeed using this verse to lobby such a group:  the people serving on the august panel that will be determining which ACOEL blog entries from the past year deserve an award.  In a blatant attempt to sway that panel and its chair, His Excellency Seth Jaffe, I offer the following. 

A Limerick that Blatantly Seeks to Curry Favor
with Those Determining the Best ACOEL Blogs of the Year

This one blogger just wants a top prize,
So she knows she must catch Seth J’s eyes.
He must find that her blog
Has all members agog
With its content, both witty and wise.

The best title award, she can’t win,
For she knows that this year, going in,
Braddock’s blog, “What the Cluck?!”
Has that won.  (What the ____?!)
Way to go!  You earn’d it, Tricia Finn.

So if winning on merit won’t pay,
She will come up with some other way.
She’ll devote ev’ry breath
To the service of Seth.
Watcha say?  Do I win, Mister J?

Regulatory Lag and Trying to Plan Our Energy Future

Posted on April 3, 2013 by E. Donald Elliott

Two items hit my inbox on the same day:

(1) The U.S. is predicted to become the world's largest oil producer and North America to become a net petroleum-exporting region according to the International Energy Agency, and

(2) The Obama Administration is renewing its commitment to wean U.S. cars off of petroleum.

Some might argue that it makes sense to wean cars off petroleum even if we have a lot of it because of the threat of global climate change, but instead the stated justification was “to create jobs and help lower energy costs for middle class families.”

Then came the news that the operating unit of China's largest solar panel company, Suntech Power, recently filed for bankruptcy.  Meanwhile, the Obama Administration proposes the creation of a $2 billion Energy Security Trust, funded by revenues from offshore oil leases matching those provided by the Chinese, to subsidize investments in this supposedly vital emerging field.

The disparity between such news and the government actions being taken started me questioning whether it is possible for governments to manage a field as dynamic and ever changing as future energy supplies.  "Regulatory lag" has long been a familiar concept in utility rate regulation: by the time regulators get around to approving new rates, the situation has changed.  And human beings are justly famous for "winning the last war": by the time that we understand something well enough to develop a broadly-shared consensus, the situation has changed.

This is nothing personal against the Obama Administration or support for renewable energy.  I have been teaching a course at the Yale Law School this semester on the history of energy policy in the U.S. since World War II.  A theme that runs throughout the course is how policies designed to manage energy supply, regardless of political outlook, lag as much as a decade or two behind the times.  For example, Nixon's 1971 oil price freeze lasted until 1981; Eisenhower's 1959 oil import quotas lasted until 1973.  In both instances, government policy did a lot of unnecessary harm because the energy supply situation changed much faster than government policies do.

I often wonder why environmental law and energy law are so different.  One difference is that environmental problems tend to stand still (or get worse) long enough for us to mobilize the slow processes of government to solve them. We studied and debated acid rain for over a decade before the 1990 amendments to the Clean Air Act, which mandated a 50% reduction in sulfur dioxide emissions over the following decade.  Energy markets change within months as new sources of supply and technologies come on line.  It makes one wonder whether government policy will inevitably be a day late and a dollar short when it tries to manage future energy sources.

Harvard Law Students Shoot for Gun Control

Posted on April 1, 2013 by April Jester

A group of Harvard law students has come up with a novel strategy to achieve more stringent regulation of firearms in the United States, namely environmental citizen suits.

Frustrated by the slow pace of Congressional efforts to strengthen regulation of firearms, this group of students has filed citizen suit notice letters against dozens of hunt clubs and firing ranges in the South and Midwest.  The notice letters allege that the hunt clubs and their members:


•    Violate the Clean Water Act by discharging pollutants from point sources over navigable waters without a permit
•    Violate the Clean Air Act by emitting hazardous air pollutants without a permit
•    Dispose of hazardous wastes, including lead and other heavy metals, without a RCRA disposal permit or compliance with the RCRA uniform waste manifest requirements
•    Own and operate facilities where CERCLA hazardous substances are released into the environment; and
•    Cause or contribute to the unpermitted disposal of solid waste.


This group of students, the Harvard Environmental Law & Litigation Society, is only recently organized, but they are clearly ambitious.  One of the students, Angel Del Norte, who spoke on condition of anonymity, said, “We hope our efforts will blow some of those gun crazy deep South Bubbas out of the water.”

One of the targeted organizations, the Poteau Piscine Club in south Alabama, is working to organize a unified response to the citizen suit notices.  The club’s President, Robert E. Lee (“Bobby”) Rhebop, stated in a press release that all of the organizations targeted in Alabama had agreed to contribute to a joint legal defense fund.  Rhebop added, “If those pointy headed snot noses in Boston think they know something about guns, I can’t wait ‘til they see the business end of my .357.  I’ll teach ‘em what a discharge from a real point source can do.”

Reaction has also spread rapidly in Texas.  One of the targeted hunt clubs has persuaded their local legislator to introduce a bill in the state senate that would authorize Texas residents who attend Harvard to carry concealed weapons on the Harvard campus.  As one proponent of the bill said “If we pass this sucker, I bet every Texan in Harvard will start getting straight A’s.”

To date no one from EPA has commented on the notice letters.