Cooperative Federalism? We Don’t Need No Stinkin Cooperative Federalism

Posted on July 31, 2013 by Seth Jaffe

On Friday, July 19, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART, to address regional haze.  The Court also affirmed EPA’s promulgation of a federal implementation plan in place of the Oklahoma SIP.  While rehearsing the Clean Air Act’s “cooperative federalism” approach, the Court seemed more focused on deference to EPA’s technical assessment of the SIP than on any obligation by EPA to cooperate with states.

"Given that the statute mandates that the EPA must ensure SIPs comply with the statute, we fail to see how the EPA would be without the authority to review BART determinations for compliance with the guidelines.
                                                            ***
While the legislative history may evidence an intent to prevent the EPA from directly making those BART decisions, it does not necessarily evidence an intent to deprive the EPA of any authority to ensure that these BART decisions comply with the statute."

Judge Kelly dissented.  As he noted, while the courts normally grant deference to EPA’s decisions, such deference is appropriately limited where “EPA rejected Oklahoma’s evidentiary support with no clear evidence of its own to support its contrary conclusion.”  Judge Kelly also noted that, even in a statute relying substantially on state implementation, the amount of power given to the states to implement the regional haze program is particularly evident.

I don’t know whether Oklahoma will seeking rehearing en banc.  (It’s difficult to imagine that the Supreme Court would be interested in hearing this case.)  I do know that cooperation is in the eye of the beholder.

Arsenic and Apple Juice: Are We Now Safe?

Posted on July 30, 2013 by Michael Rodburg

Earlier this month the FDA proposed an “action level” of 10 ppb for inorganic arsenic in apple juice (down from 23 ppb), bringing it to the same level as EPA’s drinking water MCL. One may view this action as the culmination of a campaign of sorts initiated by a 2011 Consumer Reports article whose cause was taken up by Dr. Oz. Yet, the FDA has been monitoring arsenic levels for many years and has never viewed the data as any cause for concern.  Should we now believe that the FDA has made us completely safe by adopting a drinking water standard for juice?  In a practical sense, yes, but in EPA-Superfund speak, not really; and that is the point of this post.

The poisonous propensities of arsenic have been the stuff of history and literature for centuries; the Poison of Kings and the King of Poisons. Remember elderberry wine from Arsenic and Old Lace? But, arsenic is, after all, not only naturally occurring but rather ubiquitous.  The human race has managed to live with some level of arsenic for a few millennia now without evident consequence.  Indeed, because of naturally occurring arsenic in groundwater in the western United States, the MCL is actually set “considering cost, benefits and the ability of public water systems to detect and remove contaminants using suitable treatment technologies.” If, in contrast, one turns to the gold-standard of “safe,” the one in a million excess cancer risk level, the drinking water standard required is .02 ppb;  that’s right folks, 500 times lower than the current MCL and FDA’s proposed new juice level.


What does it mean?  I think it points out that the ultra-conservatism of the “10 to the minus six” environmental risk standard leads to absurd results and hugely unnecessary costs.  I still recall with a smile a quite notorious Superfund site (which shall remain nameless to protect a client) that had literally dozens and dozens of polysyllabic chemicals at high levels in soils, groundwater and waste disposal units throughout several hundred acres.  In the baseline risk assessment, the only risk to exceed the 10-6 level was that from naturally occurring arsenic in the soil!

The more we know about the genetic basis and causes of cancer, the more we realize how poorly both our animal models and in vitro experiments perform in predicting cancerous effects.  (See E. Topol, The Creative Destruction of Medicine (Basic Books 2011) for a good discussion of the limitations and frustrations of our current methods and models for finding cancer fighting drugs.)  While we are a long way from tossing EPA’s current approach to carcinogenic risk, we should perhaps take into account far more than we do now the inherent limits of our understanding and incorporate more the practical necessity for “cost, benefits and the ability” to “remove contaminants using suitable treatment technologies.” And yes, my grandchildren will continue to drink their apple juice.

Massachusetts Supreme Court Considers Agency’s Endangered Species Authority

Posted on July 29, 2013 by Stephen Leonard

Bill and Marlene Pepin own 36 acres of land in Hampden, Massachusetts on which they hope to build a retirement home.  Their plans have thus far been frustrated by the designation of their property as Priority Habitat for the Eastern Box Turtle, a Species of Special Concern under the Massachusetts Endangered Species Act, Mass. Gen. Laws C. 131A. The designation was made by the Massachusetts Division of Fisheries and Wildlife, pursuant to its Priority Habitat regulations, 321 Code Mass. Regs. 10.01 et seq., which were promulgated under to the “no take” provision of the Act.

Pursuant to the regulations, the Pepins’ plans must be reviewed by the Division and will be approved only on a showing that they will not result in the “take” of a Species of Special Concern, a showing that may require modifying the project or otherwise taking steps to protect the species.  This is a burden that, in the Division’s view, is not especially onerous and is one that has been met many times by many projects during the two decades that the regulations have been in effect.  This view appears to have the support of at least a portion of the development community in Massachusetts, support that is based on a concern about what the likely alternative would be to regulation under the Priority Habitat regulations.

The Pepins, though, have taken the view that their project in not subject to the Division’s authority.  They have challenged the designation of their property as Priority Habitat; and they have challenged the Division’s authority to adopt the Priority Habitat regulations in the first place.  They lost on both grounds in an administrative proceeding and appealed the result to the Superior Court, where they lost again.

The Pepins appealed the judgment to the Massachusetts Appeals Court, the Commonwealth’s intermediate level appellate court.  And then the case got considerably more interesting.  In the space of a few months, it was transformed from a relatively straightforward (if very important to the Pepins) challenge to an agency determination into one of the most important administrative law and environmental cases in Massachusetts in a number of years.

The case was docketed in the Appeals Court last year; the Pepins, and then the Division of Fisheries and Wildlife, filed their briefs.  Also filing, in support of the Division, were amici curiae Massachusetts Audubon Society, Massachusetts Association of Conservation Commissions and the Conservation Law Foundation.  Among the amici’s arguments in support the of the Division’s authority to promulgate the challenged Priority Habitat regulations was the assertion that it is better for the development community to be regulated under those regulations than pursuant to a different provision of the Act, one that the Pepins assert is the only provision available to the Division to regulate development on private property.  In support of the assertion, amici appended to their brief an October 2011 letter from NAIOP Commercial Real Estate Development Association Massachusetts, an extremely active participant in discussions and lobbying concerning environmental regulation in Massachusetts (NAIOP was formerly the National Association of Industrial and Office Parks.)  NAIOP’s letter opposed legislation that would have codified the position that the Pepins were taking in court (including in Superior Court, at the time the letter was written) – that the Division does not have authority to regulate private activities in lands designated Priority Habitat and can regulate development only pursuant to the much more restrictive Significant Habitat provisions of the Act, which sharply limit development but which require substantial procedural steps before they can be effective with respect to any particular parcel.  “NAIOP strongly believes that this bill would be bad for real estate development. . . .  [T]he Division has developed a more flexible regulatory mechanism through Priority Habitat. . . .  [T]he bill would result in more unpredictability and uncertainty for developers . . ..”  The bill did not pass.

Late last year, before the case could be argued in the Appeals Court, the Massachusetts Supreme Judicial Court (“SJC”), acting sua sponte, moved the case to its own docket.  In February of this year, the SJC announced that it was “soliciting amicus briefs.  This matter . . . raises the question of what procedural protections are required when the division [] designates ‘priority habitat.’”  The Pacific Legal Foundation, of Sacramento, California, then moved for leave to file an amicus brief in support of the Pepins.  (There is a New England Legal Foundation, based in Boston; it has not played a role in the case.)

The Pacific Legal Foundation brief does not address what had been the original issue between the Pepins and the Division – whether their property was correctly designated as Priority Habitat.  Its entire focus is instead on the asserted unlawfulness under Massachusetts law – statutory law, decisional law and constitutional law – of the Priority Habitat regulations. 

Section 4 of MESA creates three categories of protected species:  Endangered; Threatened (at risk of becoming Endangered); and Species of Special Concern (at risk of becoming Threatened).  The statute directs the Division to establish lists of these species and to designate Significant Habitats for Endangered and Threatened Species (but not for Species of Special Concern).  The designation of Significant Habitat involves substantial scientific and administrative work by the Division; and designation results in substantial limits on land use in the areas designated – but the statue also provides significant opportunities for affected landowners to challenge the designation or otherwise to seek to lessen or eliminate its impact on them – including by petitioning the Division Director to purchase their property.

Separately, Section 2 of MESA makes it unlawful to “take” any listed species (i.e., Endangered, Threatened or of Special Concern).  And in Section 4 the statue empowers the Division to “adopt any regulations necessary to implement [its] provisions [].”

The Division has established a “List of Endangered, Threatened and Special Concern Species;” 321 Code Mass. Regs. 10.90; but the Division has not designated any geographical areas as Significant Habitat. The Division has, however, established by regulation the category of Priority Habitat, to be “used for screening Projects and Activities that may result in the Take of State-listed Species [in all three categories] and to provide guidance to Record Owners regarding a Project or Activity . . ..”  321 Code Mass. Regs. 10.12(1).  The regulations permit an owner whose land is in delineated Priority Habitat to request reconsideration of the delineation; they place the burden on the owner to show that the delineation was improper.

Designation of the Pepins’ land as Priority Habitat for the Eastern Box Turtle was pursuant to these regulations.  Their administrative challenge was summarily dismissed because they produced no evidence that the designation was incorrect, and, as is noted above, the Superior Court upheld the dismissal.  The Pepins’ appellate brief addresses this issue, but its importance has diminished considerably.  The SJC took the case, and the Pacific Legal Foundation moved to become involved, because the case presents a vehicle for challenging the Division’s authority to create a species protection program that is not specifically created by the statute.

The Division’s defense on appeal is a familiar one in administrative law: The statute creates a comprehensive scheme to protect species in varying degrees of peril; it vests “all powers hereunder” in the Director of the Division; it prohibits the “take” of any protected species; and it empowers the Division to “adopt any regulations necessary to implement [its] provisions.”  Given the statutory structure and the deference that is accorded administrative determinations, the Division’s decision to adopt the Priority Habitat Regulations in order to administer the no take provision is reasonable and must be sustained.

There is an appealing counterargument:  The Legislature created a mechanism for regulating the use of private property in the interest of species protection.  That mechanism contains significant protections for landowners.  The Division’s creation of a different mechanism, not mentioned anywhere in the statute and having less robust landowner protections, undermines the balance the Legislature struck between protecting species and respecting property rights.

That argument is briefly made explicit in the Pacific Legal Foundation brief, but the bulk of the brief is a thoroughgoing attack on the authority of the Division – and of administrative agencies generally – to adopt regulations that are not expressly contemplated and specifically described in legislation.  To mount this attack, the brief must delve deeply into Massachusetts administrative and constitutional law.  And it does, advancing a narrow reading of what it means for a regulation to be “necessary” to effect the purposes of a statute; questioning the appropriateness of deferring to the Division’s interpretation of the statute in this case; and seeking to distinguish a line of Massachusetts cases that holds that statutory authority to act in a specific manner does not foreclose an agency’s pursuing parallel action under a general grant of authority.  Moreover, the brief argues, the SJC should decide the case in a way that avoids potential constitutional issues – the brief suggests that upholding the regulations could lead to regulatory takings and that the legislative delegation the Division relies on would constitute a violation of the Massachusetts Constitution’s separation of powers requirement – by striking down the regulations.

The Massachusetts Supreme Judicial Court has long been sensitive to environmental concerns, and it has upheld the broad authority of state and local administrative bodies to act to protect the environment.  The court has also been careful to ensure that the rights of Massachusetts citizens are protected, including by insisting on strict adherence to procedural requirements established by the Legislature.  Bill and Marlene Pepin’s case presents an important test of how those interests will be harmonized.  Argument is now set for October 2013 – stay tuned.

A Longer View of “Standing”?

Posted on July 26, 2013 by Nicholas Robinson

Environmental adjudication today is global. Fifty nations have established more than four hundred specialized environmental courts and tribunals, supplementing their courts of general jurisdiction. A new body of ecological jurisprudence, ripe for comparative law analysis, has emerged.

This world-wide phenomenon should not be surprising.  As the environment degrades (see UNEP GEO5), disputes arise and courts are engaged. Most nations have adequate environmental statutes, but problems fester with weak or corrupt enforcement. Courts put the teeth back into these laws.  Throughout South Asia, courts establish judicial commissions to oversee remediation of refuse dumps or abatement of acute pollution.  In China, a court in Quingzhen enforced a state-owned chemical enterprise from polluting drinking water and mandated remediation.  In Brazil, a rule-of-decision (in dubio pro natura) guides judges to protect nature when the merits are balanced or in doubt.   In the Philippines, the Supreme Court established a new, extraordinary, Writ of Kalikasan (nature). This precedent shifts the burden of proof to the party alleged to have and violated environmental law; the respondent must prove it has not harmed the environment and has complied with all laws.

Judicial decisions also enforce constitutional guarantees of environmental rights.  Of the 196 member states in the United Nations, 147 currently recognize a right to the environment comparable to human rights. Procedural access to justice was enshrined as Principle 10 in the 1992 United Nations Rio Declaration on Environmental and Development and has become a treaty of obligation across Europe (Aarhus Convention, 2161 UNTS 447).

In the United States, federal courts have shaped administrative law for two decades through environmental cases.  The United States inspired Principle 10 initially through the Administrative Procedure Act § 10 and the National Environmental Policy Act litigation, confirmed by the citizen suit provisions in federal statutes.  It is ironic that as most nations liberalize standing in environmental matters, the U.S. Supreme Court’s rulings are gradually restricting such access.  Although many state courts continue to liberalize standing, U.S. federal courts are out of step with trends worldwide.

Courts are crucial to realizing the objectives of environmental laws.  The Environmental and Law Court of New South Wales (Australia) boasts three decades of innovative environmental adjudication.  From the oldest of such courts, in New Zealand (1950’s), to the most recently formed court in Kenya (2010), courts provide prompt effective decisions.  Not all nations are responsive to environmental claims.  Courts in most Arab states have so far resisted reforms to provide access to justice, as has Russia. 

Environmental disruption is a gathering storm across the earth.  Courts, embedded in society, ignore environmental claims at the risk of proving Lord Denning’s maxim, “the delay of justice is a denial of justice.”  Early judicial action has a new gloss and remedies escalating ecological harm.  Delay aggravates the harm, rendering later remedies more costly and difficult.

In the majority of nations, the courts increasingly understand this reality. Will the U.S. Supreme Court join the laggard nations, and retard access to environmental justice?

The Ghost of Offshore Boundaries Past

Posted on July 24, 2013 by James Palmer Jr.

At the 2013 Offshore Technology Conference in Houston, nobody was really surprised to hear Gulf Coast and Alaska Governors calling for an expansion of offshore drilling activity and streamlined permitting processes.  But, more than a few were probably surprised to hear the Governors of North Carolina, South Carolina, and Virginia echo the same sentiments, especially because drilling activity offshore these three states is currently banned by Presidential edict.
 
As the post-BP offshore drilling debate marches on, there just might be some interesting wrinkles down the way between and among the allied states that support a resurgence of seaward exploration and production operations.  One possibility deserves a passing note.
 
During its 2011 Regular Session, the Louisiana Legislature passed, and the Governor signed into law, Act No. 336, which extended the offshore boundary of the State from the current three geographical (nautical) miles to three marine leagues (nine geographical miles), as measured from the coastline.  At its June 2012 meeting, the Louisiana Wildlife and Fisheries Commission followed suit by formally adopting the legislative mandate and conforming its marine regulatory jurisdiction accordingly.  The new boundary created by Act No. 336 by its terms is subject to recognition by Congress or the courts.
 
While a Louisiana official was quoted in the media afterwards as saying that Mississippi and Alabama should join Louisiana and launch the same initiative against the federal government, the Mississippi Commission on Marine Resources, at its July 2012 meeting, adopted a Resolution opposing the action of its Louisiana counterpart.  Thus, the issue was joined at that point, at least at the state agency level.  But, not to be outdone in statutory law, the Mississippi Legislature, in its 2013 Regular Session, amended Section 3-3-1, Mississippi Code of 1972 Annotated, through the adoption of HB 1072, which mimics the 2011 Louisiana legislation by extending the boundary of Mississippi offshore territorial waters from three geographical miles to three marine leagues.  This legislation became effective on July 1, 2013.
 
For perspective, a history lesson is necessary.  In a stunning decision in 1947, followed by two more in 1950, the United States Supreme Court decreed that coastal states have no claim to any submerged lands offshore.  Because these decisions directly impacted not only the states along the Atlantic, Pacific, and Gulf Coasts, but those along the Great Lakes, as well, the adverse reaction to them was swift and strong.  After several years of wrangling, Congress passed the Submerged Lands Act (the Act) in 1953 to undo what the Supreme Court had done.
 
Of the three major components of the Act (i.e. lands under navigable inland waters; tidelands; and lands under the open sea), the centerpiece is a Congressional grant of state title to, and jurisdiction over, certain offshore areas.  Specifically, states along the Atlantic and Pacific Coasts were granted submerged lands extending three geographical miles seaward of their respective coastlines.  The Great Lakes States were granted submerged lands extending to the international boundary.  States along the Gulf of Mexico were granted submerged lands extending not less than three geographical miles nor more than three marine leagues seaward of their respective coastlines. 
 
But, there the Congress stopped.  Except to define the term "coastline" as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters," the law gives no specific geodetic references or methodologies for its delimitation.  And, the ultimate decision regarding the respective offshore domains of the five states bordering the Gulf of Mexico was left to be determined by the courts. Simply put, the Act thus set the stage for more court battles to follow.

In 1960, the Supreme Court determined that the Submerged Lands Act boundaries for Louisiana, Mississippi, and Alabama should extend three geographical miles seaward from their respective coastlines.  The Court further determined that the Submerged Lands Act boundaries for Texas and the Gulf Coast of Florida should extend three marine leagues seaward from their respective coastlines, because of the different histories of admission to the Union of these two states.   But, as with the Congress, the Supreme Court made no attempt to delimit the respective "coastlines" for any of the five Gulf Coast states, which inevitably led to even further protracted litigation.
 
Following the 1960 Supreme Court decision, several bills were introduced in the Congress to amend the Act to specifically grant to Alabama, Mississippi, and Louisiana submerged lands extending three marine leagues from their respective coastlines.  These efforts failed.

The next eruption of litigation targeted the Mississippi Sound.  In April 1971, the United States for the first time publicly disclaimed the inland-waters status of Mississippi Sound by publishing a set of maps depicting several irregularly shaped polygons between the mainland and the barrier islands that were denoted "enclaves of high seas," the submerged lands underlying them thus belonging to the federal government.  The States of Mississippi and Alabama were once again launched into litigation against the United States. 
 
In 1985, the Supreme Court trounced the federal government by adopting the Special Master's determination that Mississippi Sound constitutes a "historic bay" and thus is inland waters in its entirety.  Further, the Court also adopted the Special Master's determination that the "coastline" is the line of ordinary low water on the south shore of the barrier islands.  The Court then directed the parties to prepare a proposed final decree and submit it to the Special Master for consideration by the Court.  This process, which took another seven years, involved Supplemental Decrees in which the baselines for establishing the coastlines of both Alabama and Mississippi, described using point-to-point geodetic coordinates, were approved by the Court and set out in the decrees.
 
Thus, the three-geographical-mile offshore submerged lands boundary for these two states, granted under the Act and subsequently established by the Supreme Court in its 1960 decision, was then precisely determinable.  At last, in 1992, after over three decades of fighting over the federal-state submerged lands boundary for Alabama, Mississippi, and Louisiana, the Supreme Court put the matter to rest – until now.
 
Whether or not the 2011 Louisiana legislation and/or the 2013 Mississippi Legislation will actually lead to any changes in the current offshore submerged lands boundaries of these states remains to be seen.  As already noted, attempts over a half century ago to accomplish the same objective as that of Act No. 336 and HB 1072 failed.

Quite obviously, both Alabama and Texas have considerable vested interests in the actions now taken by their neighboring states.  Less obvious, though, is the prospect that, if Congressional action is mounted in furtherance of either Act No. 336 or HB 1072, nobody should be surprised if any of the East Coast or West Coast states (or Alabama), which were also granted three-geographical-mile offshore submerged lands boundaries under the Act, might be heard to say, "Me, too."

Fourth Circuit Rules CERCLA Preempts State Statute of Repose

Posted on July 22, 2013 by Daniel Riesel

On July 10, 2013, a divided Fourth Circuit Court of Appeals held the Comprehensive Environmental Response, Compensation and Liability Act’s (“CERCLA’s”) federally-mandated commencement date preempts not only state statutes of limitations but also statutes of repose, an issue that has split federal courts and left considerable uncertainty about the timeliness of claims arising under CERCLA and environmental common law.

One of the unique aspects of CERCLA is that it imposes a universal statute of limitations on toxic torts and other state law claims for damages “caused or contributed to by exposure to any hazardous substance or pollutant or contaminant.”  42 U.S.C. § 9658(b)(4).  This statute of limitations runs from the time the plaintiff discovers, or reasonably should have discovered, the cause of the injury or damages.  CERCLA expressly preempts state statutes of limitations that set an earlier commencement date, such as the date of the tortious conduct or the date of the injury.       

CERCLA’s “federally required commencement date” has generated considerable commentary and confusion, with federal courts split over the scope of CERCLA’s preemptive effect.  One particularly divisive issue involves whether CERCLA preempts state statutes of repose, which are separate from statutes of limitations.  Statutes of repose generally provide a longer period in which to file a claim, but they cannot be tolled and often begin to run earlier as well.  Noting that the federally required commencement date under CERCLA refers only to “statutes of limitations,” the Fifth Circuit has held “the plain language of [CERCLA] does not extend to statutes of repose.”  Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 362 (5th Cir. 2005).

In Waldburger v. CTS Corporation, 2013 WL 3455775 (4th Cir. July 10, 2013), the Fourth Circuit adopted the contrary position, finding the relevant text of CERCLA to be ambiguous and interpreting it to preempt a North Carolina statute of repose.  Reversing the United States District Court for the Western District of North Carolina, the Fourth Circuit held that courts and lawmakers have often used the terms “statute of repose” and “statute of limitations” interchangeably, and that the application of CERCLA’s federal discovery rule was more consistent with the statute’s remedial purpose.  It therefore held a state repose period that required real property claims to be filed within 10 years of the tortious action did not apply to a nuisance claim alleging the discovery of groundwater contamination several years after the final alleged discharge.  In dissent, Judge Stephanie Thacker argued that, “the plain and unambiguous language of § 9658 indicates only statutes of limitations were intended to be preempted.” 

The Waldburger ruling will benefit plaintiffs harmed by the latent effects of environmental contamination, who may not become aware of their injuries until after a state statute of repose has run.  Such plaintiffs must exercise reasonable diligence, however, to establish they did not have reason to know of the harm at an earlier date. 

Doin’ the Dunes: What Will They Cost ? – Part II

Posted on July 19, 2013 by Joseph Manko

On June 13, 2013, I posted a blog regarding how to compensate New Jersey beach owners who have an easement condemned on their property to allow the Corps of Engineers to construct dunes.  In the blog, I indicated that the trial court and Appellate Division in New Jersey had excluded testimony on the value that the dunes would bring to the property as a “special benefit”, determining that dunes provided a “general benefit” for not only the property owner but all of the other owners who may be affected, as well as the state of New Jersey, and therefore would not be taken into account in determining the condemnation value for the easement.  At the same time, the New Jersey legislature was considering a bill that would specifically require recognition of these “special benefits” and Governor Christie was criticizing beach owners who would not cooperate in helping forestall the damages that such beachfront owners would incur from future “Sandy” storm events.

On Monday, July 8, 2013, the New Jersey Supreme Court, in a unanimous decision, reversed the Appellate Division and remanded the case for the jury to consider the value of the protection afforded by the dune, a “special benefit”, which obviated the need for the legislature to speak to the issue. 

The bottom line is that in constructing dunes on the 127 mile coastline, the property owners are “not going to be paid a windfall for [their] easement[s]”, according to Governor Christie.

While it remains to be seen how the lower court will now value the easement, from the standpoint of protection against rising sea levels and catastrophic floods, the recognition that dunes will benefit coastal owners appears to this author to be a step in the right direction.  

A Blueprint for a Resilient New York City

Posted on July 17, 2013 by Gail Port

Mayor Michael Bloomberg and the Special Initiative for Rebuilding and Resiliency recently promulgated a 438-page report titled “A Stronger, More Resilient New York” (the “Resiliency Report”) in the wake of Hurricane Sandy’s devastating destruction on October 29th, 2012. The Resiliency Report emphasizes the inevitable effects of climate change and rising sea levels, opening with a climate analysis conducted by the New York City Panel on Climate Change (“NYCPCC”). According to the NYCPCC, 25% of New York City’s land mass, home to 800,000, will be in the floodplain by 2050. The Resiliency Report is part of Mayor Bloomberg’s PlaNYC, an unprecedented program initiated in 2007, which currently has 132 initiatives to make New York City (“NYC”) more sustainable and adaptable to the effects of climate change. Given the historic impact of Hurricane Sandy and the concern that future weather events could be just as devastating—or even worse—the Resiliency Report was commissioned to build on the momentum of PlaNYC.

The Resiliency Report contains over 250 proposals, implementation of which is estimated to cost $19.5 billion. Approximately $15 billion has been or is expected to be appropriated from federal and city sources, but the remainder of the required funding may be dependent on whether further aid will be available from the federal or state governments. Among other things, the Resiliency Report calls for the restoration of dunes, widening of beaches, and erection of localized surge barriers, levees, and floodwalls in particularly vulnerable areas. The Report also calls for amendment of the Biggert-Waters Flood Insurance Reform Act, which currently only allows for premium reductions if the house is elevated, to allow for flood insurance premium reductions if the homeowner makes other flood-related improvements. Additionally, a Building Resiliency Task Force (established by the Mayor and City Council Speaker Quinn) recently issued a separate Building Resiliency Report, focusing in greater detail on building structural and infrastructure resiliency. The Building Resiliency Report has 33 specific recommendations based on four central themes: constructing stronger buildings, securing backup power, providing essential services, and developing building-specific emergency plans.

Numerous issues have already been raised regarding recommendations in the Resiliency Report. One such example is the controversial proposal of a SeaPort City, which has already spawned community resistance. SeaPort City would be an artificial expansion of the lower east side of Manhattan modeled after Battery Park City, which was highly successful in reducing flood-damage from Hurricane Sandy on the lower west side. Although it has been emphasized as a resiliency initiative, SeaPort City would serve the dual purposes of acting as a protective barrier and providing highly coveted residential and commercial real estate. Nearby South Street Seaport residents and businesses, which were devastated by Hurricane Sandy, argue that this massive landfill would harm wildlife and would have an adverse effect on preservation of the historic neighborhood. Since the plan for SeaPort City is still in its infancy, the costs for such a development have not been calculated into the already staggering $19.5 billion costs to implement the other Resiliency Report proposals.

The Resiliency Report opens with an invigorating foreword by Mayor Bloomberg, stating that “[w]e are a coastal city—and we cannot, and will not, abandon our waterfront.” In contrast, on the state level, Governor Cuomo’s floodplain buy-out program provides an incentive for private homeowners to relocate from the coastline. This $400 million purchase program offers to buy houses in flood-prone areas, specifically in Staten Island, with the value offered depending on the vulnerability of the particular neighborhood. The houses would be demolished and the properties would remain undeveloped to act as a natural buffer for future storms. Governor Cuomo stated that “there are some parcels that Mother Nature owns . . . and when she comes to visit, she visits.” Though the buy-out program still awaits federal approval, it has garnered substantial support from Staten Island representatives. The governor’s proposal is consistent with the views of members of the NYCPCC who have urged for a retreat from coastlines.

Regardless of methodology, all parties agree that some changes must be implemented soon to address the growing threat of climate change and rising sea levels. The success of the recommendations in the Resiliency Report and the continuing success of PlaNYC will hinge predominantly on the initiatives of Mayor Bloomberg’s successor. The Bloomberg administration has five months left to lay the foundation for these programs, but the responsibility to implement both the Resiliency Report recommendations and PlaNYC ultimately will fall on the next mayor. The incoming mayor must have the will, dedication, funding and community support to ensure the programs’ continued success. Will the new mayor be willing to commission studies of the SeaPort City proposal? Will the new mayor be able to secure the funding required to implement recommendations in the Resiliency Report? Will the new mayor build on the successes of PlaNYC? Will the new mayor become the flag-bearer for the adaptation of New York City and its coastal metropolitan areas to address growing environmental concerns? These and other questions have already become an important part of the campaign dialogue as voters form their positions for the upcoming mayoral election in November.

“Something’s Gotta Give” - Should Resident Canada Geese Be Regulated as Migratory Birds?

Posted on July 16, 2013 by Susan Cooke

Back in the 1950s and early 1960s, many feared that Canada geese were following – or perhaps waddling would be more apt - in the footsteps of the carrier pigeon.  Until rediscovered in the wilds of Minnesota, the giant Canada goose, one of several subspecies, was thought to be extinct.  Now the concern in much of the United States is the overabundance of resident Canada geese.  These geese do not migrate to Canada and have flourished in both urban and suburban environs where there is abundant short grass to eat, plenty of water, and few predators.  Averaging a pound of droppings per bird each day, increased numbers of such geese frequent our public parks and beaches, as well as golf courses, farm fields, and backyards, and are often viewed as a nuisance.  Canada geese can also interfere with aircraft takeoffs and landings, as occurred in 2009 when US Airways flight 1549 was forced to land on the Hudson River in mid-town Manhattan.

While the solution to the overpopulation problem might seem obvious, it turns out that control of resident geese is subject to a number of regulatory requirements administered by the U.S. Fish and Wildlife Service, in addition to those imposed at the state and local level.  Such federal authority is said to derive from the Migratory Bird Treaty Act , 16 U.S.C. §§ 703–712, adopted in 1918 to implement the provisions of a 1916 treaty with Great Britain signed on behalf of Canada (Convention Between United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702).  That treaty protects three categories of “migratory birds”.  One category, entitled “Migratory Game Birds”, encompasses a subcategory identified as “Anatidae or waterfowl, including brant, wild ducks, geese, and swans”.  Under the Act, the hunting, taking, or killing of such migratory birds, as well as their nests and eggs, is only allowed under regulations issued by the Secretary of the Interior.  While the treaty references geese that are migratory game birds, the U.S. Fish and Wildlife Service regulations identify protected birds by their species, thereby encompassing each and every Canada goose, regardless of whether that bird actually migrates. 

In recent years, many nonlethal measures have been implemented to address unwanted numbers of resident Canada geese.  These have included relocating such geese or chasing them away (such as with border collies and even hovering balloons with an evil eye depicted on them) and efforts to make an area less accessible or attractive (such as fencing and netting, as well as more “exotic” approaches like the application of grape flavored Kool Aid).  However, as the population of resident Canada geese – and complaints about their presence - continued to grow, the U.S. Fish and Wildlife Service issued a final rule in 2006 to expand the methods for controlling their numbers. 

Those new measures include categorical orders allowing airports and farms, as well as governmental authorities dealing with a public health threat, to implement various control actions without obtaining permits if specified procedures are followed, including the submittal of reports.  Those actions encompass hunting, taking, and killing of resident Canada geese, as well as removing their nests and preventing their eggs from hatching (typically by coating them with corn oil), generally during the time period when their migrating cousins are “out of the country”.  In addition and after filing a registration, landowners, municipalities, and other governmental authorities may remove Canada goose nests and oil their eggs from March through June in accordance with similar requirements.  Expanded hunting opportunities and methods are also provided for, along with a state-regulated, “managed take” hunting program during August. 

Although such measures were intended to reduce the overall population of resident Canada geese by about one third over a ten year time period, their success in many areas of the country – including in my neighborhood - is not readily apparent (e.g. I, II, III, IV).  Moreover, they can require the commitment of significant management resources over the long term.  As a result, there have been calls for less fragmented, regulation-focused measures.  For example, New Zealand has removed Canada geese from its list of protected species and allows them to be hunted and killed at any time of year without a license by “humane means” (which at present would not include poison).  While such an approach may not work in this country, particularly in urban and suburban areas where hunting is unlikely to address unwanted concentrations of the geese and vocal constituencies oppose any significant culling of the resident geese population,  “something’s gotta give”.

Perhaps the place to start is to carefully consider whether resident Canada geese fall within the purview of a treaty and implementing statute that provide for protection of birds that migrate from one country to another, particularly where the stated premise for doing so is the concern that the migratory birds are subject to potential extinction due to lack of adequate protection.  In that regard, the pertinent part of the 1916 treaty refers to migratory birds “of great value as a source of food . . . [that are] in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.”  The Act in turn declares it unlawful, unless permitted by regulation, to hunt, take, or kill migratory birds or their nests or eggs covered by the treaty, with the Secretary of Interior authorized to allow such activities to the extent compatible with that treaty, giving “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds”. 

By making such a distinction between resident and migrating Canada geese, it would then be possible to develop a scientifically based methodology for more effectively managing overpopulation of resident Canada geese, one that may not rely so heavily on the granting of hunting licenses or the removal of nests and egg oiling with all the bells and whistles now attached to such privileges.  Moreover, distinctions could be made between control strategies utilized in urban and suburban areas and those best suited for use in rural or sparsely populated areas.  And here’s hoping that this can be done expeditiously, before more of our public water supplies are threatened, and our parks and beaches are despoiled. 

Meet the IUCN Academy of Environmental Law

Posted on July 11, 2013 by Robert Percival

The year 2013 marks the tenth anniversary of the establishment of a global network of legal educators dedicated to improving the teaching of environmental law and promoting its conceptual development throughout the world.  The IUCN Academy of Environmental Law (“the Academy”) was created in 2003 by a small group environmental law professors from several countries, with the endorsement of the International Union for Conservation of Nature.  Today the Academy has 168 institutional members from 53 countries in all corners of the globe.  Pace Professor Nicholas Robinson, a fellow member of the American College of Environmental Lawyers, was the moving force behind the founding of the Academy.  I am most grateful to him for recruiting me to be one of its founding members, and I have been delighted to participate in the Academy’s rapid growth.

Each year the IUCN Academy holds a Colloquium in a different part of the world at which the top academic experts in environmental law from all over the world gather to examine developments in the field.  From June 24-28, 2013, the 11th Colloquium of the Academy was held at the University of Waikato in Hamilton, New Zealand.  Despite the remote location, more than 200 environmental experts from 30 countries participated in this event in person. A particular highlight of the colloquium was a plenary session on access to justice that featured presentations from some of the world’s top judges. 

The annual distinguished scholar lecture at this year’s colloquium was presented by Mas Achmad Santosa, Deputy Minister and Deputy Head of the President’s Delivery Unit for Development Monitoring & Oversight of the Republic of Indonesia.  He discussed how Indonesian environmental officials are using satellite monitoring technology to locate the sources of massive fires in Sumatran palm oil plantations that have blanketed Singapore and Malaysia with record air pollution.  Santosa was remarkably candid in discussing the challenges corruption poses to environmental enforcement in the developing world. 

In addition to the distinguished scholar lecture, many other environmental experts make presentations at the colloquia.  This year more than 160 presentations were made at the University of Waikato gathering.  Abstracts and PowerPoint slides of the presentations can be viewed here. In recent years graduate students have been participating in the colloquia in greater numbers.  Five of my top Maryland environmental law students presented papers at the University of Waikato gathering last month on topics as diverse as adaptation to climate change, the challenge of phasing out fossil fuel subsidies in different countries, legal strategies for holding multinational corporations accountable for environmental harm, and trans-national differences in risk analysis.

The colloquia also feature day-long workshops on environmental law research and the teaching of environmental law.  The Academy has devoted considerable resources to improving the capacity of universities to teach environmental law.  Week-long “Training the Teachers” courses have been developed by Academy faculty and are presented regularly in developing countries. The Basic Course, which addresses the needs of professors who are new to teaching environmental law, covers the scope and substance of environmental law and it explores teaching methodologies and approaches to student assessment. The Advanced Course seeks to prepare senior environmental law professors to deliver the Basic Course to junior colleagues.  During summer 2013 these courses will be given to a group of Chinese professors in Chongqing, China. 

To keep the global community updated on the latest developments in environmental law, the Academy publishes an online journal that is updated twice a year.  This e-journal includes articles, book reviews, and reports on developments in environmental law in many different countries.  The latest issue of this e-journal includes 30 different country reports, each authored by a local expert.

The IUCN Academy of Environmental Law has helped create a truly global network of academic experts specializing in environmental law.  They will gather again next summer for the Academy’s 12th Colloquium at the Universitat of Rovira y Virgili in Tarragona, Spain from June 30-July 5, 2014.

Arkansas Legislature Takes Pre-Emptive Strike At New NAAQS Implementation

Posted on July 10, 2013 by Charles Nestrud

In April of 2013 the Arkansas legislature put an end to the ad hoc policy of implementing the NAAQS through stationary source permitting based upon source specific NAAQS modeling.  The Arkansas legislature did not need a crystal ball to predict the chaos that was about to occur when the new NAAQS (PM2.5, one hour SO2 and one hour NO2) were swept into the existing Arkansas regulatory program.  Arkansas’ environmental agency, the Arkansas Department of Environmental Quality (ADEQ) has relied upon its stationary source permitting program to implement the NAAQS for years, as opposed to relying upon state implementation plan (SIP) development.  ADEQ has required every permit applicant to submit air dispersion modeling, and thereby demonstrate that the source will not cause a NAAQS violation.  By comparison, EPA generally requires only PSD permit applicants to submit NAAQS dispersion modeling, and requires the states to otherwise address NAAQS compliance through their SIPs.

When Arkansas’ SIP permit procedures were last updated in 2000, minor (non-Title V) sources, and “minor modifications” at major sources were not required to undertake NAAQS modeling.  Arkansas’ policies regarding NAAQS modeling were generally in sync with the Clean Air Act and most other states.  Over the ensuing years regulatory creep expanded Arkansas’ NAAQS modeling program to the point that nearly every stationary source permit application was involved.  ADEQ permit engineers required NAAQS dispersion modeling for minor sources, for minor mods at major sources, and then for any permit renewal—even no change renewals, “just to make sure that the source is still OK.”  For example, a facility that had operated in full permit compliance for decades, without any modifications, could face permit renewal problems for no reason other than background conditions or recent meteorological data changed the NAAQS modeling results.  Suffice to say this development was unpopular, making permitting expensive, time consuming, and uncertain.   

The uncertainty was predicted to become chaos in September of 2012 when ADEQ proposed to drop the new NAAQS into its existing SIP. ADEQ’s “plan” was that the new NAAQS would also be implemented through stationary source permitting, including ADEQ’s expansive NAAQS modeling policies.  Of particular concern is the PM2.5 standard, which, at 12 ug/cm3, is already near or exceeded by the background levels measured at the majority of the ambient monitoring stations throughout the state—background that is rarely, if ever, the result of any stationary source activity, but more likely the result of rural road dust and other non-stationary sources.  

It became apparent to the regulated community that each permit review following adoption of the new NAAQS would generate ad hoc findings of modeled exceedances of the new NAAQS.  By implementing the NAAQS through stationary source permitting rather than SIP planning, ADEQ eliminated any evaluation of regional cause and effect, and precluded any consideration of comprehensive solutions that involve all contributing sources. Under ADEQ’s “plan,” the unwitting permit applicant is forced to stand alone and face the consequences of a failed NAAQS modeling exercise.  Concerns raised by the regulated community fell on deaf ears.

The Arkansas legislature stepped in, and in April of 2013 it enacted Act 1302, which required ADEQ to stop “protecting the NAAQS” by requiring stationary source permit applicants to undertake dispersion modeling, except in enumerated circumstances. Act 1302 prohibits ADEQ from using modeling for stationary source permit decisions or requiring retrofit pollution control technology.  With the exception of PSD and other limited situations, dispersion modeling can only be used when there is a source or pollutant-specific SIP requirement.  The Clean Air Act requires states to develop a SIP “for maintenance and protection of the NAAQS,” and Act 1302 requires ADEQ to implement the NAAQS as required by the Clean Air Act.  The legislature did not neuter the agency’s efforts to protect clean air (which was the agency’s unsuccessful lobbying position).  The legislature just said quit implementing the NAAQS through ad hoc permit decisions based on source specific air dispersion modeling.  The legislature told ADEQ to use its ambient monitoring network, area modeling, and other tools to evaluate NAAQS compliance, and where non-attainment occurs, do the comprehensive planning that is required by the Clean Air Act  to address it.  Act 1302 was carefully drafted to compliment the Clean Air Act, and serves as a good model for any state facing similar NAAQS implementation issues.    

During the two months since Act 1302 has been the law in Arkansas the agency has gone through some needed growing pains. The proposed rulemaking to enact the new NAAQS in Arkansas is being re-evaluated in light of the requirements of Act 1302.    Much of the regulatory creep that occurred over the past decade has been curtailed, such that minor sources, minor modifications and no change permit renewals are no longer being required to submit dispersion modeling or demonstrate NAAQS compliance.  

There is nothing like the heavy hand of the legislature to bring reason back into agency decision making.  It appears that ADEQ now recognizes (much like most other states) that modeling has its limitations, and these minor stationary source projects are not causing, nor are they likely to cause any NAAQS problems. There is still a lot of work to be done as the new NAAQS are adopted, and real SIP planning commences.  But sometimes it takes a pre-emptive strike to get the process started on the right track.

New Water Wars in Oregon’s Klamath Basin

Posted on July 9, 2013 by Martha Pagel

These are sad times in Oregon’s Klamath Basin.  The state is making national headlines again over water wars pitting farmers and ranchers irrigating lands above Upper Klamath Lake against the Klamath Indian Tribes.

The Klamath area first made front page national news in 2001, when farmers and ranchers protested the removal of water from irrigation in order to protect threatened sucker fish under the federal Endangered Species Act (ESA).  This time, the headlines stem from an unprecedented “call” for water to serve a time immemorial water right granted to the Klamath Tribes.  Under principles of the prior appropriation doctrine in place in Oregon and most western states, seniority matters, and time immemorial is the ultimate priority date. 

The current problem was a long time in the making. After more than 38 years of administrative proceedings, the Klamath Basin General Stream Adjudication finally reached a critical legal juncture in March, 2013 that allowed historic water use claims to be enforced for the first time.  At that time, the Oregon Water Resources Department (OWRD) issued its long-awaited “Findings of Fact and Final Order of Determination” (FFOD) summarizing the state’s proposed disposition of more than 730 claims.

The FFOD included the state’s quantification of treaty-based reserved water rights for the Klamath Tribes to ‎support fishing and gathering activities in Upper Klamath Lake and its tributaries.  Although the instream flow and lake level amounts claimed by the ‎Tribes and approved by OWRD are still subject to further judicial review, the state is obligated ‎to respond to the Tribes’ call unless and until a court stays the action. ‎

As a result of the call, OWRD has already begun the process of shutting off water diversions for all other upper basin water right holders to the extent needed to fully satisfy the Tribes’ approved claims.  This means a loss of water for thousands of acres of irrigated farmland and other junior uses including domestic water for homes, stock water, and even the lodge at Crater Lake National Park.  The regulation system is based strictly on priority dates; however, OWRD has taken emergency action to allow continued water deliveries for human consumption and stock water.

At this point, a coalition of upper basin water users has petitioned for a judicial stay of the FFOD’s enforcement.  A hearing was held on July 3, and a decision is expected soon.  If the stay is not approved, the upper basin lands will remain dry and the economic losses will be substantial.  With nearly 40 years to prepare, it is sad that the affected interests were not able to reach some level of negotiated agreement before the battle lines were drawn.  Although both Tribal and non-Tribal water users have expressed interest in a negotiated solution, ‎there is no settlement process currently underway, and the war rages on.‎

Enough Is Enough!

Posted on July 3, 2013 by Michael McCauley

On June 13, 2013, U.S. EPA announced its enforcement priorities for the next three years. Among other things, the Agency decided to continue its ill-fated, 15-year old "New Source Review (NSR) Enforcement Initiative."  This effort has targeted coal-fired power plants and other large manufacturing facilities for alleged violations of the Clean Air Act.  The allegations often pertain to projects which were implemented over twenty and thirty years ago.

Not surprisingly, EPA has not fared very well in the courts with cases like this.  The Agency has run into problems, including:  1) statute of limitations concerning projects completed more than five years before legal action has been commenced; 2) successor liability issues when the current owner/operator of a facility did not own or operate the facility when a targeted project was undertaken; and 3) serious evidentiary questions as to whether a decades-old project caused the requisite actual air emissions increase which triggers the requirements for NSR review under the Clean Air Act.  See generally "EPA's Utility Enforcement Initiative: The MetED Decision May Pose Problems for Plaintiffs," BNA Daily Environment Report, June 13, 2013; U.S. v. Midwest Generation, LLC, 694 F. Supp. 2d 999 (N.D. Ill. 2010), appeal pending in 7th Circuit Court of Appeals.

A recent notice of violation illustrates some of the unfairness and waste of resources connected with EPA's NSR Enforcement Initiative.  EPA issued the notice in 2012.  It alleged a number of NSR violations against the owner/operator of a manufacturing facility (not a utility).  One of the allegations pertained to a change made at that facility in 1982.  Since 1982, the ownership of the facility has changed four times.  The current owner has been targeted in EPA's enforcement action.  Records regarding the 1982 project are scant, and the personnel involved in the work in 1982 are all either long-retired or deceased.

To make matters worse, EPA had received the available information about the 1982 project in 1999 from the party who owned the facility at that time.  This was done in response to a Section 114 Information Request issued by EPA.  That owner heard nothing further from EPA about any of the projects covered in the 1999 inquiry.

In 2011, EPA issued a new Section 114 Information Request to the current owner who had acquired the facility in 2006.  The request covered projects that occurred after 1999, but it also covered projects which were done prior to 1999, including the 1982 project discussed above.

A reasonable person could ask:  1) Why did EPA wait for 13 years to allege a NSR violation regarding the 1982 project when the Agency was given information about it in 1999?  2) Why is EPA taking action now on a change made at the facility over thirty years ago?  3)  Why is EPA targeting the owner who acquired the facility in 2006 -- some seven years after EPA was first given information about the 1982 project?  4)  Has EPA considered that the current owner/operator of the facility is four times removed from the owner/operator who implemented the change in 1982?

Substantial amounts of money and countless hours of valuable employee time have been expended by the current owner in dealing with EPA on this case.  Both the money and the time could have been better utilized in helping to keep the facility competitive in a very challenging global marketplace.

EPA should consider whether the continuation of the NSR Enforcement Initiative is justified with respect to projects that occurred decades ago.  With most of these cases, fair-minded decision-makers at EPA will find that "Enough is Enough!"