Contracting for Original and Renewal of Pipeline Right-of-Ways on Tribal and Allottee Lands

Posted on February 24, 2016 by Tom Sansonetti

The Department of the Interior’s Bureau of Indian Affairs (BIA) has promulgated new regulations involving the original procurement and renewal of Right-of-Ways (ROW) on tribal and allottee lands which take effect on March 22, 2016. These new rules will replace those in place since 1947, creating a series of significant problems. This post lists the problems and suggests a legislative solution.

1) Majority Consent of Life Estate Heirs is Needed for ROW to be Granted or Renewed

The new rules limit the length of a ROW to 20 years. The ROWs are not subject to state or local laws, and the new rules impose consent and approval requirements that do not appear in the current regulations. Under the current law, voluntary agreements could be struck between tribes, allottees, and a company, so long as the BIA Regional Director approved the deal. The BIA would approve if a majority of the allottee landowners consented and the amounts of money paid for the ROW were not less than the fair market value (FMV) of the allotment parcel. Under the new rules, however, the company must obtain a majority consent for the original ROW or renewal thereof, not only from the living life estate allottees, but from their heirs as well. This presents a huge obstacle, as companies will now have to find each of the heirs and then attempt to bargain with them individually. Under the current rules, if agreement could not be reached, then the company was free to use a 1907 statute to condemn the allottee land but never the tribal land.

2) Life Estate Holders Can Withdraw Previously Granted Consents

In two separate New Mexico ROW cases involving Western Refining’s pipeline and Public Service of New Mexico’s (PNM) overhead wires, the companies both originally obtained the written consent of a majority of the life estate holders who were paid fair market value for their consent. However, upon the BIA Regional Director finding a lack of a majority of heirs consenting, certain life estate holders informed the BIA that they were “unconsenting” in order to hold out for better compensation, even though they had cashed the original checks. Because the BIA allowed the holdouts’ action of “unconsenting” to stand, the companies lost their majority consent of life estate holders. Attorneys for the life estate holders are now suing PNM for trespass in federal court in Albuquerque.

3) Fair Market Value Has Become a Floor in Negotiations Rather Than an Appraisal Standard

Since the 1947 statute came into existence, the fair market value (FMV), as determined by BIA-qualified appraisers, of the allotment acreage to be crossed by the pipeline served as the negotiation basis between the company and individual allottees. The allottees, knowing that their land could be condemned under the 1907 statute dealing with ROWs, often bargained for a payment that was two or three times FMV. However, under the new regulations, FMV is a starting point, non-binding and irrelevant to an allottee who believes that the sky is the limit when dealing with large corporations.

4) The Condemnation Alternative is Under Attack Due to Tribal Ownership of Undivided Interests in Allotments

In the Public Service of New Mexico federal district court litigation, PNM sued the allottees of several allotments under the New Mexico condemnation statutes after failing to obtain the consent of a majority of life estate heirs for a 20-year renewal. The federal judge dismissed the condemnation lawsuit, because recently deceased allottees left their interests to the Navajo Nation. Even though those interests amounted to less than 1% of the entire allotment, the court labeled that interest tribal land, recognized the Navajo Nation’s sovereign immunity from suit, declared the Navajo Nation an indispensable party, and dismissed the lawsuit. PNM is appealing the dismissal to the Tenth Circuit. Without the ability to condemn, pipelines will be left only with choice of either paying ransom under the 1947 statute or facing allottee trespass actions.

Western Refining has also filed a condemnation suit against the unconsenting allottees under the New Mexico condemnation statutes. The case is before a different judge than the PNM case and is currently stayed pending a decision from the Interior Board of Indian Appeals on the majority consent of heirs issue.

The best solution to the four problems above requires the active involvement of the Legislative Branch.

Utilizing its plenary authority concerning tribal issues, Congress should pass amendments to the 1907 and 1947 statutes or create new legislation supplanting the current law that:

  1. Eliminates the need for heirs to consent
  2. Eliminates the ability of consenters to unconsent once consideration is paid
  3. Re-establishes the sufficiency of fair market value as the basis for the compensation to be paid
  4. Guarantees the right of pipeline owners to condemn allottee land regardless of partial tribal ownership

Nothing less than the free flow of energy-oriented interstate commerce is at stake. 

Dispute Resolution for CERCLA Sediment Investigations

Posted on February 22, 2016 by Mark W. Schneider

In my last blog entry, I advocated for the amendment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to eliminate the bar on pre-enforcement review as one step toward improving the investigation and cleanup of sediment sites.  In this entry, I propose that the U.S. Environmental Protection Agency (EPA) and potentially responsible parties (PRPs) significantly revise the dispute resolution process for EPA Administrative Settlement Agreements and Orders on Consent (“ASAOCs”) to require the resolution of disputes by neutral third parties unaffiliated with EPA or an affected PRP. 

The goal of sediment remediation is to protect public health and the environment through prompt and cost-effective remedial action.  Unfortunately, this goal has not been met at many sediment sites.  At some sites, neither the public nor the PRPs have been served by investigations that have unnecessarily taken decades and wastefed hundreds of millions of dollars to undertake.  EPA’s selection of remedies at many sites has been delayed and has not resulted in the selection of protective and cost-effective remedies.

Most sediment cleanups are performed in accordance with consent decrees, which appropriately vest dispute resolution authority in federal district court judges.  In contrast, most sediment investigations are conducted under ASAOCs, which vest dispute resolution authority in EPA personnel.  While many at EPA with responsibility for dispute resolution have the best of intentions and seek to be objective, the fact that they work for EPA, often supervise the EPA staff who made the decision leading to the dispute, and are often steeped in EPA practices renders most of them unable to serve in a truly independent role.  To ensure fairer dispute resolution, ASAOCs should instead vest dispute resolution authority in neutral third parties with no affiliation with either EPA or the PRPs subject to the ASAOC.  This would require the amendment of existing ASAOCs and the insertion of new dispute resolution language, which differs from EPA’s model language, in ASAOCs that have not yet been signed. 

Additionally, while the dispute resolution official should be deferential to EPA, he or she should not rubber-stamp agency decisions, as currently is often the case.  Where investigations have been mired in years of inaction, an independent dispute resolver with a fresh perspective may determine that EPA has sufficient data to make informed cleanup decisions and could compel agency action.  At other sites where EPA is requiring PRPs to prepare feasibility studies advocating for remedies that almost certainly will fail, it is essential that a neutral decision-maker act independently to ensure that feasible remedies are selected.

EPA will resist any effort to revise its approach to dispute resolution, and it may require the intervention of elected officials or others to compel such a change. The public, EPA, and affected PRPs would all benefit from it. 

Revisiting CERCLA Pre-Enforcement Review

Posted on February 22, 2016 by Mark W. Schneider

As a private practitioner and former trial attorney at the U.S. Department of Justice, I have advocated for timely and cost-effective cleanups that protect public health and the environment.  Unfortunately, only a minority of cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) have met these criteria.  Of the many impediments to the thorough, prompt and cost-effective remediation of contaminated sites, and sediment sites in particular, one of the most significant is CERCLA’s bar on pre-enforcement review of the U.S. Environmental Protection Agency’s (EPA) remedial decisions.  To promote more effective and timely cleanups of sediment sites, I suggest that CERCLA be amended to eliminate the current bar on pre-enforcement review.  By allowing potentially responsible parties (PRPs) to seek and obtain judicial review of EPA decisions or failures to make decisions, more progress would likely be made on more sites.

CERCLA Section 113(h) states that, with limited exceptions, “No Federal court shall have jurisdiction … to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title ….”  42 U.S.C. § 9613(h).  Despite many challenges, courts have generally upheld the validity of this provision.  As a result, PRPs typically cannot challenge EPA's decisions unless EPA has sought to compel performance under an enforcement order or if EPA is acting under a consent decree.  As the “opportunity” for challenge may not come until years after EPA has made its cleanup decision, most PRPs are not willing to face the risk of losing a remedy challenge and the potential imposition of treble damages.  

CERCLA should be amended to allow parties to challenge agency action or inaction at other times in the process, such as during the preparation of remedial investigations and feasibility studies.  At many sediment sites, EPA has delayed remediation and required parties to incur hundreds of millions of dollars during investigations.  If PRPs had the opportunity to obtain judicial review of agency action and inaction earlier in the process, they could seek to compel the agency to act in a way that is consistent with CERCLA’s requirements.

Having worked at the Department of Justice when CERCLA Section 113(h) was drafted, I recall my colleagues stating at the time that a bar on pre-enforcement review was necessary to avoid the challenges of having a non-expert federal judge address complex scientific questions and to prevent PRPs from tying up EPA in litigation.  I offer three suggestions in response to these concerns.  First, if a federal judge were confronted with a particularly complex issue, the court could appoint a special master to handle the proceedings.  Second, to encourage PRPs to seek prompt resolutions, a CERCLA amendment could require PRPs to fully comply with an agency’s directives pending resolution of the judicial dispute and impose a penalty on those parties whose challenge of agency action was unsuccessful.  Third, agencies could seek an expedited hearing of disputed issues.

While it is very unlikely that Congress would consider a CERCLA amendment to address only this issue, PRPs should raise this issue the next time amendments are being considered.  It will succeed only through the concerted efforts of advocates who seek more and better cleanups and those who seek prompt and reasonable government decision-making.   

Technicians or Politicians—Whom to Believe?

Posted on February 19, 2016 by Jeffrey Haynes

Amid the finger-pointing, forced resignations, and mea culpas, a question has hovered over the Flint water crisis. What did staff at the Flint water plant say before the switch to Flint River water? 

For months, Michigan’s governor Rick Snyder and the Michigan Department of Environmental Quality have admitted mistakes but never quite explained why Flint switched from Lake Huron water to Flint River water without prior pilot studies. Critics assailed the saving-costs-at-the-expense-of-the-public-health attitude. Apologists apologized and promised remedial measures. But until last weekend, we did not know what the engineers and technicians who operate the Flint water plant thought of the switch.

On February 13, the Detroit Free Press reported that the Flint water lab supervisor questioned the switch. One week before the grandiose public ceremony celebrating the new era for Flint, the lab supervisor told DEQ he needed time to train staff and update monitoring to be ready to use Flint River water. He complained that higher-ups seemed to have their own agenda.

Like many members of this College, I have spent my career fighting the regulator attitude that “we’re the government experts—trust us” and being dismayed when courts blindly defer to an agency. But when faced with a choice, should we believe agency staff, or politicians and their flappers (see Gulliver’s Travels)? We should start by considering the views of the technical folks who take seriously their jobs to protect publichealth. We might get better policy.

 

From the Detroit Free Press, February 18, 2016


Courts Narrow Citizen Suit Potential

Posted on February 18, 2016 by Donald Shandy

Citizen suits under federal environmental laws have been under fire through criticism of “sue and settle” where agencies, in particular the U.S. EPA, have been accused of intentionally relinquishing statutory discretion for the sake of settling lawsuits without participation by affected third parties.  From this perspective, the scope of citizen suits has broadened.  However, two recent federal circuit court opinions curb this growth. 

On January 6, 2016, the Third Circuit and Sixth Circuit Courts of Appeals issued opinions that underscore certain limitations in the citizen suit provisions.  The Third Circuit examined a Clean Air Act citizen suit in Group Against Smog and Pollution, Inc. v. Shenango Inc. (No. 15-2041) (GASP). The Sixth Circuit examined a Clean Water Act citizen suit in Askins v. Ohio Dept. of Agriculture, Ohio Envtl. Prot. Agency, U.S. EPA (No. 15-3147). Both courts affirmed dismissal of the citizen suits by the district courts based on statutory limitations Congress placed in each statute.

These two cases highlight a couple of important components of citizen suits.  First, citizen suits are to serve as a backup to the non-discretionary functions and enforcement responsibilities of the States and the EPA.  As the U.S. Supreme Court has said, “the citizen suit is meant to supplement rather than to supplant governmental action.”  The Sixth Circuit stated, “Paradoxically, [Plaintiffs’] expansive reading of the citizen-suit provision would grant citizen greater enforcement authority than the U.S. EPA. . . . Congress did not intend to give citizens greater and faster enforcement authority against a state than the U.S. EPA.” 

The other important component highlighted is the role of the “diligent prosecution bar” against citizen suits.  Citizen suits are prohibited if the EPA or State agency “has commenced and is diligently prosecuting” the matter.  While most courts seem willing to restrict citizen suits when there is clear prosecution (civil or criminal) in a state or federal court, the answer is less clear when there is no active or concluded matter at the courthouse or the enforcement action is only administrative. In GASP, the Third Circuit slightly tilted the bar in favor of the agency and regulated entity by concluding that if the agency has diligently prosecuted a suit, the presence of a final judgment, consent decree, or consent order and agreement would likely prevent a citizen suit challenge.  This is logical given that environmental enforcement proceedings that are filed in court often, if not always, result in a judicially enforceable consent decree or consent order and agreement in which the regulated entity must fulfill specified obligations or be subject to stipulated penalties. It also provides certainty to the agreement reached between the agency and the regulated entity, which benefits all involved. 

While these recent decisions were not momentous court opinions, the Third and Sixth Circuits did provide a bit more clarity to the role citizen and how our environmental laws are enforced.  In this arena, I think we all would agree that a little clarity can go a long way.

The Supreme Court Doesn’t Think Much of Paris in the Springtime

Posted on February 17, 2016 by William Session

            For us gray hairs, the phrase used to be “Dateline”, now it’s “Tweetline” . . .  Flash!. . . President Obama @POTUS “. . . Addressing climate change takes all of us, especially the private sector going all-in on clean energy worldwide."

            Apparently “all of us” didn’t include five Supreme Court Justices, led by its Chief Justice, John Roberts.  Indeed, it was SCOTUS going “all out” for climate change.  As in, going “all out” to frustrate one of the EPA’s and President Obama’s signature efforts to respond to and act upon climate change challenges to the global environment. What EPA and the President got (by a split decision) instead was a stay that some have characterized as the quashing of the biggest environmental regulatory change in United States history. 

            That body blow to regulatory appropriation of the climate change debate was instigated by the challenge of virtually every major coal power company to the EPA’s issuance of binding emission reduction requirements for existing domestic power plants.  The coal, fired power industry argued that EPA’s action was “draconian” and would cause the “shutting down or curtailing generation from existing plants and shifting that generation to new sources”.  That, of course, was the precise intent of POTUS and other signatories of the Paris climate change accord last year.

            SCOTUS’s stay was unprecedented and terse.  Not a word of explanation about why the stay was issued.  The proponents of the stay were modestly baffled.  In the words of Basin Power’s legislative rep, Dale Niezwaag, the decision came as a surprise . . . "The supreme court has never issued a stay on a rule that hasn't been ruled on by a lower court.  So this is precedent, setting from our point.  When we put it in, we figured it was going to be a long shot, so we were very surprised that the Supreme Court ruled in our favor”. 

            There are takeaways galore.  However, two are most intriguing to me.  Was this unprecedented stay an unwarranted and thinly disguised, reach into the realm of executive branch constitutional authority?  Second, did the Supreme Court simply muscle its way into a social and scientific debate that begs any legal or factual question of “irreparable harm” to either the power industry or the citizenry of the republic.  In short, was the stay an expression of SCOTUS climate change denial?

The stay makes EPA’s rules unenforceable and will undoubtedly limit their intended goal of achieving emissions cuts to (ostensibly) slow global warming.  More importantly, the ruling, in effect, invalidated POTUS’s pledge on climate agreement made in Paris last spring.  How should one construe the interjection of the Supreme Court into a case that would have, under normal circumstances, been taken up by the Court of Appeals for the District of Columbia Circuit as soon as early 2017?  Was a signal being sent to that court to heed the antipathy some believe certain SCOTUS justices have towards the global warming debate altogether? 

            In keeping with my “newsflash” metaphor, since I started writing this post, the country mourns the unexpected passing of Justice Antonin Scalia.  The lack of a tie breaker justice for the foreseeable future could throw the question of the right of the EPA to forge ahead on the POTUS’s climate change agenda into months or years of limbo.  Will the D.C. Circuit’s decision answer the question next spring?  Will certain senators relent and vote in a replacement for Justice Scalia this year?  Will the eight remaining justices do something other than call things a tie until they have a full complement on the bench? 

            Stay tuned to this blogspot for more breaking news.

Supreme Court Puts Clean Power Plan on Hold, but Clean Agriculture Can Move Forward

Posted on February 12, 2016 by Peter Lehner

The Supreme Court's unexplained stay of the clean power plan was "one of the most environmentally harmful judicial actions of all time," writes Michael Gerrard of Columbia Law School in a recent, excellent blog. Rather than venting outrage, Gerrard quickly moves on to explain that the Clean Power Plan isn’t the only way to cut carbon pollution.

Ramping up efforts like fuel efficiency standards for cars and trucks, and building efficiency standards, he notes, will also help reduce carbon pollution. Gerrard mentions a couple of points about agriculture, but often, this sector is overlooked when it comes to climate solutions. It’s worth taking a closer look at some of the opportunities to reduce climate pollution from our food system.

Food waste is the second largest component of most landfills. As it rots, it releases methane, a potent greenhouse gas. A recent report by the UN Conference on Trade and Development estimates that 2 percent to 4 percent of all manmade climate pollution arises simply from food rotting in landfills.

Keeping food waste out of landfills can help reduce methane pollution. Massachusetts, California, Connecticut, Rhode Island, Vermont, and some cities have enacted laws to manage organic waste disposal in landfills. The idea is to create incentives to reduce food waste and divert it to other purposes, such as animal feed or composting. Instead of being thrown away and becoming a source of pollution, this “waste” can be put to good use. Landfill gas collection systems can be further incentivized. And the nascent effort to reduce food waste from businesses and households can be significantly ramped up.

Another major source of greenhouse gases is the over application of fertilizer. Excess nitrogen fertilizer causes two big problems. The first is water pollution. Nitrogen that isn’t taken up by crops runs off farms and enters larger waterways, where it stimulates the growth of algae and creates “dead zones” deprived of oxygen. The second, and less frequently discussed issue, is the volatilization of nitrogen into nitrous oxide, a greenhouse gas about 300 times more potent than CO2.  The IPCC estimates that 12 percent of all non-CO2 greenhouse gas emissions come from synthetic fertilizer application.  

A number of techniques can reduce these emissions while also providing a cost benefit to farmers. Farm policies could encourage practices like cover cropping, which reduces the need for fertilizer by making soils more rich and fertile. Crop rotations can do the same, yet current crop insurance programs actually discourage the use of these practices. Precision application technologies for fertilizers are getting ever better, but their uptake on farms is slow.

Manure from animals, and the "enteric emissions" from cattle (more commonly thought of as belching) are two more significant sources of climate pollution. Enteric fermentation alone may account for as much as 40 percent of all non-CO2 greenhouse gas emissions, according to the IPCC. Changes in diet might help with these emissions, but this is an area that needs more research.

Some of the emissions from manure can be captured if manure lagoons were covered and better managed. As it stands, these pits are only slightly regulated and are major sources of water pollution sources as well as odor nuisances. An even better practice is to raise cows on rotating pastures, where their waste can enhance soils and help store carbon. And, of course, if Americans did shift to a diet lower in red meat, as per the recommendation of the Dietary Guidelines Advisory Committee, we could further reduce climate pollution from cattle.

Agriculture is one of our nation's most important economic sectors, and is especially vulnerable to the extreme weather impacts of climate change. Its product -- food -- is critical not only for our economy, but is an integral and uniquely personal part of our everyday lives. When we think about how to address climate change, it makes sense to think about food and agriculture. The food we choose to produce, and how we produce it, use it, and dispose of it, all have an impact on climate pollution—and therefore have the potential to become climate solutions. 

Flint: Pb or not Pb, that is the Question

Posted on February 11, 2016 by Paul Seals

There is no safe blood lead level in children.

In following the inexplicable regulatory missteps in the Flint public water supply debacle, I could not help but think of the progress that has been made in removing lead from the environment and out of our children’s blood.  In spending my professional career addressing environmental issues and problems from a state, federal and private practice perspective, I often have wondered what difference does it make.   In the case of lead, we can actually measure our progress and success.

As a teenager, I filled my ‘54 Ford with regular leaded gasoline.   Lead was not only in gasoline, it was everywhere.  Recognizing the significant and often irreversible health effects of lead, regulatory programs were initiated at the federal, state, and local levels to “get the lead out.”  The implementation of these programs reduced or eliminated lead from gasoline, foods and food packaging, house paint, water pipes, plumbing fixtures, and solder used in plumbing and drink cans.  

Did these programs work?  In 1978, approximately 13.5 million children aged 1-5 had blood lead levels (BLLs) greater than or equal to 10 micrograms per deciliter (ug/dL) of blood, which was until recently the level of concern recommended by the Centers for Disease Control (CDC).   The recommended level is now 5 ug/dL.  Also, back in the 70s, the average BLL was approximately 15 ug/dL.  Black children and children living in low-income families were at greater risk.     

We have come a long way from the 70s.  The average BLL in children dropped to 1.4 ug/dL by 2008.  Below is a table graphically demonstrating this dramatic decrease in BLLs.  The table is based on data from National Health and Nutrition Examination Survey, United States, 1971 – 2008, taken from a CDC report, Lead in Drinking Water and Human Blood Lead Levels in the United States, August 10, 2012.

As we beat ourselves up over the mistakes in Flint, we should take a moment to reflect on and be re-energized by the demonstrable success of these regulatory programs.   What we have done has made a difference!  Flint reminds us that more must still be done.

 

Timeline of lead poisoning prevention policies and blood lead levels in children aged 1–5 years, by year — National Health and Nutrition Examination Survey, United States, 1971–2008

Unprecedented Program Leads To Unprecedented Response

Posted on February 11, 2016 by Andrea Field

I am a terrible predictor of what cases the Supreme Court will hear and what the Court will decide on those matters it chooses to hear.  For example, I wrongly predicted that the Supreme Court would never consider reviewing the D.C. Circuit’s decisions in cases involving other recent EPA regulations, but the Supreme Court chose to hear those cases, which led to its decisions in Utility Air Regulatory Group v. EPA and Michigan v. EPAAnd if asked to guess whether the Court would issue a stay of EPA’s Clean Power Plan under section 111(d) of the Clean Air Act, I might well have said that the odds were greatly against that happening – despite the merits of the arguments being raised by those seeking the stay. 

Perhaps, though, my poor predictive abilities are the result of my looking at each case in isolation instead of looking at them in combination and considering whether the Supreme Court’s February 9, 2016 stay decision is an outgrowth of the combined knowledge gained by the Court in its recent reviews of those other Clean Air Act cases.  Specifically, as pointed out by State Petitioners in their briefs in support of a stay of the Clean Power Plan (see here and here,) EPA has touted its Plan as being one that will completely transform the way energy is created and delivered in this country even though – argued State Petitioners – the plain statutory language (of Clean Air Act section 111(d)) does not authorize such Agency action, and the approach of the Clean Power Plan is at odds with EPA’s 45-year history of implementing section 111(d).  Maybe such claims struck a chord with the Court, which – in UARG – told EPA that the Agency cannot make “decisions of vast ‘economic and political significance’” under a long-extant statute, like the Clean Air Act, without “clear congressional authorization.” 

And then there was Michigan, where the Court determined that EPA had proceeded unlawfully in adopting another extensive and expensive Clean Air Act regulatory program.  State Petitioners in the Clean Power Plan litigation made sure that the Court was aware that by the time the Court issued its decision in Michigan – a case where the underlying rule was not stayed during the pendency of litigation – the affected parties had spent billions of dollars to meet the terms of the underlying, un-stayed rule.  In other words, justice delayed in Michigan was justice denied.

None of this is to say what the Court will or will not do if and when it reviews arguments on the lawfulness of the Clean Power Plan.  I make no predictions on that.  But I believe the Court acted appropriately in calling for the completion of litigation before requiring affected parties to make the massive, unprecedented, costly, and transformative changes to the energy industry that the Clean Power Plan demands.       

The Supreme Court Stay of the Clean Power Plan and the Paris Pledges

Posted on February 10, 2016 by Michael Gerrard

The Supreme Court’s unprecedented, unexpected and unexplained action yesterday staying implementation of the Clean Power Plan is one of the most environmentally harmful judicial actions of all time. However, the damage it does to the United States’ ability to meet its Paris pledge is less than it might seem. But that is not because the Clean Power Plan wasn’t important; it is because the Plan didn’t do nearly enough.

The Intended Nationally Determined Contribution (INDC) that the U.S. submitted in advance of COP21 reiterated the prior goal of achieving a 17% reduction below 2005 levels in 2020, and conveyed a new pledge of a 26% to 28% reduction by 2025. The INDC cited the Clean Power Plan as one of the actions being taken to meet those pledges, but did not present any numbers on what actions would lead to what reductions.

More detail was presented in the Second Biennial Report of the United States under the Framework Convention on Climate Change, submitted by the Department of State in January 2016. As the report makes clear, the Clean Power Plan’s actual emissions reductions do not begin until 2022, and thus have no bearing on achievement of the 2020 goal. From 2020 to 2025, the Report expects carbon dioxide emissions to fall from 5,409 to 5,305 MtCO2e (Table 4) with implementation of the Clean Power Plan, energy efficiency standards, fuel economy standards, and numerous other measures that are already on the books, and down to 5,094 in 2030.  (The report does not separately specify how much of this is due to the Clean Power Plan alone; the numbers result from a complex modeling exercise that included numerous interrelated actions.)

That is not nearly enough of a reduction to meet the 26% target (much less the 28% aspiration) for 2025.  Instead, a host of additional measures are also needed. The Biennial Report lists these as possibilities to reduce carbon dioxide emissions:

  • Full implementation of Phase II heavy-duty vehicle fuel economy standards.
  • Finalization of proposed, new, or updated appliance and equipment efficiency standards.
  • Increased efficiency of new and existing residential and commercial buildings.
  • Reduction in industrial energy demand in several subsectors.
  • Additional state actions in the electricity sector.
  • Enhanced federal programs that lead to greater efficiencies in industry and transportation, including greater biofuel deployment and commercial aviation efficiency.

To address other greenhouse gases, the Biennial Report lists these possible added measures:

  • An amendment (already in the works) to the Montreal Protocol on Substances that Deplete the Ozone Layer to phase down production and consumption of hydrofluorocarbons.
  • Measures to reduce methane emissions from landfills, coalmining, agriculture, and oil and gas systems.
  • More efficient nutrient application techniques that reduce nitrous oxide emissions

Even all of the above is not enough to meet the 2025 goals. The Biennial Report puts heavy reliance on the land-use sink – on the ability of forests and other vegetated areas to absorb a considerable amount of the greenhouse gases that are emitted. And even with an “optimistic sink” scenario and a number of other favorable assumptions, the key summary graph in the Biennial Report (Figure 6) shows a reduction of about 27% in 2025.

In sum, while the Clean Power Plan is the biggest game in town in terms of achieving the Paris goals, it is by no means the only game in town. While we express our justifiable fury over the Supreme Court’s action, we need to bear in mind that there are many other things that the U.S. must do in the next several years to control greenhouse gas emissions.

EPA and DOJ Cannot Sugarcoat This: SCOTUS Stays the Clean Power Plan

Posted on February 10, 2016 by Seth Jaffe

Yesterday, the Supreme Court stayed EPA’s Clean Power Plan rule.  No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.

Everyone, supporters and opponents alike (and yours truly), thought that there was no possibility that the Court would grant a stay. And it is precisely because a Supreme Court stay of a rule pending judicial review is such an “extraordinary” – to use DOJ’s own word – form of relief that one has to conclude that five justices have decided that the rule must go.

This isn’t just a preliminary injunction; it’s a preliminary injunction on steroids.  First, everyone seems to acknowledge that it’s unprecedented for the Supreme Court to stay a rule pending judicial review.  Second, the standards in DOJ’s own brief make pretty clear that a stay will only issue if the Court is pretty convinced on the merits.  Finally, it’s worth noting that the Court implied that it does not even trust the Court of Appeals, because the stay will remain in force, even if the D.C. Circuit affirms the rule.  The stay will only terminate either:  (1) if the Court of Appeals upholds the CPP and the Supreme Court denies certiorari or (2) if the order is upheld and the Supreme Court also upholds it.

Back to the drawing board for EPA.  Perhaps § 115 of the Clean Air provides a way out!

The White House Embraces Ecosystem Services

Posted on February 8, 2016 by JB Ruhl

The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services—such as water filtration, pollination, flood control, and groundwater recharge—rather than commodities—such as crops, timber, and mineral resources. Because many of these services exhibit qualities similar to public goods, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene in ecology, economics, and other disciplines bearing on environmental and natural resources management. 

The policy world quickly picked up on the ecosystem services idea as well. In 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, in which it explicitly tied ecosystem services to human prosperity. 

By contrast, uptake in law has been slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into achieving “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). This and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated. But a more coherent federal ecosystem services policy appears on the horizon.

On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies have until March 30, 2016 to submit documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft a best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”   

ACOEL Fellows should watch the Memorandum’s implementation over the next year closely. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final months of the Obama Administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative. 

Regulatory Update

Posted on February 5, 2016 by Stephanie Bergeron Perdue

Back when I initially started this blogging exercise for a 1/11 posting, I had a clever title in mind: WIS 2016?  (aka What’s in Store 2016?)  But now it’s February.  And I even missed the filing deadline for a Groundhog’s Day-related theme.  BTW, for those who may NOT have heard, Punxsutawney Phil and Staten Island Chuck failed to see their shadows.  Early spring.  Ah, perhaps I should go with a thawing theme as in when will there be any definitive outcomes for some of our favorite environmental issues?  And I commit to use as many abbreviations and acronyms as possible. 

1)      CPP – No foreseeable thaw.

If I could use a symbol, kind of like the artist formerly known as Prince, I would.  What’s that?  Surely you jest.  CPP is THE Clean Power Plan.  At any rate, way back in January 2016, the D.C. Circuit denied the various Motions to Stay this controversial rule.  And then there was the Stay Application filed by the 26-state coalition, led by West Virginia, and industry types in the SCOTUS.  DOJ/EPA has until 2/4 to respond; the States are expected to file a reply 2/5.  What’s at stake?  Regulating emissions from existing power plants under FCAA 111(d) in a, well, unprecedented manner.  Yes, Texas is one of the states challenging the rule.  Let’s momentarily set aside the fact that the rule deals with power plants and focus solely on the structure of the regulation – hence my use of the term unprecedented.

2)      NAAQS (pronounced naks), more specifically ozone – No foreseeable thaw.

Yes, the October 2015 EPA regulation was also challenged by multiple groups and states, including Texas/TCEQ which filed its Petition for Review on 12/23/2015.  The rule proposal ranged from 65 ppb to 70 ppb; 70 ppb was the final number which lowers the standard 5 ppb from the last revision in 2008.  Statements of Issues for the case are due 2/4/2016. State designations for attainment/NA are due October 2016.  The attainment deadlines are from 2020 to 2037, depending on the classification.  What will you be doing on Groundhog’s Day 2037??

3)      WOTUS (pronounced wo-tus) – Some thaw, mostly muddying the water.  (Sorry)

EPA’s final “Clean Water Rule: Definition of Waters of the United States” was published on 6/29/2015.  Fast forward to 12/8/2015 on which date oral argument was held in the 6th C. COA. I am stepping over the N. Dakota litigation as well as litigation pending in Galveston, Texas. At the moment, there is a nationwide stay against the rule courtesy of the 6th C.  This is in effect while the court sorts out the jurisdictional issue as to whether the rule should be challenged at the federal district court level or appellate level.  BTW, I don’t really like to refer to this rule as WOTUS.  I know, it rhymes with SCOTUS and POTUS. How ‘bout U.S. waters or federal waters?  Most people would still look at us, like, what the heck are they discussing?  That’s a nice segue to note that this federal rule clarifies (ahem) what waters are subject to regulation under federal law, i.e. the CWA.  I’m not sure bright (shore)lines are on the horizon.

4)      EPA SSM SIP Call – Thaw

I had to say thaw for some variety.  And compared to above matters, this case is actually further along.  This rule deals with the use of an affirmative defense in emission event cases and applies to 36 states, including Texas.  (I should mention that Texas’ rules are SIP approved and withstood challenge in the 5th C. COA. Yes, Texas is challenging.)   Briefing is due between 3/6/2016 and 9/4/16; oral argument is anticipated in late November or early December 2016.  I’m refusing to spell out SSM SIP because it makes me feel like I am a knowledgeable insider.

"We All Let the Citizens of Flint Down"

Posted on February 4, 2016 by Alexandra Dapolito Dunn

With busloads of concerned citizens from Flint and nearby cities gathered around the Rayburn House Office Building on February 3, environmental regulators and science experts appeared before the U.S. House Committee on Oversight and Government Reform (Committee) to give testimony regarding lead contamination in Flint, Michigan’s public drinking water.  As detailed in this recent NPR podcast, well worth the 40 minute listen, between 6,000 and 12,000 children are estimated to have elevated blood lead levels following the City’s drinking water source change from Detroit water to water from the Flint River in 2014. 

How could a crisis like this have happened? While at first water policy groups were quick to highlight the nation’s aging water infrastructure and investment gap – EPA’s most recent estimate is that $384 billion is needed to assure safe drinking water from 2013 to 2030 – and certainly lead pipes to homes in older communities is a costly replacement problem – at the root of Flint was classic government dysfunction combined with assessments of safety that make sense to regulators but perhaps not to everyday people. At the hearing Joel Beauvais, acting Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Water faced questions from Committee members about the Agency’s delayed response to the situation, while the Michigan Department of Environmental Quality’s acting Director Keith Creagh was to explain why state officials did not act to address contamination immediately. Both officials attributed the crisis to breakdown in communication between the agencies that inhibited officials’ swift action. What happened in Flint “was avoidable and should have never happened,” according to Beauvais; while Creagh’s testimony stated that “[w]e all share responsibility in the Flint water crisis, whether it’s the city, the state, or the federal government… We all let the citizens of Flint down.”

The hearing ultimately took on a forward look, noting a reaffirmed commitment to protecting public health. “We do have clear standards. We do have clear accountability, so we have a clear path forward, said Creagh. “We are working in conjunction with the city, the state and federal government to ensure it doesn’t happen again.”  Beauvais noted “it is imperative that Michigan, other states, EPA and drinking water system owners and operators nationwide work together and take steps to ensure that this never happens again.”

EPA and Michigan state and local officials are now in non-stop mode to ensure that prompt, concerted efforts are taken to address public health hazards. Members of Congress are introducing bills to fund Flint’s systems and to aid the affected citizens.  Even philanthropic groups are stepping in.  EPA’s Inspector General is doing a deep dive into the Agency’s response, Michigan Governor Snyder is seeking answers, and even the Federal Bureau of Investigation is looking into criminal aspects of the matter. Flint’s drinking water will get better – and yet the affected population may never fully recover from their excessive lead exposures.  

The #FlintWaterCrisis is a sober reminder of the need to keep the nexus between environmental quality regulation and public health protection very tight.  As professionals in the environmental field, we cannot fear having frank conversations in the open about risks – and the importance of taking precautionary steps – when human health is at issue.  

Doin’ the Dunes – Part VIII

Posted on February 3, 2016 by Joseph Manko

In my last blog, I summarized the substantive arguments made by the City of Margate’s attorneys in their countersuit against the New Jersey Department of Environmental Protection’s eminent domain proceedings, which were filed in state court—the federal court overturned DEP’s attempts to proceed via administrative orders.  The court will have to consider: (a) is dune construction a reasonable use of the state’s “taking” powers; or (b) were alternative storm protections – e.g., sea walls and wooden bulkheads – more reasonable?

While awaiting a ruling by the court after the upcoming February 4th hearing, there have been two new developments:

1.                  Seventeen residents of Point Pleasant Beach in Ocean County have filed a suit against DEP, claiming the agency’s taking of their beaches was a “land grab” of the residents’ private property destined to require future maintenance expenses and possible development of boardwalks, public restrooms, etc.  These cases are scheduled for hearings next month. 

2.                  The super storm/blizzard over the January 22-24th weekend again left Margate’s streets flooded.  Governor Christie took a “serves you right” position, whereas Margate officials blamed the flooding on the bay, not the ocean. 

As I “go to press,” we’ll soon see whether the plaintiffs’ “we don’t need dunes” position “holds water” (pardon the pun). 

Ninth Circuit to federal land trespassers: Fuggedaboutit

Posted on February 2, 2016 by Theodore Garrett

Tensions ran high in eastern Oregon in early January 2016 as an armed group seized the headquarters of a national wildlife refuge. The occupation began as a protest of the sentencing of ranchers who were convicted of arson on federal lands in Oregon. The occupation subsequently became a rally for opening federal public lands to all. Entering the fray, albeit indirectly, the Ninth Circuit in its January 15, 2016 decision in United States v. Hage, held that defendants’ unauthorized grazing of cattle on federal lands in Nevada was unlawful. Contrary to the views of the Oregon occupiers that they are defending the Constitution, the Ninth Circuit held that grazing cattle without a grazing permit violated federal statutes as well as the state law of trespass, noting that a grazing permit is “a revocable privilege” and is not a “property right.” The Ninth Circuit rejected the district court’s ruling that the government cannot claim trespass if the cattle stayed within a reasonable distance of a source to which defendants had water rights. Concluding that the district judge “harbored animus toward the federal agencies,” the Ninth Circuit requested the Chief Judge of the Northern District of Nevada to assign the case to a different judge on remand. Meanwhile, back in Oregon, several of the protesters have been arrested. One was killed. 

Cap and Trade Is Alive and Well in New York State

Posted on February 1, 2016 by Virginia C. Robbins

New York participates in the cap-and-trade system operated by 9 northeastern and mid-atlantic states known as the Regional Greenhouse Gas Initiative that limits carbon dioxide (CO2) emissions from fossil-fuel burning power plants. These plants must purchase allowances at auction for each ton of CO2 they emit. An efficient gas-fired plant that produces 225 MWs of electricity emits approximately 1.2 million tons of CO2 a year.

During the adoption process for New York’s final RGGI rule in 2008, power generators predicted serious adverse consequences. These included increased electricity costs for consumers, added operating costs for generators who would never recoup all CO2 allowance costs from the sale of electricity, and concerns about longer term energy transactions due to the uncertainty of allowance prices. 

In comments on a draft RGGI rule, generators requested the State to establish a price cap of $0.75 on the cost of a CO2 allowance to protect consumers from significant price increases and a sunset provision in the event a federal cap-and-trade program were established. The generators also expressed concern about the lack of available control technology for CO2 emissions. 

Fast forward: at the last allowance auction in December 2015, the cost of a CO2 allowance was $7.50. New York generators purchased almost 6 million allowances reaping revenue of more than $44 million for the New York RGGI fund. At the previous auction in September, almost 10 million allowances were purchased at a cost of $59 million. Despite these high allowance costs, the lights are still on in New York. According to data published by the New York State Energy Research and Development Authority, updated as of January 16, the monthly average retail prices of electricity in the residential, commercial and industrial sectors have decreased between 2008 and 2015, attributable to the success of energy conservation and efficiency programs, the availability of more renewable energy, and the low price of natural gas and oil. 

CO2 emissions from the power sector have decreased by more than 40% in the RGGI states since 2009 due to reductions in the regional CO2 cap. New York has been a significant contributor to those reductions. Revenue from the program of over $1 billion has been invested by the RGGI states in energy conservation and efficiency efforts, clean and renewable energy, direct bill assistance to households and greenhouse gas abatement. Importantly, RGGI also has the potential to assist states in meeting the CO2 reduction goals in EPA’s Climate Action Plan.

However, a report issued on January 20, 2016 by Synapse Energy Economics and the Sierra Club, entitled The RGGI Opportunity, states that RGGI's current requirements are not enough to get the RGGI states to their climate goals in 2030 and beyond (40% reduction in carbon pollution from 1990 levels) and it encourages more energy efficiency programs, increased levels of wind and solar projects, and adding 10 million battery electric vehicles, all of which will result in job creation. 

The RGGI program has been a clear revenue and greenhouse gas reduction success, but there is potential in New York for RGGI funds to be diverted to the general fund.  This last occurred in 2015 when the legislature approved a budget that moved $41 million of RGGI revenue to the general fund to be used for other environmental programs. Environmentalists considered this action a threat to the program. Since RGGI was adopted by executive action, not by statute as was the case in the other RGGI states, the environmentalists’ view is that RGGI funds can only be used for program purposes. The 2015 transfer of RGGI funds to the general fund could subject the program to challenge as a tax on electricity levied without the legislature’s approval. In contrast, the State’s 2016 budget does not include a raid on RGGI funds.

Would similar cap-and-trade programs work as well in other regions of the country?  Yes, but the political will to establish such programs will depend in part on a region’s fuel mix. Since coal-fired power plants emit almost twice as much CO2 as gas-fired plants, the allowance costs for coal plants will be higher, thereby increasing the cost of the electricity they produce and making such facilities less competitive in regions that also have more efficient facilities. That said, if the programs’ revenues are pumped into energy conservation and efficiency programs, consumers could use and pay for less electricity.