Posted on February 24, 2017
Here’s a thought exercise: I’ll give you a budget of 25 words (including conjunctions, articles, and all the other little ones). You use up a word by either deleting, adding, or replacing one in an existing federal environmental or natural resources statute. How much could you transform the field of practice with just those 25 word edits? The answer is, quite a lot.
When we think of statutory reform, we usually think big, right on up to “repeal and replace.” But after more than 25 years of very little legislative action on federal environmental and natural resources statutes—the National Wildlife Refuge Improvement Act, Sustainable Fishing Act, and the recent Toxic Substances Control Act reforms are a few exceptions since the 1990 Clean Air Act amendments—much rides on the accumulations of judicial and agency interpretations of the meaning of a word here and a phrase there. As we enter a period of potential legislative volatility in this field, therefore, the rifle shot may be just as much in play as the nuclear bomb.
Like any statutory reform, rifle shots can make regulatory statutes either more or less regulatory. For example, one could add “including carbon dioxide” or “excluding carbon dioxide” in just the right place in the Clean Air Act and with those three words put an end to a lot of debate and litigation. Given the current political climate, however, it’s reasonable to assume any rifle shot would be aimed at reducing regulatory impacts. But even with just 25 words in the clip, one could transform the impact of several regulatory programs before running out.
For example, delete the words “harm” and “harass” from the statutory definition of “take” in the Endangered Species Act (ESA) (16 U.S.C. 1532(19)) [LINK 1] and you have a very different regulatory program. Much if not most of the land use regulation impact under the ESA stems from the inclusion of those two words; without them, the ESA’s prohibition of unpermitted take would restrict actions like hunting, killing, shooting, and wounding, but could not reach indirect “harming” from habitat modification. Of course, the interagency consultation program under Section 7 (16 U.S.C. 1536(a)(2)) [LINK 2] would still be in place, prohibiting federal agencies from taking actions that “jeopardize” the continued existence of species. But just add “substantially” before “jeopardize” and the practical effect of that prohibition is greatly reduced.
I’ve managed to transform the ESA, vastly reducing its regulatory impact, with just three word tweaks. Twenty-two to go. Here are some more examples. I’ll let readers evaluate the impacts.
· Speaking of evaluating impacts, the environmental impact review process of the National Environmental Policy Act (NEPA) can really slow things down (42 U.S.C. 4332(B)). [LINK 3] To “streamline” the process, add the word “direct” before “environmental impact” in subpart (C)(1), which would eliminate the current practice of requiring analysis of indirect and cumulative impacts, and delete subpart (C)(iii), which requires agencies to evaluate “alternatives to the proposed action,” to remove a factor that bogs down much NEPA litigation. (Six more words down, sixteen to go.)
· Heard all the commotion about which “waters” are subject to the Clean Water Act? Clear that up by changing the statutory definition of “navigable waters” (33 U.S.C. 1362(7)) [LINK 4] to read “waters of the United States subject to navigation.” That would be pretty extreme—it would remove most wetlands from jurisdiction—so one could control how far jurisdiction extends over wetlands by adding and their adjacent wetlands.” This would draw the line much closer to navigable water bodies than current interpretations reflected in Supreme Court opinions and agency regulations—Rapanos and the Water of the United States Rule become history. (Seven more words down, nine to go.)
· And if you also want to put to rest the question whether the Clean Water Act applies to groundwater, edit the front end of the definition to read “surface waters.” (Another word down, eight to go.)
· The Circuits are split over whether the Migratory Bird Treaty Act’s list of prohibited activities (16 U.S.C. 703(a)), [LINK 5] which includes to “take” or “kill,” sweeps within the statute’s reach any “incidental” taking or killing—injury or mortality that is not the direct purpose of the activity, such as strikes by wind turbines. Easy to solve! Add the word “purposeful” before the list of prohibited activities. (Another word down, seven to go.)
· And, while we’re at it, let’s go ahead and add “excluding carbon dioxide” to the Clean Air Act definition of “air pollutant” (42 U.S.C. 7602(g)). [LINK 6] Adios, Clean Power Plan. (Three more words down, leaving just four to go.)
I’ll leave it to readers to think about how to use the last four words. The point here is that the system of environmental and natural resources law has become quite fragile. With Congress out of the picture for so long, courts and agencies have built up an interpretation infrastructure under which a single word or phrase often carries a tremendous burden of substantive and procedural program implementation. As a consequence, a mere tweak here and there can have dramatic effects on the program.
Granted, anyone who closely follows the statutes tweaked above will quickly appreciate the impact of any of the tweaks, and I’ve chosen some powerful examples unlikely to slip by any such experts. But subtler tweaks buried deep in a larger bill could more easily fly below the radar.
It remains to be seen whether Congress takes this rifle shot approach or goes bigger. Rifle shots don’t eliminate or “gut” entire programs, which may be the current congressional appetite, but the above examples show the potency of this approach. I for one will be keeping my eyes out for rifle shots in bills every bit as much as I will be following the big bomb reform efforts. Do not underestimate the power of the tweak!
Posted on February 22, 2017
In Scaramouche, Raphael Sabatini describes the hero of the novel as having been “…born with a gift of laughter and a sense that the world was mad”.
The Angus Macbeth I knew for 38 years had one of the best laughs of all time and a keen appreciation for the occasional absurdity of the world in which he lived. After all, how else to describe a man whose life-long professional endeavor was to attempt to explain EPA to Industry, Industry to EPA, and NRDC to everyone. A Sisyphean task which he approached with skill and aplomb and, above all, a boundless supply of mirth.
I met Angus in 1978 as an aspiring lawyer looking for work in Carter-era Washington. I remember almost nothing about which we spoke. What does stand out is a long conversation filled with loud talk, laughter, an endless stream of staff lawyers entering and exiting during my interview to discuss some issue or other ( think Court of Requests), and cigar smoke. I am pretty sure I got hired because I demonstrated I could stay with the thread of our conversation regardless of the interruptions and, more importantly, my shared love of cigars. That was, truly the beginning of a beautiful friendship.
I watched and learned from Angus, not just then, but throughout our working lives. I watched him mold a group of really smart, sometimes unruly and quirky lawyers at DOJ into an enormously effective team. He made everyone he touched better.
I was amazed as he cajoled and jawboned his primary client ,EPA, into coming round to his way of thinking by the sheer force of his intellect and charm. Angus could quiet the most obstreperous US Attorneys, EPA Appointees, or opposing counsel by asking a few direct, innocent questions and waiting until they either got the lesson or felt the bleeding. In private practice Angus would patiently explain to the outraged client that yes, the government was not being logical; sadly, it didn’t have to be; however, here was a good path forward. It always worked. Angus combined a big brain, cold, clear-eyed analytical skills, and the integrity to tell clients what they needed rather than what they wanted to hear.
Angus loved complex problems and working with smart people to solve them as much as he hated typos (his biggest condemnation of a piece was that it was “riddled with typos”) and slipshod work. He could express convoluted concepts simply and was the master of the one word answer followed by silence and “the look”. Then, he would take over the room as he set out the issues and the answers. He led by his own example and had as little ego as any brilliant lawyer I have ever known. You just didn’t want to let him down or do less than your best. He was the gold standard for what a lawyer should be. And for what a colleague should be. And for what a friend should be.
I saw him angry only once, when a group of Louisiana lawyers thought they could pull a fast one on the government. They came to DOJ to complain about what we staff lawyers were doing and, thanks to Angus and Jim Moorman, left with their tails between their legs.
I traveled with him from San Francisco to England to Alaska. We toodled around Bath and the Salisbury plain and met his cousins who owned a book store and designed jeweled badges for HRH Prince Phillip. I marveled at how everywhere I went, everyone knew Angus or had an Angus story. He was equally comfortable with CEOs and London taxi drivers. His sartorial splendor was legendary. I did actually accompany him to Hackett’s in London where I saw him buy a new jacket which he wore for 30 years. I think he owned the same shirt for most of the time I knew him. It was never tucked in and the front buttons were on the verge of becoming projectiles.
He had perfected the stage whisper mutter which he used at the right time and place to effect. He loved to eat good food, drink good wine, and have the occasional drop of harder stuff. He was, after all, a true Scot. Once, we both decided to do something about our weight and decided to play squash at the DC Y. Truly. Can you imagine? Thank goodness there are no “Access Hollywood” tapes of those somewhat ponderous matches. Think the hippos in Fantasia dancing to the Waltz of the Flowers.
Despite being always on the go and in high demand for his legal skills, Angus always had time for friends. He was at the house with baskets of flowers when Ann and I got married; talked the Woodies store manager into selling him the rocking horse which was part of the seasonal display for Andrew when he was born; composed memorable toasts and through a thousand kindnesses let one know one was valued. And his cooking : fabulous. Dinners at the Macbeths-particularly at Christmas or Thanksgiving- were true creative feasts. I kept a list of the words he used with ease which I had never previously heard. He could actually tell you who Lord Acton was and what he famously said.
He loved being a lawyer. It spoke to his view that the world should be fundamentally fair and that the cause of justice was important. This sense of fairness drove him in his work on the scandal of the incarceration and property seizure which befell Japanese Americans at the hands of their government.
He loved JoAnn and “the boys” beyond measure.
If I had 2 lifetimes, I couldn’t recount every hilarious and touching Angus story I know. I am sure there are hundreds of his friends and colleagues who feel the same. What I know is that the luckiest thing that ever happened to me, professionally at least, was meeting Angus Macbeth. The smartest thing I ever did was to convince him to bring Sam Gutter and join me at Sidley. The second smartest was to hire him to help on GE’s biggest environmental problems. That he was my friend is a blessing to me. That he is gone is heart-breaking. Angus is irreplaceable.
Angus was quite simply a wise and good man. His passing leaves a huge hole in the fabric of the lives of his family, those who loved and worked with him, and the history of environmental law. He was one of a kind and I do not think we shall see his like again.
Angus, ave atque vale.
Posted on February 14, 2017
Citing its deep decline in numbers, on January 10, 2017, the U.S. Fish and Wildlife Service (“FWS”) listed the rusty patched bumble bee, Bombus affinis, as endangered under the Endangered Species Act (“ESA”). FWS estimates the rusty patched bumble bee population has seen as much as a 91 percent reduction since the mid to late 1990s. Twenty years ago, this species was practically ubiquitous in eastern North America, spanning across 28 states. Now its territory covers only small regions in 12 states: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.
This listing is the first for bees under the ESA, but unlikely the last. Like the rusty patch bumble bee, other bee species are facing steep declines in their respective populations. Declining bee populations are troubling, because bees, as pollinators, are vital to the U.S. agricultural industry. According to a study conducted in 2010 by Cornell University, bees and other pollinators are estimated to contribute a total of $29 billion to the industry, with $16.35 billion attributed specifically to pollination.
The direct cause of these dramatic declines in bee populations is undetermined and likely due to a multitude of factors. FWS states the threats to the rusty patched bumble bee include disease, exposure to pesticides, habitat loss, and climate change. This listing will likely intensify the debate over commonly used pesticides, including neonicotinoids, which have undergone additional scrutiny after a 2016 study published in Nature linked the use of neonicotinoids to the decline of wild bee populations in England.
FWS published the proposal for this listing in the Federal Register on September 22, 2016 and the final listing was published in the Federal Regulation on. January 10, 2017. However, due to the Trump administration’s Inauguration Day memorandum halting or delaying any new federal regulations, the ESA’s protection for the rusty patch bumble bee is delayed until March 21, 2017-a stinging result.
Posted on February 13, 2017
Have any of you been feeling like this lately? I certainly have! Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary. Instead, I chose a topic that made me smile.
On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games. The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals. The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze.
Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms. A few host cities previously used recyclable materials in their medals. Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics. The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint. The gold was mercury free and in compliance with sustainability standards from extraction to refining. At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals. The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings.
As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low.
Of course, we face similar obstacles in the United States. On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste. The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public.
At least in New York, things on the e-waste recycling front are more optimistic. New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices. The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day. At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030. As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.
Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.
Posted on February 9, 2017
Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!). It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.
Here are the highlights:
- A gradually increasing carbon tax, starting somewhere around $40/ton.
- Return of all revenue from the tax to citizens through dividend checks. The CLC predicts that the 70% of Americans with lowest income would receive more in dividends than they would pay in taxes.
- Border carbon adjustments.
- Elimination of existing carbon regulations. It’s not clear what this would cover, but it would include at least the Clean Power Plan. It would also include elimination of tort liability (presumably limited to tort liability related to claims concerning climate change).
I’d sign up for this today, but I’m not exactly one of the people that needs convincing. According to GreenWire (subscription required), former Secretary of State James Baker, who led the public presentation of the report, acknowledged that attaining enactment of the proposal would be an “uphill slog.” I think that’s putting it mildly. The CLC members are basically a who’s who of the old-line GOP mainstream – precisely the types that President Trump appears to have consigned to the dustbin of history.
Nonetheless, hope springs eternal and we have to start somewhere.
Posted on February 8, 2017
President Donald Trump’s first weeks in office have seemed like a reality TV show highlighted by frequent signing ceremonies for hastily-drafted executive orders. One of these orders, signed on January 30, is entitled “Reducing Regulation and Controlling Regulatory Costs” (Executive Order 13771). President Trump described it as mandating “the largest cut by far, ever in terms of regulation” and the key to “cutting regulations massively” for businesses. The order requires federal agencies to repeal two existing regulations for each new regulation they issue and it gives each agency a regulatory budget of zero for the imposition of aggregate costs on industry during the current fiscal year.
The words “cost” or “costs” appear 18 times in the executive order; entirely missing from it is any discussion of the benefits of regulation. By focusing solely on reducing the costs of regulation, President Trump is repeating a crucial mistake the Reagan administration made after launching a major “regulatory reform” initiative in 1981. President Reagan’s Executive Order 12291 created a new system of regulatory review centered in the Office of Management and Budget (OMB). It mandated that federal agencies perform cost/benefit analyses to support any major rule likely to cost more than $100 million annually. Subsequent Presidents of both parties have retained this requirement and the centralization of regulatory review in OMB’s Office of Information and Regulatory Affairs.
Unlike Trump’s executive order, Reagan’s order directed federal agencies to consider both the costs and benefits of regulation. It specified that such agencies should seek to maximize net benefits to society and to issue regulations only when their potential benefits outweighed their potential costs. However, the Reagan administration undermined these directives by maintaining that costs and benefits need not be weighed when an agency proposed to repeal a regulation. This contributed to a disastrous effort to repeal limits on the amount of lead additives that could be used in gasoline.
At the direction of Reagan’s Task Force on Regulatory Relief, EPA proposed to repeal the lead limits that had been sustained in the D.C. Circuit’s historic, en banc decision in Ethyl Corporation v. EPA. While this would have saved oil refiners a small amount of money, it would have dramatically increased lead poisoning, costing society far more. Yet, despite the Reagan administration’s new emphasis on cost/benefit analysis, no cost/benefit analysis was performed because EPA was proposing to repeal a regulation.
The rulemaking to abolish limits on lead in gasoline spawned such a firestorm of opposition, even from conservative columnist George Will, that the Reagan administration was forced instead to strengthen the regulation. Three years later, after William Ruckelhaus had returned to lead EPA, the agency performed a cost/benefit analysis of phasing lead out of gasoline entirely. After the analysis found overwhelming net benefits from banning leaded gasoline, EPA did so. Today nearly every country in the world has followed the U.S. in banning leaded gasoline, dramatically reducing lead poisoning. Economists estimate that lead phase-out now generates more than two trillion dollars per year in net benefits globally.
Under President Trump’s new executive order, federal agencies must repeal two rules, regardless of their benefits, in order to take any new regulatory action. And the costs of the new regulation must be offset by the reduced costs from repealing existing rules. Thus, if EPA wants to strengthen regulations on lead in drinking water to protect people like the residents of Flint, Michigan, Trump’s executive order requires it to repeal two existing rules, for example (god forbid) by no longer prohibiting oil refiners from adding lead to gasoline.
President Trump’s executive order has legal qualifiers that offer some hope. It purports not to “impair or otherwise affect” agencies’ existing legal authority and it requires federal agencies to comply with the Administrative Procedure Act (APA) when repealing rules. The APA’s judicial review provisions direct courts to strike down agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If an agency’s only justification for repealing a rule is to comply with President Trump’s new directive, it should be possible to convince a reviewing court that the action is arbitrary enough to be struck down.
President Reagan’s efforts to relax environmental regulation generated a backlash in Congress, which responded by greatly strengthening the environmental laws and adding numerous deadlines for EPA action. But that was because Congress then was controlled by lawmakers who cared about environmental protection. Today’s Congress is controlled by lawmakers who regularly campaign against EPA regulations. Regulations that are outmoded, ineffective, or excessively burdensome should be repealed, as President Obama directed in 2011 when he issued Executive Order 13563. But President Trump’s poorly drafted Executive Order 13771 opens the door to repealing long-established protections for public health, safety and the environment without consideration of the enormous benefits they produce.
Posted on February 6, 2017
In recent months, the Agency for Toxic Substances and Disease Registry (ATSDR) and the “minimal risk levels” (MRLs) established by ATSDR have played a direct role in EPA’s efforts to regulate stationary sources under the Clean Air Act. The ATSDR is an advisory agency created by CERCLA in 1980 to help EPA assess health hazards associated with Superfund Sites. ATSDR’s role was expanded by the 1984 RCRA Amendments to assess risks from hazardous substance releases at landfills and surface impoundments. In 1986 SARA further expanded ATSDR’s responsibilities under CERCLA to assess the health impacts of hazardous substance releases.
In response to its CERCLA mandate, ATSDR has developed MRLs which define the level of daily human exposure to a hazardous substance release that is likely to result in no appreciable risk of an adverse non-cancer health effect. MRLs are designed to be a screening tool and are not intended to identify levels that would trigger cleanup or other action. As a result, exposure to a hazardous substance above an MRL does not necessarily mean that adverse health effects will occur. Rather, MRLs “are set below levels that, based on current information, might cause adverse health effects in the people most sensitive to such substance-induced effect.”
In comparison to the MRLs developed under CERCLA, there are two sets of standards established by EPA under the federal Clean Air Act to address health impacts from air emissions. One of these is the National Ambient Air Quality Standards (“NAAQS”) which define the concentration of a criteria pollutant in ambient air deemed to be protective of human health. State implementation plans are designed to achieve compliance with NAAQS. Likewise, the air emissions from permitted stationary sources are analyzed to ensure consistency with NAAQS. NAAQS are developed through a rigorous process that solicits input from the scientific community and public at large, and are promulgated as rules which are invariably subject to legal challenge and judicial review.
EPA also establishes emission limitations under Section 112 of the Clean Air Act to control toxic air emissions. These standards limit the emissions of hazardous air pollutants from specified categories of stationary sources. EPA assesses the risk to public health and the environment that remains after implementation of these limitations and must promulgate new health based standards to mitigate those residual risks.
In recent months EPA has moved beyond the NAAQS and toxic air pollutant standards to rely upon the ATSDR and its MRLs in identifying the allowable, and ostensibly enforceable, concentration of pollutants in ambient air under the Clean Air Act.
In one case, EPA asked ATSDR to evaluate the ambient air quality surrounding a stationary source. ATSDR concluded that the monitored concentrations of manganese from that source exceeded the pollutant’s MRL. Based on this finding, US DOJ filed a civil complaint against the facility. One of the claims alleged that the monitored manganese concentrations presented an imminent and substantial endangerment to public health and that injunctive action was necessary under Section 303 of the Clean Air Act. The complaint requested a judicial order requiring installation of fence-line air monitors and implementation by the source of all measures necessary to prevent exceedance of the MRL for manganese at those monitors. In effect, EPA identified the MRL as the allowable concentration of manganese to be emitted under the Clean Air Act. The case has settled.
In other matters, EPA Region 5 utilized the information from an ATSDR health consultation to justify issuance of a Section 114 order under the Clean Air Act which required installation of fence-line PM10 monitors around a facility with outdoor storage piles where manganese emissions were also an issue. The company refused to install the monitors and EPA filed a civil complaint seeking to enforce the Section 114 order. EPA sought summary judgment, relying in part upon an ATSDR finding that manganese concentrations in the ambient air surrounding a nearby facility exceeded the MRL. The underlying ATSDR assessment also used PM10 Air Quality Guidelines (AQG) from the World Health Organization (WHO) to conclude that ambient PM10 concentrations might cause respiratory problems for sensitive individuals. Notably, the WHO AQG are more conservative than the NAAQS (the WHO AQG for PM10 is 50 μg/m3 as a 24-hour mean, whereas the NAAQS for PM10 is 150 μg/m3 averaged over that same time period). The case settled.
It’s worth noting that ATSDR has finalized approximately 150 inhalation based MRLs covering pollutants emitted by a broad range of industrial facilities. However, I think it is safe to assume that stationary sources do not view MRLs as imposing any additional Clean Air Act strictures on their operations since the MRLs are not listed as applicable requirements in air permits. Moreover, the Title I and V permitting programs do not require sources to perform dispersion modeling to ensure compliance with MRLs.
It remains to be seen whether EPA under the new administration will continue to reach out to ATSDR and utilize the MRLs in addressing air pollutant emissions, particularly where such limits have never been vetted through a rulemaking process. I wouldn’t bet on it.
Posted on February 3, 2017
On his way out the door, former Director of the U.S. Fish and Wildlife Service Dan Ashe issued an order to establish procedures and a timeline for expanding the use of nontoxic ammunition and fishing tackle to conserve wildlife. The order sets forth policy to require the use of nontoxic ammunition and fishing tackle “to the fullest extent practicable” for all activities on Service lands, waters and facilities by January 2022, except as needed for law enforcement or to address health and safety issues. The order also provides for collaboration with state fish and wildlife agencies in its implementation.
In addition to continued education and research, Ashe set forth three basic steps to achieve this policy. To provide more consistency, the Service is to identify existing state, Federal or tribal requirements to use nontoxic ammunition or tackle and, through amendment of Service hunting and fishing regulations, to apply and enforce those requirements on Service lands. Second, Regional Directors must take steps to require the use of nontoxic ammunition and tackle when available information indicates that the lead content negatively impacts sensitive, vulnerable or trust resources. It also directs the Service, in consultation with National Flyway Councils, to establish a process to phase in the use of nontoxic ammunition for hunting mourning doves and other upland birds. In other words, the order is a measured plan to be implemented through collaboration, consultation and rulemaking over the next five years.
The phase-out of lead ammunition is nothing new. The Service phased out the use of lead shot for hunting waterfowl starting in 1986, but rejected an alternative that would have extended to all migratory bird hunting based on insufficient data. For decades, scientific evidence regarding the detrimental effect of lead ammunition on wildlife has been mounting. A recent Service assessment concluded that numerous lines of evidence in the scientific literature point to spent lead ammunition as the primary pathway for widespread lead exposure to scavenging birds such as bald and golden eagles and the California condor in the United States, that reducing this route of exposure will result in the greatest alleviation of mortality and other adverse effects to these species from lead in the environment, and that lead can be replaced in ammunition by alternative metals that are currently available and present limited environmental threats.
Unfortunately, Ashe’s timing was terrible. Predictably, the National Shooting Sports Foundation and the National Rifle Association characterized the order as government overreach, unchecked politics and not based on sound science. They called for the next Director to rescind the order, and Representatives Jason Chaffetz and Blake Farenthold, Chairman of the House Subcommittee on the Interior, Energy, and the Environment, have instructed the Acting Director of the U.S. Fish and Wildlife Service to produce all documents referring or relating to issuance of the order by February 13, and to provide a briefing on the Service’s outreach efforts to the states and the “sportsmen’s community” in anticipation of the order’s issuance. Montana Congressman Ryan Zinke, poised to become U.S. Secretary of the Interior, is likely to ensure that the order is very promptly rescinded.
Waterfowl hunters have successfully used nontoxic shot for over twenty-five years. Absent further leadership from the U.S. Fish and Wildlife Service, some states are phasing out lead ammunition. Hunters currently have a reasonable choice to avoid unintended harm – wildlife does not.
Posted on February 2, 2017
The state of Oregon has turned up the heat in Hells Canyon. The burning question, so to speak, is whether a state can require passage and reintroduction of anadromous fish as a condition of certification under Section 401 of the Clean Water Act for relicensing of an existing hydroelectric project. The issue gets hotter because the particular project involved -- the Hells Canyon Complex (“HCC”), owned by Idaho Power Company (“IPC”) -- is located on the Snake River, which forms the border between Oregon and Idaho. The State of Oregon has issued a draft 401 certification with detailed conditions for passage and reintroduction of anadromous fish into a tributary on the “Oregon side” of the river. Idaho is opposed to reintroduction of any fish species above Hells Canyon Dam, leaving IPC in the middle.
Making a very long and complicated story short, for more than 13 years IPC has been working with state and federal agencies and stakeholders toward relicensing of the HCC. The project consists of three developments, each with a dam, reservoir, and powerhouse. In 1955, FERC issued a 50-year license with recognition that construction of the project would block fish passage and eventually lead to extirpation of anadromous fish above the dams. As a result, the initial FERC license included mitigation conditions to offset fish impacts, and additional mitigation was provided under a subsequent settlement agreement.
After more than a decade of studies, meetings, and negotiations, it looked like IPC and the states were on track for general agreement as to the terms and conditions of compatible, but separate 401 certifications to be issued by Oregon and Idaho – except as to the issue of fish passage and reintroduction. Despite Idaho’s objections, the Oregon Department of Environmental Quality (ODEQ) issued its draft 401 certification for public comment on December 13, 2016. The draft relies on a number of existing state water quality standards as the legal basis for requiring fish passage and reintroduction, though none of the standards is directly on point.
Public comments on the proposed 401 certification are due February 13. Objections relating to the fish passage and reintroduction conditions are likely to focus on whether such conditions are generally within the scope of 401 certification for FERC-licensed hydroelectric projects, and, if so, whether Oregon’s specific water quality standards provide a sufficient regulatory basis for the proposed ODEQ action. The comments may also raise questions about the baseline for mitigation and whether impacts to fish due to construction of the project – as opposed to on-going operations -- have already been fully mitigated. And then there’s the question of Idaho’s opposition.
ODEQ will consider the comments before issuing a final 401 certification decision. If the states are unable to resolve their differences over the passage and reintroduction issue, it’s likely to get a lot hotter in Hells Canyon.
And finally, a disclosure that the HCC relicensing issues hit close to home for ACOEL: I am part of a team representing IPC, and other College members are very much involved on both sides of the issue. There’s a lot we won’t be able to talk about at the next annual meeting!
Posted on February 1, 2017
The Paris Agreement reached at the 21st Conference of the Parties (COP-21) to the 1992 UN Framework Convention on Climate Change is a tobacco-style mass tort settlement cloaked as a global agreement to control greenhouse gases. Remaining in or departing the agreement involves a host of complex diplomatic, economic, and environmental issues.
Paris is the culmination of ten years’ of negotiations following the 2005 agreement in Montreal by industrial and developing nations to pursue talks aimed at “Long-Term Cooperative Action.” Prior to COP-10 in Montreal, and in the discussions leading to the 1997 Kyoto Protocol, developing nations steadfastly refused to consider taking on any substantive greenhouse gas emission control obligations, citing their need for economic growth, the eradication of poverty, and the historic responsibility of industrial nations for increased global greenhouse gas concentrations. Today, developing nations are the largest source of greenhouse gas emissions.
The U.S. and 174 other nations signed the Paris Agreement in New York on April 22, 2016. The agreement entered into force on October 6, 2016, and has been ratified to date by 122 of its signatories. If all of the emission reduction pledges submitted thus far were implemented, Paris may accomplish a modest reduction in the rate of growth of global greenhouse emissions, but will not come close to achieving its goal of limiting post-industrial temperature increases to 2 degrees Celsius.
More important to many of its signatories is achieving the other central purpose of the Paris Agreement: transferring upwards of $100 billion annually from industrial nations to less-developed countries to support emission mitigation and adaptation programs.
If the Paris agreement falls apart – by the defection of the U.S. or other major emitting nations, or through subsequent recognition that its ambitious climate targets and financial promises are unlikely to be achieved – the result could be mass tort litigation against major sources of carbon emissions such as international oil companies and other fossil fuel interests.
Tobacco and Climate Change
In the late 1990s, tobacco companies were sued by several states seeking compensation for higher health care costs caused by sick smokers. The tobacco companies ultimately agreed to a multi-billion dollar structured payout to the states, to be used for tobacco education programs or other purposes deemed appropriate by the plaintiffs. This financial settlement was reached in exchange for the states’ agreement not to pursue further litigation against the companies.
Now consider the structure of the Paris Agreement. Virtually all participating nations have submitted non-binding pledges to reduce or limit the growth of greenhouse gas emissions. In many cases, these pledges are explicitly contingent upon the transfer of financial and technological resources from industrial nations. The $100 billion annual pledge for developing country support – equivalent to about two-tenths of one percent of the GDP of all OECD industrial nations - was offered by then-Secretary of State Hillary Clinton at COP-15 in Copenhagen in 2009. When those negotiations broke down, the U.S. financial compensation offer was not forgotten. It later became a centerpiece of the talks resulting in the Paris agreement.
Responsibility without Liability
At the opening session of COP-21 in Paris, President Obama accepted “historic responsibility” for the United States’ contribution to increased greenhouse gas concentrations since the industrial revolution. Since 1780, global CO2 concentrations have risen from 280 ppm to more than 400 ppm, largely due to increased emissions from fossil fuel sources and mass deforestation by some developing nations.
While the President was accepting a share of the blame, his lawyers were hard at work. First, they quashed proposals to establish a new “climate court” to adjudicate claims of climate-related damages. Next, they fine-tuned a provision that could help to protect major industrial emitters from future liability for “loss and damages” associated with climate change. The liability provision included as Paragraph 51 of the COP-21 Decision adopting the Paris Agreement states that the Conference of the Parties “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” FCCC/CP/2015/10 Add.1.
Insurance for Parties at Risk
Article 8 of the Paris Agreement establishes an insurance program - the Warsaw International Mechanism - designed to make affordable climate-related insurance available to nations vulnerable to the effects of climate change, such as low-lying island states. To this end, Paragraph 48 of the COP Decision“(r)equests the Executive Committee of the Warsaw International Mechanism to establish a clearing house for risk transfer that serves as a repository for information on insurance and risk transfer, in order to facilitate the efforts of Parties to develop and implement comprehensive risk management strategies.” Id.
If Paris remains in full force and effect, it will serve as the exclusive multilateral entity charged with regulating the causes, consequences and remedies appropriate for climate change. The agreement thus may provide an effective shield against the exercise of subject matter jurisdiction by any court outside the U.S. in cases involving claims for damages associated with the effects of rising sea levels or other environmental consequences of climate change. Within the U.S., the Supreme Court already has decided (AEP v. Connecticut, 564 U.S. 410, 2011) that for federal courts the Clean Air Act displaces federal common law nuisance actions, placing jurisdiction over climate-related remedies in the U.S. Environmental Protection Agency. The AEP Court’s holding was limited to federal common law nuisance actions, thus leaving open the possibility of tort recovery based on state common law nuisance claims.
Should We Stay or Should We Go?
The decision to remain in or depart from the Paris Agreement is a high priority for the new Trump Administration. Some see advantages to simply walking away, or just ignoring the agreement given its lack of enforcement provisions. The President could issue an executive order withdrawing President Obama’s signature, or submit the agreement to the Senate for its advice and consent.
For some proponents, the case for walking away is strengthened by the collateral impact this would have on U.S. EPA’s future ability to exercise authority under Section 115 of the Clean Air Act to impose a carbon cap-and-trade program or similar measures to abate international air pollution. Environmental interests have advocated such a course in light of the legal difficulties besetting EPA’s Clean Power Plan.
Other advocates see a benefit to continuing U.S. participation in Paris to preserve it as a “global” forum for the discussion and resolution of climate-related issues. Through both Democratic and Republican administrations, the U.S. has been an effective interlocutor in all 22 Conferences of the Parties to the 1992 Rio Framework Convention.
Being at the table in international negotiations, especially where the potential liability of mass tort litigation is implicitly at issue, does not entail slavish implementation of unrealistic climate policies. The two degree Celsius target of the Paris Agreement is at the low end of targets considered appropriate by many in the scientific community. Meeting this target implies decarbonization of the U.S. energy sector by 2050, as documented by the Mid-Century Climate Strategy disseminated by the Obama Administration at COP-22 in Marrakech last November. This target, along with the pledge of a future “floor” contribution of $100 billion annually to developing nations, could be revisited and renegotiated in the regular “pledge and review” processes established by Paris.
The decision to withdraw from Paris should be weighed in light of its prospective trade and diplomatic impacts with other major carbon emitters, including the EU, China, Russia and India. The potential legal consequences of disengagement need to be thoroughly evaluated, along with the risks that U.S. withdrawal could precipitate widespread defection by many developing nations more eager to pursue litigation than to purchase insurance.
*The writer is an attorney in private practice (NYU, 1972; Georgetown U. Law Ctr., 1977). He has participated as an NGO representative of U.S. labor interests in all major negotiating sessions of the UN FCCC since 1993. He may be contacted at firstname.lastname@example.org.