Posted on March 31, 2017
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.
Regardless, though, it’s important. Social cost of carbon? Poof. Gone. Climate Action Plan? Gone. Consideration of climate change in environmental impact reviews? Gone.
We already know all this, though. I’d like to focus on a few details concerning the EO that might have gone unnoticed.
- The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.” I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
- The order states that environmental regulations should provide “greater benefit than cost.” I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
- Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003. The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”
I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?
Posted on March 30, 2017
On November 28, 2016, EPA released its somewhat euphemistically titled “Hazardous Waste Generator Improvement Rule” (81 Fed. Reg. 85732) which, in a whopping 97 pages of miniscule federal register text, revises the structure, and in some cases the substance of the rules that apply to generators of hazardous waste under RCRA. I have no space in a blog to detail the substantive changes, tweaks and repositioning to Parts 257, 260, 261, 262, 263, 264, 265, 268, 270 and 279, but I will mention some highlights. This is, of course, a major rule, but it is also an important rule in that it sensibly addresses a wide range of longstanding problems in both the organization and substance of the regulatory provisions that govern the conduct of entities that generate hazardous waste.
The largely needed and helpful changes made by the rule include (1) subtle modifications to the definitions of the three generator categories, (2) refinement of how accumulation of both hazardous waste and acutely hazardous waste is treated, (3) adding a definition of “central accumulation area, (4) adding a requirement that partial reclamation facilities and recyclers who receive manifested hazardous waste submit biennial reports, (5) and a substantial reorganization of § 262.10 by deleting and re-numbering several of its subsections while amending them in the process. In addition, EPA added new requirements for making hazardous waste determinations, attempts to define what “generator knowledge” means in connection with testing, changes certain recordkeeping requirements, and requires small quantity and large quantity generators to identify waste codes associated with their waste. The rule specifies procedures for counting hazardous waste, revises the mixture rule, amends the marking and labeling requirements by adding very specific requirements, adds not insubstantial new requirements for the use of satellite accumulation areas (my favorite sub-amendment is EPA’s effort to define the term “three days”), adds new closure requirements, revises the conditions for exemption from various requirements for all three generator categories, imposes a new “re-notification requirement” to obtaining an ID number, modifies the criteria for episodic generation events, and imposes new requirements for emergency planning,
There are other changes, a few of them, well, mystifying. My favorite is what appears to be a meaningless nomenclature change. From November 19, 1980 until November, 2016, if you generated 100 kg or less of hazardous waste or 1 kg or less of acutely hazardous waste you were called a “Conditionally Exempt Small Quantity Generator”. After the effective date of the ‘Generator Improvement Rule” you are now called a “Very Small Quantity Generator”. EPA’s explanation for this change is truly wonderful - EPA felt that the term “conditionally exempt small quantity generator” was confusing because “all three categories of generators are conditionally exempt” from certain requirements. 82. Fed. Reg. 85740. Gee, I was never confused nor, to my knowledge, were any of my generator clients. I was also amused that EPA felt it necessary to try to define the term “three days” in connection with a provision pertaining to satellite accumulation.
Overall, however, this is a major, beneficial, rule. So what is the point of the heading to this blog? In the required boilerplate at the end of the preamble prior to the twenty-five pages of the actual rule, EPA concludes, as it must, that it is not required to subject the rule to scrutiny under the Congressional Review Act because the action is “not a major rule” as defined by 5 U.S.C. 804(2). The Congressional Review Act? Hmmm. Is that all? No. In order to push this clearly beneficial rule out the door, not only did EPA employees have to generate 69 pages of notice-and-comment verbiage, but, in addition, also the Agency had to (a) submit the rule to OMB per Executive Orders 12866 and 13563 because though not “major”, it is a “significant regulatory action” in that it “may raise novel legal or policy issues arising out of legal mandates”, (b) satisfy the Paperwork Reduction Act by demonstrating that the rule is necessary, (c) satisfy the Regulatory Flexibility Act by demonstrating that the rule will not have a significant economic impact on small entities, and, in addition, also demonstrate that (d) it does not contain an unfunded mandate in violation of the Unfunded Mandates Reform Act, (e) it does not have “federalism implications” per Executive Oder 13132, (f) it does not have sufficient “tribal implications” to trigger review per EO 13175, (g) it does not present a disproportionate risk to children per EO 13045, (h) it does not significantly affect energy supply, distribution or use per EO 13211, (i) it does have environmental justice implications per EO 12898, and (j) it does not involve technology transfer.
Just think of the number of employee hours it took for EPA to make these largely sensible modifications to the RCRA generator requirements. If Mr. Pruitt gets his wish to shrink EPA staff by 30% how is the Agency going to get anything accomplished?
Posted on March 29, 2017
The American College of Environmental Lawyers announces its annual Stephen E. Herrmann Environmental Writing Award for the 2016-17 academic year. The Herrmann Award is a stipend of $3,500 to the author of the winning submission (whether an article, note, case comment or essay) and $500 to the submitting law journal. The winner of this year’s Herrmann Award will be invited to present his or her submission to the Fellows at the 2017 ACOEL Annual Meeting in Charleston.
We urge College members – particularly our members in academia – to spread the word on this opportunity. In addition to the amount of the award, those interested should know the following:
· Submitting Candidate Notes/Articles: Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible to submit annually a single candidate article, note, case comment or essay selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.
· Evaluation Criteria: The prize will be awarded to the author of a student article, note, case comment or essay published by the submitting law journal during the current academic year, or scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law. Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee.
· Submission Logistics: Those interested in participating should email one electronic copy of their submissions to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, c/o J.B. Ruhl and Mary Ellen Ternes with the email addresses below. Entries must be received no later than June 10, 2017. Each entrant should include with the entry a cover letter or e-mail message stating the name of the submitting law journal, email address(es) of author (with post-graduation email address(es) if applicable), year of author’s graduation, and a statement that the submission was not written as part of paid employment.
Anyone having questions about the award or process for submitting a piece for consideration should contact J.B. Ruhl (jb.ruhl@Law.Vanderbilt.Edu) or Mary Ellen Ternes (Maryellen.firstname.lastname@example.org. To ensure a prompt response, please reference the Stephen E. Hermann Environmental Writing Award in your communication.
Posted on March 28, 2017
Seeking to explain Alaska’s aggressive predator control policies, Alaska Governor Wally Hickel famously said in the early 1990s that “you can’t let nature run wild.” In Alaska this means that wildlife management is focused on maximizing the number of some human prey species such as deer, caribou and moose, by allowing the killing of bears and wolves that also prey on those animals. A majority in the current United States Congress apparently agree with Alaska’s predator control approach to wildlife management, at least as it might apply in our nation’s largest national wildlife refuges within Alaska’s borders.
Congress this week sent to the president’s desk a Congressional Review Act resolution rejecting a 2016 U.S. Fish and Wildlife Service rule that banned aggressive state sport hunting practices designed to reduce populations of predators on state land. The rule banned just the most egregious of these practices on the roughly 77 million acres of national wildlife refuge land in Alaska.
The Congressional Review Act is a legislative instrument which Congress can use to reject in the whole recently-passed federal rules. This blunt “up or down” action is not subject to filibuster in the Senate, and if a rule is rejected through this process agencies are prohibited from passing “substantially similar” rules in the future. Prior to the 115th Congress the Congressional Review Act had only successfully been used once before, to reject a Clinton Administration workplace ergonomics rule in the early days of the George W. Bush Administration. Based on this history and the flurry of recent resolutions, it seems the primary and perhaps sole utility of the Act is during a change in administration from Democrat to Republican, when Republicans have a majority in both chambers of Congress.
The resolution sponsors argued that the FWS rule impinged on Alaska’s sovereign ability to manage wildlife within its borders as it sees fit. Supporters of the rule pointed out that the rule’s focus is only on the most extreme predator control practices and that to allow such practices on refuge lands is inhumane, is aimed at upsetting the natural balance of special ecosystems and in any event is not proven effective at meeting the goal of increasing game populations. The resolution passed both chambers largely along party lines, and the president is expected to sign it.
Alaska has long pushed aggressive predator control practices. In some instances, Alaska’s rules allow the take of adult bears and cubs that are lured by bait, and of wolves and pups in their dens; methods that have elsewhere been rejected as unfair, inhumane and ineffective at increasing game populations. Alaska permits such practices, even when doing so might otherwise seem to go against its interests. For example, one of the great draws for the hundreds of thousands of annual visitors to Denali National Park is the wildlife that can be seen in its wide-open landscapes, including wolves that spend time near the road through the Park. Alaska, however, allows the killing of those wolves on the Park’s north and east boundaries, for the benefit of one to three trappers in any given year. According to a local group, the effect of the decline of wolf packs that den inside the park is a reduction in the likelihood of visitors seeing wolves along the road from 45% in 2010 to 5% in 2015.
From a pure economic perspective, one would think that the value to Alaska of live wolves in Denali would far exceed that of wolves killed over the border. But those who make the rules today, like Gov. Hickel before them, apparently don’t want to let nature run wild.
Posted on March 27, 2017
On March 16th, Reuters reported that President Trump’s administration has proposed a 31 % cut to EPA’s budget, explaining: “Consistent with the President’s America’s First Energy Plan, the budget reorients the EPA’s air program to protect the air we breathe without unduly burdening the American economy.” In this time of change and uncertainty, perhaps more than ever, there is a need for a measured dialog among diverse viewpoints.
With over 130,000 participants attending last year’s Earth Day Texas celebration in Dallas, its organizers decided a Legal Symposium of prominent representatives from environmental organizations, business, academia and the government might help policy makers grapple with fundamental environmental issues such as how best to balance economic development with environmental protection. Several members of the College assisted the organizers in the development of that symposium.
On April 20-21, that Symposium will bring together those thought leaders to discuss: (1) how to integrate science into regulatory decision making; (2) how to reconcile energy and economic development with protection of public health and the environment; (3) how to facilitate environmental dispute resolution; and (4) how to integrate sustainability and ethical considerations into corporate decision-making.
Consistent with the objective of having diverse viewpoints represented, the Thursday evening keynote speaker will be General Wesley K. Clark, discussing Climate Change as a Major Security Concern, and the Friday luncheon keynote speaker will be EPA Administrator Scott Pruitt, discussing the new administration’s objectives and goals. For further information and to register, go to http://earthdaytx.org/legal-symposium/.
Posted on March 24, 2017
By now, most of the readers of this blog have heard about or read President Trump’s Executive Order directing the EPA to re-evaluate the “Waters of the United States” Rule. This announcement brought cheers from farmers, developers, and many industry groups who had opposed EPA’s Clean Water Rule (aka “WOTUS rule”) and groans, moans, and other choice words from environmental NGOs, wetlands specialists, and supporters of the WOTUS rule. There are many articles written about what this executive order means and other articles speculate at what a new rule from a Scott Pruitt led EPA may look like under a Scalia-based definition of “navigable waters” when all of this shakes outs.
Being an Oklahoman and having interaction with Scott Pruitt over the years when he was Attorney General, I decided to take a look back at Justice Scalia’s plurality opinion in Rapanos v. United States, to see I if could piece together a couple of key components I would expect to see in a new WOTUS rule. I note at the outset that the executive order does not require the EPA to use Justice Scalia’s definition of “navigable waters”; only that EPA “shall consider interpreting the term ‘navigable waters’ . . . in a manger consistent with” Justice Scalia’s definition in Rapanos. However, having observed Administrator Pruitt making arguments on behalf of the State of Oklahoma as Attorney General, I would be surprised if he does not channel Justice Scalia into the new rule.
There are two points in Justice Scalia’s opinion in Rapanos that stand out. First, he rejected the Army Corps of Engineers’ interpretation of “waters of the United States” under a Chevron step two analysis, stating that the “Corps’ expansive interpretation of that phrase is not ‘based on a permissible construction of the statute.’” The CWA uses the phrase “navigable waters” and traditionally, that phrase applies to “relatively permanent bodies of water.” Further, Justice Scalia pointed to language in the CWA that categorized channels and conduits that typically carry intermittent flows separately from “navigable waters.”
Second, Justice Scalia concluded that Congress’ use of “waters of the United States” did not “authorize [an] intrusion into such an area of traditional state authority as land-use regulation.” Justice Scalia criticized Justice Kennedy’s “significant nexus” test because it failed to account for the “primary state responsibility for ordinary land-use decisions.” In Justice Scalia’s opinion, by taking a narrow view that the only purpose of the CWA was to “clean up the waters of the United States,” and that anything affecting the chemical, physical or biological integrity of those waters should therefore be jurisdictional, Justice Kennedy employed “the familiar tactic of substituting the purpose of the statue for its text [and] freeing the Court to write a different statute that achieves the same purpose.” Thus, Justice Scalia thought any interpretation of “waters of the United States” must account for the traditional role of the states in determining land use.
In looking at these two components of Justice Scalia’s plurality opinion and reflecting on Administrator Pruitt’s viewpoint when he was Attorney General of Oklahoma, it appears that Justice Scalia and Administrator Pruitt may be aligned when it comes to how the CWA should overlay with states’ role of land-use decisions. I think we can expect Administrator Pruitt to champion and strengthen the notion of cooperative federalism and increasing the role of the states in crafting the new water rule. If Pruitt’s EPA takes heed of Justice Scalia’s plurality opinion in Rapanos, I think we will see more involvement by the states in crafting the language of the rule and a narrower definition that could lead to more certainty in jurisdictional determinations.
Posted on March 23, 2017
The news flies fast and heavy from Washington almost daily on the fate of every manner of environmental program, rule or regulation. An exciting time to be an environmental lawyer. The latest entrant into the “what’s next” sweepstakes came from the Tenth Circuit just a few days ago.
The Court of Appeals sent a pointed inquiry to the newcomers at the Department of Justice about the future of the federal government’s (recent) historic efforts to curb hydraulic fracturing:
Given the recent change of Administration and the related personnel changes in the Department of Justice and the Department of Interior, the Court is concerned that the briefing filed by the Federal Appellants in these cases may no longer reflect the position of the Federal Appellants. By statement filed electronically on or before March 15, 2017, the Federal Appellants are asked to confirm whether their position on the issues presented remain the same, or have now changed.
The DOJ’s response will very likely determine the fate of the Obama era Bureau of Land Management hydraulic-fracturing rule. That rule required drilling operators to follow “ . . . widely-accepted” best practices for preventing environmental or resource harm.
In State of Wyoming et.al v. State of Utah et. al, that rule was set aside and its enforcement enjoined by a Wyoming district court in 2016. The district court set aside the rule, holding that the federal government had no authority to set the standards that federal lessees had to follow when extracting oil and gas from federally owned resources through hydraulic fracturing. The DOJ appealed and the Tenth Circuit subsequently instructed the district court to vacate its preliminary-injunction order.
The DOJ spearheaded the appeal of that ruling, asserting that the district court disregarded a central tenet of administrative law by substituting its own judgment for the government’s about the purview of the BLM’s regulatory reach. The DOJ argued that courts “must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority.”
So the obvious question of the day is, will the new administration drop the appeal? The newly appointed Interior Secretary Ryan Zinke has stated publicly he supports fracking. With daily pronouncements from the White House about the surfeit of regulations strangling the economic engines of the country, it’s a good bet that the rule has seen its best and last days.
Perhaps more intriguing, should the appeal go forward, will be the somewhat conservative Tenth Circuit’s take on the now “institutional” Chevron deference embedded in countless appellate decisions over the last thirty-four years. As recently posted by ACOEL Fellow Chris Schraff, the views of Tenth Circuit veteran and Supreme Court nominee Judge Neil Gorsuch on the Chevron question could prove central to the concerns of some about the future of the administrative state,.
For those who might not be familiar with Judge Gorsuch’s perspectives on the subject, review again his concurring opinion in Gutierrez-Brizuela v. Lynch. His concurring opinion in that case begins:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. . . .
And continues in clearly provocative terms:
Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . .
So, what do we in the environmental business expect the position of the federal government to be going forward? Is federal environment protectionism on its way out of the door? Will the EPA be judicially branded a “politicized administrative agent” by courts across the land and denied deference even if the Chevron doctrine survives? Will the courts and the public allow the progress on cleaner air, water and earth we have all witnessed—and even helped bring about over the last fifty years—to be . . . fracked?
Posted on March 22, 2017
In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.
gray wolf, Canis lupus, Gary Kramer, USFWS
Earlier this month, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis. The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing. Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions. The Court of Appeals noted that the:
ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.
Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well. When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.
Maybe I’ll make this a regular feature of this blog. If I miss other cases making the conservative argument for Chevron, let me know.
Posted on March 21, 2017
For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching. Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds. Despite these expected actions by the current administration, there is good news in the renewables sector: battery storage technology has the potential to be a strong contender in the fight against climate change.
In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down. The leak reduced fuel supplies for area power plants. In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories. Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need.
The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months. Within 6 months after the CPUC issued its order, two battery storage facilities were completed. SDGE contracted for the installation of two energy storage projects totaling 37.5 MW. The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours. Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.
These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations. For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources. New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030. The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency. And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.
In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding. The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.
The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff. The report also identifies a utility-driven demonstration project supporting solar-plus-storage. Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time. Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.
Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York. The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs. In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors. By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders. The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction. The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.
These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers. They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester. At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower. Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system. The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.
Posted on March 20, 2017
Our American College of Environmental Lawyers recently has increased its external educational efforts, co-sponsoring programs with the Environmental Law Institute and the American Law Institute. The College has also actively collaborated with other organizations to identify pro bono opportunities for its members in the international environmental arena. The College is now proud to be a co-sponsor of the Environmental Summit of the Americas being held in Los Angeles on March 29.
The lead organizers of this one-day Summit are the American Bar Association’s Section of Environment, Energy and Resources (SEER) and the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL). Our College is joining the Canadian Bar Association’s National Environment, Energy and Resources Law Section (NEERLS) as a co-sponsor.
The topics to be covered in the program are: Climate Change and Energy/Environmental Policy; Extended Producer Responsibility; Officer, Director, Lender and Parent Company Liability; Permitting and Social License; and Trade and the Environment. There will also be a special presentation by representatives of the Inter-American Development Bank on its project assessing the quality of environmental regulation in the Americas. The format for the Summit is intended to be conducive to group discussion for each topic. Each topic will have several discussion facilitators who will be providing a brief overview of the topic and then facilitating discussion among attendees. Facilitators include well recognized lawyers from the United States, Canada, Costa Rica, Brazil, Argentina, Mexico, Chile, and Peru. While registrations are still being received, well over 50 percent of registrants are from Latin America and Canada.
Many of us have had a long-held objective of encouraging and developing this type of cross-border dialogue among our colleagues in this hemisphere. The dialogue already exists in the context of the extractive industries, with groups such as the Rocky Mountain Mineral Law Foundation providing a platform for such discussions. There also has been a long-term, collaborative relationship with ABA SEER and CBA NEERLS that has evolved over the last 15 years and has proven very instructive and beneficial to lawyers on both sides of the border. More recently a relationship has been evolving between SEER and the United Kingdom Environmental Law Association, and between SEER and SEERIL.
It has been more difficult to coordinate such a dialogue with jurisdictions having more loosely organized bar associations, particularly with a focus on environmental law. While there have been some efforts by various international referral networks to develop such a discussion, to my knowledge the Summit will be the first effort by respected bar associations and our College to foster such a broad-based understanding of environmental legal developments.
College members are encouraged to attend. The Summit will be an excellent opportunity for all attendees to learn from each other in a format which encourages discussion. Chatham House Rules control. The Summit is being held the day before the SEER Spring Conference which, hopefully, many of our College members already plan to attend.
I hope to see you there!
Posted on March 15, 2017
Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.
Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”
An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.
Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.
Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.
Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.
One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.
In sum, we live in interesting times. Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned.
Posted on March 14, 2017
Has it really been 36 years! It seems like I have been here before. In 1981, I was Assistant General Counsel with the Texas Department of Water Resources, a predecessor agency of the current Texas Commission on Environmental Quality. Upon Ronald Reagan’s inauguration as the 40th President, I was appointed Regional Counsel of the Environmental Protection Agency in Dallas.
EPA was on the chopping block with proposals to drastically reduce its budget, positions, and programs. The agency lawyers were an endangered species, targeted for elimination. The agency was reorganized to do away with the Enforcement Division. The administration supported the transfer of the implementation and enforcement of the environmental statutes to the states. This was 1981 not 2017.
The early years of the new administration were filled with much anxiety based in part on proposed budgets that had no relationship to existing staffing. Were we to go through a reduction in force and fire attorneys and staff? Such a RIF was not necessary given the atmosphere and morale within the agency. In early 1983, during a Regional Counsels’ meeting, an informal headcount showed that through attrition there had been over a 30% reduction of attorneys in the regional offices since the inauguration.
The effort to dismantle and defang the agency was met by public outrage, and in the midst of the turmoil, Administrator Anne Gorsuch was cited for contempt of Congress. Shortly thereafter, there was change in the agency leadership with the return of Bill Ruckelshaus, whose helmsmanship righted the agency and successfully refocused the agency’s staff on its critical mission.
What did I learn from this experience? Quite simply, don’t overplay your hand. An election may give the President and a new administration a perceived mandate for change, but that mandate must be tempered with an appreciation of the overwhelming public support for the mission of the agency. As my good friend, mentor, and former Regional Administrator, Dick Whittington, would say: “we must be able to separate the public will from the public whim.”
Posted on March 13, 2017
Recently, our ACOEL colleague Bob Percival penned an article in which he notes that Supreme Court nominee Judge Neil Gorsuch is a leading critic of Chevron (and Auer) deference , and suggests that Judge Gorsuch’s separation of powers concerns (and those of other opponents of Chevron/Auer deference) “…are really attacks on the constitutionality of the larger administrative state.” But if Judge Gorsuch is confirmed and his views command a majority of the Court, is his skepticism about the viability of deference to agency interpretations likely to lead to a collapse of the modern administrative state? Is Judge Gorsuch really little more than a judicial extension of Steve Bannon’s and the Alt-Right’s campaign to deconstruct the administrative state and roll back the federal government to a size more appropriate to 19th Century America? I suspect not—and here’s why.
A reading of Judge Gorsuch’s opinions reveals a jurist who is not only an engaging writer, but who digs deep into the facts and details of each case before applying the law in an appeal before him. In one of the few environmental cases which Judge Gorsuch has authored, United States v. Magnesium Corp. of America, Judge Gorsuch duly applied Auer deference to uphold EPA’s interpretation of a RCRA regulation, observing that an agency’s interpretation of its own ambiguous regulation was entitled to deference.
But in other contexts, Judge Gorsuch denied Chevron deference to agency decisions that directly implicate (some might say trample upon) individual liberties and rights. Here’s an example: In 2014, the 10th Circuit took up the case of Andrew Yellowbear, who had bludgeoned to death his 22-month-old-daughter, and was serving a life term in a Wyoming prison. Mr. Yellowbear brought suit against the prison for refusing to allow him access to a sweat lodge to practice his Arapahoe religion, which he claimed violated his rights under the federal Religious Land Use and Institutionalized Persons Act of 2000. Now one might think that Judge Gorsuch, conservative fellow that he appears to be on criminal matters, would give short shrift to Mr. Yellowbear’s claims. But that is not what happened.
In Yellowbear v. Lampert, Judge Gorsuch, writing for a unanimous court, struck down the prison’s efforts (and arguments) to deny Mr. Yellowbear his religious practice. In rejecting the prison’s poorly documented claims of a “compelling governmental interest,” Judge Gorsuch wrote: “the deference this court must extend the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.”
Now that decision hardly seems to presage the dismantling of the administrative state, but does suggest the administrative state had better show it deserves deference.
Judge Gorsuch’s concurring opinion in Guitierrez-Brizuela v. Lynch offers a window into his views on the limits and shortcomings of Chevron deference. Among other things, Judge Gorsuch suggests that the Chevron/Auer doctrines already may have no applicability with respect to agency interpretations of criminal statutes—of which we have many in the environmental law field. Even more to the point, Judge Gorsuch questions how Chevron/Auer deference squares with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. (“…the reviewing court shall decide all questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”). Judge Gorsuch questions whether Chevron, in effect, overrides the APA.
But don’t simply focus on Judge Gorsuch’s concurring opinion: look to the facts of the case, and to an earlier Gorsuch opinion. Guitierrez-Brizuela involved an attempt by the Board of Immigration Appeals (BIA) to retroactively apply a decision of the 10th Circuit deferring to BIA’s reconciliation of two statutory provisions of immigration law. In Padilla-Caldera v. Holder, the 10th Circuit had upheld BIA’s interpretation of the immigration law on Chevron deference grounds, notwithstanding that BIA’s interpretation effectively overruled an earlier 10th Circuit decision interpreting those same laws.
But in Guitierrez-Brizuela, BIA sought to accord retroactive application of the Padilla-Caldera decision in order to deport an illegal alien. Judge Gorsuch, writing for a unanimous 10th Circuit panel, concluded that the BIA cannot use Chevron deference principles to retroactively impose their interpretation of immigration law upon an illegal alien to deport him—not the kind of result which would endear Judge Gorsuch to the Alt-Right.
What resonates in Judge Gorsuch’s opinions is a reluctance to unconditionally embrace Chevron/Auer deference in order to allow administrative agencies to trample on individual liberties and rights. Is that such a bad thing? And Judge Gorsuch is not calling for an end to deference. He acknowledges that some form of deference should be given to administrative agencies, as he notes in Guitierrez-Brizuela: “Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.”
But more fundamentally, will a reconsideration—and even a repudiation—of Chevron/Auer deference signal the end of the modern administrative state? The administrative state survived and grew comfortably for more than fifty years before Chevron was decided.
My guess is that, if the Supreme Court revisits the question of Chevron/Auer deference when (and if) Justice Gorsuch joins the Court, and if his views carry the day, we are likely to return to Skidmore deference, or to a flexible rule of deference of the kind outlined in United States v. Mead Corp, here the degree of deference varies according to an agency’s care, consistency, formality, expertness and the persuasiveness of the agency’s position.
That hardly signals the end of the administrative state as we know it.
Posted on March 10, 2017
The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.
In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.
The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”
Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”
The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups.
PS: As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”
Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.
Posted on March 9, 2017
After years of struggling to implement prompt and cost-effective cleanups of sediment sites under the Superfund program, EPA has adopted a new set of tools. This would be a good time for EPA to conduct an unbiased evaluation of whether recent Records of Decision (“ROD”) issued for sediment sites comply with the Office of the Land and Emergency Management (“OLEM”) Directive 9200.1-130(Jan. 9, 2017), and direct the regions to revise RODs where necessary.
For example, Region 10 recently issued its ROD for the Portland Harbor, a complex, multi-party sediment site, which seems out of sync with the new guidance. In particular, Region 10’s use of unachievable cleanup levels for several contaminants of concern, unwarranted assumptions about current and future land uses in certain areas of the site, and failure to properly assess background levels in some instances conflict with the Directive’s recommendations.
In prior posts, I advocated for actions that could help the agency, potentially responsible parties, and the public achieve success in sediment cleanups. In one post, I recommended that Congress eliminate CERCLA’s bar on pre-enforcement review. In another, I advocated for revision of the dispute resolution provisions in the model Administrative Settlement Agreement and Order on Consent (“ASAOC”) to require the selection of a neutral third party to resolve disputes between EPA and ASAOC respondents. The rationale for these earlier recommendations applies equally to this recommendation; each of them is intended to require EPA compliance with its own guidance and sound legal and scientific principles.
In its directive, OLEM identified 11 recommendations “based on current best practices for characterizing sediment sites, evaluating remedial alternatives, and selecting and implementing appropriate response actions.” In particular, OLEM directed the regions to “develop risk reduction expectations that are achievable by the remedial action.” Most sediment RODs fail to comply with this “best practice.” For example, EPA has repeatedly issued RODs that establish action levels that cannot be met using any current or reasonably foreseeable remedial technology, leading to remedies that are unrealistic and unnecessarily costly. This causes potentially responsible parties to resist, resulting in litigation or delays that perhaps could have been avoided.
EPA should apply its directive. It should systematically review each sediment ROD issued in the last several years, determine whether and to what extent the ROD deviates from the OLEM directive, and instruct regional personnel to revise RODs to comply with the directive. This would require a second look at the RODs at, among other sites, the Lower Duwamish Waterway, Portland Harbor, and the lower 8 miles of the Passaic River. Review of these and other RODs might lead to more realistic cleanup decisions, reductions of risks, where necessary, and implementation of feasible remedies.
Posted on March 8, 2017
The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick. One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader. In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation. Like most presidents since his time, Theodore Roosevelt had a goal of making America great. His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists. President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations. The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.” I am persuaded of this point without reading the book.
The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing. The U.S. National Parks website presents the evidence of President Roosevelt’s legacy. Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state. But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests. The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources.
Today, conservatives seem to be taking a markedly different approach to conservation and public lands. Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands. Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative. Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities.
More recently, however, Zinke has changed his approach to the preservation of public lands. Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities. Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands.
Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences. The legacy, access, and pride in the public treasures would be forever altered. Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests. This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere. Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands.
National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other. Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition. Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit. As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public. Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions.
The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth. Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands. Even from a purely economic perspective, selling public lands would be the worst deal in history.
Posted on March 6, 2017
We environmental lawyers are well-acquainted with the technology-forcing requirements of many statutes. I, however, do not love technology and I hate being forced.
The idea behind “technology forcing” statutory provisions is that if Congress adopts requirements beyond the demonstrated capability of currently available technology, that will cause smart people to develop new technology that will meet the new requirements. Simple. Better technology is just waiting to be developed. The cost or other impacts of new technology are seldom regarded as good reasons to hesitate. There may even be an implication that trying to count that cost or consider those impacts is an unreasonable hindrance to the unlimited and irrepressible march of technology, which is always good, right?
Not so fast. In my standard Dad-think, I bought our youngest daughter a brand-new, highly-acclaimed-for-safety-and-reliability Honda Accord to begin her new post-graduate life of go-everywhere-any-time-of-night independence. The reliable-as-a-hammer reputation of Honda, however, has been seriously tarnished for me because this car won’t always start. One Sunday morning in January as my daughter prepared to depart Birmingham for Washington, D.C., the dashboard of that Accord lit up light a fireworks display before going black and taking the entire electrical system of the auto with it. Because delay was not an option, she took her mother’s less efficient but more reliable old Lexus to DC while Dad spent Monday morning at the dealership. The problem? In pursuit of technology-forcing CAFÉ standards, Honda had a bright idea (all puns intended). Honda added a sensor to detect when the Accord’s battery had sufficient residual charge to switch the car’s alternator out of service until needed. Periodic reduction of the marginal drag of the alternator on the engine’s main drive belt at least theoretically benefited the Accord’s highway mileage rating. Unfortunately, when the new sensor fails, as it did that Sunday morning, the entire electrical system goes haywire and the engine will not run.
When I came to understand that this tiny piece of technology that had been added to my car to chase a microscopic mileage advantage had also become a critical failure pathway for my precious daughter’s car, I was angry. I admit it. I cussed. When the failure occurred again 45 days later on the Sunday morning my daughter was planning to return to DC with her Honda after bringing her Mom’s car home, I really cussed. The earlier fireworks had likely damaged the car’s battery that now became the critical failure barrier to normal operation.
Cooler heads will explain that thousands of Honda Accords have probably operated millions of miles with that microscopic mileage advantage adding up. But the personal travails of one little environmental lawyer at least microscopically demonstrate that there are costs and impacts to technology-forcing requirements. The rest of this story might be even more entertaining. What do you think will happen when a different kind of lawyer figures out that there may be thousands of Accord owners driving around with new technology-forcing battery sensor switches that are prone to failure and might cost you a battery?
Posted on March 2, 2017
With a flourish of his pen, on February 28, President Trump signed an Executive Order aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule. The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act. Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.
The uncertainty begins with the Clean Water Act, which Congress said applies to “navigable” waters and then helpfully defined navigable to mean “waters of the United States.” The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional. The courts have not helped. In Rapanos v. U.S., a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why. Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to “relatively permanent, standing or continuously flowing bodies of water,” excluding intermittent or ephemeral channels and most drainage ditches. In a concurring opinion, Justice Kennedy invoked a “significant nexus” test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated. Later courts have tried to follow both tests, with mixed results.
Justice Scalia’s test is a lot easier to apply: If you can see the water or the land goes squish under your feet, there is jurisdiction. Justice Kennedy’s test requires a case-by-case review and exercise of professional judgment. The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.
Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation—17 District Court complaints and 23 petitions to various Circuit Courts of Appeal. It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.
No doubt the Court will get that chance, but in a drastically different context. The president’s Executive Order has no legal effect, other than to get the process started. The Obama Administration’s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration’s revisions will have to go through the same process. No doubt they will be as controversial and will also be fiercely litigated. That will take a very long time to play out, and won’t likely be completed during a Trump first term.
In the meantime, property owners still would like to develop their property, and the Government still has to apply the law. The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn’t reflect the way jurisdictional determinations are made today. Suffice to say that the Kennedy significant nexus test will still be in play for the near to intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.