Comprehensive Study of Impacts of Shale Development Released

Posted on June 28, 2017 by Kinnan Golemon

A report, Environmental and Community Impacts of Shale Development in Texas was released by The Academy of Medicine, Engineering and Science of Texas (TAMEST) to the public on June 19, 2017 (1). TAMEST is a nonprofit and brain trust for Texas composed of Texas-based members of the National Academics of Sciences, Engineering and Medicines and the state’s Nobel Laureates.  This entity was the original idea of my law school classmate and friend, Honorable Senator Kay Bailey Hutchinson, in 2004. The recently released report is the product of the TAMEST Board decision in 2015 to organize a task force charged with writing a report to “collect the best science available and summarize what we do and do not know” about environmental and community impacts that are posed by new technologies for the extraction of hydrocarbons from shale and other tight rock formations.

Texas, although oil had already been produced at various locations within its boundaries, became a dominant entity in oil and gas production on January 10, 1901, when the Lucas Gusher at the Spindletop salt dome in Jefferson County, roared to the surface: soon producing 100,000 barrels of oil per day, more than all U.S. wells combined (2). Oil and Gas production for the next 100 years was driven by “conventional” vertical well technology seeking resources from porous formations. However, commencing in the late 1980s and through the 1990s, a company founded by an affable, brilliant, tenacious and innovative son of immigrant Greek parents, George Mitchell, undertook an extended effort to access organic resources trapped in shale and very tight rock formations. After many years of limited or no success, Mitchell Energy, by century end, had demonstrated that certain hydraulic fracturing strategies [i.e. well completion techniques similar to those used since the late 1940s] (3) could be deployed in organic rich formations to produce natural gas economically.

Mitchell Energy’s acquisition by Devon Energy in 2002 resulted in another known technology, horizontal well drilling, being deployed along with hydraulic fracturing to produce the basic technological template that is utilized for shale development of oil and gas throughout the U.S., and currently being deployed elsewhere in the world today (4). The production from shale has also resulted in the largest transformation of the U.S. petrochemical industry in a generation, with $185 billion in new U.S. petrochemical projects either under construction or in planning (5).

Those interested in current and future energy policy, as well as the economic, social and environmental impacts associated with modern-day fossil fuel extraction and production, will find this authoritative, comprehensive and well-written report, see http://www.tamest.org, to be far more enlightening than one gains from other current information sources.

Interestingly, a portion of the funding for the report was provided by the Cynthia and George Mitchell Foundation, a mission-driven grantmaking foundation that seeks innovative sustainable solutions for human and environmental problems that was established prior to his death (6).

 

  1. The Academy of Medicine, Engineering and Science of Texas, 2017, Environmental and Community Impacts of Shale Development in Texas. Austin, TX: The Academy of Medicine, Engineering and Science of Texas. Doi: 10.25238/TAMEST stf.6.2017
  2. www.history.com/topics/spindletop
  3. Society of Professional Engineers (SPE) CD ROM https://www.store.com/spe.org/Legend of-Hydraulic Fracturing-P.433.aspx
  4. https://assets.kpmg.com/content/dam/kpmg/pdf/2014/03/shale-development-global-update-v2.pdf
  5. Christopher M. Mathews. “Shale Boom’s Impact in One Word: Plastics”. Wall Street Journal, June 26, 2017, A1.
  6. http://cgmf.org/p/founders.html

The Takings Line is Bent

Posted on June 26, 2017 by Brian Rosenthal

In an expansive review of regulatory takings, the Supreme Court reiterates governments must pay when overly impinging individual property rights by regulatory means, resulting in compensable takings.  The Court announces a flexible approach to analyze the private party’s parcel deemed taken by regulatory action (past or present).  Particularly, but not exclusively, when more than one parcel is involved as was the case before the Court, a new test emerges to define the taken parcel. The test includes consideration of the landowner’s expectations.  

The dissenters believe the Court for the first time strays away from its precedential findings on the whole parcel in issue as defined under state law, and predict the new multi-factor parcel review test will “tip the scales in favor of the government” for uncompensated takings by allowing the government to frame the taking as reasonable as it relates to the defined parcel and burden.

The majority is equally passionate, noting its test mitigates against the government’s unchecked usurpation and sometimes over-eager use of private property rights in the guise of the greater good.  The Court suggests “[p]roperty rights are necessary to preserve freedom” and supports its test as best suited for that protection.

The case involved a state’s restricting the development of lots on a protected river to those of a certain size, and resulted from unique circumstances where the property owners had come into possession of adjacent lots, each individually failing the development requirement.  Analyzing the facts under a multi-step review, the Court found the lots retained their economic value as a whole and supported a “no compensable taking” finding by looking at the following factors:

  1. No complete loss of economic value [might be non-compensable even if a complete loss where state property and nuisance laws would be deemed legitimately and commonly understood as a fair counterbalance to the regulatory taking (perhaps like wetlands restrictions)];

  2. Land treatment under governing state and local real estate law (how and where bounded);

  3. Physical characteristics (including topography and both its human and ecological features, such as if it were a coastal property or, as  here, a scenic river);

  4. Value (including any opportunities the burden may create, such as preserving a vista or greenspace or relationship of the lots); and

  5. Reasonable expectations of the landowners.

This case has been closely watched by both land use practitioners and regulating governments and municipalities.  Its implications reach squarely to environmental laws and regulations such as water regulations and use and development restrictions.

Is It a Dividend? Is It a Tax? Could President Trump Care Less?

Posted on June 26, 2017 by Seth Jaffe

In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan.  In essence, it’s a gradually increasing carbon tax.  The plan would be revenue neutral, with the proceeds being returned to taxpayers.  Thus, the name.  I loved the idea and I still love it.  I particularly love that the tax starts at $40/ton – that’s a serious number.

However, as I noted in February, the founders of the CLC are a who’s who of the old-line GOP establishment – precisely those whom President Trump would generally refer to as “losers”, unless he could spare the time to come up with something more derogatory.

The CLC has now brought on a number of corporate heavyweights, including GM and four of the world’s largest oil and gas companies (BP, ExxonMobil, Shell, and Total), among others.  They published their support in a Wall Street Journal ad.  In a cheerful bit of optimism, the program is now called “The Consensus Climate Solution.”  The ad describes the plan as “Pro-Environment, Pro-Growth, Pro-Jobs, Pro-Competitiveness, Pro-Business and Pro-National Security.”  Who could be against it?  Here’s a hint.  I think that the tag line would work better if phrased as follows:

Pro-Environment, Pro-Trump, Pro-Growth, Pro-Trump, Pro-Jobs, Pro-Trump, Pro-Competitiveness, Pro-Trump, Pro-Business, Pro-Trump, and Pro-National Security (and Pro-Trump)

Seriously, this is no time for cynicism.  This is a great plan.  A tax starting at $40/ton would have real impact.  (The most recent RGGI auction price?  $2.53/ton.)  As I noted earlier this week, we need smart people of good will and of all political stripes advocating solutions if we’re going to get anywhere.

Trump may call you losers, but, men and woman of the CLC, I salute you!

The Annual Texas Environmental Superconference—Austin in August?

Posted on June 26, 2017 by Jeff Civins

The Texas Environmental Superconference is one of a kind. Held each year in Austin in sweltering early August, this conference consistently sells out, attracting over 500 participants from the public and private sectors.Indeed, now in its 29th year, it was the winner of the first American Bar Association Section of Environment, Energy & Resources (ABA SEER) award for Best State or Local Bar Environment, Energy and Resources Program of the Year.

The key to the conference’s popularity is its unabashed willingness to integrate humor into content--with annual themes, skits, quizzes, prizes, and, for the past several years, even a conference song.Past themes have included Yogi Berra quotes (“It’s like déjà vu all over again”); Clichés (“The best thing since sliced bread”); Shakespeare (“Much Ado About Pollution”); “Star Wars (“May the farce be with you”); and Willie Nelson songs (“On the Road Again”).Dwarfing all other past conferences, though, was the Disney movie-themed conference, which featured the song “SuperconferenceAustinTexasExpialidocious” and is the subject of 2 You Tube videos. (introductory remarks and conference song).

Speakers generally weave the conference themes into their presentations and, on occasion, even appear in costume.For example, an EPA chief of enforcement appeared as Harry Truman in the politically-themed conference, “Join the Party,” and as Darth Vader, in the Star Wars-themed program. And an EPA General Counsel appeared as a tiara-wearing Wonder Woman in the super hero-themed program.A former EPA Regional Administrator and TCEQ Chairman appeared variously as the Beatles, the Odd Couple, Game Show contestants, and Yoda and Luke Skywalker.

This year’s conference – to be held on Thursday-Friday, August 4-5, 2017 – has as its theme board games and is entitled “Let the Games Begin.”The Wednesday evening session on enforcement is entitled “Trouble.”Registration is at Environmental Superconference-2017.

Participants look forward to attending each year for the chance not only to experience a fun and informative program, but also to network and to informally discuss issues of concern with other environmental professionals representing diverse perspectives, e.g., private and public sectors; regulators, regulated community, and environmental organizations; legal and technical professionals; and local, state, and federal governments.

The conference is organized by the Environmental and Natural Resources Law Section of the State Bar of Texas, in conjunction with other environmental professional organizations, including ABA SEER, the Air & Waste Management Association—Southwest Section, the Water Environment Association of Texas, the Texas Association of Environmental Professionals, and the Environmental Health and Safety Audit Center.Proceeds from the conference are used to fund environmental internships, student writing awards, and section outreach programs.

Thanks to a generous contribution from Supporter, EARTHx (formerly Earth Day Texas), the Superconference this year is offering –and last year offered--scholarships for employees of non-profit organizations with environmental matters as a significant focus.

The Annual Texas Environmental Superconference is the answer to the question, why come to Austin in early August?

Coal and Climate Change: An Opportunity for U.S. Technology Leadership

Posted on June 19, 2017 by William Brownell

It’s been a rough decade for coal in the United States. The advent of hydraulic fracturing in shale formations made natural gas plentiful and cheap. Concern over climate change fueled scores of new policies intended to accelerate growth in renewables and push aging coal units off the grid. U.S. coal consumption peaked in 2007, declining approximately 30 percent by 2015. A year later, five of the largest coal companies in the United States declared bankruptcy.

But it was a pretty good decade for coal in the rest of the world. Coal consumption grew by nearly 50 percent in China, which in 2013 was consuming nearly as much coal as the rest of the world combined. India similarly saw its coal use nearly double over the past ten years. This demonstrated a broader trend around the world: the top 20 coal-using nations were burning 23 percent more coal by 2015 than in 2005. 

If there’s been a war on coal, from a global perspective, coal is winning – and it hasn’t been close. As Charles Mann wrote in Wired in 2014: “In fact, a lump of coal is a thoroughly ubiquitous 21st-century artifact, as much an emblem of our time as the iPhone.”

Any discussion about coal, of course, is inextricably tied to questions about climate policy, with its most ardent proponents looking not just to reduce emissions of carbon dioxide and other greenhouse gases, but to eliminate fossil fuels altogether. And indeed, by the end of 2015, it looked as though climate policies, and a combination of other factors, would bend the curve of global coal consumption downward, with natural gas generating more electricity than coal for the first time in history.  That year global coal consumption fell 1.8 percent – the largest decline, in absolute terms, since the International Energy Agency (IEA) began keeping records in 1971. Reductions in the United States (-12.7 percent) and China     (-1.5 percent) were offset by modest increases in India (+4.8 percent) and Indonesia (+15 percent). Coal’s share of global primary energy consumption was at 29.2 percent – its lowest level since 2005.

But this did not stop the U.S. Energy Information Agency (EIA), in its 2016 Outlook Reference Case, from  projecting that coal would remain “the second-largest energy source worldwide – behind petroleum and other liquids – until 2030.” From 2030 through 2040, the EIA projected coal to remain the third-largest energy source, behind both liquid fuels and natural gas. Heralding coal’s demise seems premature. 

Against this background, I argued in 2014 with my colleague Scott Stone in a paper published by the Atlantic Council, that the United States has the potential to demonstrate meaningful leadership in the further development and broader deployment of advanced fossil energy technologies.  Clearly, industry has risen to the technology challenge when it comes to conventional air pollutants:  since 1970, coal use in the United States increased by more than 173 percent while emissions of sulfur dioxide, particulate matter, and other air pollutants declined by approximately 90 percent.  The same could prove true for carbon dioxide, but only if we move away from policy approaches that are disconnected from the financial and regulatory landscapes needed to build clean coal technologies at meaningful scales.

For starters, the disparity between the financial resources invested in “clean tech” and in CO2 capture technologies could not be greater. The International Energy Agency (IEA) has reported that between 2004 and 2012, around $20 billion was invested in CO2 capture, against $1.6 trillion for all other “clean” energy technologies. This clean tech investment is important and should continue.  Nevertheless, it is worthwhile noting that, over this time, global GHG emissions only continued to increase – a trend expected to continue for the foreseeable future.

Technologies are developing to ensure coal can be utilized in a manner consistent with stringent environmental standards, including for CO2. And indeed, the United States harbors legions of highly trained engineers who know more about building and operating state-of-the-art coal plants than virtually anywhere else on the planet.

This is important for the security and the reliability of the U.S. energy system. But it is equally important for the rest of the world. Outside the United States, there are many regions where natural gas is not cheap, nuclear is not available, and renewables are insufficient. These regions will look to coal to alleviate energy poverty and grow their economies, just as the United States did over the past century and China and India have done over the past half-century.  The question is not whether these regions will build new coal plants. They will. The question is whether they will build them with the technologies of yesterday or the technologies of tomorrow.

Here is where the United States can lead – on coal, technology, and climate.   

The Yanomami Model for Superfund

Posted on June 16, 2017 by Rick Glick

In a recent editorial, the Wall Street Journal celebrates the new priorities being set by Scott Pruitt’s EPA.  Mr. Pruitt, in the Journal’s opinion, is properly elevating the “more immediate” problem of Superfund sites over the “religion” of climate change.  Sadly, it seems, the misguided and naïve Obama Administration preferred “symbolic” climate measures over the more prosaic but urgent cleanup of Superfund sites. 

This of course is a false choice, since the country—and planet—must confront a wide array of pressing environmental problems.  Implementation of the Clean Power Plan doesn’t have much bearing on Superfund administration; both climate change and environmental cleanups need attention.  But aside from the Journal’s gratuitous trolling of climate policy, they are correct that Superfund is a program in need of reform.

One of the examples cited in the editorial is the Portland Harbor Superfund site, comprised of about 10 miles of contaminated river sediment.  Prior to listing, Oregon DEQ’s approach was to control potential ongoing contributions from upland sites, coordinate with the Army Corps of Engineers to remove the most serious pockets of contamination in the course of routine maintenance dredging, and then let natural riverine processes bury the rest.  There is a lot of science to support the notion that this approach would be plenty protective of human health and the environment.

Alas, EPA Region 10 added Portland Harbor to the National Priority List in 2000.  Seventeen years and over $100 million later, Region 10 issued its Record of Decision, but then hit the pause button because much of the data supporting the ROD had become stale.  A new round of sampling is soon to begin.  In the meantime, scores of PRPs are locked into the process with no way out until costs are fixed.  EPA currently pegs the cost at $1.05 billion, a figure no one but Region 10 believes to be close to the actual cost.

EPA’s selected remedy relies much more heavily on contaminant removal and capping, and less on natural processes, than the remedy proposed by the PRPs.  Unfortunately, EPA’s remedy does not reflect the enormous body of data that indicate such an aggressive approach is not necessary to protect people or the environment.  A prime driver for EPA is that it assumes a much higher rate of resident fish consumption by humans than do the PRPs’ scientists.  The region’s iconic salmon species migrate through the Portland Harbor without bioaccumulating toxins in the sediments.  Never has so much money been deployed to produce so little environmental benefit.

In his book In Trouble Again, the English gonzo explorer Redmond O’Hanlon describes his adventures trekking the Amazon rainforest and his encounter with the Yanomami people.  O’Hanlon witnessed the Yanomami blowing a hallucinogen called yoppo up each other’s noses and decided to give it a try.  What could possibly go wrong?  It turned out that the drug induced excruciating pain and that the only high he realized was relief when the effects wore off. 

As administered, Superfund is much like taking yoppo.  The process is so time consuming, expensive and uncertain that its chief benefit is to induce PRPs to enter state voluntary cleanup programs to avoid a federal Superfund listing.  Many more sites have been remediated, and I would bet at much lower cost, through such state programs than ever will through the formal Superfund process.

Does the Clean Water Act Cover Discharges To Or Through Groundwater, Part II?

Posted on June 15, 2017 by David Buente

One year ago, I published a blog post for the American College of Environmental Lawyers discussing a recent topic of interest in Clean Water Act (“CWA”) jurisprudence—whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  I observed that recent district court opinions had come out on either side of this issue, and argued that the line of cases rejecting jurisdiction over discharges to hydrologically connected groundwater correctly interpreted the CWA. 

Today, this issue is still very much a developing area of CWA doctrine.  First, additional district courts have issued decisions both in favor of and against CWA jurisdiction over discharges to hydrologically connected groundwater.  For example, in March 2017, in Sierra Club v. Virginia Electric and Power Co., a CWA citizen suit over alleged discharges from coal ash basins, the Eastern District of Virginia held that “[t]he CWA regulates the discharge of arsenic into navigable surface waters through hydrologically connected groundwater.”   However, a few weeks later, in April 2017, the District of South Carolina came to the opposite conclusion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., a CWA citizen suit regarding alleged discharges resulting from an oil pipeline spill, holding, “[T]he CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.”

These two cases should result in another circuit court weighing in on this important jurisdictional issue.  As noted in my previous post, only the Fifth and Seventh Circuits have issued opinions on this topic, both determining that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  The plaintiffs have already appealed the Upstate Forever decision to the Fourth Circuit, and the Virginia Electric and Power Co. decision has likewise been appealed, although a decision is pending on whether the latter district court decision is yet ripe for appeal.  The Fourth Circuit’s stance will be especially enlightening given that the Ninth Circuit’s Hawai’i Wildlife Fund v. County of Maui case has not advanced in any substantial manner since briefing took place last Summer.

Another important development on this front since my last post is the January 2017 transition from the Obama Administration to the Trump Administration.  On February 28, 2017, President Trump issued an executive order requiring the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers to review the agencies’ definition of “navigable waters” in their 2015 rule and to “consider interpreting the term” to reflect Justice Antonin Scalia’s narrower definition in his plurality opinion in Rapanos v. United States.  As noted in my last post, the 2015 rule already expressly excluded isolated groundwater as a water of the United States.  80 Fed. Reg. at 37073.  Any revised rule would almost certainly keep that exclusion, and could even expand upon it to explicitly exclude hydrologically connected groundwater from the definition of waters of the United States. 

On the other hand, it is worth noting that the Town of Marion, Massachusetts, recently filed a petition for review with the EPA’s Environmental Appeals Board of a National Pollutant Discharge Elimination System permit EPA Region 1 issued to Marion for its wastewater treatment plant in April 2017.  EAB Docket No. MA0100030.  That permit, issued by the EPA since President Trump’s inauguration, regulates groundwater contamination from sewage sludge lagoons and arguably adopts the broader view of Clean Water Act jurisdiction over hydrologically connected groundwater, so the Trump Administration’s position on this crucial jurisdictional issue is not yet clear.         

The issue of whether the Clean Water Act regulates discharges to groundwater which is hydrologically connected to a water of the United States continues to be an important, developing area of the law.  Hopefully, with cases pending before the Fourth and Ninth Circuits, some more clarity on this topic will emerge in the not-too-distant future.

THE PRESIDENT’S CRUSADE AGAINST BIRTH CONTROL HARMS WOMEN AND THE ENVIRONMENT

Posted on June 14, 2017 by Leslie Carothers

Environmentalists have long debated the need to address links between population growth and environmental harm.   Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.  

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution.  (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception).  None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception.  Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception.   Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures.  But many developing countries in sub-Saharan Africa remain at near 5.  If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.    

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected.  More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S.  The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability.  The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds.  This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids.  That is because the old rule applied directly only to family planning programs of about $600 million.   Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone.  The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly.   The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs.  The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption.  While further litigation and negotiations continue, the Trump Administration is preparing  regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them.  This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more.  The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them.  In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families.  Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.  

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control.  Whatever their motivations, this is an issue environmental advocates should not ignore.  Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights.    But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.  

Categories:  Sustainability, Climate Change

Tags:  Population, Environment

 


TSCA Implementation: What’s in Pruitt’s Playbook?

Posted on June 9, 2017 by Lynn L. Bergeson

Candidate Trump’s views on chemical management were not well articulated, if they were articulated at all, in sharp contrast to his views on climate change.  Whether the silence signaled support for the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg), which extensively amended the Toxic Substances Control Act (TSCA) upon its enactment last June, or something else was an open question before now.  Several developments suggest U.S. Environmental Protection Agency (EPA) Administrator Pruitt is firmly behind implementing the new law on schedule.  What is less clear is how key policy issues will be decided.

TSCA is the federal law that authorizes EPA to regulate imported, manufactured, and processed industrial chemical substances.  Lautenberg extensively amended TSCA, adding significant new definitions, expanding testing authority, regulating new and existing chemicals, expanding information reporting, narrowing confidential business information protection, and modifying preemption opportunities, among other changes.  Further information is available on our TSCA Reform website:  http://www.lawbc.com/knowledge-resources/tsca-reform-news-info.

The unexpected election results inspired considerable concern in some quarters regarding whether Lautenberg’s implementation would succumb to the anti-regulation rhetoric emanating from the Trump White House, torpedoing the hard fought gains reflected in the new law’s passage.  These fears were exacerbated with news of President Trump’s 2018 budget, which proposes a jaw-dropping 31 percent reduction in EPA funding (from $8.05 billion in 2017 to $5.65 billion in 2018).  Under this plan, 3,200 EPA employees would lose their jobs, and some 50 EPA programs would be scrapped.

To date, there has been no public change in the Office of Chemical Safety and Pollution Prevention’s (OCSPP) course of conduct regarding TSCA implementation.  Acting Toxics Assistant Administrator Wendy Cleland-Hamnett is an experienced, able leader, well respected by staff and diverse stakeholders alike. Nancy B. Beck, Ph.D., DABT, was brought on May 1 as the principal Deputy Assistant Administrator for OCSPP.  Dr. Beck holds a doctorate in environmental health and for the past five years has served as the senior director for Regulatory Science Policy at the American Chemistry Council.

The Pruitt Administration can be expected to drive EPA regulatory and science policies.  Mr. Trump is an outspoken critic in other contexts, such as with regard to climate change and Clean Water Act issues, of what he described as the Obama EPA’s “manipulated” (fake?) science to support a political outcome and, of course, vowed to “fix” this.  Under Lautenberg, EPA is required to promulgate the TSCA “framework” rules, TSCA Inventory notification, procedures for prioritizing chemicals for risk evaluation, and procedures for chemical risk evaluation,  by mid- June 2017.  It is difficult to predict how exactly the new Administration can be expected to influence the many critically important policy issues at play in these proposals.  Dr. Beck’s recent arrival at EPA, however, significantly enhances the front office’s bandwidth in science policy issues, and may suggest a policy bent decidedly more business-friendly than the proposed rules crafted under the Obama EPA.

That the Administration will seek to influence chemical regulatory policy is clear as the stakes are high and the consequences for the domestic chemical industry too great to be ignored.  How, for example, will “weight of evidence” be defined; must all “conditions of use” be included in the scope of every Section 6(b) risk evaluation; how should the “reasonably foreseen” provision in the definition of “conditions of use” be applied; will the composition of the Science Advisory Committee on Chemicals change and when?  These are just a few of the many consequential decisions that this Administration will decide concerning Lautenberg’s implementation, some of which will almost certainly be litigated.  In that the three framework rules and the scope of the risk evaluations for the ten chemical substances identified on December 19, 2016, will be out soon, we should have a much clearer sense of the chemical policies the Pruitt Administration supports.

Interesting questions also arise from application of the Executive Orders (EO) President Trump has issued with respect to their impact on TSCA implementation.  EO 13,777, Enforcing the Regulatory Reform Agenda, issued on February 24, 2017, and EO 13,771, which directs the head of every agency to designate an officer to “oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms,” could significantly impact TSCA implementation.  Of particular relevance is EO 13,771, requiring that agencies identify two rules for repeal for every new regulation the agency proposes.  The imperatives of the EOs must be viewed in the context of the cold, hard fact that an expectedly unfriendly Trump Office of Management and Budget will be in charge of regulatory reviews of each regulation, and significant EPA policies.  Application of the EO to the TSCA implementation could burden the Office of Pollution Prevention and Toxics’ already strained resources to an unsustainable degree, hamper its ability to devote its limited resources to implementing the new law, and seriously disrupt the chemical manufacturing community by holding hostage urgently needed new chemicals.  EPA is urged to stay focused and on target as failure to implement the new law timely and credibly will invite an erosion of the trust the public was beginning to place in the federal government’s ability to manage chemical risks since Lautenberg’s bipartisan enactment.

The Millennial Environmental Voice: We Can’t Hear You Now

Posted on June 8, 2017 by Linda Benfield

The United States’ environmental agenda shifted abruptly with the election. Instead of implementing greenhouse gas initiatives, bolstering incentives for renewable energy projects, and fine-tuning various air, water and waste standards, we are suddenly discussing the future of the Endangered Species Act, debating withdrawal from the Paris Accord, filing away the Clean Power Plan, and considering the limits of science in regulatory decision-making.

Through all the discord, angst and celebration of the changed focus of environmental regulation, the Millennials have yet to assert their generational voice. Born between 1981 and 1996, these citizens are 21-36 years old. In 2015, they became the largest share of the American workforce at 33%, and there are estimates that Millennials will make up 50% of the American workforce by 2020. With those numbers, and their age, they have the potential to significantly impact elections for the next 35 years.

But who are they, and how will they impact the environmental agenda?  Only 50% of Millennials voted in the 2016 election – the worst turnout of any voting-age generation, and a decrease in their voting participation from the 2012 election. The tropes for this generation peg them as “socially conscious,” and willing to deeply engage in causes they believe in. However, empirical “time-lapse” research comparing responses from different generations at the same point in the responders’ lives, actually indicates that Millennials are no more altruistic than previous generations, and no more determined to seek meaning in their work and lives or do work that is worthwhile to society. This generation also faces different economic and social challenges than their parents did, and it is not clear how that perspective will translate to addressing environmental challenges.  

In the last 50 years, we have fundamentally changed the environmental “baseline.” Millennials never experienced burning rivers, and they didn’t grow up underneath the Denver “Brown Cloud.” The Clean Air Act, the Clean Water Act, and 40 C.F.R. are their baseline - and that is a different perspective than their Baby Boomer parents had when they were fighting against tangible environmental degradation. The Millennials can fundamentally impact our election results – if they vote. And until they vote, we won’t know what the environmental voice of this powerful generation sounds like. 

It’s the Infrastructure, Stupid

Posted on June 7, 2017 by Gregory Bibler

On May 23, 2017, President Trump issued his Fiscal 2018 budget proposal.  EPA’s press release, issued the same day, declared:  “EPA Budget Returns Focus to Core Statutory Mission.” https://www.epa.gov/newsreleases/epa-budget-returns-focus-core-statutory-mission  EPA made clear that “returning” to the “mission” means reducing the size of the agency.  EPA’s budget would be cut by 31 percent, compared to the Fiscal 2017 enacted budget, and its current workforce would be cut by 25 percent.  The President proposes to cut 600 more positions than indicated in his March 16 budget proposal (which was abandoned with surprisingly little fanfare when the President signed the Fiscal 2017 enacted budget on May 5). 

But there is at least one bright spot in the President’s new budget proposal.  Funding is to be preserved for programs “supporting the President’s focus on the nation’s infrastructure.”  “Infrastructure,” according to EPA, includes improvements to drinking water systems.  Toward that end, the budget includes $2.3 billion for State Revolving Funds and $20 million in additional appropriations for the Water Infrastructure Finance and Innovation Act program.

The President is sticking by his campaign promise to help communities like Flint, Michigan finance improvements needed to reduce lead in drinking water, particularly in homes and schools.  Providing funding for these particular programs stands in contrast to the overall tenor of the budget, and the campaign’s promise to eliminate “wasteful” EPA grants. 

Revelations in Flint triggered widespread and, as it turns out, legitimate concerns about the effectiveness of existing regulatory programs to protect against lead contamination in drinking water. http://www.goodwinlaw.com/-/media/files/publications/attorney-articles/2017/eba-winter-journal-2017flint-inspires-renewed-vigi.pdf It has been more than 30 years since Congress enacted the Safe Drinking Water Act, and more than 25 years since EPA adopted the Lead and Copper Rule (“LCR”).  After Flint, increased lead testing in schools, and greater scrutiny of data already being collected by public water systems, revealed that elevated lead levels continue to be a pervasive problem in U.S. cities and school buildings (including more than half of the 300 public school buildings tested in 2016 in Massachusetts).

In October 2016, in the waning days of the Obama administration, EPA issued a white paper that announced that the LCR and its implementation are in urgent need of overhaul.  The LCR is a protocol for testing and treatment, not a set of numerical standards.  EPA stated that more prescriptive requirements that are more effective and readily enforceable need to be adopted.  Notwithstanding the Trump administration’s current war on environmental regulation, EPA has stated that it intends to formulate more stringent and clear requirements.  Meanwhile, in December 2016, Congress actually succeeded in amending the Safe Drinking Water Act to replace the moribund school drinking water provision, which was declared unconstitutional in 1996, with a new provision that, among other things, established a voluntary school lead testing grant program.

It is apparent that, on the issue of safe drinking water at least, the Trump administration has accurately measured the political mood.  Despite draconian cuts proposed to almost all of EPA’s budget and staffing, the administration has recognized that improving the regulation, testing and treatment of drinking water in schools and public water systems is politically expedient, and may do more good than harm.  It is good policy and good politics.

Trump's "2 for 1" EO: Can You Say "Arbitrary and Capricious"?

Posted on June 6, 2017 by Seth Jaffe

Last month, Mark Walker posted about Executive Order 13771.  Mark’s post was generally favorable, noting that a number of other countries have implemented some version of what is known as a “regulatory budget.”  This post provides something of a counterpoint to Mark’s. 

Put simply, I think that the Order is indefensible.  It’s not about regulatory reform.  It’s a transparent attempt to halt environmental regulation in its tracks, without regard to the benefit those regulations provide.

This week, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging the EO.  One paragraph from the brief pretty much summarizes the argument:

It is important to note, as Executive Order 13771 acknowledges, that agencies are already required, where not prohibited by law, to ensure that the benefits of regulations exceed their costs. Thus, the only impact of the Executive Order is to prohibit agencies from promulgating regulations whose benefits exceed their costs, unless they eliminate two other regulations whose benefits also exceed their costs. This is the definition of unreasoned decisionmaking. It is also a thumb in the eye of Congress, which enacted public health and environmental statutes in order to benefit the public.

It is a bitter irony that the government is defending the EO in part on the basis that it is just another in a long line of regulatory reform EOs, even though the EO is in fact a repudiation of those prior orders, not an extension of them.  This order is not about cost-benefit analysis; it is about cost-only analysis.  By definition this approach ignores the public benefits that the underlying statutes are intended to provide.  Thus, the “savings clause” cannot save the EO, because there is nothing left to save.

Energy Benchmarking, An Idea Whose Time May Have Come (And Just May be Politically Palatable)

Posted on June 5, 2017 by James B. Witkin

Given the current political climate in Washington, environmental programs most likely to survive unscathed are those that rely on market principles, especially if they are enacted at the state or local level. Sustainability advocates may want to take a closer look at energy benchmarking programs, which pass both of those tests.  

The jurisdictions closest to me, the District of Columbia and its close-in neighbor to the north, Montgomery County, Maryland, have adopted mandatory energy benchmarking programs for many commercial buildings. Other cities with similar programs include Seattle, Philadelphia, Los Angeles, Kansas City and New York City. Many of those jurisdictions began requiring compliance for public buildings, then larger commercial buildings, and finally smaller buildings. In Montgomery County, buildings over 250,000 square feet had to start benchmarking last June; starting June 1, 2017, most buildings over 50,000 square feet must comply. In New York City, buildings larger than 25,000 square feet must benchmark by next May.

Although benchmarking programs vary from jurisdiction to jurisdiction, generally they require building owners to measure and report information on various types of energy and water usage. Some of that information may come from the owner’s own records; in tenanted buildings, landlords may need to obtain the information from tenants. Often the information is input into software such as the EPA’s Energy Star Portfolio Manager Program, which allows for uniform reporting and effective comparison of the data among buildings. That information is made available to the public.

There are several goals of benchmarking. First, it provides owners with information they may not have had, or understood—as one EPA benchmarking website states, you can’t manage what you don’t measure. By making owners focus on their energy costs, and see how those compare to their neighbors’, they should theoretically make efficient management and upgrade decisions.  Second, armed with this information, tenants looking to lease space (or buyers looking to purchase commercial properties) are better able to evaluate what their long term energy costs will be, and can make better leasing or purchasing decisions. Nothing like a lousy score to shame a landlord into making an upgrade decision that ideally is both cost effective and green.

While the programs are still young, some data indicate that they are working. (See the reports issued by the Institute for Market Transformation, and the studies cited by them.) Benchmarking seems like a concept that people on both sides of the isle should be able to support. 

Learning to talk about environmental issues across the political/ideological/economic/philosophical divide, with help from the Institute for Georgia Environmental Leadership

Posted on June 1, 2017 by Patricia Barmeyer

There is an organization in Georgia dedicated to the goal of building a network of leaders in the environmental area who can collaborate to work on solutions to important issues, instead of defaulting always to debate and often litigation.  The Institute for Georgia Environmental Leadership was created in 2001, and I am currently participating as a member of the seventeenth IGEL class, the fifth lawyer from my firm to go through the program. It is similar in some ways to leadership programs throughout the country, but there is no other leadership program focused entirely on environmental issues.

IGEL is an experiential program, working on both substantive environmental issues and leadership development, as well as conflict management strategies.  The program has 30-35 participants every year, chosen from almost 200 applicants. Each class is chosen to represent a broad diversity of environmental leaders from business, government, academia and NGOs. Several Georgia members of ACOEL are IGEL alumni. The program consists of four 3-day sessions, held in areas to represent Georgia’s environmental diversity—metro Atlanta, the coast, the southwest agricultural area, and the north Georgia mountains. The sessions include outside speakers, group discussion, and field trips.  Every step of the way includes participation from folks with differing views, including scientists, planners, developers, permittees, regulators, environmental activists, and community leaders. The program requires, and secures, a commitment from all class members to be at every session.  It is very time-consuming—and it is hard to be out of the office for three days at a time.  But it is also lots of fun, both the sessions and the field trips.

IGEL is a non-profit organization, governed by a volunteer board composed of alumni of the program.  IGEL operates out of Georgia State University College of Business, in the Center for Ethics and Corporate Responsibility, which has developed the curriculum for the program.

IGEL seeks to provide environmental leaders the knowledge, advanced skills and network necessary to help resolve Georgia’s environmental challenges now and in the future. It’s hard to quantify outcomes, but IGEL has created, and continues to grow, a network of committed environmental leaders who share the IGEL experience, have a broader perspective because of that experience, and do, as a result, have improved channels for communication and a deeper appreciation of opposing environmental concerns.  Our world today is highly polarized; IGEL provides a valuable service in creating a safe space for honest dialogue and respectful disagreement about important environmental issues.  If you are interested you can learn more by checking out the website. http://www.igeleaders.org/