The Intersection of Environmental Justice and Climate Change

Posted on September 20, 2017 by Lisa C. Goodheart

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts.  Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities.  For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks.  Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure.  It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably.  Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes.  Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ.  Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination.  In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts.  That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities.  This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making.  Its scope was limited to environmental agencies, and it contained no mention of climate change.  Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making.  In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.”  This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N.  Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated.  The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making.  The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities.  States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs.  This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster.  As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

PFAS – NOT JUST ANOTHER “EMERGING” CONTAMINANT

Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Turn On, Plug In, Peel Out

Posted on September 18, 2017 by Samuel I. Gutter

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal.  It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S.  And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer. 

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles.  Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers.  Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors.  GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years.  Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.  

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future.  And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years?  Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play.  China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles.  And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up.  And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror. 

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery.  But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share.  As prices drop and driving range increases, electric vehicles will become more affordable and practical.

Fasten your seatbelt, there might be an EV in your future!

Trump’s 2-For-1 Order: Still Arbitrary and Capricious After All These Months

Posted on September 15, 2017 by Seth Jaffe

In June, I posted about Foley Hoag's brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO.  By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated.  The Order is thus the definition of arbitrary and capricious.

Late last week, OMB issued a memorandum to executive agencies, requiring them to develop “Regulatory Cost Allowances” for FY 2018.  The memorandum is only one page.  In that one page, it uses the word “cost” 11 times.  The word “benefit” does not appear.

The memorandum notes that the purpose of the Order is to “lower regulatory burdens” and “to be prudent and financially responsible in the expenditure of funds, from both public and private sources.”

I hate to beat a dead horse, but one would have thought that the absolute size of the “regulatory burden” is not what’s relevant; what’s relevant is whether that regulatory burden is exceeded by the benefits of proposed regulations.  One would also have thought that requiring expenditures of private funds for regulatory compliance would be seen as “prudent” if those compliance costs are exceeded by the benefits.

Indeed, one would have thought – and I do still think – that seeking to lower regulatory compliance costs without regard to the benefits provided by government regulations is just plain crazy.

Silly me.

Countering RCRA Corrective Inaction

Posted on September 14, 2017 by Dean Calland

David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction.

The current statistics on remedial progress at RCRA corrective action sites are disappointing.  EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action.  However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program.

There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach.  RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.”  As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time [of RCRA corrective action cleanups] by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.”  RCRA FIRST was an effort to address the root causes of delay such as unclear or non-specific investigation or cleanup objectives and the lack of specific processes to elevate differences among stakeholders early in the project.  As part of this effort, EPA has published a Toolbox for Corrective Action which is designed to arm both respondents and the agencies with practical recommendations to help achieve more efficient investigation decision-making and remedy selection.

The willingness of EPA regions and delegated states to discuss these approaches varies considerably; however, one of the specific reasons that caused EPA to get serious about corrective action reforms was their recognition that agency manpower is likely to continue to shrink over time, and that the traditional approach was wasteful of agency resources.  Some specific examples of how RCRA FIRST has been used to forge consensus on difficult issues are listed below.

·         Up front establishment of a Corrective Action Framework (CAF) that describes the parties’ understandings regarding future investigation and remediation work at the facility borne out of an on-site meeting with agency site managers and their superiors.  CAF Meeting Agenda; CAF Template. The CAF is not a formal agreement but it can be referenced and attached to the consent order for both parties to build upon during the subsequent work;

·         Willingness to eschew the traditional RFI study at sites with older data sets in favor of a limited scope RFI that solely addresses identified and agreed upon data gaps;

·         Allowance for the respondent to by-pass the RFI Workplan and instead roll the existing characterization data and some limited additional sampling results directly into the RFI Report;

·         In appropriate circumstances, elimination of the Current Conditions Report and Preliminary Conceptual Site Model steps in the process;

·         In certain limited instances, an agreement to skip the obligation to submit a Corrective Measures Study (CMS) altogether, in favor of moving directly to the Statement of Basis, thereby saving considerable time and money. This is more likely to happen when a presumptive remedy is being sought by the Respondent or when there is an identified reuse for the property that will bring new uses and jobs to the site;

·         Agreement to the submission of a limited Corrective Measure Study that only addresses potential corrective measures that are demonstrated, cost-effective or presumptively applicable.

·         Placing pressure on all participants to use quarterly team meetings and pre-discussed decisional criteria for decision-making in place of the extremely time consuming “redo loop” of written comment and response on technical reports and to bring impasses to the attention of decision-makers earlier (the Evaluation Process);

·         Willingness to terminate older consent orders and unilateral orders and consolidate all applicable requirements into one operative corrective action instrument;

·         An agreement that EPA managers coordinate with state agencies where both have ongoing jurisdiction (e.g., when EPA has responsibility for corrective action and the state has responsibility under their UST program) to avoid duplication of effort and cost for the Respondent;

·         A formal acknowledgement by EPA that Respondent may request a written determination that Respondent has met the consent order’s requirements for just a portion of the facility, particularly if necessary or helpful for a sale or innovative reuse of the subject parcel.

In this era of ever-shrinking agency resources, it is incumbent on all stakeholders at RCRA corrective action sites to seriously consider these new techniques that can make the RCRA corrective action process more time efficient and less costly.

Cuba Delegation 2: ACOEL’s Possible Contribution to the Cuban Environmental Community and Other Observations from XI International Convention on Environment & Development (Part 2 of a Two-Part Series)

Posted on September 13, 2017 by Mary Ellen Ternes

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice.  At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience.  It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate.  Also worth noting is that many of the conference participants are familiar to us all.  For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico.  Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain.  Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages.  Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment. 

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey.  This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law.  The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000).  Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters.  They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

Cuba Delegation 2: Our July 2017 Presentation in Havana and ACOEL Progress on Pro Bono Projects in Cuba (Part 1 of a Two-Part Series)

Posted on September 12, 2017 by David B. Farer

In July, Mary Ellen Ternes and I spoke at the XI International Convention on Environment & Development in Havana, Cuba.  Our topic was Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.  Our paper on the topic was published in the proceedings of the Convention.

Our participation at the event was an outgrowth of the continuing work of the ACOEL Cuba Working Group, which explores the potential for ACOEL pro bono projects there.  Following our initial delegation to Havana in September 2016, the Working Group's further efforts have now also resulted in encouraging indications that we will be able to establish Memoranda of Understanding for Fellows to move forward on specific assignments in Cuba.

For our written and oral presentations, Mary Ellen and I focused on (a) the way that environmental controls over infrastructure development and operation have evolved and improved substantially in the U.S. over the last fifty years, and (b) the benefits of the lessons learned.  Mary Ellen addressed the areas of air and water quality, water supply, waste management, and sewage treatment.  I concentrated on remediation of contaminated media and the College's commitment to pro bono work.  In particular, I emphasized the goal of having Fellows provide pro bono environmental law services as may be requested on behalf of the Cuban people and certain institutions or environmental agencies in Cuba. 

During our Havana meetings, we were also invited to submit proposed MOUs for a joint research project and a teaching project.  We will be developing those MOUs and hope to have additional positive news and pro bono prospects on which to report.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

Doin’ the Dunes – Part XI

Posted on September 7, 2017 by Joseph Manko

As a response to the wreckage of property caused by Superstorm Sandy on Absecon Island, New Jersey, the municipalities that comprise the coastline – Brigantine, Atlantic City, Ventnor City and Longport – supported the construction of dunes on their beaches . . . with one exception.  The outlier, Margate City, chose to oppose the construction of dunes on its beaches and beginning in 2014, Margate went to court to prevent the New Jersey Department of Environmental Protection (DEP) and US Army Corps of Engineers (Corps) from building dunes in Margate. 

Thus ensued various challenges from Margate homeowners and ultimately the Margate City Council, leading to a rash of decisions in state and federal courts as described in my prior 10 blogs.  Earlier this year, both courts upheld the authority of the DEP and the Corps to proceed, and construction began in July – starting in the middle “municipality”:  Margate’s beaches.  (Not surprisingly, Margate described this disruption in the heart of tourist time as “payback” for its opposition.  Also not surprisingly, the DEP and Corps disputed Margate’s characterization.) 

Dune construction on Margate’s beaches has not proceeded without incident.  Since Margate is located at – or just a tad above – sea level, heavy rainfalls or tidal crests have historically caused Margate’s streets to flood, and the stormwater  and its various constituents to spill out directly to, or in outfall pipes through, the beaches and into the ocean.  Without the dunes, residents had grown accustomed to occasional resultant ponding as the stormwater percolated across and through the sand.  However, as the dunes rose, the traditional rate of percolation stopped, causing the formation of standing stormwater “lakes,” which the city has dubbed “Lake Christie.”  The standing stormwater impedes the access to the beaches and allegedly creates dermatological problems for lifeguards and people walking through.

Although Margate abandoned further litigation regarding the authority of DEP and the Corps to build dunes, Margate was drawn back to court by the outcry regarding the dunes’ failure to allow normal percolation.  Margate met with initial success:  the state court issued a temporary restraining order (TRO) on further construction until the contractor for the Corps could demonstrate a process to address the standing water.  The Corps – which was not a party to the state proceedings – then successfully moved to have the case removed to the federal district court, where the TRO was dissolved by Judge Renee Marie Bumb, the same judge who had previously ruled that the DEP and Corps had the authority to build the dune.  In her ruling, Judge Bumb held that the state court had no jurisdiction to issue a TRO against a federal agency (the Corps) and again stressed the Sandy aftermath concern for allowing resumption of the construction, subject to a series of conditions, including eliminating the current pooling and determining the manner in which recurrences of flooding would be avoided. 

As I complete this latest blog, Margate’s appeal of Judge Bumb’s decision to the Third Circuit was denied.  And I, an owner of a beachfront condo and a long time summer tourist in Margate, continue to try to remain otherwise “uninvolved” other than as a writer of blogs.  Did I know where this was headed when I wrote my first blog?  Absolutely not.  Did I know that my very persona as an environmental attorney would make me be unwillingly controversial?  Absolutely not, but it’s been interesting to observe, rather than serve as an environmental litigator so close to my “second home.” 

WHICH WAY ARE THE WINDS BLOWING ON THE INTERNATIONAL TRANSPORT OF AIR POLLUTANTS?

Posted on September 5, 2017 by David Flannery

At a time when the international transport of air pollutants is squarely before the DC Circuit in connection with the challenge to the Cross State Air Pollution Rule Update (State of Wisconsin, et al v. EPA, Case No. 16-1406) there is new information confirming that “but for” international transport, every air quality monitor in the nation would be achieving compliance with both the 2008 and 2015 National Ambient Air Quality Standards (“NAAQS”) for ozone Assessment of International Transport and Improved Ozone Air Quality

In November 2016, EPA proposed a rule addressing implementation of the 2015 ozone NAAQS in which it requested comments on whether the international transport provisions of Section 179B of the federal Clean Air Act should be limited to nonattainment areas adjoining international borders. Section 179B allows a state which is not in attainment with the ozone NAAQS to seek relief from certain implementation requirements of the Clean Air Act if it can show that the NAAQS would be met “but for” international emissions. Among those responding to this request for comments, the State of North Carolina noted that “contribution from sources outside of the U.S. has become more prominent in the overall ozone profile for many areas” and that “transport of ozone is well documented and not restricted to impacting only areas adjacent to Canada or Mexico.” http://www.csg.org/aapca_site/news/documents/NorthCarolinaDEQ-2-13-2017.pdf

In his letter of June 6, 2017 EPA Administrator Scott Pruitt extended the deadline for promulgating designations related to the 2015 ozone NAAQS by 1 year and in doing so, identified international transport as one of the complex issues that EPA would review during the extension period (https://www.epa.gov/sites/production/files/2017-06/documents/az_ducey_6-6-17.pdf).  However, in its Federal Register notice published on August 10, 2017, EPA withdrew its announced 1-year extension of the deadline for promulgating initial area designations for the 2015 ozone NAAQS (https://www.federalregister.gov/documents/2017/08/10/2017-16901/withdrawal-of-extension-of-deadline-for-promulgating-designations-for-the-2015-ozone-national). The notice of withdrawal of the 1-year extension makes no specific mention of international transport, although the notice offers the following statement: 

The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed. 

While, as noted above, it is becoming increasingly clear that “but for” international emissions every monitor in the nation would be complying with ozone NAAQS requirements, the implementation of that conclusion is for the moment, at least, blowing in the winds of regulatory change.  

With Litigation Guaranteed, the fate of national monuments will be uncertain for some time

Posted on September 1, 2017 by Brenda Mallory

At the end of August as the last days of summer pass, the Conservation community waits with bated-breath to learn what the Trump Administration will do to twenty-one significant national monuments and the century-old tradition they reflect. The consensus—among those who have dedicated their lives to protecting special places, the local communities whose economies have been bolstered by their presence, and a broad swath of Americans who simply enjoy having extraordinary places to visit—is that it won’t be good. The further consensus is that what the Administration is considering likely exceeds the President’s legal authority under the Antiquities Act. Both progressive and conservative voices have recently argued that the president lacks the authority to diminish or revoke National Monuments. While the motivations for making this argument may be different, the basic statutory and constitutional arguments are the same, and the significance of the president taking this uncharted path to diminishing national monument protections is recognized (in either a positive or negative light) even by the few who argue he does have the authority to do so.

The legal question begins where many of our most controversial issues today start –the scope of a law. Yet, at its foundation, a history of simmering tensions over the extent of Federal lands in the west and the Federal government’s control over those lands has fueled passions around this issue. For over 110 years, the Antiquities Act has stood as one of the most powerful tools for the protection of cultural, historic, and scientific resources. Some have described it as the first statute with an exclusively protective purpose.  The statute gives a President the discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” A key question is what does “other objects of historic or scientific interest” mean? This Administration appears poised to take on the longstanding, judicially endorsed conclusion that this phrase includes large landscapes like the Grand Canyon, and to bring to the fore the threshold question of whether a subsequent President can change the monument designation of a predecessor.

In April, President Trump signed an Executive Order instructing Interior Secretary Zinke to undertake a review of Antiquities Act monument designations since 1996. Secretary Zinke then launched the review process identifying 27 monuments that fit the EO criteria: 26 because they were over 100,000 acres and one for the purpose of determining whether stakeholder engagement had been adequate. Recommendations were submitted to the President on August 24, 2017, but have not been made public. The Commerce Secretary received a similar presidential directive and is undertaking a separate process for marine monuments and national marine sanctuaries.

Over its history, monument designations under the Antiquities Act have been challenged as inconsistent with the statute and have always been upheld. See, e.g., Cameron v. United States, 252 U.S. 450 (1920), Cappaert v. United States, 426 U.S. 128 (1976). However, no President has attempted to revoke a prior designation and there has been no judicial challenge in the previous circumstances where a President has modified the boundaries of a designation. All signs are suggesting that we are about to see both for the first time: the President is expected to revoke or substantially reduce one or more monuments and, if he does, a challenge is inevitable. While this will be a case of first impression, the overwhelming view of scholars, which I share, is that the President does not have the authority to take these actions because Congress has not delegated him the authority to undo a designation. See, e.g., a collection of articles submitted to the Department of Interior by 121 scholars and similar analysis for marine monuments. Of course, there is an alternate view.

Putting the law aside, the atmospherics associated with this early battle by the Administration are noteworthy. First, like many of its other actions, the unprecedented nature and scope of the attack is striking. While it was immediately obvious after the election that there would be some effort to challenge then-President Obama’s most controversial monument designations, with Bears Ears National Monument in Utah at the top of the list, few expected that designations completed decades ago, by three different Presidents would be under threat. Businesses and communities have grown and developed because of and in reliance on these monuments, inseparable from the benefits they bring to their local areas. Upending years of investment and expectation is stunning. Nor was it expected that the attack would include so many monuments, land and sea, or that Marine Sanctuaries, which are completed over many years and with considerable process, would be thrown brazenly into the mix.  

Second, like the Administration’s attack in other areas, the stated narrative driving the challenge to national monuments – alleged abuse of executive power, failure to consult or listen to stakeholders, ignoring elected officials, restoring balance to the use of Federal land – is at odds with the Administration’s own behavior in the process.  As noted in the above-referenced articles, revoking or substantially reducing the size of a monument is beyond the scope of the President’s authority, a clear abuse of executive power. Even conservative leaning scholars and publications have joined the ranks of those condemning the anticipated executive action as beyond the President’s authority. Moreover, Secretary Zinke has unapologetically spent his “review process” meeting primarily with opponents of the monuments and the summary of his report released last week dismisses as part of a “well-orchestrated national campaign” the 2.7 million comments generated during the review process that overwhelmingly support retention or expansion of national monuments. Next, while the Republican elected officials are getting Zinke’s attention, it is not clear that the views of their Democratic colleagues are being given the same weight. Finally, talk of balance in federal land use is in direct conflict with the newly ascribed goals of “energy dominance” and the expedited efforts to open unspoiled areas to oil and gas drilling, and other extractive activities. Taken together, it is clear that this battle is less about correcting “unlawful” designations by previous Presidents and more about aggressively shifting the policy focus on Federal lands to exploiting the natural resources. For monuments designated under the Antiquities Act, only Congress has the authority to change the designation; and Congress is the appropriate body to consider whether policy shifts warrant such changes.

Finally, the attack on national monuments is not occurring in isolation. Many other efforts to eliminate or impair environmental and conservation protections on Public lands are underway.  They encompass repealing protective measures such as the stream protection rule, withdrawing the rule regulating hydraulic fracturing; repealing the Clean Water Act Rule; eliminating the ban on drilling in the Arctic; and rescinding the Executive Order directing federal agencies to consider rising sea levels when building public infrastructure in flood prone areas. They also include process initiatives that appear designed to undermine the fact based decision-making necessary to ensure the protection of environmental and conservation measures. These initiatives include Zinke’s Order to streamline onshore oil and gas permits, his regulatory reform initiative to eliminate “unnecessary regulatory burdens,” and his Order jumpstarting Alaska Energy focused on opening the Alaska National Wildlife Refuge and the National Petroleum Reserve Area to oil and gas drilling.

With this backdrop, there is a sense of foreboding as the Administration’s monuments review process comes to an end. One thing is clear, whatever is in the upcoming announcement by the Administration, it will likely take years of litigation before these issues are resolved and this century-old law will be put to the test.