How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

State Attorneys General Act as Checks and Balances on Federal Environmental Rollbacks

Posted on April 26, 2018 by Lemuel M. Srolovic

Three priorities of the Trump Administration are driving an effort to roll back federal environmental laws and regulations on an unprecedented scale. First, the President ordered executive agencies to rescind two existing regulations for every new one promulgated. At the end of 2017, environmental rollbacks won first prize, with EPA reporting 16 final deregulatory actions and the Department of the Interior reporting 12. Second, the administration has pursued a goal of energy dominance by the United States, with fossil fuel energy at the top of the list. This priority led the Secretary of Energy to issue an order directing the Federal Energy Regulatory Commission to adopt a tariff subsidizing the generation of electric power with coal. Third, the administration seems determined to reverse, to the extent possible, the regulations adopted by the Obama Administration, which was active in the environmental protection arena. While the Clean Power Plan and the Clean Water Rule are the marquee targets, many other rules have been delayed, suspended, and placed under reconsideration.

State attorneys general have a long history of pushing and pulling the federal government on environmental protection under law where federal regulation is needed to protect their citizens and the environment. Climate change, interstate air pollution, interstate water pollution, and energy efficiency standards for electrical equipment and appliances are primary areas for legal actions by state attorneys general against the federal government to hold it accountable for fulfilling its statutory duties to protect human health and the environment.

Now, in this period of federal environmental rollbacks, state attorneys general are performing a different function as well. As the federal government seemingly pursues a race to the bottom on environmental protection, state attorneys general are bringing legal actions to operate as checks and balances on federal environmental rollbacks. The list is long, and includes:

  • Opposing the repeal of the Clean Power Plan;
  • Challenging the suspension of the Clean Water Rule;
  • Challenging EPA’s delay of implementing the 2015 national ambient air quality standard for ozone;
  • Challenging EPA’s decision to allow tolerances on food for the neurotoxic pesticide chlorpyrifos to remain in effect;
  • Challenging the Department of Energy’s delay of national energy efficiency standards for ceiling fans, portable air conditioners, commercial boilers, air compressors, and backup power supply equipment;
  • Challenging the National Highway and Traffic Safety Administration’s delay of a rule adjusting for inflation the penalties levied on car manufacturers who violate the national corporate average fuel economy (CAFE) standards;
  • Challenging EPA’s delay of a rule requiring new oil and gas development sources to limit their emissions of methane and other pollutants; and
  • Challenging the Department of the Interior’s delay of a rule to augment federal royalty payments and to prevent waste of oil and gas extracted from federal lands. These and other actions by state attorneys general are discussed in more depth in a recent report for the NYU School of Law’s State Energy & Environmental Impact Center, State Attorneys General: 13 Months of Critical Actions (Feb. 2018).

A number of these actions already have been successful. The D.C. Circuit summarily vacated EPA’s 90-day stay of compliance deadlines in the Clean Air Act rule requiring new oil and gas facilities to limit emissions of methane and other pollutants, in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017). The day after the attorneys general filed an action challenging EPA’s 1-year delay of ozone non-attainment designations, the agency reversed course and withdrew the delay. Similarly, the Department of Energy released the national energy efficiency standards for ceiling fans a few weeks after attorneys general took legal action in the U.S. Court of Appeals for the Second Circuit, and subsequently, a federal district court in California ruled that the Department had acted unlawfully by not publishing final efficiency standards for the additional categories of electric equipment challenged by the attorneys general.

Many of the attorneys’ general actions remain pending in the courts. Others likely will be filed. Whatever the ultimate outcome in any particular matter, these legal actions by state attorneys general collectively will operate as checks and balances on the Trump Administration’s efforts to roll back federal laws and regulations protecting public health and the environment.

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

BROWNFIELDS ON STEROIDS

Posted on April 24, 2018 by George von Stamwitz

Everybody loves Brownfields. Local, State and Federal agencies provide an array of tax credits, grants, expert support, statutory liability protections and contractual liability protections to developers of contaminated land. Brownfield buyers generally are looking to avoid assuming liability for pre-existing conditions and for a few incentives to sweeten the pot. The public sector is eager to help.

Less well known, and virtually ignored by the public sector, is a small but growing segment of the Brownfield ecosystem where buyers of contaminated land “run to the fire.” These buyers willingly take liability for pre-existing conditions, known and unknown, and provide the seller with a broad, collateralized indemnity. From the public sector’s perspective, these buyers are user–friendly, as they rarely seek government grants, incentives or liability protections. In recent years these “risk transfer” transactions have been particularly popular with owners of decommissioned power plants with ash ponds.

Indeed, these transactions have ingredients that EPA and the States typically love: tons of financial assurance for the benefit of the seller, an accelerated schedule for demo and cleanup with sanctions, engagement with the local community regarding future use, and job creation. Sometimes the risk transfer buyer turns the project over to a Brownfields buyer once the liability is managed.

Perhaps EPA, the States and NGOs can get to know the risk transfer portion of the Brownfield ecosystem a little better, add their expertise, and help get more sites cleaned up faster.

THE GREAT LAKES OF NORTH AMERICA AND THE GREAT BARRIER REEF OF AUSTRALIA; MORE IN COMMON THAN ONE MIGHT THINK

Posted on April 18, 2018 by David Ullrich

Although separated by over 8,000 miles and representing vastly different ecosystems, the Great Barrier Reef of Australia and the Great Lakes of North American share much in common.  As globally significant resources, they not only help define the countries so fortunate to host them, they are major contributors to the social, economic, and environmental vibrancy of their cultures.  They are both very big and visible from space, with the Great Lakes having well over 10,000 miles of shoreline and the Great Barrier Reef stretching over 1200 miles of coast in Queensland.  At the same time, many similar challenges face the communities that are charged with the stewardship of the resources to make sure their integrity is preserved for future generations.

At the top of the list is climate change.  For the Great Barrier Reef, the warmer ocean temperatures have resulted in significant bleaching events over the past twenty years and have caused damage to major portions of the Reef, although much of its beauty remains intact. The increase in severity and intensity of cyclones has also caused major physical damage to the Reef all up and down the coast of the Coral Sea.  As the storms travel inland with heavy rains, the runoff from agriculture brings vast quantities of sediment and nutrients to the nearshore areas of the Reef.  The siltation can smother the coral and the nutrients are thought to contribute significantly to the explosion of the indigenous crown of thorns starfish that attack and destroy coral. 

Climate change is also putting extensive stress on the Great Lakes.  The warmer temperatures are leading to less ice cover, more evaporation, and lower lake levels.  However, the more frequent and intense rainfall events are putting more water back into the system.  Experts differ on the long term implications.  In the short term, lake levels seem to be going up and down more rapidly and to a greater degree than before, leading to navigational and erosion problems.  In addition, the heavy rains have increased nutrient runoff from agriculture and urban areas, leading to alarming algal blooms and drinking water crises like those in Toledo, Ohio and Pelee Island, Ontario on Lake Erie.  The nutrients also contribute to the formation of low oxygen dead zones that can result in fish kills.  In addition to climate change, the battle against invasive species such as sea lamprey and zebra and quagga mussels seems endless, while grass, silver, bighead, and black carp continue as major threats to the $7 billion fishery of the Great Lakes.

As strategies and approaches to dealing with these challenges are developed in Australia, Canada, and the United States, we would be well served to share ideas with one another on how best to meet them.  We have a tremendous responsibility as stewards of these global treasures to protect and preserve them for future generations.  It would be a tragedy to be resigned to renaming them the “Pretty Good Barrier Reef” and the “Pretty Good Lakes.”

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.