“Happy [50th] Earth Day—Something to Crow About”

Posted on May 23, 2019 by Jeff Civins

In April of next year, the world will be celebrating Earth Day’s 50th anniversary. According to the ultimate source—Wikipedia—Earth Day is now celebrated in more than 193 countries. Among those celebrations is one held annually in Dallas, which this year drew a record crowd of 175,000 visitors. This particular celebration, formerly known as Earth Day Texas and rebranded as EarthX, was adopted by environmentalist Trammell S. Crow in 2011 and turned into the world’s “largest annual environmental exposition and programming initiative.” 

In describing its founder, EarthX’s website notes “[w]ith a focus on inspiring environmental leadership across sectors and party lines, Trammell has succeeded in bringing together people and organizations from all walks of life to explore and collaborate on solutions for some of today’s most pressing environmental [concerns].” For example, at one of EarthX’s events this year, Susan Eisenhower moderated a discussion on climate change by Senators Lindsey Graham (R. SC) and Sheldon Whitehouse (D. RI), and Secretary of Energy Rick Perry spoke about how innovation is revolutionizing the country’s energy production and consumption. Another of this year’s EarthX events was a Law and Policy Symposium, which, consistent with EarthX’s theme of water, was entitled “Water, Water Everywhere…” The Symposium brought together prominent thought leaders, including ACOEL fellows, representing diverse perspectives to discuss legal and policy implications of a range of pertinent topics.

The Symposium included discussions of: water issues facing Texas (“Don’t mess with Texas”); federal water quality issues (“A River Runs Through It”); coastal issues (“Surf’s Up”); water issues facing cities (“Going with the Flow”); and the water energy interface (Thirst for Power”). A luncheon presentation (“Making Waves”) included the showing of an excerpt from the Emmy-award winning  documentary—“The Sonic Sea”--on the threat oceanic man-made noise poses to marine life, presented by Stephen Honigman, a former general counsel of the U.S.  Navy who is one of the filmmakers.

The federal water quality panel was representative of the dialog the Symposium tried to foster and resulted in a lively discussion of “water of the U.S.” involving Matt Leopold, EPA’s General Counsel, and representatives from the National Wildlife Federation, the American Farm Bureau, the National Association of Clean Water Agencies, and a moderator and a panelist from private practice. Other prominent speakers at the Symposium included Senator Sheldon Whitehouse, on the topic of water energy interface, former DOJ official John Cruden, on water issues facing cities, and Texas Attorney General Ken Paxton, on cooperative federalism (“Keeping Both Oars in the Water”).

Last year’s Symposium entitled “Back to the Future,” also included a diverse array of prominent environmental thought leaders, and focused on the future of: environmental regulation; sustainable and ethical corporate decision-making; disaster response; and domestic energy production. Reflective of the diversity of speakers, the energy session included representatives from the Edison Electric Institute, the American Council on Renewable Energy, the Citizen’s Climate Lobby, and the Climate Leadership Council, as well as a private practitioner.

The Symposium the year before dealt with fundamental environmental issues that included: integrating science into regulatory decision-making; reconciling energy and economic development with protection of the public health and environment; facilitating resolution of environmental disputes associated development; and integrating sustainability into corporate decision-making.

Next year’s Law and Policy Symposium will focus on environmental developments over the past 50 years since the first Earth Day and on where we are, or should be, headed. The Symposium organizers hope that next year’s program will result in a dialog among diverse perspectives that results in the identification of points on which there might be consensus and of a range of paths forward to realize the objective of EarthX--and its patron and founder, Trammell S. Crow--“to inspire people and organizations to take action towards a more sustainable future worldwide.”

What’s on the Menu: Trout or Shark?

Posted on May 21, 2019 by Kathy Beckett

In 2015, EPA published its final updated ambient water quality criteria for the protection of human health for 94 chemical pollutants.  This updated suite of recommendations was designed to reflect the latest scientific information and EPA policies, including updated body weight, drinking water consumption rate, fish consumption rate (“FCR”), bioaccumulation factors, health toxicity values, and relative source contributions.  Presently states and tribes are engaged in the triennial review process for the adoption of the new EPA recommended criteria.  As a result of the myriad of factors that comprise the calculation for the new recommended human health criteria, states and tribes are engaged in assessment of the particulars.  Stated simply:  AWQC (ug/l) = toxicity value (mg/kg-d) x BW (kg) x 1,000 (ug/mg)b divided by [DI (L/d) – Ʃ4 i=2 (FCRi(kg/d) x BAFi (L/kg))]. 

One notable effort to manage EPA’s fish consumption-based recommendations is found within the Idaho water quality standards setting continuum.  In 2012, EPA disapproved Idaho’s assumptions asserting that it failed to demonstrate that the criteria protected Idaho’s designated uses. Specifically, EPA concluded that Idaho failed to consider available local and regional fish consumption information suggesting that fish consumption among some Idaho population groups was greater than 17.5 g/day. EPA’s review of available information suggested that recreational anglers and subsistence fishers in Idaho consume fish at rates higher than the national default rate. In addition, during tribal consultation EPA heard from several tribes that rely on fish and other resources in Idaho waters for subsistence purposes. In its disapproval action, EPA recommended that Idaho further evaluate levels of fish intake by recreational and subsistence fishers in Idaho when evaluating the appropriate FCR for use in deriving criteria.  In 2017, EPA informed Idaho that it had not adequately taken into consideration subsistence fishing use by Idaho tribes, and therefore Idaho’s criteria were not sufficiently protective.  To make a long technical story short, after committed efforts by Idaho, EPA finally approved the state’s new and revised human health criteria, in April, 2019.

Other states and tribes are moving cautiously relative to these new human health criteria, learning from Idaho that national default assumptions embedded in EPA’s formula will require careful study.  EPA developed chemical specific science documents for each of the 94 chemical pollutants which serve to update exposure inputs for the formula cited above, many of which reference proprietary studies that are not readily available for review without purchase.  States and tribes are now working to assess EPA default values relative to local and regional data for:  body weight; drinking water consumption; fish consumption; trophic levels of fish in local waters and in representative diet; and toxicity values for non-carcinogenic and carcinogenic effects. 

The West Virginia legislature recently directed the West Virginia Department of Environmental Protection to allow additional time to complete the assessment of local and regional data that is being developed prior to finalizing its water quality standards incorporating the 2015 human health criteria.  In West Virginia, freshwater trout is sought after as a culinary delicacy.  As for shark, that’s not typically on the menu.

Some Labor Principles for Climate Change Legislation

Posted on May 20, 2019 by Eugene Trisko

The Democratic takeover of the House has rekindled hopes for climate change legislation, notwithstanding major hurdles in the Senate and the White House. While little but incremental progress is likely over the foreseeable future, the legislative concepts now being developed may gain greater traction after the 2020 general election.

Labor unions have participated in all major climate legislative developments since the 1997 Kyoto Protocol, and were involved in the drafting of the carbon capture and storage (CCS) technology and other provisions of the 2009 Waxman-Markey climate bill. Labor has consistently advocated for a comprehensive, economy-wide legislative solution to climate change. However, it is essential that any such legislation also be crafted to provide for worker adjustment assistance programs to address job displacement impacting families and communities.

Unions in the energy space are concerned about the adverse job implications of potential carbon tax legislation. Carbon taxes create uncertainties about market responses and lack assurance that advanced emission mitigation technologies such as CCS could be deployed in time to avert massive dislocation of workers in the petroleum, coal, rail, and mining sectors.

Any carbon tax legislation necessarily must include significant revenue set-asides for worker adjustment and community redevelopment assistance. Bureau of Labor Statistics data show that more than two million workers are directly employed in 14 vulnerable fossil fuel-related industries, with annual wages and benefits of some $180 billion. An additional seven million indirect jobs are in support industries and communities.

Major energy unions also are concerned about unrealistic solutions such as those advocated in the “Green New Deal” and by proponents of “Keep It in the Ground.” Legislation addressing the complex issues of carbon emission reduction must address: a) the tremendous impact such legislation will have on millions of fossil fuel-reliant jobs across America; and b) the costs and full recompense required to mitigate the effects of the loss of those jobs on workers, families and communities.

Speaker Pelosi has indicated that an emission allowance trading program such as that developed in the 2009 Waxman-Markey bill is a good starting point for discussions about future climate legislation. Updating and improving that bill could offer strong technology incentives while delivering significant longer-term emission reductions. A revamped allowance-based program could reflect the following principles:

1) All major emitting sectors (utilities, industrial, transportation) should be covered by a national trading program based on an upstream allocation of allowances  - i.e., to utility generating units, gas pipelines, oil refineries, etc.;

2) The rate of decline for any cap (sectoral or national) should to be assessed in light of the cost and availability of technologies for reducing CO2. In the case of electric utilities, a longer time frame for reductions can be justified based on lengthy engineering and construction lead-times - the transportation sector similarly requires long lead-times due to the gradual rollover of vehicle fleets;

3) A bonus allowance program for technology retrofits at utility and industrial units, similar to that employed in Waxman-Markey and the 1990 acid rain program, would complement the CCS incentives that Congress recently enacted in 45Q tax credit legislation;

4) Allowance auctions should be avoided as they constitute a form of double taxation on emitting sectors: first, compliance must be achieved through investments in control measures, and second, allowances must be purchased through an auction system;

5) Any economy-wide legislation should seek to maintain fuel diversity among "clean" fossil, nuclear, and renewable resources, with adequate 24/7 baseload generating capabilities. Reliance on large-scale battery storage to back up renewable power sources cannot provide assurance of grid stability over prolonged episodes of severe weather; and

6) Minimal limitations should be placed on emission allowance banking and borrowing to reduce overall compliance costs. Similarly, a broad variety of domestic and international offsets should be available, including initiatives to help reduce deforestation.

Legislation reflecting these principles may face fewer political hurdles than some of the more extreme proposals being advocated today. While current science informs a commitment to large-scale global reductions to meet aggressive climate targets, the U.S. should act in a manner consistent with the preservation and expansion of highly-paid skilled jobs in the energy and transport sectors. A technology-oriented path for achieving significant long-term reductions appears more politically and economically feasible than calls to eliminate all fossil fuel use within the next decade or two.

____________

NOTE: The writer is an adviser to several energy-related labor unions concerned about climate change legislation and regulation.

…To the Oceans White with (Styro)foam

Posted on May 16, 2019 by David Van Slyke

On April 30, 2019, Maine Governor Janet Mills signed into law An Act to Prohibit the Use of Certain Disposable Food Service Containers, making Maine the first state in the nation to ban polystyrene foam (more commonly called Styrofoam) use in disposable food service containers coffee cups, takeout containers, packaged meat trays, egg cartons and the like.  The prohibition, which takes effect on January 1, 2021, bans restaurants, convenience stores, farmer’s markets, nursing homes, food pantries and other businesses from using the containers.

While Styrofoam containers have many advantages over alternatives – they are comparatively easy to manufacture, light (cost-effective to ship), relatively durable, have good insulating qualities and (by some measures) are lower in production impacts – they are among the most common sources of litter in the United States, found “[f]rom the mountains to the prairies….”

Further, polystyrene foam is petroleum-based, floats, is prevalent in the marine environment, and photodegrades and physically breaks down into smaller particles that are ingested (to ill effect) by marine life.  Further, recent research suggests that chemicals associated with polystyrene foam debris transfer to marine life that attaches itself to the debris.

I, for one, applaud the Maine Legislature and Governor Mills, as well as the other states (Maryland, California and Hawaii) that have considered such a ban and the numerous municipalities across “this land that I love” that have already banned Styrofoam use.

However, there is still work to be done.  As a member of Red Sox Nation (and, yes, a devoted drinker of Dunkin Donuts® coffee), the next time I hear an awe-inspiring rendition of “God Bless America” at Fenway Park, I may have a tough time blocking the thought that it is actually trillions of bits of polystyrene that are making “…the oceans white with foam.”

A Rational Counter to the Green New Deal

Posted on May 15, 2019 by Dick Stoll

For anyone serious about climate policy, I highly recommend Bob Sussman’s Comment in the May 2019 Environmental Law Reporter. Sussman, a former high-ranking EPA official in the Clinton and Obama Administrations, has produced an amazingly comprehensive review of where we have been and where – in his view – we should be going with climate policy and law in the U.S.

He recommends a detailed mix of legislative and regulatory proposals covering all sectors of the economy.  His proposals are based (necessarily) on the assumption that Democrats will control both the White House and Congress beginning in 2021.  If this happens, he says, the Democrats “will need to be ready with a fully developed and actionable climate policy agenda . . . building this agenda will take time and must begin now.”

So is Sussman – like many Democratic Presidential candidates – endorsing the Green New Deal (GND)?  Hardly!  His baseline is to seek “economically responsible and realistic” measures.  And when he says “realistic,” he means politically as well as technically.

Sussman criticizes the GND as a “wild card” formulated by “idealistic newcomers” who could “unwittingly torpedo their own efforts.”  He urges those formulating new proposals to account seriously for concerns about (1) economic disruption, (2) an expansive federal bureaucracy, (3) picking winners and losers among energy technologies, and (4) the U.S. competitive position internationally.  Democrats, he writes, “need to acknowledge these political realities.” 

These are concerns and realities, of course, that the GND essentially flaunts.  He warns that the GND “will polarize the electorate and alienate the political center,” which would lead to “yet another policymaking failure that allows GHG emissions and global temperatures to continue to rise unchecked.”

Sussman’s detailed proposals are summarized neatly in Table I to his Comment.  He is realistic in dividing proposals that will need new legislation as opposed to beefed up regulations.  For instance, he is careful to note that cap-and-trade or “beyond the fenceline” approaches would need new legislation.  In this regard, he recognizes that anything like the ambitious Obama Clean Power Plan would be unlikely to survive judicial review given the current composition of the Supreme Court.

For the power and manufacturing sectors, he endorses legislation providing an integrated cap-and-trade system.  I have one caution in this regard.  I would hope that such legislation would not look very much like the Waxman-Markey bill that passed the House in June, 2009 (and was never brought to the floor of the Senate).

As I wrote in a piece for BNA that year, the House bill contained short deadlines for dozens of new EPA regulations – deadlines that could never have been responsibly met. This would have set up an inevitable round of citizens suits forcing new deadlines coupled with massive judicial review opportunities.  All this in turn would produce tons of work for lawyers accompanied by very few tons of emission reductions.   Hopefully any new cap and trade legislation can be sufficiently specific on programmatic elements and numeric details so the program could get off the ground without suffering through years of judicial process.

A Good Defense is an Affirmative Defense

Posted on May 14, 2019 by Paul Seals

Citing cooperative federalism, the Environmental Protection Agency (EPA) Region 6 Regional Administrator has proposed to withdraw the agency’s 2015 determination that the affirmative defense provisions in Texas’ State Implementation Plan (SIP) applicable to excess emissions that occurred during upsets and unplanned events made the SIP substantially inadequate to meet Clean Air Act (CAA) requirements.  84 FR 17986 (April 29, 2019).  The proposal, if finalized, would reinstate Texas’ affirmative defense provisions that had been approved by the EPA in 2010 and upheld by the Fifth Circuit in 2013.  See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir, 2013, cert. denied) holding that the EPA’s interpretation of the CAA to allow certain affirmative defenses as to civil penalties in section 110 SIPs was a permissible interpretation warranting deference.

The proposal was in response to Texas’ petition for the EPA to reconsider the 2015 Texas SIP call and reinstate EPA’s prior interpretation regarding affirmative defenses for malfunctions. 

In 2015, the EPA had reversed its interpretation of the legality of affirmative defense provisions in CAA section 110 SIPs following the decision of the D.C. Circuit in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), which addressed the legality of affirmative defense provisions in a certain national emission standard for hazardous air pollutants (NESHAP) established under CAA section 112.  In vacating the affirmative defense provisions, the D.C. Circuit held that the CAA gives district courts sole authority in federal enforcement proceedings to determine whether a penalty for a violation of a section 112 NESHAP is appropriate.  The EPA reconsidered the legal basis for affirmative defense provisions in CAA section 110 SIPs and concluded that the reasoning of the D.C. Circuit in NRDC should extend to state affirmative defense provisions in CAA section 110 SIPs.  Texas and 16 other states were subject to a SIP call to revise their SIPs consistent with the 2015 interpretation.

EPA Region 6 now believes the policy position on affirmative defense SIP provisions for malfunctions as upheld by the Fifth Circuit’s Luminant decision should be maintained and that it is not appropriate to extend the D.C. Circuit’s reasoning in NRDC to the affirmative defense provisions in the Texas SIP.

It is important to note that the EPA Region 6 sought and obtained concurrence from the requisite EPA Headquarters office to propose an action inconsistent with the EPA’s interpretation of affirmative defense provisions contained in the 2015 SIP call.

What should the other 16 states, subject to the SIP call based on EPA’s 2015 interpretation, make of this proposal?  Does it simply reflect the special circumstances surrounding Texas’ affirmative defense provisions – a prior approval by the EPA, which was upheld by the Fifth Circuit?  Or, is it the first step in a new policy with national applicability?

Whatever Happened to the Conservative Belief in Markets?

Posted on May 3, 2019 by Seth Jaffe

After receiving an analysis showing that shutting the Jim Bridger and Naughton coal-fired electric generating plants in Wyoming would save ratepayers money, PacificCorp, the owner of the plants, announced that it would shut the plants and the mines that supply them as early as 2022.  Mark Gordon, the Republican Governor of Wyoming is not happy.

According to Greenwire (subscription required), Gordon said that:

I will advocate for a positive path where this utility and others are part of developing solutions rather than destroying communities and delaying progress on meaningful technological advances that keeps coal as part of a diverse energy portfolio and also address climate change.  The potential for early retirements of some coal-fired power plants means we drift further away from finding solutions for reducing carbon emissions.  (Emphasis very much added.)

If we stop burning coal, we’ll never figure out how to reduce carbon.  Rats.  Why didn’t I think of that?

However, I’m not here to criticize Gordon for thinking that we need to burn coal in order to reduce CO2 emissions.  I’m here to criticize him for thinking that it is reasonable for the Republican-led government of Wyoming to criticize private companies for taking economically rational decisions to reduce costs for ratepayers.  Indeed, Wyoming has not just criticized PacificCorp.  Wyoming has apparently enacted legislation requiring a utility that wants to close a coal plant to search for a buyer.  It apparently also would require the utility to purchase electricity from such a new buyer, so long as it does not increase customer bills.

Since when did Republicans start second-guessing private sector economic decisions?  Conservatives should stop worrying about the green new deal and start worrying about socialism in Wyoming!