NEPA at 50: What Lies Ahead?

Posted on February 19, 2020 by Scott Fulton

It seems to be the season for 50th anniversaries. The National Environmental Policy Act, signed into law by President Nixon on January 1, 1970, is now a half-century old. The first day of a new decade was no doubt seen as a symbolic moment for NEPA’s signing, but I wonder whether the statute’s framers could have envisioned the full reach of that symbolic step.

NEPA signaled the beginning of the modern environment era and was the first of many actions that would redefine our orientation toward the environment and attempt to march the country toward a more sustainable future. It also set an important marker for the rest of the world, with environmental impact assessment becoming one of the most imitated and enduring features of the global environmental legal architecture.

Now, 50 years later, change is in the air, as the Administration considers a rather sweeping rewrite of NEPA’s implementing regulations, the comment period for which closes March 10, 2020. The proposed rule may at first blush look like a walk through traditional NEPA terrain. Because it is set out as a wholly revised chapter, it takes a good deal of work to discern where language has been changed, moved, or excised. To that end, the Environmental Law Institute released the Practitioners’ Guide to the Proposed NEPA Regulations to assist commenters and others in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts. On close inspection, the changes are dramatic and potentially far-reaching.  Here are some that in my view deserves a close and searching look.

Importantly, the term “cumulative” has been excised from every point in the proposed regulations, except for the addition of a sentence stating, “Analysis of cumulative effects is not required.” Similarly, categorical exclusions would no longer need to be evaluated for cumulative impacts. Under the proposal, cumulative and indirect impacts are not to be used in determining the threshold of significance (whether an EIS is needed), and are no longer to be analyzed in EAs or EISs.

While climate change is never mentioned in the proposal, the restriction on cumulative or indirect impacts has obvious significance in that context. But cumulative impact concerns under NEPA predated worries about climate change. How would these limitations affect consideration of environmental justice issues? How would they affect watershed, air shed, and landscape protection considerations?

Further limitations on the scope of review will prevent agencies from considering alternatives not within their own jurisdiction. The rule would interpret DOT v. Public Citizen to prohibit agencies from analyzing or considering “any effects that the agency has no authority to prevent.”

The proposed rule would allow applicants themselves to prepare environmental impact statements and assessments (under guidelines from federal officials and ultimately signed by a federal official); would no longer require the lead agency to select the contractors performing EISs and EAs; and would remove existing conflict-of-interest requirements for contractors.

In a novel procedural innovation, the proposed rule would require the lead federal agency to issue a finding itself at the end of the NEPA process that it has adequately considered all “alternatives, information, and analyses submitted by public commenters” and states that this finding and “certification” would create a “conclusive presumption” that is binding on the courts.

The proposal encourages federal agencies to require that commenters and public opponents of an action post a financial bond for a stay if they contest a final agency decision.

Finally, the proposal would expressly preempt existing and future agency NEPA requirements, thus effectively setting a ceiling on federal environmental review: “Agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these regulations.”

There are many other changes scattered across the proposed rule. Some of these are important alterations intended to tighten time lines and increase interagency coordination and accountability. At bottom, if promulgated in this form, the proposed rule may well serve to exclude from NEPA review altogether some actions that would have heretofore gone through the process, as well as eliminate many environmental effects that agencies typically analyze.

In this sense, the proposal stands in fairly sharp contrast to prior reform efforts aimed at making NEPA review function more efficiently and effectively. This much is clear. What emerges from this proposal may well determine NEPA’s fate and role in the next 50 years.

CORONAVIRUS, We Thought We Knew Ye! The Wuhan Potential Pandemic

Posted on February 18, 2020 by Nicholas Robinson

The novel Coronavirus (2019-nCoV) has infected more than 50,000 and killed more than 1,000 persons across China. It has spread in France and England, and elsewhere. We knew “it“ was coming, but naively – if imprudently – we repeatedly hope to dodge the bullet. “It” is the class of viruses exchanged across species, a phenomenon known as zoonosis. These viruses inhabit humans and other vertebrate animals alike and each species can infect the other. Public health officials fear 2019-nCoV may spread like the pandemic of “Spanish influenza” in 1918.

It is virtually certain that humans contracted this coronavirus from another mammal, a Pangolin. Across China, wild animals sold in live meat markets convey viruses, having themselves been infected by other species like mosquitos or bats. Pangolins are an endangered species, still prized for their tasty meat and the supposed medicinal attributes of their scales in China and Southeast Asia. Similar patterns exist everywhere. Viruses, transmitted by bats, mosquitos, or other disease vectors, infect vertebrate mammals. In Africa, bush meat of monkeys, rats, fruit bats, and other animals are often infected with viruses from the adjacent forests. In South America, close human association with dogs and cattle brings on leptospirosis, which causes 1.3 million cases per year with some 58,000 deaths.

Such viruses “plague” us. The World Health Organization estimates that 61% of human diseases are zoonotic in origin and 75% of new diseases discovered in the last decade are zoonotic.  Examples of zoonotic diseases include rabies, anthrax, Hantavirus, tularemia, tuberculosis, HIV-1 and 2/AIDS, West Nile virus, Bubonic plague, salmonellosis, Rocky Mountain spotted fever, MERS and Lyme disease.

What would we give as a society today to have averted HIV/AIDS, whose origins are traced to chimpanzees in Cameroon?  Lifetime medical care for an HIV/AIDs patient exceeds $360,000, and more than one million people live with HIV in the USA alone.  International cooperation prevented widening epidemic of Ebola, which ravaged Sierra Leone, Guinea and Liberia in 2014, at a cost of some $53 billion. The Obama Administration invested $2.34 billion in successfully helping to contain Ebola. Severe Acute Respiratory Syndrome (SARS) emerged much as has the 2019-nCoV, in the live meat markets of China. In 2003, meat from a mammal, the Masked Palm Civet, sold in markets in Guangdong, China, was found to hold the SARS coronavirus. SARS spread to 29 countries, where 8,096 people got SARS and 774 of them died; it resulted in costs estimated at $40 billion

All zoonotic viruses leave the animal kingdom to infect humans.  Had society maintained the ecological health of wild forests, we might have prevented the viruses from leaving the animal kingdom. It is essential to confine these viruses to their wild habitats. Doing so is the job of park managers and nature conservation agencies. Once wild animals are taken into the human world, or domesticated, they become the charge of veterinarians and animal welfare agencies. Think of swine flu and avian influenza. Where endangered species are poached and sold, like Asia’s Pangolins or Africa’s Great Apes, there is an urgent need to educate the public and rigorously enforce unlawful trade in animals. Clear phytosanitary standards, with routine inspections, are needed. Article XX of the General Agreement on Tariffs and trade (GATT) authorizes such prudent controls on trade to avert diseases. Endangered species laws need to be rigorously enforced.     

The economic tsunamis of zoonotic diseases, with their tragic losses of life, cannot be prevented by public health programs alone. Governments invest massively in finding cures to the diseases, and spend a pittance to preventing the disease vectors from infecting humans. Containing zoonotic viruses requires strengthening nature conservation and animal welfare programs. It is cost effective to keep the viruses in their natural reservoirs, in the forests, away from people. As Ben Franklin advised us in 1736, “An ounce of prevention is worth a pound of cure.”

Environmental law can address this imbalance. Zoonosis should be expressly considered in environmental impact assessment. Priority can be given to the IUCN World Commission on Protected Areas or the only international organization focused on cooperation between public health, nature conservation and veterinary science:  the World Organization for Animal Health/OIE (see https://www.oie.int/fileadmin/Home/eng/Our_scientific_expertise/docs/pdf/Globalcooperation_oie1.pdf). Environmental Law can encourage inter-agency cooperation on human/animal health. The Wildlife Conservation Society has long promoted “One World, One Health” programs. Until governments recognize that ecological integrity is as important as national security, public health crises will recur.

Locally, reform of building codes can prevent transmission of such viruses. “Healthy buildings,” with ventilation and filtration systems of public spaces, can be retrofitted to reduce risk of airborne exposures of communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020). Governments need to prioritize efforts to sustain the ecological integrity of our local and regional parks and “wild” areas, to be vigilant to detect diseases, like West Nile virus, as viruses appear in our landscapes.

The “next’ pandemic is upon us.

Plastic Planet

Posted on February 12, 2020 by Mary Ellen Ternes

Plastic is a remarkable material that has forever changed our societal expectations regarding the quality of our food, water, health care, safety and products that improve our lives every day. But all good things remain good within limits. For many years now there has been growing recognition that, because plastic does not degrade like natural materials, it is now present everywhere and our approach to plastic must change. As a result, we’ve seen China’s 2018 rejection of plastic shipments, the May 2019 Basel Amendments to list plastic waste, and while industry, DOE and NGOs have tried to get ahead of the issue, a recent global wave of single-use plastic bans.

We know that we need to turn off the tap of plastic waste leaking into the environment, both macro and micro plastic, through “reduce, reuse and recycle,” and then turn to mopping up the floor. First on the list for turning off the tap: single use plastics. They are ubiquitous in daily life, yet generally are not reused and likely, as a result, represent most of the ocean waste we see. Hence, the single-use plastic bans, though some sector stakeholders, like healthcare, may figure out how to capture post-single use plastics in sector-specific circular economies (managing material from cradle-to-cradle as in closed-loop recycling).

Other sources of environmental plastic are tougher to address, especially microplastics. Microplastics can be created when macroplastics fracture into smaller pieces, so all macroplastics potentially have a future as microplastic. However, the majority of microplastic appears to come from ubiquitous consumer products, such as shreds from tire wear, microfibers from polyester, rayon and other fabrics, and particles from latex and other coatings. The only way to reduce microplastics from these sources may be to reduce plastic in the source itself.

Moving on to recycling, it is evident that, even after collection, cleaning and sorting, recycling is a challenge. Single types of plastic are themselves heterogenous. For example, polyethylene terephthalate (PET) used for a soda bottle is quite different than the PET used for a take-out container. And then there are the additives. Post-use plastic’s variability would render it “inherently waste-like” pursuant to EPA’s “legitimate recycling” factors in Sylvia Lowrance’s 1989 RCRA guidance. Like most inherently waste-like material, post-use plastic currently lacks sufficient value to reliably support management as a product sufficient to keep it out of the environment. Turning off the tap will therefore necessitate different approaches for manufacturing and use, including potential reformulation of current products within defined circular economies to both mitigate sources, increase homogeneity and boost the value of post-use plastic to support financially viable recycling.

Turning to mopping up our floor, our environmental mitigation and remediation tools in the United States are generally triggered by acute or chronic chemical toxicity; plastic is generally inert and not recognized as posing such a threat. Potential imperfect approaches to addressing plastic pollution now, as simple categories of solid material, include: PM2.5 under the Clean Air Act (CAA); turbidity under the Safe Drinking Water Act (SDWA); total suspended solids or other pollutants under the Clean Water Act (CWA); solid waste under Solid Waste Disposal Act (SWDA) (though litter is generally left to municipalities); and as a source of hazardous substances, if not a hazardous substance itself, under the Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA). The Toxic Substances Control Act (TSCA) and the European Union’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) generally exempt plastics due to their high molecular weight and inert nature.

New policy and legal authority may be helpful, but we still have work to do in hazard assessment. Although generally chemically inert, plastics may still pose physical risk. Evaluating physical toxicity sufficient to define a reference dose, or exposure assessments similar to asbestos, may allow application of traditional risk-based approaches as we would other environmental pollutants. Progress is being made in this direction. In February, the National Academy of Sciences gathered international experts to discuss microplastics, potential effects on human health, options for mitigation, and ways to leverage new approaches to inform public health and policy decisions. As we learned, plastics break down into unique shapes, based on their molecular structure and use, which may pose different hazards based on their shape and size. Further research will allow development of approaches that can be used to develop action thresholds and reassure the public regarding acceptable concentrations. Defining the possible scope of potential harm, including when plastic may eventually break down completely and become “mineralized,” will assist in applying existing authority as well as developing new authority.

In addition to defining risk, there have been increasing commitments toward better defined circular plastic supply chains and technological innovation in plastic recycling (including electrifying plastic into instant graphene, which raises its own issues), as well as project funding and other federal and state legislative responses to the issue of plastic waste including public education. The push and pull of progress continues on all fronts, with consumer activism expediting the timeline.

PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

To some, it’s outrageous that PFAS (Per- and Polyflouoroalkyl substances) are omnipresent in the environment, in biota, in drinking water, and in a number of past and present products.  All PFAS are highly dangerous some claim (or at least presumptively so), based on data on a limited number of the thousands of compounds. It is therefore outrageous that some of the compounds are likely present in a vast majority of Americans.

Bypassing issues of dose, cause and effect, the conclusion is that all PFAS are dangerous and unwanted.  Throw in the allegations that companies knew of hazards before phasing out manufacturing or use (of some of the chemicals) and you have a perfect storm for outrage. Ban them all! Contrary views?  The activists’ answer is that the experts have been bought off or are misleading, so public policy should be based on public opinion, right? And what politician in his or her right mind would ignore public outrage?

The fear of many, and the public in general, is undeniable. The presence of a chemical in the human body, without more information, is information of unknown significance.  For most PFAS, since we don’t have data.  Scientists are struggling currently with whether there is any basis for toxicity grouping or classes of PFAS.  For most PFAS, this is “fear of the unknown,” borne of ignorance, but heightened by uncertainty. 

Public outrage doesn’t have to be, and often isn’t, correlated to actual harm or evidence of likelihood of harm.  The media and press don’t cause outrage, but they can and do amplify it.  Add activists who are media savvy and you get the current PFAS crisis.

Here’s an equation (thanks in part to Dr. Peter Sandman):  Risk = (perceived) Hazard + Outrage.  While experienced environmental law practitioners, toxicologists, and regulators know that Risk = Toxicity X Exposure, that is not the calculus of the public.  To the public, the risk equation is fueled by outrage. To be sure, there are data for some PFAS compounds that justify concerns, but I question whether it justifies the hysteria we see.

Believe it or not, public outrage -- whether justified or not -- is never a substitute for a scientific data, or for risk assessment, or for protective environmental policy.  Lack of data and fear of the unknown don’t inform thoughtful decision making. Yet public fear is undeniable, and legislators and regulators are feeling the heat.

To quote others:  Now is the time for facts, not fear. 

Why not work on better risk communication?  The basic tools include:

  • Understanding and acknowledging the outrage
  • Acknowledging the legitimate concerns
  • Avoiding extremes
  • Sticking rigidly to the facts
  • Recognizing and reminding others that actions or decisions without a scientific and rational basis, or that can’t be implemented do more harm than good in the medium and long run, and likely to be successfully challenged in court
  • Being realistic – there are funding limitations, both public and private
  • Remembering we live in a federal system that has independent actors capable of moving at different speeds
  • If testing is to be required, making sure that we can explain to the public and the regulated community the meaning of the environmental test data produced

While I understand some of the EPA’s 2019 PFAS Listening Sessions helped in some communities, better risk communication must be an ongoing task.

Finally, what’s the role an environmental lawyer can play?  While we are advocates and counselors, the experience we bring must contribute to better decisions.  Not the least of these are the skills and lessons from analyzing environmental problems, making sure that there is credible scientific evidence to justify action, and identifying alternatives that efficiently address health and environmental risks without unnecessary costs or other adverse impacts.

We need thoughtful communication and the best information available as we work through the current PFAS regulatory issues.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

Posted on February 5, 2020 by Jonathan Ettinger

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud, Google Drive, Box.com, DropBox, and Amazon actually consume lots of electricity even when they are just sitting idle.  Apparently the servers, which are energy hogs because they require lots of cooling, are actively managed on a regular basis to prevent loss or degradation of data, regardless of whether we are accessing the information or not.

According to one source, uploading data and storing it in the cloud consumes 3-7 kWh per gigabyte, roughly a million times more than storing it on your hard drive.  So storing 100 gigabytes of data in the cloud for one year (maybe a few thousand photos or a few hours of video) would result in the emission of roughly 0.2 tons of CO2

I am not suggesting we all stop using the cloud for storage.  After all, it is convenient, largely safe, and probably more environmentally sustainable than paper file storage.  It’s just that it isn’t carbon neutral.  Everything has trade-offs.  For me, I will keep uploading videos of my dogs playing (turn on the sound) – primarily because I am not sure how to stop it – and sending links to classic rock songs.