Pandemic Snapshot: Injustice in Salmon Country

Posted on May 29, 2020 by Peter Van Tuyn

Faced with the global pandemic, Bristol Bay’s people, tribes and communities sprung quickly into action.  Bristol Bay, Alaska, has roughly 7,000 year-round residents in 31 villages and communities spread over an area larger than the State of Georgia, with a small hospital in the City of Dillingham and only health clinics elsewhere.  The population of Bristol Bay can triple as people come by plane and boat to work in the largest remaining wild salmon fishery on the planet.  Salmon, of course, know nothing about social distancing, and they are on their way. 

One thing the tribes and communities of Bristol Bay didn’t want or need was distraction from their pandemic preparations.  Many elders in Bristol Bay are children or grandchildren of those who were orphaned in the Spring of 1919, when the Spanish Flu hit Bristol Bay with devastating force.  Bristol Bay lost approximately 40% of its Alaska Native population in the Spanish Flu pandemic, which was the highest rate of death in the Americas.  The people of Bristol Bay know in an intimate way to take the threat of the coronavirus seriously. 

To allow room to undertake critical pandemic-related work, tribes asked the Alaska District of the U.S. Army Corps of Engineers to extend deadlines for expert input on the Corps’ permitting process for a massive hardrock mine proposal.  The proposed mine targets a low-grade, potentially acid-generating ore body, located in the headwaters of Bristol Bay.  In the early 2010s, the Environmental Protection Agency studied the matter and found that the mining of the Pebble ore deposit could have unacceptable adverse impacts on Bristol Bay salmon, and it started a regulatory process using its Clean Water Act Section 404(c) authority to protect the salmon from the proposed mine.  The Trump EPA reversed course, and the Alaska District of the Corps, which has the direct decision authority for the necessary Section 404 permit, is in the midst of a fast-tracked permitting process, with the goal of finishing it up this year. 

The tribal requests for an extension of time concerned cooperating agency comments on a preliminary final Environmental Impact Statement (EIS) for the project.  Cooperating agencies include two local tribes, as well as state and federal expert agencies, and they were under a tight deadline to provide input on the integrity of the EIS.  A previous version of the EIS had been intensely criticized by tribal and government cooperating agencies, with the Department of the Interior stating, for example, that “the [draft] EIS is so inadequate that it precludes meaningful analysis.”  Indeed, the fishery experts commenting on the draft EIS raised concerns about the limitations of the salmon impact analysis in the draft EIS and other permitting documents. 

To say that the stakes are high is an understatement, as the uniquely huge and healthy wild salmon population forms the cultural, subsistence, and economic foundation of Bristol Bay.  The commercial fishery alone supports 14,000 jobs and results in about $1.5 billion in annual economic activity.  Expert input into the preliminary final EIS is thus critical to ensuring a thorough analysis and, ultimately, the protection of the fishery.

A sample of Bristol Bay tribal and government pandemic-related actions underscores the intensity of pandemic response in Bristol Bay.  The complexity of the pandemic response effort in Bristol Bay is also evident from the Bristol Bay Native Corporation COVID-19 Response website, which addresses impacts, risks, resources, and much more.    

In the heat of the early days of the pandemic emergency, tribes and other Bristol Bay leaders sought an extension of a Monday March 23 cooperating agency input deadline.  The Alaska District responded by baldly emphasizing that cooperating agency input on the document remained due on Monday March 23.  Tribes and other cooperating agencies thus submitted what they could by the close of business deadline on that day, with one tribal cooperating agency stating the following: 

… 45 days was not sufficient time to review and provide meaningful feedback on the [preliminary final] EIS given the breadth of changes to the project proposal and EIS analysis, which has been compounded in the last two weeks by the outbreak of COVID-19 limiting tribal resources, as well as distracting from the tribe’s role in important and urgent COVID-19 response measures for our community.  In this time, we have been on multiple teleconferences with the Federal Emergency Management Agency, Health and Human Services, Indian Health Services, Bureau of Indian Affairs, state, military and municipal partners, tribal health care organizations, and others. We have crafted and adopted emergency plans and issued important disaster declarations that open the door to critical aid for our tribal members. In fact, Pebble is the only issue that we work on where deadlines have not been adjusted out of a sensitivity to the current National Emergency; a fact that is inexplicable to us.

An hour or so after close of business on March 23, the Corps announced a one-week extension of the comment period.  As a different tribal cooperating agency stated in yet another request to extend the EIS and other Pebble-related deadlines,

[t]his meaningless one-week extension provided inadequate time for cooperating agencies facing significant obstacles related to COVID-19.

The Corps rejected extension requests, stating that the “Alaska District remains fully operational at this time” and not acknowledging in any way the burden on the tribes and other cooperating agencies. 

A few days later, the Corps sought input from Bristol Bay tribes and others on a draft Cultural Resources Management Plan for the proposed mine, which is required by the National Historic Preservation Act (NHPA), with a deadline of April 27, 2020.  The Corps did this despite the fact that the Advisory Council on Historic Preservation “has encouraged federal agencies to be flexible with [NHPA] deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the [pandemic].”

As one tribe said in response to the comment period,

The Alaska District [of the Corps of Engineers] is making us choose between protecting our cultural resources on one hand and protecting our community from COVID-19 on the other.

In an understatement, the tribe concluded by stating “[t]his is unacceptable.”   One would think that the Corps would acknowledge the challenges that exist in this situation, but the deadline passed without response from the Corps.  

 

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

When States Get Serious About Phasing Out Natural Gas

Posted on May 27, 2020 by Michael Gerrard

A decision issued on May 15 by the New York Department of Environmental Conservation (DEC) denying approvals for a new natural gas pipeline is sending shivers through the energy industry.  Though the decision was based primarily on water quality and wetlands impacts, it also demonstrated the force of New York’s new Climate Leadership and Community Protection Act (CLCPA), and New York’s resolve to phase out the use of natural gas.

Transco, a subsidiary of the Williams Companies, proposed to build a pipeline carrying natural gas (mostly from hydraulic fracturing in Pennsylvania) under wetlands and Raritan Bay in New Jersey, then under lower New York Bay, and connecting with an existing pipeline to serve National Grid customers in Brooklyn, Queens and Long Island.

In the bays the pipeline would have been built in a trench four feet under the water bottom in sediments that are contaminated with mercury, copper and other pollutants.   The construction would have stirred up the sediments and released the pollutants.

The Federal Energy Regulatory Commission approved this pipeline on May 3, 2019.  However, under Section 401 of the Clean Water Act the project needed a state certification that it would not  impair the state’s waters.

In its May 15 decision, DEC denied this certification, relying primarily on the impacts that the dispersed chemicals would have on a 1,000-foot wide corridor that included a critical resource area for hard clams..

DEC did not stop there, however.  It also looked at the pipeline’s impact on greenhouse gas emissions, which “cause climate change and thus indirectly impact water and coastal resources.”  DEC found, “GHG emissions associated with the Project include those from the full lifecycle of natural gas that will be transported through the Project. This includes upstream emissions, GHG emissions associated with the construction and operation of the Project, and downstream emissions.”  DEC explicitly stated that its analysis considered leakage of methane at the fracking sites in Pennsylvania, emissions where the gas is burned in power plants and buildings, and any emissions in between.  The look at out-of-state upstream emissions is especially interesting, as these are not usually considered in a state’s GHG emissions inventories.

DEC then stated, “In order to achieve the State’s critical and ambitious climate change and clean energy policies, the State needs to continue its ongoing transition away from natural gas and other fossil fuels. While the Department recognizes that many building assets in the State currently rely on natural gas for heating and other energy uses, the continued long-term use of fossil fuels is inconsistent with the State’s laws and objectives and with the actions necessary to prevent the most severe impacts from climate change. Therefore, the State must continue to support the ongoing transition to renewable and other clean sources of energy, as it works to ultimately eliminate all fossil fuel combustion sources that cannot be counterbalanced by guaranteed permanent carbon sequestration. Without appropriate alternatives or GHG mitigation measures, the Project could extend the amount of time that natural gas may be relied upon to produce energy, which could in turn delay, frustrate, or increase the cost of the necessary transition away from natural gas and other fossil fuels.”

In short, DEC said, “”[t]he use of natural gas … to produce electricity would be inconsistent with” the requirements of CLCPA, which “will ultimately require a transition away from natural gas and other fossil fuels to produce energy.”

The pipeline at issue here is a key part of a larger controversy.  In May 2019 National Grid imposed a moratorium on new natural gas connections.  Many observers felt this was a tactic to pressure New York to approve the pipeline. That led to an uproar, Governor Andrew Cuomo threatened to revoke the company’s franchise, and the Public Service Commission launched an enforcement action related to the moratorium. Pursuant to the resulting settlement agreement, National Grid issued a report on May 8, 2020 that identified energy efficiency, demand response and other measures as a way to meet the need for gas even without the pipeline.  DEC declared, “Critically, as compared to the project, National Grid concludes that this alternative is less environmentally impactful, in terms of water quality, GHG emissions and otherwise, and more consistent with the requirements” of CLCPA.

We will soon see if Transco challenges the New York decisions (and one issued the same day by New Jersey) in court.  Whatever happens, DEC has signaled that it is serious about phasing out most or all use of natural gas in the state, blocking the construction of new natural gas infrastructure, and reducing GHG emissions in accord with the mandates of the CLCPA.  

Has President Trump Just Limited Enforcement To Willful Violations?

Posted on May 22, 2020 by Seth Jaffe

On Tuesday, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery.  I’ll leave to others a discussion of the provisions telling agencies to look for more regulations to roll back.  I’m in general agreement with commenters who have said that those provisions don’t add much to Trump’s prior deregulatory efforts and are likely to face mostly the same reception in the courts as prior efforts.

Instead, I want to focus on this provision:

"The heads of all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law and as appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order, decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling."

I hate to give the President too much credit, but this may be the most significant deregulatory measure he’s taken.  As far as I can tell, Trump is telling agencies that they should only take enforcement action against persons who willfully violate environmental laws.  It is true that the President only tells agencies to “consider” policies “consistent with law,” but I think we all know what President Trump means when he tells agencies to consider cutting regulated entities a break.

Because this provision involves the exercise of agency enforcement discretion, it will be much harder to challenge in court.  Certainly, written policies saying that an entire agency will always exercise enforcement discretion to prosecute only willful violations, even in the case of statutes that plainly provide for strict liability, might cause raised eyebrows among judges, but if the agencies actually care about the outcome and draft the policies carefully, they might well withstand judicial review.

My advice to my clients, and I mean this in all seriousness, is pretty simple.  Take steps to carefully document your good faith efforts at compliance – and keep a copy of this EO in your back pocket at all times.

Not So Fast! Oregon DEQ Objects to EPA’s Draft NPDES Permits for Lower Columbia River Dams

Posted on May 21, 2020 by Rick Glick

On May 15, 2020, the Oregon Department of Environmental Quality (“DEQ”) submitted a letter to the Environmental Protection Agency (“EPA”) in which it objected to EPA’s draft water quality discharge permits (“NPDES permits”) relating to four federal dams on the Lower Columbia River. The dams in question are Bonneville, The Dalles, John Day, and McNary. The U. S. Army Corps of Engineers (“USACE”) operates the dams, which are key elements of the Federal Columbia River Power System (“FCRPS”).

Section 402 of the Clean Water Act (“CWA”) requires a NPDES permit for discharges of pollutants from “point sources.” A point source is a defined conveyance for direct discharges of pollutants, like a pipe. Courts have considered dams to be nonpoint sources that do not require permits, as dams typically do not add pollutants, but merely pass upstream pollutants through their spillways. However, dams with hydroelectric facilities often discharge oily waste from onsite transformers, which could include PCBs.

On that basis, EPA has determined that each of the four Lower Columbia dams require a NPDES permit to cover the direct discharges resulting from power operations. EPA specifically did not address indirect discharges through the spillways or turbines.

Section 401(a)(2) requires that EPA notify states whose water quality may be affected by the permits, including Oregon. In its letter, DEQ notes that although the NPDES permits do not address pass-through pollutants, section 401 allows DEQ to consider potential violations of any water quality parameter resulting from total dam operations. DEQ therefore objects to the permits and requests imposition of certain conditions to meet numeric and narrative temperature criteria, total dissolved gas (“TDG”) levels, biocriteria, and toxics substances criteria.

For temperature, DEQ would require a temperature management plan with adaptive management elements to address a yet-to-be-developed Total Maximum Daily Load (“TMDL”). As expected, on May 18, EPA initiated the process for establishing a TMDL for temperature in the Columbia and Lower Snake Rivers. We will be tracking this process and reporting in future posts.

For total dissolved gas, DEQ requests that EPA require the USACE to implement additional monitoring measures to increase compliance with the existing TDG TMDL through adaptive management. With regard to biocriteria, DEQ is asking USACE to allow the use of best technology available (“BTA”) or Oregon Department of Fish and Wildlife (“ODFW”) recommended technology to reduce fish entrainment and impingement. If the technology implemented does not reduce impingement, USACE would be required to develop an adaptive management plan and submit it to DEQ for approval. Finally, DEQ would require additional measures to reduce PCB discharges from each project to ensure compliance with Oregon toxics substances criteria.

DEQ’s objection letter is the latest development in a long-running dispute involving the effects of FCRPS operations on salmonid species listed under the Endangered Species Act (“ESA”). Oregon is an intervenor plaintiff in a lawsuit brought by the National Wildlife Federation alleging that the 2014 Biological Opinion, and later iterations, violated the ESA.

Under the Clean Water Act, EPA will now be required to hold a hearing to address DEQ’s objections and requests. By extending its section 401 authority to the FCRPS saga, DEQ has raised the bar for the seemingly endless tension between the benefits and consequences of this massive public power system, which was established in an era preceding our organic conservation statutes. It has been a bumpy ride and will continue to be for the foreseeable future.

Will Federal Rollbacks Lead to the Rise of Localism?

Posted on May 19, 2020 by Jerry L. Anderson

Based on research from law professors at Harvard and Columbia, the New York Times reported this month that the Trump administration has reversed, or is in the process of reversing, almost 100 federal environmental regulations. The changes weaken federal protection across virtually every sector of environmental, energy, wildlife, and public lands law. While legal challenges to these rollbacks may lessen their impact, the Trump administration will at the very least have begun to turn the tide of federal environmental regulation.

Much commentary has centered around the negative implications of this federal regulatory contraction for the environment. The New York Times article, for example, quotes experts as predicting that the changes will “increase greenhouse gas emissions and lead to thousands of extra deaths from poor air quality each year.”

But could there be a more optimistic view of this tidal change in federal regulation, or at least a silver lining? One possibility is that the clear signals of federal retreat on environmental control could lead to a return to local responsibility for environmental quality tradeoffs.

The theory runs this way: Since the late 1960s, citizens have turned to the federal government to solve all of our environmental problems.  The “environmental decade” of the 1970s ushered in an era of federal control over every type of environmental problem, e.g., water, air, wildlife, and waste disposal.  In this area, as in many others, federal control has been virtually plenary, despite the retention of state agencies’ authority to enforce the federal mandates. Although many environmental acts reserve to the states the authority to enact stricter regulations, in many states federal regulation has become the ceiling, not the floor. See, e.g., Iowa Code Section 455.B.173(2)b, providing that state effluent limitations shall not be more stringent than those established by the EPA.

We know there were good reasons for introducing national level regulation.  For one thing, states fighting for economic growth seemed unable, or unwilling, to impose the cost of environmental controls on the providers of jobs and taxes, engaging in a “race to the bottom.” But the unfortunate downside of 50 years of federal control has been that, at least in some jurisdictions, local users now feel a diminished (or nonexistent) sense of responsibility for those natural resources.  Any environmental problem is now a federal problem, one the local community has little power to affect.  Worse still, for many the EPA has become the bogeyman, the bad guy in Washington imposing onerous regulations on us poor locals.

So what if the bogeyman is gone?  What if we view the rollback of federal authority as an effective invitation to turn back to those locals and say – “we’re giving this responsibility back to you.”  Like the teenager going off to college – how will they respond when the parents are no longer looking over their shoulders?

Of course, I am painting with a broad brush here – I know there are many examples in which states have taken back the reins or acted to augment federal regulations.  For example, some states moved quickly to protect wetlands left behind by limitations on federal control or enacted more expansive state versions of NEPA. Over the last couple of decades, state and local governments have taken the lead on issues such as climate change, when meaningful federal action was absent. Certainly, greater local control may be prevented or at least limited by preemption issues (either federal-state, or state-local). Moreover, for some environmental issues, spillover effects on other states absolutely cry out for federal intervention. 

Nevertheless, it’s worth considering whether the extraordinary campaign of federal deregulation we are witnessing might cause a broader shift in our attitude about environmental issues. If federal control is pared back, to those areas where it’s absolutely necessary, is it possible that will we empower locals to come together once again, to start making their own decisions about how clean they want their air, water, and land to be?

Schrödinger’s Climate

Posted on May 18, 2020 by JB Ruhl

Question: Will we meet the goal of holding the rise of mean global temperature to below 2°C?

Answer: Yes and no, simultaneously.

Welcome to Schrödinger’s climate, a paradox in which commentary on climate change policy assumes we will meet the 2°C goal, for that is the motivation behind aggressive emission controls and other mitigation measures, but at the same time assumes we will not meet the 2°C goal, for that is the motivation behind aggressive measures to adapt to the impacts of climate change.

Austrian physicist Erwin Schrödinger famously described a paradox that follows from quantum physics theory, which posits that particles in a quantum system exist in multiple states at the same time, assuming a final position only when observed from the external world. In his scenario, a cat is placed in a sealed box with a quantum particle and, through a contraption that reacts to the state of the particle, will either live or die depending on the state of the particle. Under quantum theory, Schrödinger argued, the cat would be simultaneously alive and dead until the lid of the box was unsealed and lifted off, at which point the observer would see the cat as either alive or dead.

It is important for climate change mitigation policy to have a goal. Whether expressed as parts per million of atmospheric carbon dioxide or average global temperature rise, the goal is used by mitigation policy commenters to rally support for emission controls. The goals used to be 350ppm and 1.5°C. Those are history now. The Paris accord moved the upper limit to 2°C. “We will hold the rise to below 2.0°C!”

At the same time, climate change adaptation policy commenters use scenarios built around different temperature rises to motivate action. While it is not as if no adaptation will be necessary in a 1.5°C or 2.0°C scenario, things start looking really messy above 2.0°C. If we are honest, 2.0°C may be a best-case scenario, so adaptation policy needs to get rolling. “We will not hold the rise to below 2.0°C!”

The Schrödinger’s climate paradox arises from the necessity of pursuing both mitigation policy and adaptation policy at the same time. There was a time when talk of adaptation was frowned upon, lest it lead to complacency on mitigation policy. Even modest sea level rise, however, threatens island nations and developing nations with large coastal populations, pushing adaptation into the international climate policy discourse. As it became clearer and clearer that climate change will have a wide range of nasty effects in many parts of the world—developed and developing—the need for adaptation policy became increasingly apparent. The urgency of mitigation policy depends on meeting the 2°C goal. The urgency of adaptation policy becomes more salient above the 2°C goal. To engage in the broad climate policy discourse these days—to advocate action across the board—one must enter the box of Schrödinger’s climate. 

Yet this leads to awkward conversations between those focused on mitigation and those focused on adaptation. “We need to prepare for massive human migration,” says the adaptationist. “Oh my,” says the mitigationist, “But we’re going to hold it to below 2.0°C, right?”  “Uh, sure,” says the adaptationist, “But we really need to prepare for bad stuff happening.” “Um, right,” says the mitigationist, then changes the topic. Tension between mitigationists and adaptationists remains in the air inside the Schrödinger climate box.

We do not have the luxury of lifting the lid off the box to observe whether the future is above or below 2°C. We are a world in dire and present need of aggressive mitigation and adaptation policies. Adaptation cannot be portrayed as a contingent policy for mitigation failure. Acting as if adaptation policy need only prepare us for the worst if we don’t meet the 2°C goal means we won’t be prepared for the worst. We need to shape mitigation policy around the idea that we will attain 2°C, and we need to shape adaptation policy around the idea that we will not. Ironically, this means climate policy must behave as if 2°C is both alive and dead.  This conundrum should no longer be cause for uncomfortable conversations.  “Embrace the paradox of Schrödinger’s climate!”

NASA Satellite Data May Provide A Glimpse into the Future

Posted on May 12, 2020 by Todd E. Palmer

NASA's Earth Observing System Project gathers data from a fleet of satellites orbiting the planet.  This system of satellites is playing an increasingly important role in measuring air pollution and informing regulatory policy on a global scale. Dr. Tracey Halloway at the University of Wisconsin – Madison leads the NASA Health and Air Quality Applied Sciences Team (HAQST) which is doing extensive research in this area.   HAQST is staffed by air quality and public health scientists from government offices and universities across the country. Their wide-ranging projects include measuring and tracking global pollution levels, climate change indicators, and regional haze.  HAQST has created a website summarizing available satellite resources which can be accessed by stakeholders and the general public for making better informed air pollution policy decisions. I encourage those of you with an interest in this area to explore the research being undertaken by this group.

Most recently, NASA released satellite data documenting the dramatic reduction in nitrogen dioxide (NO2) emissions measured in the United States since shelter-in-place orders went into effect to quell the COVID-19 pandemic.  This data was collected from instruments on NASA's Aura and the European Space Agency's Sentinel-5 satellites. NASA has compared the average levels of ambient NO2 experienced in the United States between March 2015 through 2019 with those experienced in March 2020.  The comparison is striking:

These reductions, ranging from 30% to 50%, correlate with the significant decline in the combustion of fossil fuels during the pandemic, primary in mobile sources. Similar reductions where observed in China when it cracked down on combustion sources in advance of the 2008 Olympics.  This data provides a glimpse into what might be achieved if the United States were to adopt more aggressive policies encouraging alternative fueled vehicles and expanded renewable energy generation. However, the dire financial impacts associated with these reductions must also be considered as we contemplate the implications of the emission data gathered during this unusual situation. 

EPA’s War on Science

Posted on May 6, 2020 by Robert B. McKinstry, Jr.

Since its creation under President Nixon five decades ago, EPA has, for the most part, been an independent agency utilizing the best science available, even where the science led it to policy results contrary to the predilections of the party in power – that is until the Trump Administration.  Two recent actions by the Trump EPA, one final and the other proposed, exemplify the sad and stark departure by the Agency from this prior practice.

An example of the agency’s prior practice is the Advance Notice of Proposed Rulemaking issued following the Bush Administration’s defeat in Massachusetts v. EPA.  In that case, the agency staff drafted a lengthy and well-reasoned analysis indicating how greenhouse gases might be regulated under the Clean Air Act governed by the law and science.  The Bush Administration published that analysis, prefacing it with a number of letters by appointed officials presenting alternative views consistent with the Administration position rejected by the Supreme Court - - but the Agency’s well-reasoned analysis constituting the bulk of the notice was nevertheless published.

As noted, two recent actions by the Trump EPA represent a departure from this science-driven regulatory approach; they also share the distinction of being roundly condemned by EPA’s Science Advisory Board and the relevant scientific community.  Both have the transparent objective of preventing the adoption of regulations whose health benefits clearly outweigh their costs.  The two actions are: (1) the final rule reversing the necessary and appropriate finding underlying the Mercury and Air Toxics Rule (“MATS”), National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, Docket No. EPA-HQ-OAR-2018-0794 (“Revised Necessary and Appropriate Finding”); and (2) the proposal cynically entitled Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18768 (Apr. 30, 2018); Supplemental Notice, 85 Fed. Reg. 15396 (Apr. 17, 2020), Supplemental Notice, 85 Fed. Reg.21340 (Apr. 17, 2020) (extending comment period to May 18, 2020), proposing 40 C.F.R. pt. 30 (“Transparency Proposal”). 

Over the unanimous objection of the regulated industry and environmental groups, the Revised Necessary and Appropriate Finding reversed the Obama EPA’s finding that it was necessary and appropriate to regulate hazardous air pollutant emissions from the utility industry under section 112 of the Clean Air Act.  The finding that was reversed was made by the Obama EMA on remand from the Supreme Court’s decision in Michigan v. EPA, holding that EPA needed to consider cost in making a necessary and appropriate finding.  On remand, the Obama Administration EPA considered cost in several ways and renewed its finding that it was necessary and appropriate to regulate hazardous air emissions from the utility industry. 

After the change of administrations, the Trump EPA decided to revisit the necessary and appropriate finding and, in its Revised Necessary and Appropriate Finding, found that it was not necessary and appropriate to regulated hazardous air pollutant emissions from the utility industry (this was the fourth flip over four administrations on this issue).  The Revised Necessary and Appropriate Finding ostensibly left the substantive requirements of the MATS rule in place.  Indeed, the utility industry had already complied with those substantive requirements by either closing plants or installing control equipment. However, under the Clean Air Act, a necessary and appropriate finding is a prerequisite to regulating hazardous air pollutants from the utility industry.  EPA’s reversal of the finding therefore has the potential to increase its chance of success in the on-going challenges to the MATS rule.  Reversal of the rule could undermine the ability of regulated utilities to recover sunk capital costs.

In issuing the Revised Finding, EPA decided not to consider “co-benefits.” The vast majority of the monetized benefits arising from regulating air toxics from the utility industry arise from the fact that most of the toxic acid gases and fine particulates are a mixture of listed hazardous air pollutants and conventional pollutants.  It is, therefore, impossible in epidemiological surveys in most cases to segregate the impacts of the components that are listed hazardous pollutants from the impacts of the components that are conventional pollutants.  Moreover, the same pollution control equipment that removes the hazardous air pollutants will also remove the conventional air pollutants.  Thus, for example, hazardous hydrochloric acid, hydrofluoric acid and hydrocyanic acid all form acid aerosols having the same impact on the lungs as the nitric, nitrous, sulfuric and sulfurous acid aerosols formed from “conventional” NOx and SOx air pollutants; and the same treatment technologies will remove hazardous and “conventional” acid gases.  For that reason, the direct health benefits of controlling these pollutants are labeled as co-benefits, and, according to economists, can also be considered negative costs. 

In the Revised Finding, EPA, contrary to the recommendations of the Science Advisory Board, would exclude these benefits/negative costs, as well as non-monetized benefits, from its consideration.  Instead, EPA would consider only costs to benefits relating to control of a hazardous air pollutant whose impacts can be segregated from other pollutants that are not listed as hazardous and can be monetized.   

Because EPA did not reverse the requirements of the MATS rule, the only apparent reason for proceeding with the revised finding appears to be an intent to advance a rule for the consideration of costs that will make it more difficult to regulate pollutants in the future.  Most pollutants have a variety of impacts, are emitted into the atmosphere as a mixture of pollutants, mix with other pollutants in the environment, and have impacts on receptors that cannot be segregated.  For example, most of us have observed the blue skies and clear air resulting from the reduction in automobile, truck, and air traffic as a result of COVID-19 restrictions.  Under the rationale underlying the Revised Necessary and Appropriate Finding, proposals to reduce greenhouse gas emissions from these sources could not consider the many health, environmental and welfare benefits arising from reductions in NOx and fine particulates.  While perhaps that is the underlying intent, the rationale could also be extended to water pollution, hazardous and solid waste, and other regulations in the future.

The Transparency Proposal might seem to be a proposal that would promote sound science and good government procedure; it provides:

…when EPA develops regulations, including regulations for which the public is likely to bear the cost of compliance, with regard to those scientific studies that are pivotal to the action being taken, EPA should ensure that the data underlying those are publicly available in a manner sufficient for independent validation.

83 Fed. Reg. 18768.  In fact, the proposed regulation is an all too transparent attempt to preclude reliance on results that are crucial for the promulgation of regulations to protect health and the environment, even where those results have met the rigorous requirements of scientific peer review.

Most notably the proposal applies specifically to “dose response data and models” supporting a regulation, requiring that they be “publicly available in a manner sufficient for independent validation. . . in a fashion that is consistent with law, protects privacy, confidentiality, confidential business information, and is sensitive to national and homeland security.  40 C.F.R. § 30.5, proposed 83 Fed. Reg; 18773.  In fact, this qualification makes most data and studies critical to support regulations out of reach for agency reliance.  The underlying data in human health studies is invariably private information that, by the words of the proposal, would be unavailable, for example, many dose response animal studies are business confidential.  Additionally, most models upon which EPA relies are proprietary and are available only for a significant price.  The proposal would also seemingly preclude reliance upon metadata and review articles appearing in peer reviewed publications, since the proposal would require that the underlying data be available. 

In recognition of these fatal flaws, the proposal has been criticized by EPA’s Science Advisory Board and major scientific organizations.  Moreover, there has not been a showing of any need for the proposed regulation.  The only reasonable conclusion is that this proposed regulation, like the Revised Necessary and Appropriate Finding, is an effort to promote the Trump Administration’s anti-regulatory agenda contrary to the dictates of sound science, in short, a war against science.  There is still an opportunity to comment.  The comment period has been extended to May 18, 2020.

What Judges Are Saying About Climate Science

Posted on May 4, 2020 by Scott Fulton

It’s amazing how quickly humanity’s concern can shift when circumstanc­es demand it, and the coronavirus pandemic has riveted our attention. In this hour, talking about anything else risks seeming detached or indifferent to the enormous suffering, disruption, and dislocation that the COVID-19 vi­rus has unleashed on the world. But I need to alert you to a new ELI report analyzing the other major challenge that will be waiting for us on the other side of our current crisis, one that, like the pandemic, is deeply informed by science.

Climate Science in the Courts: A Review of U.S. and International Ju­dicial Pronouncements” looks at the question of judges’ treatment of the basics of climate science. We had noticed that even in cases like the 9th Circuit’s recent decision in Juliana, where the court tossed the case out on standing grounds, essentially defer­ring to Congress to solve the climate problem, the judges expressed rather grave concerns about the climate phe­nomenon.

Similarly, in the City of Oakland case, U.S. District Judge William Alsup, while dismissing the case on political-question grounds, likewise reflected deep concern about the implications of inaction in the face of climate science. This led us to wonder whether judicial concern about climate change had become a consistent thread in case dispositions, whether this reflected broader embrace of the basic science at issue, and, if so, whether judicial acceptance of the science should be more influential in the public debate.

With material and moral support from the ELI Board, we commissioned a review that considered these ques­tions. “Climate Science in the Courts” answers the two questions posed above rather definitively. With remark­able consistency, in the time since the 2007 Supreme Court decision in Mas­sachusetts v. EPA, federal courts in the United States — and for that matter foreign courts — have been treating as valid and authoritative the science that says that the climate is warming and that human activity is driving the observed and anticipated change.

According to the report, despite the fact that advocates and courts have had the opportunity to entertain or advance skeptics’ views challenging these climate science basics, there have been very few instances in which skeptics’ arguments have been made in court and not a single instance in this time horizon in which a court has given credence to such arguments. Rather, the judicial pronouncements since Massachusetts have consistently treated basic climate science as being beyond reasonable dispute.

This judicial acceptance of basic climate science has not necessar­ily translated into intervention by the courts. Indeed, at least in the United States, particularly at the appellate level, the judiciary has been reticent, largely deferring to the representative branches of government to bring for­ward solutions.

But should judicial views on climate science be more influential in the pub­lic conversation? This report posits that the answer to this question should be “yes.” The courts remain among the most respected of public institutions and operate in a setting that demands fidelity to facts and truth, and where there is meaningful accountability for veracity. If, in this setting, conclusions about climate science are being ren­dered, this should be important to the public debate for two main reasons.

First, ideas that have secured no traction in court should presumably be less deserving of credit in the public realm; conversely, conclusions consis­tently derived by the part of our institu­tional structure charged to crunch truth should be deserving of considerable weight. Indeed, greater understand­ing of judicial treatment of climate science might move public thought to align more fully with considered judicial views.

Second, U.S. courts, while alarmed by what the science is saying, have largely been deferential to the rep­resentative branches of government for purposes of fashioning solutions. Greater understanding of how the courts are evaluating climate facts might help break political logjams and overcome misconceptions or misrepre­sentations that impede the sense of ur­gency needed for the very political solu­tions for which the courts are waiting.

Science is of course playing a major role in the sorting of the issue most immediately before us — the coronavi­rus pandemic. And we are seeing broad societal acceptance of fairly dramatic changes based on what the data are telling us about the COVID-19 threat. It will be interesting to see whether this experience will leave society any better able to come together around climate science. The courts are already there it seems.

SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Posted on May 1, 2020 by Theodore Garrett

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.

The Court’s opinion in Maui reflects an effort to find a “middle ground” that avoids the consequences of an overly broad or overly narrow interpretation of the statute.  But what is a “functional equivalent”?  It’s kinda sorta like a direct discharge.  Its meaning will evolve as applied in particular cases or, as characterized thusly in Justice Alito’s dissent: “That’s your problem. Muddle through as best you can.”  But muddling through is problematic because affected industrial and municipal dischargers, subject to enforcement, need to know whether or not they need Clean Water Act permits.  Unless or until more guidance is provided by EPA, the lower courts or Congress, affected parties will be left to wrestle with the Court’s new “functional equivalent” standard. 

The majority felt compelled to reach a “middle ground” because it found other positions too extreme.  The court rejected the view of the County and the Solicitor General (as amicus) that discharges through groundwater should be excluded, stating that it would open a loophole allowing easy evasion of the statutory provision’s basic purposes (for example by locating a pipe a few yards from a surface water) and was not reasonable in light of the statute’s inclusion of “wells” in the “point source” definition.  The Court also was not satisfied with the Ninth Circuit’s “fairly traceable” criterion, concluding that it might require permits in unexpected circumstances not readily foreseen, such as discharges that reach navigable waters many years after their release and in highly diluted forms. 

So when is a discharge “functionally equivalent”?  Justice Breyer’s opinion states that time and distance will likely be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. How much time?  How far?  What underground material or dilution might defeat a permit requirement?  The Court is not in a position to say because “there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.” 

Where does that leave us?  The lower courts will need to wrestle with this issue and “provide additional guidance through decisions in individual cases” Justice Bryer states, referring to the “traditional common-law method" as useful even in an era of statutes.  In the meantime, affected parties face uncertainty. 

In a dissent, Justice Thomas (joined by Justice Gorsuch) concludes that the statute excludes anything other than a direct discharge.  Justice Thomas also states that the Court’s opinion “gives almost no guidance, save for a list of seven factors” but does not “commit to whether those factors are the only relevant ones, whether those factors are always relevant, or which factors are the most important.”  Justice Alito also dissented, stating that the Court “makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”

One cannot be sanguine that Congress will address this issue.  Interested parties will thus need to monitor how the lower courts and EPA apply the Supreme Court’s new “functional equivalent” standard.