Scott Pruitt Just Solved All of the Problems with Superfund. Not.

Posted on May 17, 2017 by Seth Jaffe

Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator.  I’m not optimistic that this will cure, or even ameliorate, what ails CERCLA.  

First, the memorandum gets off on precisely the wrong foot.  Administrator Pruitt states that:

 The Superfund program is a vital function of the U.S. Environmental Protection Agency, and under my administration, Superfund and the EPA’s land and water cleanup efforts will be restored to their rightful place at the center of the agency’s core mission.

What’s the problem with this statement?  When EPA has actually looked at the top risks addressed by its programs, risks from Superfund sites never even make the list.  Except for a limited set of circumstances, Superfund has been a colossal waste of money, resources, and focus for EPA.  If Administrator Pruitt wants to reform Superfund, he shouldn’t be “placing it at the center of the agency’s core mission.”  He should be further deemphasizing it.

Even if one assumes that this is just puffery, the new approach is flawed on the merits, for at least two reasons.

First, the problem with Superfund is that it’s the last bastion of command and control regulation.  I understand that Pruitt may want to take the reins precisely to reduce the number of ukases issuing from the regional offices.  However, the underlying problem will remain; he just thinks he’ll be providing kinder, gentler, command and control.  Wouldn’t it be better to support fundamental reform of CERCLA, to create a privatized program, such as in Massachusetts and other states?

Finally, while PRPs might just wish Superfund went away, in the real world, PRPs just want certainty and timely decisions.  Aside from a few cases where Pruitt might put the kibosh on expensive remedies that don’t eliminate real risks, I fear that in the majority of cases, all that will happen will be that cleanup decisions will be delayed; PRPs will pay more as a result of such delays.

This administration continues to give regulatory reform a bad name.

BUSINESS AND PARIS: CAN WE TALK?

Posted on May 16, 2017 by Charles F. Becker

Addressing environmental issues on a world scale will always be a difficult proposition.  The most recent attempt, the Paris Climate Accord, was no exception.  Every nation, leader and business had an opinion on what needed to be done.  Eventually, enough countries signed on to allow the Paris Agreement to be deemed “in force.” 

What was surprising about the discussions leading up to the Agreement was that 81 companies chose to publicly declare they would take action to reduce their emissions.  The companies included Wal-Mart, Mars, IKEA, Siemens, Amazon, GE, GM and Best Buy.  Not a bad group of supporters.  The declarations were, of course, prior to the election and President Trump is now deciding whether the United States is better served being out of the Paris Agreement.

One would think that after the election, there might be some changes in corporate support for the Accord.  But not so.  Most of the signing companies, and hundreds more, have reaffirmed their commitment to reduce their emissions.  Even coal companies have expressed support.  In making his decision on Paris, the President might want to consider the viewpoint of those businesses.  For example, in a March statement to Bloomberg, representatives of Apple, Amazon, Google and Microsoft said:

We believe that strong, clean energy and climate policies, like the Clean Power Plan, can make renewable energy supplies more robust and address the serious threat of climate change while supporting American competitiveness, innovation and job growth.

 

A common theme from all of the corporate supporters is to acknowledge that climate change is real and that they want to do something about it for the good of the planet. 

I have to say, however, if that’s really what the businesses believe, they aren’t helping their cause by saying it to a President who has very publicly advanced a contrary view.  The good news is, these businesses didn’t really mean it.  They were just setting out alternative facts.  Businesses care about “shareholder value” -- what action will be best for the bottom line.  That’s not a shocking concept and it provides a very understandable basis for supporting the Paris Agreement.  They just need to be willing to explain it better.  I believe this is the letter the companies really meant to send: 

Dear President Trump:

 

Regarding your consideration of withdrawing from the Paris Climate Agreement, please don’t do it.  We know you’ve got our best interests at heart, but you’ve done enough.  Let us explain.

 

We sell things—steaks, trucks, drain pipes, wigs, designer clothes.  You know, stuff people can’t live without.  It’s a whole different world from selling real estate.  You get by with a Phase I every once in a while, but we have regulation on everything we do.  And it’s been that way for a long time.

 

The difficulty is that we have discovered two simple truths.  First, people (and by that we mean our customers, your voters) actually want environmental regulation.  Even now, after all of your great efforts to explain why climate change was invented by the Chinese and late night talk show hosts, Pew Research says that 74% of the people (our customers, your voters) believe that the country should do whatever it takes to protect the environment.  We know, that’s made up of 52% Republicans and 90% Democrats, but we did our own research and discovered that we sell coffee and cola and cars to Republicans and Democrats.  We’re as shocked as you, but there it is.

 

Second, and this is really important: Quit changing the rules!  We were just getting used to the regulations.  We have already taken steps to address future goals, like those in the Paris Agreement.  For example, many of us have converted our facilities from coal to gas.  We’re not going back. 

 

Don’t get us wrong.  We’ll vote for you and we wish you nothing but the best.  But Here’s the Thing (sorry, couldn’t resist): we’re going to outlive your time – by a lot.  In a few years, you’ll be gone from office.  Sooner or later the Democrats are going to be back in power.  Sure, they all have really small hands, but what do you think they’re going to do with them?  You guessed it – they’re going to change your rules and go back to where we are now.  We’ve seen it over and over.  And they are going to make up for lost time with 74% of the people (our customers, your voters) saying it’s a great idea. 

 

What we’re trying to say is THIS WHIPSAW REGULATION IS KILLING US!

 

Only you can make it stop and leaving us in the Paris Agreement would be a great place to start.

 

We can’t tell you how appreciative we are of your attempts to reconsider some of the regulations for a few years.  Really, thank you.  But we need to make money and it’s a lot harder to do when we have to keep changing all our procedures and equipment that 74% of the people (you know) said they wanted in the first place.

So, if you could see your way to just switching your focus to getting that really important wall built and put these environmental changes on the back burner, that would be huge . . . believe me.

                                                            Most Sincerely,

 

                                                Your Friends Making Incredibly Great Stuff

The Cuyahoga River Makes News Again

Posted on May 11, 2017 by Michael Hardy

To many environmental law veterans, the name of the Cuyahoga River triggers memories.   The 1969 fire on that River galvanized major reforms to the water pollution laws of the United States.

As I sit in my 36th floor office and look out the windows in several directions, I can see most of the upper Cuyahoga River course through the “Industrial Flats” as it winds from the Cleveland Harbor north on Lake Erie to the large Arcelor Mittal steel plant nearly six miles downriver.  Known as the “crooked river” by Indian lore, it has many oxbows and switchbacks with colorful names like “Collision Bend” and “Irishtown Flats”.  Home to rowing teams, large tugs, iron ore freighters, and sand and gravel barges, it is a busy river requiring constant upkeep through dredging.

The Cuyahoga River has made remarkable progress since the 1969 fire, with many targeting the fifty-year anniversary of the fire for the removal of its “impaired” classification.  But the River still suffers from years of industrial and municipal sewage disposal.  Although a variety of fish have returned, it should not be surprising to know that slightly elevated PCBs remain in the sediments, a fact that complicates the dredging and disposal of the spoils.  Therein lies the newest chapter in the River’s history.

Congress has funded the dredging of the Cuyahoga River for nearly 40 years and, in 2015, allocated resources to the Army Corps of Engineers (Corps) for that year.  Accordingly, the Corps filed an application with the Ohio Environmental Protection Agency (OEPA) for a water quality certification under Section 401 of the Clean Water Act before commencement of the dredging project.  The OEPA, concerned over elevated levels of PCBs in some of the dredging spoils, authorized the dredging to proceed, provided the Corps disposed of all the dredged material in on-site “confined disposal facilities” (CDFs).  Based on sampling and analysis it conducted, the Corps agreed to utilize a CDF for the sediments dredged from the Cleveland Harbor, but objected to the required use of a CDF for the spoils coming from the “Upper Channel” of the River.  Calculating what it called a “Federal Standard” to identify less costly alternatives, the Corps proposed instead to use “open lake disposal” for those materials, which immediately drew the opposition of the OEPA and Ohio Department of Natural Resources.  The Corps argued that the use of a CDF for those spoils would add nearly $1,300,000 to the cost of the project.  The Court wanted the “Federal Standard” to override Ohio’s anti-degradation water quality rules and other initiatives designed to improve the health of Lake Erie.  Instead of an administrative appeal of the OEPA conditional certification, the Corps gave the State an ultimatum – either find a “non-federal source” for the added costs or forfeit the Congressionally authorized dredging.  Because of the potential dire economic consequences to the steel mill and other businesses, the State sued the Corps and obtained a preliminary injunction.  The District Court sided with the State and ordered the dredging to commence, with the responsibility for the incremental costs to be determined in subsequent proceedings.

On May 5, 2017, the District Court issued a 52-page Opinion finding that the Corps’ actions were “arbitrary and capricious” under the Administrative Procedure Act. State of Ohio v. The United States Army Corps of Engineers, U.S.D.C. N.D.Ohio Case No. 1:15 – CV 629.  Among other things, the Court found that the Corps’ elevation of its so-called “Federal Standard” to supersede duly promulgated water quality standards of Ohio exceeded the Corps’ authority. The Corps could not make up its own rules to evade its obligations to comply with properly adopted environmental standards or to fulfill Congressional mandates to dredge the entirety of the Cuyahoga navigation channel and use a CDF to manage the spoils.  Accordingly, the District Court ruled that the Corps must absorb the added costs of the on-land CDF disposal.

RCRA 2020: Has That Vision Been Lost -- Or Has EPA Just Temporarily Misplaced Its Reading Glasses?

Posted on May 2, 2017 by David Van Slyke

The Government Performance and Results Act (GPRA) was enacted in 1993 to improve governmental performance by requiring federal agencies to (1) develop five-year strategic plans containing long-term, results-oriented goals; (2) prepare annual performance plans and goals; and (3) prepare annual performance reports that review the agency's success or failure in meeting its goals.

Relative to U.S. EPA’s responsibilities under RCRA’s corrective action efforts, GPRA has been implemented through the “RCRA 2020” program under which EPA established (via a 1999 guidance document) two Environmental Indicators (“EIs”) to measure its progress in achieving national cleanup goals:

  • Current Human Exposures Under Control - Ensures that people near a particular facility are not exposed to unacceptable levels of contaminants.
  • Migration Of Contaminated Groundwater Under Control -  Ensures that contaminated groundwater does not spread and further contaminate groundwater resources.

The RCRA 2020 Corrective Action Baseline List currently includes 3,779 RCRA facilities.  Initially introduced by EPA in 1999, that initial list (much smaller -- only 1714 facilities) became the basis for EPA’s 2005 GPRA performance goals.  The list has been updated in 2008, 2010, and most recently in April 2013.  The Baseline List includes properties that are heavily contaminated, others that were contaminated but have since been cleaned up, and properties awaiting full investigation that may require little or no future corrective action.

EPA’s overall “aspiration goal” is to “largely implement[ ] final remedies at 95 percent of facilities requiring corrective action by the year 2020.”  While it is not at all clear what “largely implement” means, in addition to that goal the following GPRA goals for 2015 apply to the 2020 Baseline list (in percentages of facilities meeting those goals):

  • human exposures under control
  • migration of contaminated groundwater under control
  • final remedy construction
  • performance standards attained

It is now unclear, however, whether EPA is actually on track to meeting its 2020 goals.  While the Agency has published national EI results for the 2005 and 2008 baseline lists, including then-current statements for each facility as to whether or not the two key EIs have been met, EPA appears not to have generated (or at least not made publicly available) similar compiled results for the much more expanded 2010 or 2013 lists of facilities.  

Further, EPA’s March 21, 2017 memorandum regarding the President’s 2018 budget for the Agency would reduce the Headquarters and Regional program office resources for the RCRA corrective action program by 33.4 FTEs.  That budget memo also reduces the Office of Enforcement and Compliance Assurance’s (OECA) civil enforcement and compliance monitoring budget by a total of 262 FTEs; some unknown portion of that cut will fall on the RCRA corrective action program.  (In an ironic and perhaps inadvertently amusing entry, that same budget memo proposes to increase the OECA budget by 10 FTE “to provide 24/7 security detail for the Administrator.”)

At best, given today’s state of play, the current vision for RCRA 2020 is blurry.  At worst, well…, um…, the year 2020 is only 975 (more or less) days away.

Perhaps It Should Be Renamed the “Really, Really, Endangered Species Act”

Posted on May 1, 2017 by Seth Jaffe

Last Friday, the 9th Circuit Court of Appeals affirmed a District Court decision ruling that the Fish & Wildlife Service decision that listing of the whitebark pine as endangered or threatened was “warranted, but precluded” was not arbitrary and capricious.  The decision seems correct, but as the frustration of the Court reflects, it’s only because the ESA is designed to fail.

The procedural history is lengthy and not really necessary to repeat here.  Suffice it to say that the whitebark pine is both an important species and in significant distress, if not dire straits.  In response to a listing petition, the FWS issued a finding that listing the whitebark pine is “warranted, but precluded.”  Thus, the FWS instead added the whitebark pine to the list of “candidate species.”

A candidate species is one for which [FWS has] on file sufficient information on biological vulnerability and threats to support a proposal for listing as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher priority listing actions.

The particular issue here was whether the FWS has any authority to base listing decisions on anything other than the Listing Priority Number assigned to the species.  As the Court noted, however, the ESA provides only that the ranking system is intended to “assist” in the identification of species for listing.  There is nothing that makes the LPN determinative.

That’s all well and good, but it does nothing for the whitebark pine.  As the Court stated:

When pending actions outstrip available resources, the Secretary must make its choices and live with its priorities, even though that means leaving factually (if not listed) threatened or endangered species without the protections of the ESA.

In other words, to paraphrase Eddie Cochran, “I’d like to help you tree, but you’re too inanimate to vote."

Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

Posted on April 13, 2017 by Seth Jaffe

On Tuesday, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations.  The Court found that EPA had no statutory authority to exempt AFOs from the reporting regulations.

The decision is also important because it is another in a recent line of cases regarding the extent of agency authority to interpret statutes.  The issue was whether EPA had authority to exempt smaller AFOs from reporting requirements, on the ground that it could not:

foresee a situation where [it] would take any future response action as a result of such notification[s].

Although EPA did not explicitly justify its rule on de minimis grounds, the Court understood EPA to be making a de minimis argument and analyzed the rule in that context.  The Court concluded that EPA had not justified a de minimis exception, because:

an agency can’t use it to create an exception where application of the literal terms would “provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.”

Here, the Court found that there were benefits to requiring reporting without a de minimis exception.  That was enough to vacate the rule.

It is worth noting the concurrence from Judge Janice Rogers Brown, who agreed that EPA had overstepped, but was concerned about the panel opinion’s summary of Chevron as being focused on whether the agency’s interpretation is “reasonable.”  Stoking the anti-Chevron flames, Judge Brown wrote to make clear that the “reasonableness” inquiry does not apply at step one of Chevron.  Ever-vigilant, she wants to be certain that courts do not abdicate their duty to state what the unambiguous language of a statute means.

I don’t have any problem with that.  Phase I of Chevron is an important bedrock principle.  If there’s no ambiguity, there’s no deference.  However, it’s worth noting that Judge Brown also stated that:

an Article III renaissance is emerging against the judicial abdication performed in Chevron’s name.

Notwithstanding the congressional discussion of this issue, I remain skeptical that any such “Article III renaissance” is occurring.  One concurrence from one appellate judge who happens to be named Gorsuch does not a renaissance make.

Of course, the really important part of Judge Brown’s concurrence was her citation to Luck Be a Lady, from Guys and Dolls, the greatest musical of all time.

Trump’s “Tortured” Maneuvering Can Be Legal Maneuvering

Posted on April 11, 2017 by Richard G. Stoll

Bob Sussman is a former high-ranking Obama and Clinton EPA official with a stellar academic and professional background.  He recently published in Inside EPA a thought-provoking piece entitled “Trump’s Tortured Maneuvering on Climate Change.”

No matter what your views on climate, Bob’s piece is worth reading.  I find much to agree with in Bob’s observations, but would respectfully disagree with one. 

Focusing on the president’s March 28 Executive Order (EO), Bob raises the valid question of why Mr. Trump touted it on job-saving, energy independence grounds.  Bob makes a strong case (as if he really needed to) that coal mining jobs are dwindling due to market forces and that the U.S. energy outlook is just fine. 

Bob posits that Trump’s job-energy independence focus reveals a divide and major discomfort within the Administration on whether and how much to deny that humans are involved with climate change.  He notes that the March 28 Order side-steps any position on both the “Endangerment Finding” and the Paris Accords.   

So far so good.  My respectful disagreement relates to Bob’s argument that the Trump EPA would have a difficult time sustaining major cutbacks to the Obama Clean Power Plan (CPP) on judicial review.  He speculates that a new Trump CPP might simply retain “building block 1” (plant efficiency improvements) from the 3-block “beyond-the-fenceline” Obama CPP.  He argues that “the courts may well balk at this approach as a contrived effort to duck the challenge of climate change by taking refuge in narrow legal arguments.”

Here is why I disagree:

a.  Following the 2007 Supreme Court Massachusetts ruling and EPA’s subsequent Endangerment Finding, EPA is not required by the Clean Air Act (CAA) to issue GHG rules with any particular degree of stringency – EPA must just issue rules.

b.  The “beyond-the-fenceline” features of the Obama CPP are based upon truly adventurous interpretations of the words of the CAA.  There is certainly nothing in the CAA that requires those interpretations.  (Recall the U.S. Supreme Court has taken the unprecedented step of staying the Obama CPP throughout the entire judicial review process.)  Even if the D.C. Circuit were to uphold these interpretations, it would only be upholding the Obama EPA’s discretion to adopt them; the Court could not rule that such interpretations were mandated by the CAA.

c.  The Supreme Court and D.C. Circuit case law are clear on the following points:

i.  A new administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, even where there are no new facts or information, so long as the new administration adequately explains the basis for the reversal;

ii.  There is no heightened standard of judicial review when an agency reverses course; and an agency need not convince the court that the reasons for the new policy are better than the reasons for the rejected one.

See my recent ACOEL blog for the citations to the cases.

d.  Because the statutory interpretations supporting beyond-the-fenceline requirements are so adventurous (and stayed by the Supreme Court), it should be easy for the Trump EPA to defend a new CPP as a matter of policy based on CAA interpretations that are far less adventurous.

e.  If and when the new CPP reaches the Supreme Court, it is difficult to see the Court departing from the precedents of the cases cited in my ACOEL blog, particularly with Justice Gorsuch filling Justice Scalia’s seat.

Jordan Cove LNG Project Scores Legal Victory

Posted on April 10, 2017 by Rick Glick

The Jordan Cove LNG project in Coos Bay, Oregon, prevailed in a legal challenge to a key permit.  The permit, issued by the Oregon Department of State Lands, allows dredge and fill work for a deep water ship channel.  In Coos Waterkeeper v. Port of Coos Bay, the Court of Appeals rejected that challenge and upheld the permit.

Petitioners’ main argument on appeal was that DSL’s permitting decision should have applied statutory environmental standards not only to the dredge and fill work, but also terminal operations after construction.  The court found this argument to lack merit, finding that DSL’s authority is limited to the “project,” defined in the statute and its legislative history as the dredge and fill work only. 

Petitioners also argued that DSL should have asserted permitting jurisdiction over complementary uplands excavation.  This work would initially be separated from the bay by a 40-foot berm, and then the berm would be removed to create the channel.  The court concluded that DSL jurisdiction would not apply to uplands work (i.e. above the high tide line), and that removal of the berm and flooding the affected uplands are within scope of the permit.

The politics of LNG development in Oregon are highly charged.  The Oregon LNG project was abandoned following election of a new county board of commissioners made up of project opponents.  Local opposition slowed down state regulatory review and the project never was tested against objective legal standards.  It is heartening to see that for the Jordan Cove project, which also is controversial, both the state agency and the court assessed the project as they would any other.  The politics are still there, but the rule of law in this instance rose above.

The outcome of this case highlights an anomaly in green Oregon.  Unlike our neighbors to the north and south, we have no mini-NEPA law.  If we did, the environmental effects of the Jordan Cove project taken as a whole would certainly have been part of the state permitting calculus.  Many bills to create a comprehensive environmental impact review process have been proposed, but none have taken hold.  With a Democratic controlled legislature and state house, it seems only a matter of time.

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Posted on April 6, 2017 by Seth Jaffe

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there.  It also noted that courts are particularly deferential when reviewing agency scientific determinations.  Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding?  Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks?  Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Just asking.  It’s purely a hypothetical, of course.

Slashing EPA’s Budget Will Hinder Efforts to Improve Environmental Regulations

Posted on April 5, 2017 by Mark R. Sussman

          Since the election of President Trump and appointment of EPA Administrator Pruitt, more than a few articles and blogs have been written about the new administration’s plans to dismantle EPA, including the proposal to cut EPA’s budget by almost one third.   Even if one agrees that EPA needs to be “down-sized,” the massive cuts proposed by the Trump Administration are counter-productive.   If EPA fires thousands of environmental professionals, who will be left to repeal or revise unnecessary or unduly burdensome regulations?  Unlike Executive Orders, regulations cannot be rescinded or revised with the stroke of a pen.

          The hazardous waste regulations adopted to implement RCRA provide a case in point.  The Obama EPA adopted the final Hazardous Waste Generator Improvements Rule (discussed by a recent blog by Donald Stever) at the end of last year, acknowledging that the RCRA regulations are in many cases ambiguous, contain inconsistencies, and lack flexibility.  EPA took a year to address more than 200 comments before it finalized the rule.  Other aspects of the RCRA regulations also need to be modernized to encourage, rather than discourage, the reuse of materials derived from waste.

          Just one example involves the recycling of mercury-containing lamps, which have been regulated as Universal Waste since 1995.  Although fluorescent lamp manufacturers have reduced the amount of mercury in their lighting over time, such lamps are regulated as Universal Waste because many lamps exhibit the toxicity characteristic for mercury; and thus, would be classified as D009 hazardous waste.  While the Universal Waste Rules simplify the management of mercury containing lamps, the hazardous waste regulations and longstanding EPA interpretations of these rules impede the reuse of materials recovered through the recycling of universal waste lamps. 

          Two of the primary materials produced through lamp recycling are calcium phosphate powder and crushed glass.  Calcium phosphate powder removed from fluorescent lamps contains mercury at levels below the hazardous waste threshold, and the amount of mercury in such powder is typically further reduced by a retorting process.  Significantly, the phosphate powder also contains several rare earth elements, including Europium, Terbium and Yttrium, which are considered strategic materials by the United States Government, because of the need for such elements in many military and high-tech commercial products, such as cell phones, computer hard drives and other electronic equipment, and precision-guided munitions. 

          China controls about 95% of the production of rare earth elements.   Therefore, recycling calcium phosphate powder to produce rare earths provides a sustainable, domestic source of rare earths needed in the U.S. economy.  Unfortunately, as a waste derived material, regulators have limited the ability of businesses to stockpile calcium phosphate powder for future recycling, and much of this material is currently being disposed of in landfills, rather than being reserved for the recovery of rare earths.   

          Similarly, the crushed glass produced by lamp recycling has characteristics that make it a useful substitute for sand and other materials used in construction operations, such as for road sub-base and pipe bedding materials.  EPA’s view, however, is that since Universal Waste lamps would be considered D009 hazardous waste, glass produced as part of the recycling process is in the same hazardous waste treatability group as the initial universal waste lamps, and therefore, is subject to the Land Disposal Restrictions (LDR) for D009 –non-wastewaters. Thus, the glass must be tested to demonstrate compliance with the LDR standard of 0.025 mg/l for mercury using the TCLP test (designed to assess leachate in a landfill environment), before the glass can be used on land as a substitute for other products.  While the glass from lamp recycling typically complies with the LDR standard, the additional regulatory process discourages the reuse of this glass as a substitute for raw natural resources.

          If President Trump were truly interested in alleviating “unnecessary regulatory burdens placed on the American people”, EPA needs the resources to review specific regulations and identify those regulatory changes that will accomplish the President’s goals.  Slashing EPA’s budget, before identifying and promulgating the regulatory changes, will likely result in missed opportunities for improving environmental regulations.  Instead, massive reductions in staff and efforts to rescind many regulations without careful consideration will lead to mistakes and litigation, which is in no one’s interest.  Businesses need certainty, and the approach outlined by President Trump’s Executive Orders will instead result in more confusion and uncertainty.

TRUMP, TARIFFS, TERRA, and TWEETS

Posted on April 3, 2017 by Earl Phillips

Regardless of political leanings or perspectives held regarding this President and his administration or the likely effectiveness of tariffs in global trade, we likely agree that creating more good American jobs is a positive thing.  If his plan is successful, Donald Trump and this administration will, in part through the use of tariffs, reinvigorate domestic manufacturing. 

If willing to think more broadly, this may be achieved while at the same time improving (and setting the stage to further improve) the global environment and international worker safety.  These objectives need NOT be mutually exclusive.

Both the Republican and Democratic primaries featured unique candidates with compelling messages of creating and protecting jobs for Americans.  The Republican candidate survived his primary and went on to win the election, so let's consider the relevant promises and pronouncements of candidate, now president, Trump. His overarching refrain has been to "make America great again".  Consistent with this message, he has repeatedly assured the American public that he will promote, and ultimately increase, domestic manufacturing.  His vision is that this manufacturing, and the related jobs, will improve the lot of American workers.  While offering limited specifics, he has been unwavering in his commitment to level the economic playing field by imposing significant tariffs on goods and services manufactured abroad.

If President Trump is correct relative to the effectiveness of a tariff and willing to adjust this blunt tool to incorporate concerns for the global environment and humane working conditions, he can provide a path that leads to greater domestic manufacturing and jobs, as well as unparalleled international leadership with respect to the environment and worker safety.  This is possible provided President Trump is willing to leverage the appetite of overseas manufacturers to sell goods and services to Americans in return for a more level manufacturing playing field, as well as enhanced international Environmental Health and Safety (EHS) protections and benefits.

Assuming this administration does, in fact, look to tariffs as a means to stimulate domestic manufacturing, the following offers a path to proceed with the stated agenda while establishing a program designed to employ even more well trained Americans and improve the global environment:

 1. TARIFFs could be structured to afford the impacted offshore manufacturer with the following option: (A) PAY THE FULL TARIFF.  This option would presumably level the economic playing field between the offshore and domestic manufacturer of goods or provider of services; or (B) PAY A REDUCED TARIFF and EXECUTE AN EHS INSPECTION/ENFORCEMENT AGREEMENT.  This option would achieve not only the U.S. manufacturing and jobs agenda, but also would drive international EHS benefits.  A significant portion of the REDUCED TARIFF could be used to directly fund an environmental, health and safety inspection corps (EHS Corps).  This EHS Corps would be comprised of appropriately educated and trained American workers.  Notably, these EHS positions would be in addition to our domestic manufacturing jobs and represent even more American jobs for those with science, engineering, operations, and business and legal degrees.  THE INSPECTION/ENFORCEMENT AGREEMENT would also call for the participating company to submit to regular inspections, an enforcement regime and an administrative/judicial process similar to our federal template.  This Agreement would further level the manufacturing playing field while improving the global environment and driving international EHS performance to levels comparable to our federal programs.

 2. The EHS Corps would regularly inspect REDUCED TARIFF participants using a straightforward template approximating the United States federal EHS regulations.  This approach would not only compel offshore participants to achieve environmental protection and worker safety objectives similar to their U.S. counterparts, but also cause them to incur the same or similar resource and financial burdens to comply with this template or suffer enforcement consequences if they fail.  This compliance mandate when combined with the payment of the REDUCED TARIFF, would further level the playing field between offshore and domestic manufacturers.  Should a participant be a repeat or willful violator, then beyond the sanctions available within the REDUCED TARIFF inspection and enforcement regime, the U.S. would reserve the right to re-impose the FULL TARIFF or consider other import/export sanctions.

3. Strategically, the differential between the FULL TARIFF and the REDUCED TARIFF should motivate responsible corporations and businesses to elect the REDUCED TARIFF.  Beyond this, the REDUCED TARIFF should generate adequate revenue to fund the training and deployment of the EHS Corps as well as the inspection/enforcement process.

CONCLUSION:

President Trump and his administration can be true to their stated commitment to increase domestic manufacturing jobs through a more aggressive tariff while going one important step beyond, establishing the U.S. as an architect and catalyst for an improved, and more internationally uniform, approach to environmental, health, and safety concerns. 

 

NOTE:  THE CONCEPT OUTLINED ABOVE IS NOT AN ENDORSEMENT OF TARIFFS, BUT A REFLECTION OF ATTY. PHILLIPS BASED ON THIS ADMINISTRATION’S PRONOUNCEMENTS.  THIS IS NOT THE PRODUCT OF HIS LAW FIRM OR THE UNIVERSITY AT WHICH HE TEACHES.

 

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

“This is not a ‘major rule’ but it is a “significant regulatory action”…. Really?!

Posted on March 30, 2017 by Donald Stever

On November 28, 2016, EPA released its somewhat euphemistically titled “Hazardous Waste Generator Improvement Rule” (81 Fed. Reg. 85732) which, in a whopping 97 pages of miniscule federal register text, revises the structure, and in some cases the substance of the rules that apply to generators of hazardous waste under RCRA. I have no space in a blog to detail the substantive changes, tweaks and repositioning to Parts 257, 260, 261, 262, 263, 264, 265, 268, 270 and 279, but I will mention some highlights. This is, of course, a major rule, but it is also an important rule in that it sensibly addresses a wide range of longstanding problems in both the organization and substance of the regulatory provisions that govern the conduct of entities that generate hazardous waste.

The largely needed and helpful changes made by the rule include (1) subtle modifications to the definitions of the three generator categories, (2) refinement of how accumulation of both hazardous waste and acutely hazardous waste is treated, (3) adding a definition of “central accumulation area, (4) adding a requirement that partial reclamation facilities and recyclers who receive manifested hazardous waste submit biennial reports, (5) and a substantial reorganization of § 262.10 by deleting and re-numbering several of its subsections while amending them in the process. In addition, EPA added new requirements for making hazardous waste determinations, attempts to define what “generator knowledge” means in connection with testing, changes certain recordkeeping requirements, and requires small quantity and large quantity generators to identify waste codes associated with their waste. The rule specifies procedures for counting hazardous waste, revises the mixture rule, amends the marking and labeling requirements by adding very specific requirements, adds not insubstantial new requirements for the use of satellite accumulation areas (my favorite sub-amendment is EPA’s effort to define the term “three days”), adds new closure requirements, revises the conditions for exemption from various requirements for all three generator categories, imposes a new “re-notification requirement” to obtaining an ID number, modifies the criteria for episodic generation events, and imposes new requirements for emergency planning,

There are other changes, a few of them, well, mystifying. My favorite is what appears to be a meaningless nomenclature change. From November 19, 1980 until November, 2016, if you generated 100 kg or less of hazardous waste or 1 kg or less of acutely hazardous waste you were called a “Conditionally Exempt Small Quantity Generator”.  After the effective date of the ‘Generator Improvement Rule” you are now called a “Very Small Quantity Generator”. EPA’s explanation for this change is truly wonderful - EPA felt that the term “conditionally exempt small quantity generator” was confusing because “all three categories of generators are conditionally exempt” from certain requirements. 82. Fed. Reg. 85740. Gee, I was never confused nor, to my knowledge, were any of my generator clients. I was also amused that EPA felt it necessary to try to define the term “three days” in connection with a provision pertaining to satellite accumulation.

Overall, however, this is a major, beneficial, rule. So what is the point of the heading to this blog? In the required boilerplate at the end of the preamble prior to the twenty-five pages of the actual rule, EPA concludes, as it must, that it is not required to subject the rule to scrutiny under the Congressional Review Act because the action is “not a major rule” as defined by 5 U.S.C. 804(2).  The Congressional Review Act?  Hmmm. Is that all?  No. In order to push this clearly beneficial rule out the door, not only did EPA employees have to generate 69 pages of notice-and-comment verbiage, but, in addition, also the Agency had to (a) submit the rule to OMB per Executive Orders 12866 and 13563 because though not “major”, it is a “significant regulatory action” in that it “may raise novel legal or policy issues arising out of legal mandates”, (b) satisfy the Paperwork Reduction Act by demonstrating that the rule is necessary, (c) satisfy the Regulatory Flexibility Act by demonstrating that the rule will not have a significant economic impact on small entities, and, in addition, also demonstrate that (d) it does not contain an unfunded mandate in violation of the Unfunded Mandates Reform Act, (e) it does not have “federalism implications” per Executive Oder 13132, (f) it does not have sufficient “tribal implications” to trigger review per EO 13175, (g) it does not present a disproportionate risk to children per EO 13045, (h) it does not significantly affect energy supply, distribution or use per EO 13211, (i) it does have environmental justice implications per EO 12898, and (j) it does not involve technology transfer.

Just think of the number of employee hours it took for EPA to make these largely sensible modifications to the RCRA generator requirements. If Mr. Pruitt gets his wish to shrink EPA staff by 30% how is the Agency going to get anything accomplished?

STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 29, 2017 by Admin

The American College of Environmental Lawyers announces its annual Stephen E. Herrmann Environmental Writing Award for the 2016-17 academic year.  The Herrmann Award is a stipend of $3,500 to the author of the winning submission (whether an article, note, case comment or essay) and $500 to the submitting law journal. The winner of this year’s Herrmann Award will be invited to present his or her submission to the Fellows at the 2017 ACOEL Annual Meeting in Charleston.

We urge College members – particularly our members in academia – to spread the word on this opportunity.  In addition to the amount of the award, those interested should know the following:

 · Submitting Candidate Notes/Articles:  Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible to submit annually a single candidate article, note, case comment or essay selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.

 · Evaluation Criteria:  The prize will be awarded to the author of a student article, note, case comment or essay published by the submitting law journal during the current academic year, or scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law.  Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee.

 · Submission Logistics:  Those interested in participating should email one electronic copy of their submissions to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, c/o J.B. Ruhl and Mary Ellen Ternes with the email addresses below.  Entries must be received no later than June 10, 2017.  Each entrant should include with the entry a cover letter or e-mail message stating the name of the submitting law journal, email address(es) of author (with post-graduation email address(es) if applicable), year of author’s graduation, and a statement that the submission was not written as part of paid employment.

Anyone having questions about the award or process for submitting a piece for consideration should contact J.B. Ruhl (jb.ruhl@Law.Vanderbilt.Edu) or Mary Ellen Ternes (Maryellen.ternes@earthandwatergroup.com. To ensure a prompt response, please reference the Stephen E. Hermann Environmental Writing Award in your communication.

You Can’t Let Nature Run Wild: Predator Control in Alaska

Posted on March 28, 2017 by Peter Van Tuyn

Seeking to explain Alaska’s aggressive predator control policies, Alaska Governor Wally Hickel famously said in the early 1990s that “you can’t let nature run wild.”  In Alaska this means that wildlife management is focused on maximizing the number of some human prey species such as deer, caribou and moose, by allowing the killing of bears and wolves that also prey on those animals.  A majority in the current United States Congress apparently agree with Alaska’s predator control approach to wildlife management, at least as it might apply in our nation’s largest national wildlife refuges within Alaska’s borders. 

Congress this week sent to the president’s desk a Congressional Review Act resolution rejecting a 2016 U.S. Fish and Wildlife Service rule that banned aggressive state sport hunting practices designed to reduce populations of predators on state land.  The rule banned just the most egregious of these practices on the roughly 77 million acres of national wildlife refuge land in Alaska. 

The Congressional Review Act is a legislative instrument which Congress can use to reject in the whole recently-passed federal rules.  This blunt “up or down” action is not subject to filibuster in the Senate, and if a rule is rejected through this process agencies are prohibited from passing “substantially similar” rules in the future.  Prior to the 115th Congress the Congressional Review Act had only successfully been used once before, to reject a Clinton Administration workplace ergonomics rule in the early days of the George W. Bush Administration.  Based on this history and the flurry of recent resolutions, it seems the primary and perhaps sole utility of the Act is during a change in administration from Democrat to Republican, when Republicans have a majority in both chambers of Congress. 

The resolution sponsors argued that the FWS rule impinged on Alaska’s sovereign ability to manage wildlife within its borders as it sees fit.  Supporters of the rule pointed out that the rule’s focus is only on the most extreme predator control practices and that to allow such practices on refuge lands is inhumane, is aimed at upsetting the natural balance of special ecosystems and in any event is not proven effective at meeting the goal of increasing game populations.  The resolution passed both chambers largely along party lines, and the president is expected to sign it. 

Alaska has long pushed aggressive predator control practices.  In some instances, Alaska’s rules allow the take of adult bears and cubs that are lured by bait, and of wolves and pups in their dens; methods that have elsewhere been rejected as unfair, inhumane and ineffective at increasing game populations.  Alaska permits such practices, even when doing so might otherwise seem to go against its interests.  For example, one of the great draws for the hundreds of thousands of annual visitors to Denali National Park is the wildlife that can be seen in its wide-open landscapes, including wolves that spend time near the road through the Park.  Alaska, however, allows the killing of those wolves on the Park’s north and east boundaries, for the benefit of one to three trappers in any given year.  According to a local group, the effect of the decline of wolf packs that den inside the park is a reduction in the likelihood of visitors seeing wolves along the road from 45% in 2010 to 5% in 2015. 

From a pure economic perspective, one would think that the value to Alaska of live wolves in Denali would far exceed that of wolves killed over the border.  But those who make the rules today, like Gov. Hickel before them, apparently don’t want to let nature run wild.


Earth Day Texas—People, Planet, and Profit—Key Legal Issues for a Protective and Productive Future

Posted on March 27, 2017 by Jeff Civins

On March 16th, Reuters reported that President Trump’s administration has proposed a 31 % cut to EPA’s budget, explaining: “Consistent with the President’s America’s First Energy Plan, the budget reorients the EPA’s air program to protect the air we breathe without unduly burdening the American economy.”  In this time of change and uncertainty, perhaps more than ever, there is a need for a measured dialog among diverse viewpoints. 

With over 130,000 participants attending last year’s  Earth Day Texas celebration in Dallas, its organizers decided a Legal Symposium of prominent representatives from environmental organizations, business, academia and the government might help policy makers grapple with fundamental environmental issues such as how best to balance economic development with environmental protection.  Several members of the College assisted the organizers in the development of that symposium.

On April 20-21, that Symposium will bring together those thought leaders to discuss: (1) how to integrate science into regulatory decision making; (2) how to reconcile energy and economic development with protection of public health and the environment; (3) how to facilitate environmental dispute resolution; and (4) how to integrate sustainability and ethical considerations into corporate decision-making. 

Consistent with the objective of having diverse viewpoints represented, the Thursday evening keynote speaker will be General Wesley K. Clark, discussing Climate Change as a Major Security Concern, and the Friday luncheon keynote speaker will be EPA Administrator Scott Pruitt, discussing the new administration’s objectives and goals.  For further information and to register, go to http://earthdaytx.org/legal-symposium/.

Channeling Scalia in a New WOTUS Rule

Posted on March 24, 2017 by Donald Shandy

By now, most of the readers of this blog have heard about or read President Trump’s Executive Order directing the EPA to re-evaluate the “Waters of the United States” Rule.  This announcement brought cheers from farmers, developers, and many industry groups who had opposed EPA’s Clean Water Rule (aka “WOTUS rule”) and groans, moans, and other choice words from environmental NGOs, wetlands specialists, and supporters of the WOTUS rule.  There are many articles written about what this executive order means and other articles speculate at what a new rule from a Scott Pruitt led EPA may look like under a Scalia-based definition of “navigable waters” when all of this shakes outs.

Being an Oklahoman and having interaction with Scott Pruitt over the years when he was Attorney General, I decided to take a look back at Justice Scalia’s plurality opinion in Rapanos v. United States, to see I if could piece together a couple of key components I would expect to see in a new WOTUS rule.  I note at the outset that the executive order does not require the EPA to use Justice Scalia’s definition of “navigable waters”; only that EPA “shall consider interpreting the term ‘navigable waters’ . . . in a manger consistent with” Justice Scalia’s definition in Rapanos.  However, having observed Administrator Pruitt making arguments on behalf of the State of Oklahoma as Attorney General, I would be surprised if he does not channel Justice Scalia into the new rule.

There are two points in Justice Scalia’s opinion in Rapanos that stand out.  First, he rejected the Army Corps of Engineers’ interpretation of “waters of the United States” under a Chevron step two analysis, stating that the “Corps’ expansive interpretation of that phrase is not ‘based on a permissible construction of the statute.’”  The CWA uses the phrase “navigable waters” and traditionally, that phrase applies to “relatively permanent bodies of water.”  Further, Justice Scalia pointed to language in the CWA that categorized channels and conduits that typically carry intermittent flows separately from “navigable waters.”

Second, Justice Scalia concluded that Congress’ use of “waters of the United States” did not “authorize [an] intrusion into such an area of traditional state authority as land-use regulation.”  Justice Scalia criticized Justice Kennedy’s “significant nexus” test because it failed to account for the “primary state responsibility for ordinary land-use decisions.”  In Justice Scalia’s opinion, by taking a narrow view that the only purpose of the CWA was to “clean up the waters of the United States,” and that anything affecting the chemical, physical or biological integrity of those waters should therefore be jurisdictional, Justice Kennedy employed “the familiar tactic of substituting the purpose of the statue for its text [and] freeing the Court to write a different statute that achieves the same purpose.”  Thus, Justice Scalia thought any interpretation of “waters of the United States” must account for the traditional role of the states in determining land use.

In looking at these two components of Justice Scalia’s plurality opinion and reflecting on Administrator Pruitt’s viewpoint when he was Attorney General of Oklahoma, it appears that Justice Scalia and Administrator Pruitt may be aligned when it comes to how the CWA should overlay with states’ role of land-use decisions.  I think we can expect Administrator Pruitt to champion and strengthen the notion of cooperative federalism and increasing the role of the states in crafting the new water rule.  If Pruitt’s EPA takes heed of Justice Scalia’s plurality opinion in Rapanos, I think we will see more involvement by the states in crafting the language of the rule and a narrower definition that could lead to more certainty in jurisdictional determinations.

RULES ARE (APPARENTLY) MADE TO BE FRACKED . . .

Posted on March 23, 2017 by William Session

The news flies fast and heavy from Washington almost daily on the fate of every manner of environmental program, rule or regulation. An exciting time to be an environmental lawyer. The latest entrant into the “what’s next” sweepstakes came from the Tenth Circuit just a few days ago.

The Court of Appeals sent a pointed inquiry to the newcomers at the Department of Justice about the future of the federal government’s (recent) historic efforts to curb hydraulic fracturing:

Given the recent change of Administration and the related personnel changes in the Department of Justice and the Department of Interior, the Court is concerned that the briefing filed by the Federal Appellants in these cases may no longer reflect the position of the Federal Appellants. By statement filed electronically on or before March 15, 2017, the Federal Appellants are asked to confirm whether their position on the issues presented remain the same, or have now changed.

The DOJ’s response will very likely determine the fate of the Obama era Bureau of Land Management hydraulic-fracturing rule. That rule required drilling operators to follow “ . . . widely-accepted” best practices for preventing environmental or resource harm. 

In State of Wyoming et.al v. State of Utah et. al, that rule was set aside and its enforcement enjoined by a Wyoming district court in 2016. The district court set aside the rule, holding that the federal government had no authority to set the standards that federal lessees had to follow when extracting oil and gas from federally owned resources through hydraulic fracturing. The DOJ appealed and the Tenth Circuit subsequently instructed the district court to vacate its preliminary-injunction order.

The DOJ spearheaded the appeal of that ruling, asserting that the district court disregarded a central tenet of administrative law by substituting its own judgment for the government’s about the purview of the BLM’s regulatory reach. The DOJ argued that courts “must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority.”

So the obvious question of the day is, will the new administration drop the appeal? The newly appointed Interior Secretary Ryan Zinke has stated publicly he supports fracking. With daily pronouncements from the White House about the surfeit of regulations strangling the economic engines of the country, it’s a good bet that the rule has seen its best and last days.

Perhaps more intriguing, should the appeal go forward, will be the somewhat conservative Tenth Circuit’s take on the now “institutional” Chevron deference embedded in countless appellate decisions over the last thirty-four years. As recently posted by ACOEL Fellow Chris Schraff, the views of Tenth Circuit veteran and Supreme Court nominee Judge Neil Gorsuch on the Chevron question could prove central to the concerns of some about the future of the administrative state,. 

For those who might not be familiar with Judge Gorsuch’s perspectives on the subject, review again his concurring opinion in Gutierrez-Brizuela v. Lynch. His concurring opinion in that case begins:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. . . .

And continues in clearly provocative terms:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . .

So, what do we in the environmental business expect the position of the federal government to be going forward? Is federal environment protectionism on its way out of the door? Will the EPA be judicially branded a “politicized administrative agent” by courts across the land and denied deference even if the Chevron doctrine survives? Will the courts and the public allow the progress on cleaner air, water and earth we have all witnessed—and even helped bring about over the last fifty years—to be . . . fracked?

The Conservative Case for Chevron Deference: Chapter 2

Posted on March 22, 2017 by Seth Jaffe

In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.

gray wolf, Canis lupus, Gary Kramer, USFWS

Earlier this month, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis.  The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing.  Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions.  The Court of Appeals noted that the:

ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.

Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well.  When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.

Maybe I’ll make this a regular feature of this blog.  If I miss other cases making the conservative argument for Chevron, let me know.

Energy Storage and Transforming The Grid in New York

Posted on March 21, 2017 by Virginia C. Robbins

For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching.  Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds.  Despite these expected actions by the current administration, there is good news in the renewables sector:  battery storage technology has the potential to be a strong contender in the fight against climate change. 

In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down.  The leak reduced fuel supplies for area power plants.  In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories.  Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need. 

The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months.  Within 6 months after the CPUC issued its order, two battery storage facilities were completed.  SDGE contracted for the installation of two energy storage projects totaling 37.5 MW.  The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours.  Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.

These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations.  For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources.  New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030.  The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency.  And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.      

In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding.  The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.

The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff.  The report also identifies a utility-driven demonstration project supporting solar-plus-storage.  Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time.  Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.   

Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York.  The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs.  In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors.  By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders.  The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction.  The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.   

These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers.  They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester.  At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower.  Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system.  The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.

Environmental Summit of the Americas

Posted on March 20, 2017 by Eugene Smary

Our American College of Environmental Lawyers recently has increased its external educational efforts, co-sponsoring programs with the Environmental Law Institute and the American Law Institute.  The College has also actively collaborated with other organizations to identify pro bono opportunities for its members in the international environmental arena.  The College is now proud to be a co-sponsor of the Environmental Summit of the Americas being held in Los Angeles on March 29. 

The lead organizers of this one-day Summit are the American Bar Association’s Section of Environment, Energy and Resources (SEER) and the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL).  Our College is joining the Canadian Bar Association’s National Environment, Energy and Resources Law Section (NEERLS) as a co-sponsor. 

The topics to be covered in the program are:  Climate Change and Energy/Environmental Policy; Extended Producer Responsibility; Officer, Director, Lender and Parent Company Liability; Permitting and Social License; and Trade and the Environment.  There will also be a special presentation by representatives of the Inter-American Development Bank on its project assessing the quality of environmental regulation in the Americas.  The format for the Summit is intended to be conducive to group discussion for each topic.  Each topic will have several discussion facilitators who will be providing a brief overview of the topic and then facilitating discussion among attendees.  Facilitators include well recognized lawyers from the United States, Canada, Costa Rica, Brazil, Argentina, Mexico, Chile, and Peru.  While registrations are still being received, well over 50 percent of registrants are from Latin America and Canada.

Many of us have had a long-held objective of encouraging and developing this type of cross-border dialogue among our colleagues in this hemisphere.  The dialogue already exists in the context of the extractive industries, with groups such as the Rocky Mountain Mineral Law Foundation providing a platform for such discussions.  There also has been a long-term, collaborative relationship with ABA SEER and CBA NEERLS that has evolved over the last 15 years and has proven very instructive and beneficial to lawyers on both sides of the border.  More recently a relationship has been evolving between SEER and the United Kingdom Environmental Law Association, and between SEER and SEERIL. 

It has been more difficult to coordinate such a dialogue with jurisdictions having more loosely organized bar associations, particularly with a focus on environmental law.  While there have been some efforts by various international referral networks to develop such a discussion, to my knowledge the Summit will be the first effort by respected bar associations and our College to foster such a broad-based understanding of environmental legal developments.

College members are encouraged to attend.  The Summit will be an excellent opportunity for all attendees to learn from each other in a format which encourages discussion.  Chatham House Rules control.  The Summit is being held the day before the SEER Spring Conference which, hopefully, many of our College members already plan to attend.

I hope to see you there!

POTUS, SCOTUS & WOTUS: What Do They Have in Common With Michael Stipe and Jack Black?

Posted on March 15, 2017 by Jeff Thaler

Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.

Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”

An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.

Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.

Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.

Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.

One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.

In sum, we live in interesting times.   Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned. 

Deja Vu All Over Again!

Posted on March 14, 2017 by Paul Seals

Has it really been 36 years!  It seems like I have been here before.  In 1981, I was Assistant General Counsel with the Texas Department of Water Resources, a predecessor agency of the current Texas Commission on Environmental Quality.  Upon Ronald Reagan’s inauguration as the 40th President,  I was appointed Regional Counsel of the Environmental Protection Agency in Dallas. 

EPA was on the chopping block with proposals to drastically reduce its budget, positions, and programs.   The agency lawyers were an endangered species, targeted for elimination.   The agency was reorganized to do away with the Enforcement Division.  The administration supported the transfer of the implementation and enforcement of the environmental statutes to the states.   This was 1981 not 2017.

The early years of the new administration were filled with much anxiety based in part on proposed budgets that had no relationship to existing staffing.  Were we to go through a reduction in force and fire attorneys and staff?  Such a RIF was not necessary given the atmosphere and morale within the agency.  In early 1983, during a Regional Counsels’ meeting, an informal headcount showed that through attrition there had been over a 30% reduction of attorneys in the regional offices since the inauguration. 

The effort to dismantle and defang the agency was met by public outrage, and in the midst of the turmoil, Administrator Anne Gorsuch was cited for contempt of Congress.  Shortly thereafter, there was change in the agency leadership with the return of Bill Ruckelshaus, whose helmsmanship righted the agency and successfully refocused the agency’s staff on its critical mission.  

What did I learn from this experience?  Quite simply, don’t overplay your hand.  An election may give the President and a new administration a perceived mandate for change, but that mandate must be tempered with an appreciation of the overwhelming public support for the mission of the agency.  As my good friend, mentor, and former Regional Administrator, Dick Whittington, would say:  “we must be able to separate the public will from the public whim.”

Is Neil Gorsuch Poised To Obliterate Deference – or only Chevron/Auer Deference?

Posted on March 13, 2017 by Christopher R. Schraff

Recently, our ACOEL colleague Bob Percival penned an article in which he notes that Supreme Court nominee Judge Neil Gorsuch is a leading critic of Chevron (and Auer) deference , and suggests that Judge Gorsuch’s separation of powers concerns (and those of other opponents of Chevron/Auer deference) “…are really attacks on the constitutionality of the larger administrative state.”  But if Judge Gorsuch is confirmed and his views command a majority of the Court, is his skepticism about the viability of deference to agency interpretations likely to lead to a collapse of the modern administrative state?  Is Judge Gorsuch really little more than a judicial extension of Steve Bannon’s and the Alt-Right’s campaign to deconstruct the administrative state and roll back the federal government to a size more appropriate to 19th Century America?  I suspect not—and here’s why.

A reading of Judge Gorsuch’s opinions reveals a jurist who is not only an engaging writer, but who digs deep into the facts and details of each case before  applying the law in an appeal before him.  In one of the few environmental cases which Judge Gorsuch has authored, United States v. Magnesium Corp. of America, Judge Gorsuch duly applied Auer deference to uphold EPA’s interpretation of a RCRA regulation, observing that an agency’s interpretation of its own ambiguous regulation was entitled to deference. 

But in other contexts, Judge Gorsuch denied Chevron deference to agency decisions that directly implicate (some might say trample upon) individual liberties and rights.  Here’s an example:  In 2014, the 10th Circuit took up the case of Andrew Yellowbear, who had bludgeoned to death his 22-month-old-daughter, and was serving a life term in a Wyoming prison.  Mr. Yellowbear brought suit against the prison for refusing to allow him access to a sweat lodge to practice his Arapahoe religion, which he claimed violated his rights under the federal Religious Land Use and Institutionalized Persons Act of 2000.  Now one might think that Judge Gorsuch, conservative fellow that he appears to be on criminal matters, would give short shrift to Mr. Yellowbear’s claims.  But that is not what happened.  

In Yellowbear v. Lampert, Judge Gorsuch, writing for a unanimous court, struck down the prison’s efforts (and arguments) to deny Mr. Yellowbear his religious practice.  In rejecting the prison’s poorly documented claims of a “compelling governmental interest,” Judge Gorsuch wrote:  “the deference this court must extend the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.”

Now that decision hardly seems to presage the dismantling of the administrative state, but does suggest the administrative state had better show it deserves deference. 

Judge Gorsuch’s concurring opinion in Guitierrez-Brizuela v. Lynch offers a window into his views on the limits and shortcomings of Chevron deference.  Among other things, Judge Gorsuch suggests that the Chevron/Auer doctrines already may have no applicability with respect to agency interpretations of criminal statutes—of which we have many in the environmental law field.  Even more to the point, Judge Gorsuch questions how Chevron/Auer deference  squares with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. (“…the reviewing court shall decide all questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”).  Judge Gorsuch questions whether Chevron, in effect, overrides the APA.

But don’t simply focus on Judge Gorsuch’s concurring opinion:  look to the facts of the case, and to an earlier Gorsuch opinion. Guitierrez-Brizuela involved an attempt by the Board of Immigration Appeals (BIA) to retroactively apply a decision of the 10th Circuit deferring to BIA’s reconciliation of two statutory provisions of immigration law.  In Padilla-Caldera v. Holder, the 10th Circuit had upheld BIA’s interpretation of the immigration law on Chevron deference grounds, notwithstanding that BIA’s interpretation effectively overruled an earlier 10th Circuit decision interpreting those same laws.   

But in Guitierrez-Brizuela, BIA sought to accord retroactive application of the Padilla-Caldera decision in order to deport an illegal alien.  Judge Gorsuch, writing for a unanimous 10th Circuit panel, concluded that the BIA cannot use Chevron deference principles to retroactively impose their interpretation of immigration law upon an illegal alien to deport him—not the kind of result which would endear Judge Gorsuch to the Alt-Right.

What resonates in Judge Gorsuch’s opinions is a reluctance to unconditionally embrace Chevron/Auer deference in order to allow administrative agencies to trample on individual liberties and rights.  Is that such a bad thing?  And Judge Gorsuch is not calling for an end to deference.  He acknowledges that some form of deference should be given to administrative agencies, as he notes in Guitierrez-Brizuela:  “Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.” 

But more fundamentally, will a reconsideration—and even a repudiation—of Chevron/Auer deference signal the end of the modern administrative state?  The administrative state survived and grew comfortably for more than fifty years before Chevron was decided. 

My guess is that, if the Supreme Court revisits the question of Chevron/Auer deference when (and if) Justice Gorsuch joins the Court, and if his views carry the day, we are likely to return to Skidmore deference, or to a flexible rule of deference of the kind outlined in United States v. Mead Corp, here the degree of deference varies according to an agency’s care, consistency, formality, expertness and the persuasiveness of the agency’s position.

That hardly signals the end of the administrative state as we know it.

Public Parks in Massachusetts – Here Today, Gone Tomorrow?

Posted on March 10, 2017 by Mary Ryan

The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources  . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.

In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.

The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”

Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”

The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups. 

PS:  As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”

Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.