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.

A Ray of Regulatory Sunshine

Posted on April 30, 2020 by Lynn L. Bergeson

We are all desperate for good news.  In my continuing efforts not to become further mired in the quiet despair we are all experiencing, I thought I would pass along some good news, ironically occasioned by the pandemic.

To help alleviate supply chain disruptions by pesticide registrants that manufacture disinfectant products included on List N, the U.S. Environmental Protection Agency (EPA), in March, announced it was taking action to help hasten the availability of EPA-registered disinfectants.  EPA explained that it is temporarily allowing manufacturers of select already-registered EPA disinfectant products to obtain certain active ingredients from any source without obtaining prior EPA approval. The action only applies to products listed on EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (List N). For List N disinfectant manufacturers, EPA’s decision was very good news, and EPA has moved with extraordinary speed in qualifying products to be effective against the virus that causes COVID-19.  As of April 23, EPA now has over 400 such products, up from less than 100 such products pre-pandemic.

Typically, EPA requires disinfectant manufacturers to apply for and receive EPA approval prior to making a change in the source of the active ingredient.  Under EPA’s action, however, manufacturers can source certain active ingredients from alternate suppliers by simply informing EPA of the change.  Once EPA has been notified, the registrant can immediately distribute or sell a product modified according to this temporary amendment, provided that the resulting formulation is chemically similar to the current formulation.  Presumably after the crisis subsides, the program would revert back to the standard approval process.  Registrants would then be disallowed from releasing for shipment new registered product unless that product is produced using a source of active ingredient identified in the product’s approved Confidential Statement of Formula, or otherwise would have complied with relevant requirements in the absence of this temporary amendment.

When announcing its temporary action in March, EPA stated that it intended to assess the continued need for the temporary amendment on a regular basis.  More recently, EPA has done one better, resulting in yet more good news.  EPA Assistant Administrator Alexandra Dunn, our esteemed ACOEL colleague, announced on April 22, 2020, that EPA may well consider permanently dropping certain “administrative hoops” based on a review of the temporary policy after the coronavirus crisis subsides.  EPA’s commitment to review the “value added” of these and perhaps other administrative requirements, consider eliminating them, and possibly institutionalize the streamlined temporary approach could be a great take-away from the crisis and an unexpected benefit.  Any such decision would, of course, be firmly premised on the conclusion that in eliminating these administrative hurdles, there would be no risk to human health or the environment.

Crises have a tendency to sharpen focus and realign priorities.  Maybe this crisis will help distinguish essential requirements to protect health and the environment from non-essential, vestigial ones that we can all live without.

County of Maui Decided: Groundwater Discharges Require Permit . . . Sometimes

Posted on April 27, 2020 by Rick Glick

On April 23, in a 6-3 opinion, the U. S. Supreme Court decided one of the more closely followed environmental disputes of recent years.  In County of Maui v. Hawaii Wildlife Fund, the issue was whether injecting municipal sewage effluent into groundwater, which then travels about half a mile before discharging to the ocean, requires a permit under the Clean Water Act (CWA).  The Court found that it did.

The purpose of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”  The principal tool for achieving this lofty goal is a permit system for discharges from “point sources”, meaning a “discrete conveyance.”  The most obvious example of a regulated discharge is that from the end of a pipe directly to a navigable waterway.  In the Maui case, the discharge passed through groundwater before entering the ocean, but data showed the ocean discharge contained the same pollutants as were pumped underground. 

Is such a discharge “from” the point source, i.e. municipal treatment plant, or from the groundwater?  Writing for the majority, Justice Breyer announced a new test for deciding such a case.  A permit is required for a point source discharge or the “functional equivalent.”  That is, a direct discharge and a discharge through groundwater are functionally equivalent when “the discharge reaches the same result through roughly similar means.”  He likened the situation to a recipe that calls for adding drippings from the meat into the gravy; no one would question that “from” in that context includes conveyance through a pan or cutting board. 

The majority rejected arguments from the County, EPA and Justices Alito and Thomas in dissenting opinions, that there should be a bright line test—no discharges through groundwater should ever be subject to federal regulation.  Justice Breyer reasoned that approach would create gaping “loopholes” that would prevent attainment of the CWA’s conservation goals.  For example, a facility could terminate a discharge pipe on the beach a few feet from the navigable receiving water, and then maintain that a permit is not necessary because the pollutants came from the soils between the pipe and waterway. 

Justice Breyer acknowledged that functional equivalence will not always be easy to discern, as groundwater always eventually finds its way to navigable waters.  There will be times when the presence of pollutants in navigable waters is too attenuated from the discharge to justify a permit.  In Maui’s situation, the injected pollutants had to travel about half a mile to the ocean.  What if they had to travel 250 miles and did not emerge in the receiving waters for 100 years?  The majority is content to allow future courts and agencies to refine the new test.

This decision, and the unwillingness to adopt an easy to apply test, reflects a recognition by the Court of the complexities that underlie jurisdictional determinations under the CWA.  As noted here, the Trump Administration’s attempt at rewriting the definition of “waters of the United States,” which is the basis for CWA jurisdiction, goes the other direction.  The proposed WOTUS rule seeks to establish a simple definition based on observable, running water.  In doing so it follows Justice Scalia’s plurality opinion in the Rapanos case and rejects Justice Kennedy’s “significant nexus” test.  The latter is nuanced and involves professional judgment about the interconnectedness of natural systems.  The Maui Court’s “functional equivalent” test is of a kind with “significant nexus” in its focus on achieving the purpose of the CWA.

While the Court’s decision is sensible and promotes science-based jurisdictional determinations, it leaves a great deal of uncertainty in place.  The Court expects, and we can too, that there will be many cases and administrative processes considering when discharges to groundwater require permits.

The Supreme Court’s Decision in County of Maui v. Hawai’i Wildlife Fund – The Answer to the Yes or No Question is Maybe

Posted on April 24, 2020 by Jeffrey Porter

The United States Supreme Court’s April 23 decision in County of Maui v. Hawai’i Wildlife Fund (https://www.supremecourt.gov/opinions/19pdf/18-260_i4dk.pdf) proves that legislating is best done by the Congress, not the Courts.   The Court’s decision also tells us that the era of judicial deference to EPA that began in the mid-1980s seems to be coming to an end.

The Supreme Court was asked a yes or no question with huge ramifications for state authorities and millions of property owners:  does a discharge to groundwater require a permit under the Federal Clean Water Act?   The Supreme Court’s answer to this yes or no question is a muddled maybe, the Court concluding that EPA’s answer to the same question – an unequivocal “no” – was “neither persuasive, nor reasonable.”  

More specifically, the Supreme Court’s holding is that a Federal permit is required when a discharge to groundwater is the “functional equivalent” of a discharge from a point source directly into a navigable water.

How are the millions of people responsible for discharges to groundwater, including the owners of every septic system in the United States, supposed to determine whether their particular discharge is the “functional equivalent of a direct discharge”? 

Well, according to the Supreme Court, “many factors may be relevant” with “time [for the discharged pollutants to get to a navigable water]” and “distance” being “the most important in most cases.”   

The Supreme Court offers us no more guidance on “functional equivalency,” instead looking forward to lower courts putting additional meat on the very brittle “functional equivalent” bone through decisions in future cases, months and years down the road.  

In an apparent attempt to calm the millions who don’t currently have a Federal permit that the Federal Government has said they don’t need, the Court shares its expectation that “district judges will exercise their discretion mindful, as we are, of the complexities inherent in the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”

The Court doesn’t tell us how “indirect dischargers” are to pay the staggering legal fees to get to the end of these future cases, nor does it explain how we can have come to a place where the Federal law is so “complex” that one can’t know whether the law applies to them without litigation.

While the Court suggests that EPA and the States might lend a helping hand through future regulations and general permits, given the Court’s lack of deference to Agency decision-making, one wonders why they would bother.

For over thirty years our Federal Courts, including the Supreme Court, have struggled to determine the scope of the Clean Water Act.   The Maui case is the fourth time the Supreme Court has grappled with this question.

In the meantime, Republican and Democrat Presidential Administrations promulgate regulations expanding and contracting the scope of the Clean Water Act.   These efforts invariably result in still more litigation and more uncertainty.

The only way out of this labyrinth is for Congress to answer the question once and for all.  This will involve environmental activists getting less Clean Water Act coverage than they want and industry and municipalities settling for more coverage than they would prefer.   But we all deserve the unambiguous answer to the question the Supreme Court refused to provide in Maui.

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

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

Posted on April 20, 2020 by Jeff Civins

In May of last year, I posted a blog about Earth Day’s upcoming 50th anniversary, highlighting one planned celebration of that landmark event, EarthX, which last year drew a crowd of 175,000 visitors in Dallas and which this year was anticipating over 200,000 attendees.  But the world is a different place today than it was a year ago and EarthX organizers, under the leadership of the environmentalist Trammell S. Crow, developed a Plan B, transforming the event into a virtual, online experience, featuring a series of high profile thought leaders, sharing the objective of EarthX and its founder—to inspire people and organizations to take action towards a more sustainable future worldwide.  Among this year’s virtual programs is its Law and Policy Symposium.

The Symposium had been planned to be a full-day event with sessions on water, public and private lands, the challenges of climate change, and the future of environmental law--with speakers representing a diverse range of perspectives.  Fingers crossed, EarthX is planning to hold that same event on October 22, “Half Earth Day.”  But to celebrate Earth Day on its true birthday, EarthX will be presenting instead a 90-minute virtual program on April 22 at 12 PM Central time/1 PM Eastern Time.

This condensed program includes an EPA Update, from EPA Region 6 Regional Administrator Ken McQueen, and a series of conversations:

  • Between Seth Seigel, NY Times bestselling author of “Troubled Water: What’s Wrong with What we Drink,” and Brent Fewell, Founder, Earth and Water Law Group, on the topic of our water;
  • Between Senator Sheldon Whitehouse (RI) and Pam Giblin of the Climate Leadership Council, on the challenges of climate change; and
  • Between Yale Professor Dan Esty, editor of  A Better Planet: Forty Big Ideas for a Sustainable Future, and John C. Cruden, Principal, Beveridge & Diamond and former Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice. 

There will be a special chat room for virtual attendees to ask questions during the presentations and perhaps provision for ongoing online discussions after the Symposium is over. 

To register and to see the complete agenda, go to https://earthx.org/earthxlaw/

The Symposium organizers hope that this year’s virtual program—and the full program in October-- will foster a dialog among diverse perspectives that results in the identification of points on which there might be consensus, and identification of a range of paths forward to inspire people and organizations to take action towards a more sustainable future worldwide.  In these times particularly, a dialog among diverse perspectives seeking a common objective would be something to crow about.

Lies, Damn Lies, and Statistics: How the COVID-19 Crisis Highlights Our Misuse of Data

Posted on April 17, 2020 by Jonathan Ettinger

As I was reading the latest statistics regarding the spread of COVID-19, I became frustrated.  My frustration stemmed not just from the fact that we are unprepared despite repeated warnings, but also from the way our elected officials and their teams present (and the media reports) the data.  Having practiced environmental law for over thirty years and observed countless instances of data misuse and misinterpretation, I am not surprised, but I am disappointed.

I am not talking about the inherent unreliability of the data due to selective and inconsistent testing or the fact that we cannot count infected but asymptomatic people.  For a good discussion of that, see Nate Silver’s recent article.  Rather, I am talking about something much simpler: how many people are getting infected and at what ages.  During the early stages of the pandemic, the media were reporting that the virus was unusual because it appeared to afflict not the young or the elderly but the middle-aged.  Then, of course, it became apparent that the elderly were dying at a much higher rate than others (and at a higher rate than those infected with an ordinary flu). 

I then had a discussion with someone who said “Yeah, but it turns out young adults are being infected at a high rate; they are vulnerable, too!”  It was this simple assertion I wished to validate (or invalidate).

But, that was not easy.  Nearly every article on the topic (and most government updates, too) focused on percentages – but the wrong percentages.  It is easy to find statements like the following: “A USA TODAY analysis of data reported by 19 states shows that Americans of all ages seem to be equally susceptible to a coronavirus infection. States are reporting cases in every age range, though people in their 50s have slightly more confirmed cases on average.”  Here is the graph that accompanied it. 

It afflicts everyone roughly equally, right?  Those in their 30s and 40s are as likely to be infected as those in their 70s, right?  WRONG!  These are percentages of total coronavirus cases, not percentages of the population.  There is a fundamental difference between saying 15% of the population between the ages of 30 and 40 are infected and 15% of the total infections are of people in their 30s. 

According to the US Census Bureau, in 2016 there were roughly 323 million people in the United States – 43 million (13.3%) in their 30s and 20 million (6.2%) in their 70s.  If those percentages remain valid today, the graph above shows that those in their 70s are more than twice as likely to become infected as those in their 30s.  Regardless of whether that figure is accurate, it certainly means that one cannot say that “Americans of all ages seem to be equally susceptible to a coronavirus infection.”

How the data are reported makes a big difference.  Let’s get it right.

EPA Remains the “Anti-Environmental Protection Agency”; Wheeler Refuses to Tighten the PM 2.5 NAAQS

Posted on April 16, 2020 by Seth Jaffe

After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined.  Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3

In the long-gone days prior to January 2017, this would be short and easy.  The Clean Air Science Advisory Committee would have said that the current standard is not protective.  NGOs and states would have sued, the D.C. Circuit would have vacated EPA’s decision, and even a right-leaning Supreme Court probably would not have thought it necessary to hear a further appeal.

Now, however, the Chair of CASAC doesn’t believe that epidemiology provides a basis for setting NAAQS and CASAC recommended keeping the current standard.  What happens when EPA’s owns science advisors don’t believe in science?  And what happens when the most outcome-based Supreme Court in living memory lies in wait?

I truly don’t know.  I suspect that the D.C. Circuit, depending upon the panel, might still find a decision to keep the current standard to be arbitrary and capricious, but I would not count on the Supreme Court affirming that decision.

In the meantime, I am curious about Administrator Wheeler.  Does he really believe what he is saying or does he just not care that this decision will fairly directly lead to thousands of additional deaths?  As EPA’s proposed rule acknowledges, NAAQS are standards,

"the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health."

Greenwire reports that Administrator Wheeler told reporters that “there’s still a lot of uncertainty” surrounding the research supporting the lower PM2.5 NAAQS.  Of course, since the statutory standard requires “an adequate margin of safety,” one would have thought that the uncertainty supports more stringent standards, rather than less stringent ones. Indeed, ever since Ethyl Corp. v. EPA, courts have been clear that EPA must be prepared to regulate even in the face of uncertainty if it is to fulfill its mission to protect the public.

I may not be able to predict what the courts will do, but I’m confident that history will not treat this Administration kindly.  Over time, there is little doubt that the evidence against PM2.5 is only going to grow stronger.  However, by the time a future administration acts on that accumulated weight of data, thousands of people will have died needlessly.

Well done, Mr. Wheeler.

If You Thought That COVID-19 Was Bad, Try It Mixed With Some PM2.5!

Posted on April 9, 2020 by Seth Jaffe

Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating.  While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.

study released earlier this week by researchers at the Harvard T.H. Chan School of Public Health concludes that an increase in the ambient PM2.5 concentration of just 1 ug/m3 causes an increase of 15% in the death rate from COVID-19.  And lest you think that the results stem from other factors unique to New York City and other places particularly hard-hit by the virus, the authors took into account all of the obvious confounding factors, including:

"population density, percent of the population ≥65, percent living in poverty, median household income, percent black, percent Hispanic, percent of the adult population with less than a high school education, median house value, percent of owner-occupied housing, population mean BMI (an indicator of obesity), percent ever-smokers, [and] number of hospital beds."

A 15% increase in the COVID-19 death rate for a 1 ug/m3 increase in PM2.5 is an extraordinary result.  At some level, we knew it already, but let me summarize very simply.  PM2.5 is really, really, bad for you.

And so we come back to this administration.  I’ll pass over the enforcement discretion memorandum and focus instead on EPA’s apparent decision not to change the current national ambient air quality standard for PM2.5.  Of course, the current chair of the SAB doesn’t believe in basing NAAQS on epidemiological studies, but for those of us who still believe in science, this study certainly only strengthens the case for reduction in the PM2.5 NAAQS.

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Surprising Solutions for COVID-19 Resource Challenges

Posted on March 30, 2020 by Mary Ellen Ternes

While we are adapting to work at home, zooming happy hours, and learning to live with other virtual interfaces, many of us are wondering what else we can do to help our communities. Currently health care professionals are screaming for personal protective equipment (PPE) and ventilators. You might help connect means with need.width=

For PPE, Forbes reported last week that a network of 3D printers have been engaged to print PPE including the N95 Mask and DIY Face Mask. See, “Calling All Makers with 3D Printers: Join Critical Mission to Make Face Masks and Shields for 2020 Healthcare Workers,” (Tuesday, March 24, 2020). Hewlett Packard (HP) has posted resources providing software “.STL” 3D printing design files for critical parts to help COVID-19 critical containment efforts (the “.STL” is the file extension created by the computer-aided design (CAD) program used in the 3D modeling process). These 3D “.STL” design files include the 3D printed FDA approved nasal swabs, 3D Printable Face Shield, Budmen Face Shield, Hands-Free 3D-Printed Door Opener and a Mask Adjuster Field Respirator. HP’s website even has a link to help find an HP 3D corporate printing partner. But there are other resources as well. Universities, particularly universities with engineering schools, should have 3D printers these days. These 3D printers should be up to the task of printing N95 masks meeting hospital specifications.

Also, as another example of creative problem solving, Vanderbilt University’s Mechanical Engineering Department and the Vanderbilt University Medical Center teamed up to design an open-source ventilator that can be assembled from locally available materials. This is clever, reliable, but simple technology, with the prototype assembled in three hours, allowing production of 100 ventilators in a single week. That’s 100 ventilators from locally available materials without having to first modify a GM assembly plant. Vanderbilt Mechanical Engineer Kevin Galloway says the goal is to “make the design publicly available so that anyone can replicate it.”  Thanks to the FDA for its March 24, 2020 guidance on FDA’s emergency authority to approve this type of equipment!

The Vanderbilt open-source ventilator design may be ready and publicly available soon, but 3D printers should be available now, particularly in urban areas and universities. While 3D printing resources are likely available, healthcare professionals may not be aware of them. Even if there is some general level of awareness, medical professionals are pretty busy and may need help accessing these resources. If your local healthcare professionals need help, consider reaching out and connecting them with your local university’s 3D printing resources, so the university can begin printing the N95 masks the medical professionals need. It may be enough to simply offer the suggestion.

After you’ve helped source your healthcare professionals with PPE, you could try to keep people from flushing wipes. Not only do wipes shut down wastewater treatment plants. Apparently, once people have used up their wipes, they begin flushing t-shirts. This will be a marathon folks.

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

ANNOUNCEMENT OF 2020 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 26, 2020 by JB Ruhl

The American College of Environmental Lawyers (“ACOEL”) announces its annual Stephen E. Herrmann Environmental Writing Award (“Herrmann Award”) for the 2019-20 academic year.  Stephen E. Herrmann is a distinguished, nationally recognized environmental lawyer. For some forty years, Mr. Herrmann has been a leader in the area of environmental law as a practitioner, teacher, and writer. Through this award, the ACOEL honors his leadership in environmental law and his role in the formation of the ACOEL.

The ACOEL is a professional association of distinguished lawyers who practice in the field of environmental law. ACOEL Fellows come from the private bar, not for profit organizations, government, and law schools. Membership is by invitation. Fellows are recognized by their peers as preeminent in their field. The ACOEL is dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice, and the development of environmental law at the state and federal levels. 

Eligibility: Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible annually to nominate one student-authored article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year. The article should be 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. The article must have only one author, and the author may be a candidate for the J.D., LL.M., or S.J.D. degree.

Award: 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 the Herrmann Award will be invited to discuss his or her submission to the Fellows at the ACOEL Annual Meeting, which in 2020 will be held October 1-3 in Santa Fe, New Mexico. 

Judging Criteria: The prize will be awarded to the author of a student article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) 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 Schedule and Guidelines: Please email one electronic copy of a submission to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, to Professor J.B. Ruhl at jb.ruhl@vanderbilt.edu. Entries must be received no later than June 12, 2020. Please include with your entry: (1) a cover letter or e-mail message stating the name of the submitting law journal, (2) email address(es) of author (with post-graduation email address if applicable), (3) year of author’s graduation or anticipated graduation, and (4) a statement that the submission was not written as part of paid employment. If you have questions, please contact J.B. Ruhl by email referencing the same subject to ensure a prompt response.  

MACT Follies

Posted on March 20, 2020 by Adam Babich

Data is in from EPA’s “work practice” requirement that petroleum refineries monitor ambient air for benzene concentrations around their fence lines. The regulations set an “action level” of 9 µg/m3 benzene, using benzene as a “surrogate” for fugitive hazardous air pollutants. The purpose? To “protect the health of the populations surrounding the facility, including minority and low-income populations.” EPA set the action level at a concentration that no refinery would exceed as long as its fugitive emissions estimates were “consistent with the level of fugitive emissions actually emitted.” In other words, if operators reported their fugitive emissions accurately, the benzene action level would be entirely theoretical.

Surprise! Benzene concentrations in air around 10 oil refineries blew the limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero and BPF Energy. Does this tell us something about using unverified industry estimates of emissions as a basis for protecting public health?

In theory, the regulatory structure that governs hazardous air pollutants—such as benzene from oil refineries—is brilliant. It includes elements to appeal to fans of both “technology-based” and “risk-based” regulation. Technology-based standards require that facilities reduce dangerous pollution as much as practical given the state of the art. These standards are relatively straightforward to set and enforce. There is no guarantee, however, that technology-based standards will protect people from all excessive risks. In contrast, risk-based standards are designed to eliminate unacceptable risks, ideally with a margin of safety. Confidence in risk-based regulation, however, requires a leap of faith that risk assessment techniques will generate accurate results. Risk assessments tend to rely on questionable estimates of the amounts of chemical pollutants that people breath, drink, or absorb, and on controversial assumptions about what a safe level of exposure would be. The fact that people are exposed to many chemicals leads to further uncertainty about cumulative and synergistic risks.

Originally, Congress designed the Clean Air Act’s hazardous air pollutant program to use risk-based standards. The Act required EPA to set emission standards that would protect public health with an ample margin of safety. For EPA, this mandate raised the prospect of banning some chemicals completely, at least when “the only level … which would appear to be absolutely protective of health is zero.” The agency essentially froze up. As of 1990, EPA had only promulgated eight hazardous air pollutant standards.

Congress responded in the 1990 Clean Air Act Amendments. At least initially, that law shifted the hazardous-air-pollutant program to rest on technology-based standards. The Act required EPA to determine maximum achievable control technology (MACT) for a list of 191 chemicals. Congress, however, did not stop there. To ensure that a MACT standard is actually protecting the public, the Act mandates an EPA “residual risk” analysis within six years of the promulgation of technology-based limits. This sounds like the best of both the technology-based and risk-based approaches—right?

But look at EPA’s historical approach to residual risk: In Natural Resource Defense Council v. EPA, the D.C. Circuit reviewed EPA’s 2006 analysis of risk from facilities that use or produce synthetic organic chemicals. EPA relied on the results of an American Chemistry Council questionnaire with a 44% response rate. Why? The agency explained, inter alia, that reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. EPA’s approach survived the appeal.

With respect to the 2015 petroleum refineries rule: Hats off to EPA for its innovative work-practice/fenceline-monitoring approach. Because the monitoring results illustrate the fallacy of continued reliance on industry estimates of fugitive emissions, the agency should now expand the fenceline-monitoring approach to other sectors.

The Bad, the Ugly and the Good; The Trump Administration Proposes Changes to the National Environmental Policy Act

Posted on March 13, 2020 by Peter Van Tuyn

Benjamin Franklin wrote that “an investment in knowledge always pays the best interest.”  Just over 200 years later, the United States passed a law that put that sentiment into practice in the context of federal government decision-making that may impact an increasingly stressed environment.  The National Environmental Policy Act (NEPA) marked a turning point in our nation’s relationship with the environment, and it is based on the idea that if we take the time to understand the full effects of our decisions before we make them, we tend to make better decisions.  The Trump administration recently proposed changes to the Council on Environmental Quality’s NEPA regulations that, like its proposed changes to Endangered Species Act regulations, would institutionalize ignorance in federal decision-making that impacts the environment.  These proposed changes are bad, their origins ugly, and yet, fifty years after NEPA was signed into law, they also offer the opportunity to reaffirm our commitment to the pursuit of knowledge and informed decision-making.  In that sense the administration’s attempt to gut NEPA may turn out to be good. 

NEPA requires federal agencies to conduct in-depth analyses of the potential environmental, including human, impacts of “major federal actions that significantly affecting […] the environment.”   Under NEPA, federal agencies analyze the potential impacts of actions that they directly undertake, permit or fund, in order to determine if the potential impacts are significant.  If they are, the agencies must deeply and holistically analyze those impacts, consider alternatives that may have lesser impacts, and run their preliminary analyses through a ground-truthing, often enlightening and sometimes humbling, public review and comment process.  Only once these steps are done can the federal agency make its final decision.  This investment results in final decisions that tend to eliminate or at least minimize the impact of a proposed project on the environment

In myriad ways, the administration’s proposed changes would undercut these fundamental attributes of NEPA.   The proposal includes an attempt to limit the types of federal actions that trigger NEPA, to exclude, for example, the analysis of projects that may require multiple non-federal permits or have only partial federal funding.  The proposal would eliminate the requirement that cumulative effects of a proposed project be analyzed, despite CEQ’s own acknowledgement of the significance of such effects.  Further, using the same sleight of hand from the administration’s ill-considered proposal to change Endangered Species Act regulations, the proposal would exclude climate change from cumulative effects that must be analyzed.  The proposal also eliminates the requirement for review of the indirect effects of an action, such as downstream pollution impacts from an industrial activity.  In another provision rife with potential conflicts of interest, corporations could prepare their own impact analyses, a job now accomplished by the more objective federal agencies (though it is often paid for by corporations).  And the proposal limits public involvement in both time and substance, undercutting NEPA’s critical check against government (and in the future possibly corporate) myopathy or hubris.   

Senator Henry Jackson, upon the introduction of NEPA legislation in Congress, stated the following

The survival of man, in a world in which decency and dignity are possible, is the basic reason for bringing man’s impact on his environment under informed and responsible control. 

The CEQ proposals, individually, and dare I say cumulatively, would gut this vision, and finalizing them would be bad for people and our environment.

Further, the origins of the CEQ proposal appear to be downright ugly.  As one example, the British oil company BP lobbied the Trump administration to weaken NEPA as way to “benefit BP’s operations in the US” and, as reported, “clear[] the way for major infrastructure projects to bypass checks.”   And then, just a short while after the administration revealed its NEPA proposal, BP announced a new initiative aimed at reducing its environmental impact, with its CEO stating that “[t]he world does have a carbon budget, and it is running out fast.”  So on the one hand BP privately lobbies the United States to undercut this most fundamental of environmental laws, and with the other hand it publicly claims it will take action to address the environmental impacts from its operations.  How dreadful.

There is a silver lining in this dark cloud, however.  It exists in the renewed public discussion about the importance of facts to government decision-making, including those that some see as so inconvenient that they would rather not know them.  The groundswell of public opinion that led to Republican President Richard Nixon signing NEPA into law in 1970 will, I predict, result in a reaffirmation of the importance of NEPA and other environmental laws which this administration has sought to roll back, and the rollbacks will themselves be rolled back.  And that is for the greater good.

Modern Day Alchemy: New Help for Treating Acid Mine Drainage

Posted on March 11, 2020 by Robert Uram

Two promising new technologies—recovery of rare earths from acid mine drainage (AMD and conversion of AMD treatment by-products to paint pigments are bringing new hope to remediating AMD polluted streams. These technologies are a kind of modern day alchemy—restoring streams that are orange and lifeless by turning pollution into economically valuable products and creating new jobs for local economies. The development of economically viable treatment processes is a game changer for AMD treatment with potentially huge benefits for national security, local economies, and restoration of the health of thousands of miles of now lifeless streams.

Rare Earth Recovery

West Virginia University’s Water Research Institute director, Paul Ziemkiewicz, PhD, has been at the forefront of researching AMD issues and developing AMD remediation techniques for decades. Dr. Ziemkewicz has developed a process that can extract rare earths from AMD.  As explained more fully in Rare Earths Funded, last fall he received a 5 million dollar grant from the Department of Energy to build a pilot plant in conjunction with the WVDEP that will extract rare earths while treating 500 gallons of AMD per minute. Dr. Ziemkewicz estimates that AMD flows could be the source of as much as 2200 tons of rare earths a year.

Rare earths are a critical component in many products including cell phones.  Rare Earths Funded explains that, “Rare earth metals consist of the 17 chemically similar elements at the bottom of the periodic table, such as cerium and scandium. Despite their name, they're not "rare" because they're often found in other minerals, within the earth's crust or, in this case, in coal and coal byproducts.” Most of the 20,000 tons of rare earths we use are imported, mainly from China. The initial plant will be located on Abrams Creek, a tributary to the North Branch of the Potomac River and will benefit at least 17 miles of stream.

Paint Pigments

Rural Action is a watershed organization that has been involved in restoring AMD damaged streams since 1991. Recently, they have partnered with Ohio University Professor Guy Riefler, and the Ohio Department of Natural Resources to develop a process that transforms iron from AMD into marketable paint pigments in a process called True Pigments, https://www.ohio.edu/news/2019/12/acid-mine-drainage-cleanup-plant-moves-closer-full-scale-thanks-3-5m-award. They have received a 3.5 million dollar grant from the OSMRE to partially fund the development of a treatment plant. The initial plant will treat a large discharge in the Sunday Creek watershed in Athens County, Ohio, that pollutes a seven-mile stretch of Sunday Creek with 2.2 million pounds of iron each year.

The True Pigments process treats polluted water, removing iron oxide, to yield a commercial grade of iron pigment, which can be used in paint production. The United States uses about 224,000 tons of paint pigment each year, most of which is imported from China.  The first True Pigments plant is anticipated to meet one percent of that supply.  Rural Action is still seeking an additional four million dollars needed to build the treatment facility.

In the past 25 years, with the active support of dozens of watershed groups like Rural Action and Friends of the Cheat River in West Virginia and state and federal agencies, hundreds of projects have been implemented and many hundred miles of AMD-polluted streams have been brought back to life. Formerly dead streams are now brimming with fish and other aquatic species. Local communities have the benefit of clean water.

The bulk of the funding for these restoration projects has come in the form of grants to State Abandoned Mine land programs from Surface Mining Control and Reclamation Act’s Abandoned Mined Land Fund and from EPA’s Clean Water Act Section 319 grant program. These funding sources are simply insufficient to address the vast scope of AMD problems (which are only a part of the overall need to address the health and safety and other environmental effects from abandoned coal mines).  In addition, new revenue to the Abandoned Mined Land fund is currently scheduled to expire in 2021.

The rare earth and True Pigment processes can help address the funding shortage by providing an additional, independent source of funding for AMD remediation. They will be important tools in the decades to come as the battle continues to restore more than 7000 miles of streams polluted by AMD from abandoned coal mines continues in Pennsylvania, West Virginia, Ohio, Virginia, Maryland, Kentucky, Tennessee and Alabama.

Little Bear Run, Pennsylvania (Before and after Treatment)

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Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Endangered Species: Migratory Bird Treaty Act -- Scope of Act Rule

Posted on March 9, 2020 by Richard Horder

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty Act, even when those deaths are foreseeable and preventable.

The Migratory Bird Treaty Act (the Act) is a century-old statute with a broad prohibition on the taking and killing of migratory birds by any means and in any manner. It was originally enacted to protect birds from over-hunting and poaching, but has been used to prosecute and fine companies for accidental bird deaths since the 1970s, particularly when such deaths were anticipatable and preventable through conservation efforts.

The U.S. Department of Interior (DOI) has flip-flopped on its interpretation of the Act in recent years. The Principal Deputy Solicitor concluded in early 2017 that the Act’s “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” See Solicitor's Opinion M-37041, “Incidental Take Prohibited Under the Migratory Bird Treaty Act,” issued January 10, 2017. However, that regulation was withdrawn less than a month later as the Trump administration evaluated construction of the Keystone XL Pipeline. President Trump issued a memorandum on January 24, 2017, which called for an immediate review of requests for approvals related to the Keystone XL Pipeline, including requests under the USFWS’s regulations implementing the Migratory Bird Treaty Act. In December 2017, the DOI repealed and replaced the earlier regulation with one that clearly states: “Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” See Solicitor’s Opinion M-37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” issued December 22, 2017. The Proposed Rule published this February is an effort to codify this regulatory change.

Businesses and local governments now face no pressure from regulators to take precautionary measures to protect birds, and in some situations, have even been discouraged from doing so. For example, the state of Virginia underwent a major bridge and tunnel expansion in Chesapeake Bay in 2018, which was inevitably going to destroy the nesting grounds of 25,000 seabirds. While the state considered developing an artificial island as a safe haven for the birds, the Trump administration stepped in and told the state that while it “appreciates” the state’s efforts, the shift in policy now makes such conservation measures “purely voluntary.”

The agency’s emphasis on industry over conservation comes at a time when habitat loss, pesticide exposure, and general climate change threats to bird populations are at an all-time high. In fact, research shows that over the past half-century, North America has lost more than a quarter of its entire bird population— about 3 billion birds.

Though conservation efforts may seem burdensome, they provide unexpected benefits to the national economy. A 2016 study conducted by USFWS, the same agency that issued the Proposed Rule, found that more than 45 million people watch birds, joining other wildlife watchers in contributing a total of $80 billion to the U.S. economy. The importance of healthy bird populations will hopefully be addressed in public comments, which will be accepted until March 19. Comments that have been submitted to date can be found here.