Posted on February 22, 2017
In Scaramouche, Raphael Sabatini describes the hero of the novel as having been “…born with a gift of laughter and a sense that the world was mad”.
The Angus Macbeth I knew for 38 years had one of the best laughs of all time and a keen appreciation for the occasional absurdity of the world in which he lived. After all, how else to describe a man whose life-long professional endeavor was to attempt to explain EPA to Industry, Industry to EPA, and NRDC to everyone. A Sisyphean task which he approached with skill and aplomb and, above all, a boundless supply of mirth.
I met Angus in 1978 as an aspiring lawyer looking for work in Carter-era Washington. I remember almost nothing about which we spoke. What does stand out is a long conversation filled with loud talk, laughter, an endless stream of staff lawyers entering and exiting during my interview to discuss some issue or other ( think Court of Requests), and cigar smoke. I am pretty sure I got hired because I demonstrated I could stay with the thread of our conversation regardless of the interruptions and, more importantly, my shared love of cigars. That was, truly the beginning of a beautiful friendship.
I watched and learned from Angus, not just then, but throughout our working lives. I watched him mold a group of really smart, sometimes unruly and quirky lawyers at DOJ into an enormously effective team. He made everyone he touched better.
I was amazed as he cajoled and jawboned his primary client ,EPA, into coming round to his way of thinking by the sheer force of his intellect and charm. Angus could quiet the most obstreperous US Attorneys, EPA Appointees, or opposing counsel by asking a few direct, innocent questions and waiting until they either got the lesson or felt the bleeding. In private practice Angus would patiently explain to the outraged client that yes, the government was not being logical; sadly, it didn’t have to be; however, here was a good path forward. It always worked. Angus combined a big brain, cold, clear-eyed analytical skills, and the integrity to tell clients what they needed rather than what they wanted to hear.
Angus loved complex problems and working with smart people to solve them as much as he hated typos (his biggest condemnation of a piece was that it was “riddled with typos”) and slipshod work. He could express convoluted concepts simply and was the master of the one word answer followed by silence and “the look”. Then, he would take over the room as he set out the issues and the answers. He led by his own example and had as little ego as any brilliant lawyer I have ever known. You just didn’t want to let him down or do less than your best. He was the gold standard for what a lawyer should be. And for what a colleague should be. And for what a friend should be.
I saw him angry only once, when a group of Louisiana lawyers thought they could pull a fast one on the government. They came to DOJ to complain about what we staff lawyers were doing and, thanks to Angus and Jim Moorman, left with their tails between their legs.
I traveled with him from San Francisco to England to Alaska. We toodled around Bath and the Salisbury plain and met his cousins who owned a book store and designed jeweled badges for HRH Prince Phillip. I marveled at how everywhere I went, everyone knew Angus or had an Angus story. He was equally comfortable with CEOs and London taxi drivers. His sartorial splendor was legendary. I did actually accompany him to Hackett’s in London where I saw him buy a new jacket which he wore for 30 years. I think he owned the same shirt for most of the time I knew him. It was never tucked in and the front buttons were on the verge of becoming projectiles.
He had perfected the stage whisper mutter which he used at the right time and place to effect. He loved to eat good food, drink good wine, and have the occasional drop of harder stuff. He was, after all, a true Scot. Once, we both decided to do something about our weight and decided to play squash at the DC Y. Truly. Can you imagine? Thank goodness there are no “Access Hollywood” tapes of those somewhat ponderous matches. Think the hippos in Fantasia dancing to the Waltz of the Flowers.
Despite being always on the go and in high demand for his legal skills, Angus always had time for friends. He was at the house with baskets of flowers when Ann and I got married; talked the Woodies store manager into selling him the rocking horse which was part of the seasonal display for Andrew when he was born; composed memorable toasts and through a thousand kindnesses let one know one was valued. And his cooking : fabulous. Dinners at the Macbeths-particularly at Christmas or Thanksgiving- were true creative feasts. I kept a list of the words he used with ease which I had never previously heard. He could actually tell you who Lord Acton was and what he famously said.
He loved being a lawyer. It spoke to his view that the world should be fundamentally fair and that the cause of justice was important. This sense of fairness drove him in his work on the scandal of the incarceration and property seizure which befell Japanese Americans at the hands of their government.
He loved JoAnn and “the boys” beyond measure.
If I had 2 lifetimes, I couldn’t recount every hilarious and touching Angus story I know. I am sure there are hundreds of his friends and colleagues who feel the same. What I know is that the luckiest thing that ever happened to me, professionally at least, was meeting Angus Macbeth. The smartest thing I ever did was to convince him to bring Sam Gutter and join me at Sidley. The second smartest was to hire him to help on GE’s biggest environmental problems. That he was my friend is a blessing to me. That he is gone is heart-breaking. Angus is irreplaceable.
Angus was quite simply a wise and good man. His passing leaves a huge hole in the fabric of the lives of his family, those who loved and worked with him, and the history of environmental law. He was one of a kind and I do not think we shall see his like again.
Angus, ave atque vale.
Posted on February 14, 2017
Citing its deep decline in numbers, on January 10, 2017, the U.S. Fish and Wildlife Service (“FWS”) listed the rusty patched bumble bee, Bombus affinis, as endangered under the Endangered Species Act (“ESA”). FWS estimates the rusty patched bumble bee population has seen as much as a 91 percent reduction since the mid to late 1990s. Twenty years ago, this species was practically ubiquitous in eastern North America, spanning across 28 states. Now its territory covers only small regions in 12 states: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.
This listing is the first for bees under the ESA, but unlikely the last. Like the rusty patch bumble bee, other bee species are facing steep declines in their respective populations. Declining bee populations are troubling, because bees, as pollinators, are vital to the U.S. agricultural industry. According to a study conducted in 2010 by Cornell University, bees and other pollinators are estimated to contribute a total of $29 billion to the industry, with $16.35 billion attributed specifically to pollination.
The direct cause of these dramatic declines in bee populations is undetermined and likely due to a multitude of factors. FWS states the threats to the rusty patched bumble bee include disease, exposure to pesticides, habitat loss, and climate change. This listing will likely intensify the debate over commonly used pesticides, including neonicotinoids, which have undergone additional scrutiny after a 2016 study published in Nature linked the use of neonicotinoids to the decline of wild bee populations in England.
FWS published the proposal for this listing in the Federal Register on September 22, 2016 and the final listing was published in the Federal Regulation on. January 10, 2017. However, due to the Trump administration’s Inauguration Day memorandum halting or delaying any new federal regulations, the ESA’s protection for the rusty patch bumble bee is delayed until March 21, 2017-a stinging result.
Posted on February 13, 2017
Have any of you been feeling like this lately? I certainly have! Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary. Instead, I chose a topic that made me smile.
On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games. The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals. The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze.
Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms. A few host cities previously used recyclable materials in their medals. Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics. The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint. The gold was mercury free and in compliance with sustainability standards from extraction to refining. At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals. The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings.
As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low.
Of course, we face similar obstacles in the United States. On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste. The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public.
At least in New York, things on the e-waste recycling front are more optimistic. New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices. The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day. At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030. As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.
Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.
Posted on February 9, 2017
Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!). It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.
Here are the highlights:
- A gradually increasing carbon tax, starting somewhere around $40/ton.
- Return of all revenue from the tax to citizens through dividend checks. The CLC predicts that the 70% of Americans with lowest income would receive more in dividends than they would pay in taxes.
- Border carbon adjustments.
- Elimination of existing carbon regulations. It’s not clear what this would cover, but it would include at least the Clean Power Plan. It would also include elimination of tort liability (presumably limited to tort liability related to claims concerning climate change).
I’d sign up for this today, but I’m not exactly one of the people that needs convincing. According to GreenWire (subscription required), former Secretary of State James Baker, who led the public presentation of the report, acknowledged that attaining enactment of the proposal would be an “uphill slog.” I think that’s putting it mildly. The CLC members are basically a who’s who of the old-line GOP mainstream – precisely the types that President Trump appears to have consigned to the dustbin of history.
Nonetheless, hope springs eternal and we have to start somewhere.
Posted on February 8, 2017
President Donald Trump’s first weeks in office have seemed like a reality TV show highlighted by frequent signing ceremonies for hastily-drafted executive orders. One of these orders, signed on January 30, is entitled “Reducing Regulation and Controlling Regulatory Costs” (Executive Order 13771). President Trump described it as mandating “the largest cut by far, ever in terms of regulation” and the key to “cutting regulations massively” for businesses. The order requires federal agencies to repeal two existing regulations for each new regulation they issue and it gives each agency a regulatory budget of zero for the imposition of aggregate costs on industry during the current fiscal year.
The words “cost” or “costs” appear 18 times in the executive order; entirely missing from it is any discussion of the benefits of regulation. By focusing solely on reducing the costs of regulation, President Trump is repeating a crucial mistake the Reagan administration made after launching a major “regulatory reform” initiative in 1981. President Reagan’s Executive Order 12291 created a new system of regulatory review centered in the Office of Management and Budget (OMB). It mandated that federal agencies perform cost/benefit analyses to support any major rule likely to cost more than $100 million annually. Subsequent Presidents of both parties have retained this requirement and the centralization of regulatory review in OMB’s Office of Information and Regulatory Affairs.
Unlike Trump’s executive order, Reagan’s order directed federal agencies to consider both the costs and benefits of regulation. It specified that such agencies should seek to maximize net benefits to society and to issue regulations only when their potential benefits outweighed their potential costs. However, the Reagan administration undermined these directives by maintaining that costs and benefits need not be weighed when an agency proposed to repeal a regulation. This contributed to a disastrous effort to repeal limits on the amount of lead additives that could be used in gasoline.
At the direction of Reagan’s Task Force on Regulatory Relief, EPA proposed to repeal the lead limits that had been sustained in the D.C. Circuit’s historic, en banc decision in Ethyl Corporation v. EPA. While this would have saved oil refiners a small amount of money, it would have dramatically increased lead poisoning, costing society far more. Yet, despite the Reagan administration’s new emphasis on cost/benefit analysis, no cost/benefit analysis was performed because EPA was proposing to repeal a regulation.
The rulemaking to abolish limits on lead in gasoline spawned such a firestorm of opposition, even from conservative columnist George Will, that the Reagan administration was forced instead to strengthen the regulation. Three years later, after William Ruckelhaus had returned to lead EPA, the agency performed a cost/benefit analysis of phasing lead out of gasoline entirely. After the analysis found overwhelming net benefits from banning leaded gasoline, EPA did so. Today nearly every country in the world has followed the U.S. in banning leaded gasoline, dramatically reducing lead poisoning. Economists estimate that lead phase-out now generates more than two trillion dollars per year in net benefits globally.
Under President Trump’s new executive order, federal agencies must repeal two rules, regardless of their benefits, in order to take any new regulatory action. And the costs of the new regulation must be offset by the reduced costs from repealing existing rules. Thus, if EPA wants to strengthen regulations on lead in drinking water to protect people like the residents of Flint, Michigan, Trump’s executive order requires it to repeal two existing rules, for example (god forbid) by no longer prohibiting oil refiners from adding lead to gasoline.
President Trump’s executive order has legal qualifiers that offer some hope. It purports not to “impair or otherwise affect” agencies’ existing legal authority and it requires federal agencies to comply with the Administrative Procedure Act (APA) when repealing rules. The APA’s judicial review provisions direct courts to strike down agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If an agency’s only justification for repealing a rule is to comply with President Trump’s new directive, it should be possible to convince a reviewing court that the action is arbitrary enough to be struck down.
President Reagan’s efforts to relax environmental regulation generated a backlash in Congress, which responded by greatly strengthening the environmental laws and adding numerous deadlines for EPA action. But that was because Congress then was controlled by lawmakers who cared about environmental protection. Today’s Congress is controlled by lawmakers who regularly campaign against EPA regulations. Regulations that are outmoded, ineffective, or excessively burdensome should be repealed, as President Obama directed in 2011 when he issued Executive Order 13563. But President Trump’s poorly drafted Executive Order 13771 opens the door to repealing long-established protections for public health, safety and the environment without consideration of the enormous benefits they produce.
Posted on February 6, 2017
In recent months, the Agency for Toxic Substances and Disease Registry (ATSDR) and the “minimal risk levels” (MRLs) established by ATSDR have played a direct role in EPA’s efforts to regulate stationary sources under the Clean Air Act. The ATSDR is an advisory agency created by CERCLA in 1980 to help EPA assess health hazards associated with Superfund Sites. ATSDR’s role was expanded by the 1984 RCRA Amendments to assess risks from hazardous substance releases at landfills and surface impoundments. In 1986 SARA further expanded ATSDR’s responsibilities under CERCLA to assess the health impacts of hazardous substance releases.
In response to its CERCLA mandate, ATSDR has developed MRLs which define the level of daily human exposure to a hazardous substance release that is likely to result in no appreciable risk of an adverse non-cancer health effect. MRLs are designed to be a screening tool and are not intended to identify levels that would trigger cleanup or other action. As a result, exposure to a hazardous substance above an MRL does not necessarily mean that adverse health effects will occur. Rather, MRLs “are set below levels that, based on current information, might cause adverse health effects in the people most sensitive to such substance-induced effect.”
In comparison to the MRLs developed under CERCLA, there are two sets of standards established by EPA under the federal Clean Air Act to address health impacts from air emissions. One of these is the National Ambient Air Quality Standards (“NAAQS”) which define the concentration of a criteria pollutant in ambient air deemed to be protective of human health. State implementation plans are designed to achieve compliance with NAAQS. Likewise, the air emissions from permitted stationary sources are analyzed to ensure consistency with NAAQS. NAAQS are developed through a rigorous process that solicits input from the scientific community and public at large, and are promulgated as rules which are invariably subject to legal challenge and judicial review.
EPA also establishes emission limitations under Section 112 of the Clean Air Act to control toxic air emissions. These standards limit the emissions of hazardous air pollutants from specified categories of stationary sources. EPA assesses the risk to public health and the environment that remains after implementation of these limitations and must promulgate new health based standards to mitigate those residual risks.
In recent months EPA has moved beyond the NAAQS and toxic air pollutant standards to rely upon the ATSDR and its MRLs in identifying the allowable, and ostensibly enforceable, concentration of pollutants in ambient air under the Clean Air Act.
In one case, EPA asked ATSDR to evaluate the ambient air quality surrounding a stationary source. ATSDR concluded that the monitored concentrations of manganese from that source exceeded the pollutant’s MRL. Based on this finding, US DOJ filed a civil complaint against the facility. One of the claims alleged that the monitored manganese concentrations presented an imminent and substantial endangerment to public health and that injunctive action was necessary under Section 303 of the Clean Air Act. The complaint requested a judicial order requiring installation of fence-line air monitors and implementation by the source of all measures necessary to prevent exceedance of the MRL for manganese at those monitors. In effect, EPA identified the MRL as the allowable concentration of manganese to be emitted under the Clean Air Act. The case has settled.
In other matters, EPA Region 5 utilized the information from an ATSDR health consultation to justify issuance of a Section 114 order under the Clean Air Act which required installation of fence-line PM10 monitors around a facility with outdoor storage piles where manganese emissions were also an issue. The company refused to install the monitors and EPA filed a civil complaint seeking to enforce the Section 114 order. EPA sought summary judgment, relying in part upon an ATSDR finding that manganese concentrations in the ambient air surrounding a nearby facility exceeded the MRL. The underlying ATSDR assessment also used PM10 Air Quality Guidelines (AQG) from the World Health Organization (WHO) to conclude that ambient PM10 concentrations might cause respiratory problems for sensitive individuals. Notably, the WHO AQG are more conservative than the NAAQS (the WHO AQG for PM10 is 50 μg/m3 as a 24-hour mean, whereas the NAAQS for PM10 is 150 μg/m3 averaged over that same time period). The case settled.
It’s worth noting that ATSDR has finalized approximately 150 inhalation based MRLs covering pollutants emitted by a broad range of industrial facilities. However, I think it is safe to assume that stationary sources do not view MRLs as imposing any additional Clean Air Act strictures on their operations since the MRLs are not listed as applicable requirements in air permits. Moreover, the Title I and V permitting programs do not require sources to perform dispersion modeling to ensure compliance with MRLs.
It remains to be seen whether EPA under the new administration will continue to reach out to ATSDR and utilize the MRLs in addressing air pollutant emissions, particularly where such limits have never been vetted through a rulemaking process. I wouldn’t bet on it.
Posted on February 3, 2017
On his way out the door, former Director of the U.S. Fish and Wildlife Service Dan Ashe issued an order to establish procedures and a timeline for expanding the use of nontoxic ammunition and fishing tackle to conserve wildlife. The order sets forth policy to require the use of nontoxic ammunition and fishing tackle “to the fullest extent practicable” for all activities on Service lands, waters and facilities by January 2022, except as needed for law enforcement or to address health and safety issues. The order also provides for collaboration with state fish and wildlife agencies in its implementation.
In addition to continued education and research, Ashe set forth three basic steps to achieve this policy. To provide more consistency, the Service is to identify existing state, Federal or tribal requirements to use nontoxic ammunition or tackle and, through amendment of Service hunting and fishing regulations, to apply and enforce those requirements on Service lands. Second, Regional Directors must take steps to require the use of nontoxic ammunition and tackle when available information indicates that the lead content negatively impacts sensitive, vulnerable or trust resources. It also directs the Service, in consultation with National Flyway Councils, to establish a process to phase in the use of nontoxic ammunition for hunting mourning doves and other upland birds. In other words, the order is a measured plan to be implemented through collaboration, consultation and rulemaking over the next five years.
The phase-out of lead ammunition is nothing new. The Service phased out the use of lead shot for hunting waterfowl starting in 1986, but rejected an alternative that would have extended to all migratory bird hunting based on insufficient data. For decades, scientific evidence regarding the detrimental effect of lead ammunition on wildlife has been mounting. A recent Service assessment concluded that numerous lines of evidence in the scientific literature point to spent lead ammunition as the primary pathway for widespread lead exposure to scavenging birds such as bald and golden eagles and the California condor in the United States, that reducing this route of exposure will result in the greatest alleviation of mortality and other adverse effects to these species from lead in the environment, and that lead can be replaced in ammunition by alternative metals that are currently available and present limited environmental threats.
Unfortunately, Ashe’s timing was terrible. Predictably, the National Shooting Sports Foundation and the National Rifle Association characterized the order as government overreach, unchecked politics and not based on sound science. They called for the next Director to rescind the order, and Representatives Jason Chaffetz and Blake Farenthold, Chairman of the House Subcommittee on the Interior, Energy, and the Environment, have instructed the Acting Director of the U.S. Fish and Wildlife Service to produce all documents referring or relating to issuance of the order by February 13, and to provide a briefing on the Service’s outreach efforts to the states and the “sportsmen’s community” in anticipation of the order’s issuance. Montana Congressman Ryan Zinke, poised to become U.S. Secretary of the Interior, is likely to ensure that the order is very promptly rescinded.
Waterfowl hunters have successfully used nontoxic shot for over twenty-five years. Absent further leadership from the U.S. Fish and Wildlife Service, some states are phasing out lead ammunition. Hunters currently have a reasonable choice to avoid unintended harm – wildlife does not.
Posted on February 2, 2017
The state of Oregon has turned up the heat in Hells Canyon. The burning question, so to speak, is whether a state can require passage and reintroduction of anadromous fish as a condition of certification under Section 401 of the Clean Water Act for relicensing of an existing hydroelectric project. The issue gets hotter because the particular project involved -- the Hells Canyon Complex (“HCC”), owned by Idaho Power Company (“IPC”) -- is located on the Snake River, which forms the border between Oregon and Idaho. The State of Oregon has issued a draft 401 certification with detailed conditions for passage and reintroduction of anadromous fish into a tributary on the “Oregon side” of the river. Idaho is opposed to reintroduction of any fish species above Hells Canyon Dam, leaving IPC in the middle.
Making a very long and complicated story short, for more than 13 years IPC has been working with state and federal agencies and stakeholders toward relicensing of the HCC. The project consists of three developments, each with a dam, reservoir, and powerhouse. In 1955, FERC issued a 50-year license with recognition that construction of the project would block fish passage and eventually lead to extirpation of anadromous fish above the dams. As a result, the initial FERC license included mitigation conditions to offset fish impacts, and additional mitigation was provided under a subsequent settlement agreement.
After more than a decade of studies, meetings, and negotiations, it looked like IPC and the states were on track for general agreement as to the terms and conditions of compatible, but separate 401 certifications to be issued by Oregon and Idaho – except as to the issue of fish passage and reintroduction. Despite Idaho’s objections, the Oregon Department of Environmental Quality (ODEQ) issued its draft 401 certification for public comment on December 13, 2016. The draft relies on a number of existing state water quality standards as the legal basis for requiring fish passage and reintroduction, though none of the standards is directly on point.
Public comments on the proposed 401 certification are due February 13. Objections relating to the fish passage and reintroduction conditions are likely to focus on whether such conditions are generally within the scope of 401 certification for FERC-licensed hydroelectric projects, and, if so, whether Oregon’s specific water quality standards provide a sufficient regulatory basis for the proposed ODEQ action. The comments may also raise questions about the baseline for mitigation and whether impacts to fish due to construction of the project – as opposed to on-going operations -- have already been fully mitigated. And then there’s the question of Idaho’s opposition.
ODEQ will consider the comments before issuing a final 401 certification decision. If the states are unable to resolve their differences over the passage and reintroduction issue, it’s likely to get a lot hotter in Hells Canyon.
And finally, a disclosure that the HCC relicensing issues hit close to home for ACOEL: I am part of a team representing IPC, and other College members are very much involved on both sides of the issue. There’s a lot we won’t be able to talk about at the next annual meeting!
Posted on February 1, 2017
The Paris Agreement reached at the 21st Conference of the Parties (COP-21) to the 1992 UN Framework Convention on Climate Change is a tobacco-style mass tort settlement cloaked as a global agreement to control greenhouse gases. Remaining in or departing the agreement involves a host of complex diplomatic, economic, and environmental issues.
Paris is the culmination of ten years’ of negotiations following the 2005 agreement in Montreal by industrial and developing nations to pursue talks aimed at “Long-Term Cooperative Action.” Prior to COP-10 in Montreal, and in the discussions leading to the 1997 Kyoto Protocol, developing nations steadfastly refused to consider taking on any substantive greenhouse gas emission control obligations, citing their need for economic growth, the eradication of poverty, and the historic responsibility of industrial nations for increased global greenhouse gas concentrations. Today, developing nations are the largest source of greenhouse gas emissions.
The U.S. and 174 other nations signed the Paris Agreement in New York on April 22, 2016. The agreement entered into force on October 6, 2016, and has been ratified to date by 122 of its signatories. If all of the emission reduction pledges submitted thus far were implemented, Paris may accomplish a modest reduction in the rate of growth of global greenhouse emissions, but will not come close to achieving its goal of limiting post-industrial temperature increases to 2 degrees Celsius.
More important to many of its signatories is achieving the other central purpose of the Paris Agreement: transferring upwards of $100 billion annually from industrial nations to less-developed countries to support emission mitigation and adaptation programs.
If the Paris agreement falls apart – by the defection of the U.S. or other major emitting nations, or through subsequent recognition that its ambitious climate targets and financial promises are unlikely to be achieved – the result could be mass tort litigation against major sources of carbon emissions such as international oil companies and other fossil fuel interests.
Tobacco and Climate Change
In the late 1990s, tobacco companies were sued by several states seeking compensation for higher health care costs caused by sick smokers. The tobacco companies ultimately agreed to a multi-billion dollar structured payout to the states, to be used for tobacco education programs or other purposes deemed appropriate by the plaintiffs. This financial settlement was reached in exchange for the states’ agreement not to pursue further litigation against the companies.
Now consider the structure of the Paris Agreement. Virtually all participating nations have submitted non-binding pledges to reduce or limit the growth of greenhouse gas emissions. In many cases, these pledges are explicitly contingent upon the transfer of financial and technological resources from industrial nations. The $100 billion annual pledge for developing country support – equivalent to about two-tenths of one percent of the GDP of all OECD industrial nations - was offered by then-Secretary of State Hillary Clinton at COP-15 in Copenhagen in 2009. When those negotiations broke down, the U.S. financial compensation offer was not forgotten. It later became a centerpiece of the talks resulting in the Paris agreement.
Responsibility without Liability
At the opening session of COP-21 in Paris, President Obama accepted “historic responsibility” for the United States’ contribution to increased greenhouse gas concentrations since the industrial revolution. Since 1780, global CO2 concentrations have risen from 280 ppm to more than 400 ppm, largely due to increased emissions from fossil fuel sources and mass deforestation by some developing nations.
While the President was accepting a share of the blame, his lawyers were hard at work. First, they quashed proposals to establish a new “climate court” to adjudicate claims of climate-related damages. Next, they fine-tuned a provision that could help to protect major industrial emitters from future liability for “loss and damages” associated with climate change. The liability provision included as Paragraph 51 of the COP-21 Decision adopting the Paris Agreement states that the Conference of the Parties “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” FCCC/CP/2015/10 Add.1.
Insurance for Parties at Risk
Article 8 of the Paris Agreement establishes an insurance program - the Warsaw International Mechanism - designed to make affordable climate-related insurance available to nations vulnerable to the effects of climate change, such as low-lying island states. To this end, Paragraph 48 of the COP Decision“(r)equests the Executive Committee of the Warsaw International Mechanism to establish a clearing house for risk transfer that serves as a repository for information on insurance and risk transfer, in order to facilitate the efforts of Parties to develop and implement comprehensive risk management strategies.” Id.
If Paris remains in full force and effect, it will serve as the exclusive multilateral entity charged with regulating the causes, consequences and remedies appropriate for climate change. The agreement thus may provide an effective shield against the exercise of subject matter jurisdiction by any court outside the U.S. in cases involving claims for damages associated with the effects of rising sea levels or other environmental consequences of climate change. Within the U.S., the Supreme Court already has decided (AEP v. Connecticut, 564 U.S. 410, 2011) that for federal courts the Clean Air Act displaces federal common law nuisance actions, placing jurisdiction over climate-related remedies in the U.S. Environmental Protection Agency. The AEP Court’s holding was limited to federal common law nuisance actions, thus leaving open the possibility of tort recovery based on state common law nuisance claims.
Should We Stay or Should We Go?
The decision to remain in or depart from the Paris Agreement is a high priority for the new Trump Administration. Some see advantages to simply walking away, or just ignoring the agreement given its lack of enforcement provisions. The President could issue an executive order withdrawing President Obama’s signature, or submit the agreement to the Senate for its advice and consent.
For some proponents, the case for walking away is strengthened by the collateral impact this would have on U.S. EPA’s future ability to exercise authority under Section 115 of the Clean Air Act to impose a carbon cap-and-trade program or similar measures to abate international air pollution. Environmental interests have advocated such a course in light of the legal difficulties besetting EPA’s Clean Power Plan.
Other advocates see a benefit to continuing U.S. participation in Paris to preserve it as a “global” forum for the discussion and resolution of climate-related issues. Through both Democratic and Republican administrations, the U.S. has been an effective interlocutor in all 22 Conferences of the Parties to the 1992 Rio Framework Convention.
Being at the table in international negotiations, especially where the potential liability of mass tort litigation is implicitly at issue, does not entail slavish implementation of unrealistic climate policies. The two degree Celsius target of the Paris Agreement is at the low end of targets considered appropriate by many in the scientific community. Meeting this target implies decarbonization of the U.S. energy sector by 2050, as documented by the Mid-Century Climate Strategy disseminated by the Obama Administration at COP-22 in Marrakech last November. This target, along with the pledge of a future “floor” contribution of $100 billion annually to developing nations, could be revisited and renegotiated in the regular “pledge and review” processes established by Paris.
The decision to withdraw from Paris should be weighed in light of its prospective trade and diplomatic impacts with other major carbon emitters, including the EU, China, Russia and India. The potential legal consequences of disengagement need to be thoroughly evaluated, along with the risks that U.S. withdrawal could precipitate widespread defection by many developing nations more eager to pursue litigation than to purchase insurance.
*The writer is an attorney in private practice (NYU, 1972; Georgetown U. Law Ctr., 1977). He has participated as an NGO representative of U.S. labor interests in all major negotiating sessions of the UN FCCC since 1993. He may be contacted at email@example.com.
Posted on January 30, 2017
With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs. Put simply, I don’t get it. There are at least two good reasons why conservatives should prefer Chevron deference to no deference.
First, the alternative is for courts to decide all questions of agency authority. But haven’t conservatives railed against unelected judges for years? Bureaucrats are unelected, but at least they work for the elected President. Isn’t EPA more likely to be responsive to President Trump than federal judges would be?
Second, the EDFs and NRDCs of this world would laugh hysterically at the notion that they have more sway with EPA than the regulated community. Anyone ever heard of “Regulatory Capture”?
The argument in support of Chevron was made cogently by Ed McTiernan in a recent blog post, but the strength of the argument was really brought home by the decision this past week in Catskill Mountains Chapter of Trout Unlimited v. EPA, in which the 2nd Circuit Court of Appeals – to fairly wide surprise – reversed a district court decision that had struck down EPA’s “water transfer” rule.
The rule was much favored by the regulated community, but there were very good jurisprudential reasons to affirm the District Court. Indeed, the decision was 2-1 and even the majority opinion repeatedly noted that, were it writing on a blank slate, it might well prefer an interpretation that would strike down the rule.
Why, then, did the Appeals Court reverse the District Court and affirm the rule? Chevron deference, of course.
Conservatives, be careful what you wish for.
Posted on January 27, 2017
So said Mark Twain (actually, he didn’t), and now the same can be said for EPA’s rule exempting water transfers from NPDES permitting requirements. When I last addressed this topic nearly three years ago in “Ashes to Ashes; Waters to Waters – The Death of EPA’s Water Transfer Rule”, a federal district court had just vacated the rule seeking to clarify EPA’s position that transfers of water between navigable bodies of water do not require NPDES permits. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency (SDNY, 3/28/2014).
Displaying a prescience that would make Carnac the Magnificent proud, I closed that earlier post with the assertion that “the only certainty is that litigation over the Water Transfer Rule will continue to flow.” I am therefore personally pleased to report that flow it has, the Second Circuit having now overturned the district court decision in a 2-1 opinion issued on January 18, 2017. The majority opinion upheld EPA's interpretation of the Clean Water Act to exempt water transfers, finding it was a “reasonable construction of the Clean Water Act supported by a reasoned explanation” and was entitled to deferential review under the Supreme Court’s Chevron doctrine.
Not content to rest on my laurels, I’m going to make another prediction. The Second Circuit won’t agree to rehear en banc and, if certiorari is sought, the Supreme Court won’t take the case. All of which means that, except perhaps for one last post to gloat yet again about my ability to see into the future, this is the last you’ll hear about litigation over the water transfer rule.
Posted on January 26, 2017
President Trump wasted no time making good on his promise to reverse President Obama’s efforts to reduce greenhouse gas emissions and move U.S. energy policy towards cleaner energy sources. On January 24 Trump signed two executive memoranda, one inviting TransCanada to resubmit its application to build the 800,000 barrel a day Keystone XL pipeline from the Canadian oil sands to the Gulf Coast; the other directing the Army Corps of Engineers to expedite the review and approval of the Dakota Access Pipeline (DAPL) to carry approximately 500,000 barrels per day of crude oil from the Bakken shale in North Dakota to oil markets in the United States. But a close reading raises some sticky legal and economic issues that will have to be resolved before the oil starts flowing. [LINKS to Keystone and DAPL Memos]
In announcing the Keystone Memo, Trump said that approval was contingent on TransCanada’s willingness to “renegotiate some of the terms” – including perhaps a commitment to use US steel and a share in any profits. The problem is that tar sands oil is not only the dirtiest fuel on the planet, it’s also the most expensive to extract. To be profitable oil prices need to be above $80 per barrel; today they sit around $52, and it is unlikely they will rise much higher in the foreseeable future given the competition from shale oil and the fracking boom that is flooding the market in the US. The break-even point for Bakken shale oil is $29 per barrel. Seventeen major oil sands projects were canceled after oil prices crashed in 2014, as companies took major losses. Major investors in the oil sands have begun to leave, including Norway-based Statoil, which pulled out of the oil sands in December 2016. So cutting a deal to the President’s liking may be harder than it looks.
Assuming the deal goes down, the Keystone Memo issues several directives to clear the way for the project. It directs the State Department to make a final decision within 60 days of the date TransCanada re-submits its application, and it further specifies that “to the maximum extent permitted by law” the final supplemental EIS issued in 2014 shall satisfy the requirements of NEPA as well as the consultation requirements of the Endangered Species Act, and “any other provision of law that requires executive department consultation or review.” The Keystone Memo also directs the Corps of Engineers to use Nationwide Permit 12 to summarily authorize the stream crossings needed to complete the project. These fast track measures are sure to be tested in court by the opponents who are not about to let their hard won victory be snatched away without a furious fight—in the courts as well as in the streets. While courts have ruled that the presidential permit itself is not reviewable, there is presumably no bar to challenging the decisions of the Corps and the Department of Interior that are necessary to complete the project.
The DAPL Memo directs the Secretary of the Army and the Chief of the Corps of Engineers to “review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under section 28 of the Mineral Leasing Act.” The Memo also instructs the Secretary to consider whether to rescind the memorandum issued by the Obama administration requiring preparation of an EIS on DAPL’s request for an easement to cross Lake Oahe, and to deem the previously-issued Environmental Assessment sufficient to satisfy NEPA.
The Standing Rock protest over DAPL has become an historic confrontation that has united an Indigenous land-and-water movement and climate activism to confront a fossil-fuel corporation protected by a militarized police force. At one point in December thousands of veterans arrived to provide a safe space for the protesters who call themselves “water protectors.” Litigation filed by the Standing Rock Tribe and other tribes challenging the Corps’ issuance of permits under the Clean Water Act and Rivers and Harbors Act is pending in federal district court in the District of Columbia. Judge Boasberg denied a preliminary injunction but has yet to rule on the merits of the case. At the moment, the court is considering DAPL’s motion for summary judgment to declare that the project already has all of the approvals it needs and the Corps should not be able to reverse its earlier decision that an EIS was not required. Though the Justice Department has vigorously opposed this move, it will be interesting to see whether the Trump administration adopts a different posture. In any event, the Tribe has raised serious questions about whether the Corps properly evaluated threats to its water supply intake and alternative routes that would lessen the risk. One of the allegations invokes environmental justice concerns arguing that the project was re-routed away from Bismarck in response to concerns about threats to its water supply. The Tribe has also raised novel questions about whether granting the easement would violate treaty rights under the 1851 Treaty of Fort Laramie.
At the hearing on DAPL’s motion for summary judgment, Judge Boasberg acknowledged the uncertainty about what the new administration might do but observed that “It’s not my business to guess.” For now the rest of us will have to guess at what the final outcome of this epic confrontation that has galvanized indigenous peoples from all over the world will be.
Posted on January 26, 2017
The Trump administration has issued a key Executive Order and several memoranda relating to energy and the environment. The goal of the Executive Order -- Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects – is to expedite environmental reviews and approvals. It provides that action by the Chair of the Counsel of Environmental Quality to designate an infrastructure project as high priority would trigger an expedited review and approval process, as described in the memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing.
Two other memoranda – those addressing the construction of the Keystone Pipeline and construction of the Dakota Access Pipeline – are intended to clear the way for approval of these two controversial pipelines. The President also stated that he wants pipe for U.S. pipelines to be made with American steel.
Finally, the White House issued a memorandum providing for a regulatory freeze of regulations that have not taken effect and withdrawal of regulations that have not yet been published in the Federal Register. In accordance with this directive, EPA has issued a notice postponing to March 21, 2017 the effective date of 30 regulations that were published by EPA after October 28, 2016. The delay is intended to provide further review of these regulations by the new Administration.
The Order and memoranda do not change the requirements of relevant environmental statutes. It remains to be seen to what extent these policies will affect future permitting or regulatory decisions. Interested parties will wish to carefully monitor how these developments unfold.
Posted on January 25, 2017
As I reflect on my tenure as Assistant Attorney General, I have been especially proud of the Division’s cooperation with state and local governments in matters encompassing all aspects of the Division’s work – affirmative and defensive, civil and criminal. When we combine forces with our state and local partners, we leverage the resources of multiple sovereigns and, ultimately, achieve more comprehensive results for the American people.
In 2016, we had unprecedented success in civil enforcement with states, due primarily to the record‐breaking settlement with BP in the Deepwater Horizon Oil Spill litigation. In April 2016, the trial court entered the final consent decree in the litigation, thereby resolving civil claims of the United States and the five Gulf Coast states against BP. The claims arose from the 2010 blowout of the Macondo well and the resulting massive oil spill in the Gulf of Mexico. BP will pay the U.S. and the five Gulf States more than $20 billion under the consent decree, including: 1) a $5.5 billion civil penalty; 2) more than $8.1 billion in natural resource damages; 3) $600 million in further reimbursement of clean‐up costs and some royalty payments; and 4) up to $6 billion in economic damage payments for the Gulf States or their local units of government. This resolution is the largest settlement with a single entity in Department of Justice history; it includes the largest civil penalty ever awarded under the Clean Water Act, the largest ever natural resources damages settlement and massive economic damages payments to our state partners.
And, just this month we announced our plea agreement and civil consent decree with Volkswagen. In addition to the combined $4.3 billion penalty, corporate felony plea, and individual prosecutions, the previous civil consent decrees also provide $2.7 billion to all states for projects they select from the CD options to offset NOx pollution caused by the illegal car emissions. When the various settlements with VW are combined, and their value estimated, it approaches $20 billion.
Our state connections were vital to our criminal work. Cooperation ranged from providing training to state partners to close coordination in wildlife and pollution investigations. Prosecutors from ENRD’s Environmental Crimes Section presented at several events where state investigators learned of opportunities and methods for developing wildlife and environmental crimes cases, either in concert with federal counterparts or independently. Our prosecutors also trained their counterparts on the Division’s recently acquired authority over worker safety matters.
But environmental enforcement is not where ENRD’s work with state and local partners ends. We also are working with our counterparts at the state and local level in a relatively new area of responsibility for the Division – civil and criminal enforcement of federal laws that provide for humane treatment of captive, farmed, and companion animals across the United States. In July 2016, ENRD and the Office of Justice Programs co-hosted a roundtable discussion on Animal Welfare Enforcement. We were joined by more than 100 leaders in the area, including representatives of federal agencies, states and local governments, as well as researchers, scientists and others in the animal welfare field. The roundtable allowed us to focus collectively on information sharing, organizational strategies and cooperation in animal welfare enforcement.
Finally, ENRD continued to develop and enhance relationships with our state counterparts by participating in several forums designed to share experiences and expertise. In the spring of 2016, for example, I had the honor of being the first ENRD Assistant Attorney General invited to speak to the annual meeting of the Environmental Council of the States, the national association of state and territorial environmental agency leaders. I joined colleagues from EPA, New Mexico and academia to discuss innovative ways to measure the success of environmental enforcement. ENRD attorneys also partnered with the National Association of Attorneys General to present webinars on topics of mutual interest, such as e‐discovery, and share expertise regarding federal bankruptcy law in the context of environmental cases. Finally, just this week we collaborated with the National Association of Attorneys General to publish Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation, which is now available on the DOJ website.
As I depart from the Division, we are in good shape. In December, the Division accepted an award by the Partnership for Federal Service, which ranked the ENRD as the #2 best place to work in all of the federal government, as well as the best place to work in the Department of Justice. With more than 300 Federal agency subcomponents competing, our new rank places us well into the top 1% of all Federal workplaces.
Posted on January 24, 2017
On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument. That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.
Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.
Each of those claims has no factual or legal merit. The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups. It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell. As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas. The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans. As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.
The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans. This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.
Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America. It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century. The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009. Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts. Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do. Far from being improper, this protective measure is long overdue.
In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress. That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement. But that bill failed to move through Congress before it adjourned. In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.
Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so. The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources. It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act. The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion. The Congressional Research Service recently confirmed the absence of any such authority or precedent. Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon. All but three presidents since that time have done the same. As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.
In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress. The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.
Posted on January 19, 2017
My roots are in central Pennsylvania near the dividing line between the Susquehanna and Potomac watersheds. The creeks follow the valleys, flowing away from each other and carrying water that will ultimately rejoin in the Chesapeake Bay. It is a rich agricultural area with a farming legacy that goes back to the mid-1700s. It is also ground zero for the continuing struggle to improve degraded water quality in the Chesapeake Bay, one of biological jewels of the eastern United States.
One of my best friends is a dairy farmer. He has faithfully carried on a family tradition reaching back over multiple generations. He is an excellent farmer. He finally sold the dairy herd this fall, buffeted by plunging milk prices and lack of help in shouldering the relentless grind of running a dairy operation. The barn where I have spent hundreds of hours over the course of my life now stands empty and quiet. The cows are gone and the milk tank is dry. Unfortunately, this is a story that is repeating itself with remarkable regularity as the number of dairy farms continues to shrink both in Pennsylvania and elsewhere in the country.
For those with a single-minded focus on water quality in the Chesapeake Bay, the demise of another dairy farm in Pennsylvania may be a cause for quiet celebration. Even though Pennsylvania does not border the Chesapeake Bay, the Susquehanna River drains approximately 46 percent of the state, including some of its most productive farmland. The Susquehanna River contributes almost half the fresh water to the Chesapeake Bay. The Bay and the River are inextricably linked.
In 2010, the United States Environmental Protection Agency issued a total maximum daily load (TMDL) for the Chesapeake Bay focusing on loading rates for nitrogen, phosphorous and sediment. EPA identified agriculture as a key contributor of these pollutants. Each state within the Chesapeake Bay watershed, including Pennsylvania, is attempting to figure out how to achieve the targets that EPA has set for reductions in nitrogen, phosphorous and sediment. The process is fraught with difficulties, pushing the envelope of technical feasibility, legal permissibility and political acceptability. The process is also underscoring the limitations of the tool box under the Clean Water Act to solve truly complex and multi-dimensional water quality problems.
If the goals that EPA has set for water quality in the Chesapeake Bay under the TMDL are to be met, a financially-sustainable agricultural sector is vital to that outcome. Runoff of nutrients and sediment from farms may be the immediate focal point but crafting solutions that will facilitate farms being able to operate in the future is critically important to the long-term health of the Chesapeake Bay. If farming operations are forced under, prime farmland will change use and be taken out of production. Development of former farms and the runoff from such development carries its own challenges for water quality in the Chesapeake Bay. Moreover, rolling back changes in land use after they have occurred is almost impossible to achieve.
Preserving farming operations holds significance extending well beyond water quality. In the coming decades, food production is likely to become one of the key issues that not only our country but the world will face. Loss of farms also alters the fabric and social bonds of rural areas in many detrimental ways.
On January 6, 2017, the Chesapeake Bay Foundation released its 2016 State of the Bay Report, a bi-annual evaluation of the health of the Chesapeake Bay. While the Chesapeake Bay received failing grades on certain key metrics, the overall health of the Bay received a grade of C-, the highest grade that the Chesapeake Bay Foundation has given since it began making such assessments more than 30 years ago. Progress is being made – slowly and painfully but surely. At the same time, Pennsylvania, Maryland and Virginia have collectively lost more than 600,000 acres of farmland (about half the size of the Delaware) since 2002. One can only hope that the twin goals of saving the Chesapeake Bay and saving agriculture in the Chesapeake Bay watershed can harmoniously coexist.
Posted on January 18, 2017
The outcome of the recent presidential election appears to have been based, at least in part, on the fact that some portion of the electorate felt that out-of-touch and unelected government regulators cannot be trusted to solve problems because they either are making things up (coal-fired power plants contribute to climate change) or caused the problem in the first place (over reaching while delineating “waters of the US”). Environmental regulations and their human analog - health and safety standards - are viewed in some quarters as the height of paternalism by our government and are often cited as the sort of regulatory morass that only a self-serving, arrogant bureaucracy could concoct. One response to the perceived negative effect of regulations in general, and environmental regulations in particular, has been a call to ‘increase regulatory accountability’ and to ‘restore the proper role of elected officials.’
The Regulatory Accountability Act is one notable legislative response to these concerns. In 2016, it was a one-house bill that was not acted upon by the Senate. That could change and the Regulatory Accountability Act of 2017 (H.R. 5) has already been introduced (on January 3, 2017). Title II of this omnibus legislation includes the “Separation of Powers Restoration Act” which would overturn Chevron U.S.A. v. NRDC, 467 U.S. 837, (1984) as well as Auer v. Robbins, 519 U.S. 452 (1997) by amending the Administrative Procedures Act, 5 USC 706, and requiring that federal courts “shall decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”. (Chevron and Auer are often seen as two sides of the same coin; the Chevron test calls for deference to an agency’s reasonable interpretation of a statute while Auer requires strong deference to an agency’s interpretation of its own regulations. Of course, these tests only come into play after a searching review of the language and history of the enabling legislation fails to reveal Congress’ intent.)
Although the logic behind Chevron has been questioned by many, including Justice Scalia, overturning Chevron as a means of restoring the separation of powers seems like an odd way of attempting to increase the power of the people’s elected representatives and restoring accountability. After all, deference favors stakeholders who support an administrative determination (including decisions to issue a permit or adopt a less stringent emission standard). In the environmental area, where well-funded non-governmental membership organizations routinely challenge rules and permits, the benefits of Chevron to the regulated community are easy to overlook.
In any event, one of the key arguments in favor of Chevron deference is that when Congress decides to leave implementation of legislation to an executive agency, and Congress also leaves gaps or ambiguity in a statute, filling the gap or resolving the ambiguity necessarily involves policy judgments. Putting aside questions of whether Congress can ever avoid the problem by eliminating legislative gaps or ambiguity; as a general matter Chevron deference reflects a decision that such judgments are best left to the executive agency that is most steeped in the subject matter at issue. There are at least two primary reasons that courts use to explain why Chevron and its progeny leave these judgments to executive agencies - presumed expertise and greater accountability. Indeed, even taking into account the newly popular idea that the presumed expertise of experts to solve real-world problems should be continuously challenged (or at least deeply discounted), many judges may still favor deference on the theory that policy judgments are generally not for the courts precisely because they are better left to the executive branch which (unlike our independent judiciary) is, to a degree, answerable to the popular will at election time.
Replacing Chevron with de novo judicial review would very likely result in greater uncertainty as generalist judges with life-time tenure are called upon to exercise their judgments concerning policy decisions made by specialized executive agencies directed by an elected representative of the people. Moreover, environmental cases typically present mixed questions of fact and law. Courts would need time to sort out when and how to integrate de novo review of legal determinations with the substantial evidence test for formal rules and adjudications and the arbitrary and capricious standard as applied to agency guidance and informal rules. Replacing Chevron will also probably lead to more litigation (and forum shopping) as stakeholders perceive greater prospects for success.
Of course, uncertainty and litigation are not necessarily bad - if they result in improved decision-making and they help restore common-sense outcomes. However, given the inevitability that the Environmental Protection Agency will be called upon to make policy judgments when Congress intentionally leaves gaps or unintentionally creates ambiguity, predictability has benefits. This is where the new ‘accountability’ at the core of Title II of the Regulatory Accountability Act of 2017 seems to fall short. It is not clear how shifting the review of administrative actions from the elected executive branch to the insulated judiciary will increase predictability or accountability. Even taking into account the other parts of this legislative package (including the direction that agencies must select the lowest cost alternative and increased reliance of the administrative record), it is far from certain that this proposed legislative fix will increase the power of the people’s elected representatives or provide a net benefit to the regulated community on environmental issues.
There is much to be done to improve participation and increase transparency in environmental decision-making at both the state and federal level. However, until someone comes up with something better than de novo judicial review, doing away with the familiar two-step Chevron analysis for determining legislative intent could prove to be a difficult place to start.
Posted on January 17, 2017
Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations. According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.
One might well be surprised by the result, but the result itself is not the most surprising part of the case at this point. What’s really surprising is that the United States won the case even though only one of the three judges on the panel agreed with EPA’s position.
How could such a thing happen, you might ask? Here’s the best I can do. Judge Daughtrey, author of the panel opinion, believes that EPA has the authority to second-guess DTE’s estimates if they are not adequately explained. Judge Rogers disagreed and dissented. Judge Batchelder also disagreed with Judge Daughtrey’s views, pretty much in their entirety. However, Judge Batchelder concluded that she had already been outvoted once, in the first 6th Circuit review of this case and she felt bound to follow the decision in DTE 1. The law remains an ass.
Even were Donald Trump not about to nominate a Supreme Court justice, I’d say that this case is ripe for an appeal to the Supreme Court and, if I were DTE, I’d pursue that appeal vigorously and with a fairly optimistic view of my chances.
And once again, I’ll suggest that the very fact that the NSR program can repeatedly thrust such incomprehensible cases upon us is itself reason to conclude that the entire program is ripe for a thorough overhaul – or perhaps elimination.
Posted on January 12, 2017
As the Obama Administration comes to an end and the Trump Administration is about to begin, I want to reflect on the current relationship between EPA and state environmental agencies. I have been active in the environmental law arena for over 30 years, in private practice, in the Office of General Counsel at EPA, and for the past six years as a state environmental commissioner. In addition, for four of the past six years, I served as an officer for the Environmental Council of States (ECOS). In each of those roles, I have witnessed the give and take relationship between EPA and state environmental agencies.
This has not been a static relationship. Over the past few years, the working relationship between state agencies, ECOS, and EPA has improved substantially - even when strong differences concerning particular regulatory initiatives or policies exist. For example, even those states opposed to EPA’s Clean Power Plan rule readily acknowledge that EPA’s outreach to stakeholders, and especially their state partners, was unprecedented. In many other cases, Administrator McCarthy and her team worked collaboratively as partners with states in addressing an issue. Indeed, it has become the way to do business. This change in culture across EPA is due in large part to the efforts of EPA Administrator Gina McCarthy, and current and former Deputy Administrators Stan Meiburg and Bob Perciasepe. Together they reached out to states, brought them to the table and found committed, willing partners in ECOS members. They listened and treated states as equal partners. Their leadership made clear that all parts of EPA should follow that partnership model.
Truly, the relationship between EPA and the states has matured to a working relationship of joint governance. One of my state colleagues has commented that if you said “co-regulator” to EPA ten years ago, they would flinch. Today, states and EPA leaders use that term freely and are engaged in many projects together as partners to protect public health and the environment in an efficient and cost effective way. We have moved from a parent- child relationship to equal partners. This has been a positive both for state and federal entities, but also for regulated industry, environmental organizations, and the public.
As Administrator McCarthy and her leadership team prepare to depart, it’s clear that the new Administration will have different policy goals. That is the consequence of elections and change of Administrations. Regardless of the substantive policy decisions that will be confronted in the days ahead, I hope the efforts made over the past few years by Administrator McCarthy and her team to foster a more collaborative approach between EPA and the states will continue.
Posted on January 10, 2017
On December 19, both houses of the New Jersey Legislature adopted a resolution proposing an amendment to the New Jersey Constitution which would basically gather all Natural Resource Damages funds into a single account or in the words of the resolution:
“credit annually to a special account in the general fund an amount equivalent to the revenue annually derived from all settlements and judicial and administrative awards relating to Natural Resource Damages collected by the State in connection with claims based on environmental contamination.”
These amounts would be “dedicated” and
“appropriated … by the legislature, for paying for costs incurred by the State to repair, restore or replace damaged or lost natural resources of the State or permanently protect the natural resources of the State, or for paying the legal or other costs incurred by the State to pursue settlements and judicial and administrative awards relating to natural resource damages.”
Up to ten percent of the monies so appropriated could be expended for -- you guessed it -- “administrative costs of the State or its departments, agencies, or authorities for purposes authorized in this paragraph.”
By way of background, the New Jersey Spill Act declares the State to be “the trustee, for the benefits of its citizens, of all natural resources within its jurisdiction” (N.J.S.A. 58:10-23.11a). In the last (Democratic) State administration, the State brought a number of massive suits, notably involving the Passaic River and ExxonMobil, which resulted in some 355 million dollars in settlements. The proceeds of the settlements were used by the Christie administration to balance otherwise deficit ridden State budgets. Although these shortfalls were caused mainly by the expenditures of the very same legislators (and their antecedents), this budgetary gap- plugging by a Republican was pilloried by the Democratically-held legislature (among others). The legislature nonetheless approved the transfer of these monies to the State’s general fund, making them usable for any purpose. NGOs and, to some extent, municipalities in which the natural resource damages occurred, complained that not much was being spent on the environment, in general, or “restoration” projects in such municipalities, specifically. Under New Jersey law, the only way to stop the Governor or legislators from “raiding” such recoveries at will is by way of constitutional amendment, so an effort to adopt one was necessary. Hence, these resolutions.
A number of the most significant recoveries were obtained via (amply compensated) outside counsel. Thoughtfully, the proposed amendment includes a provision allowing for the compensation of such counsel in pursuing natural resource damages on behalf of the State. At least one NGO had another idea, and advocated that the New Jersey Department of Environmental Protection (“DEP”) be empowered simply to assess Natural Resource Damages, thereby avoiding any expense for outside counsel or, presumably, such mundane concerns as due process and like concepts. Thus the inclusion of the phrase “administrative awards” in the proposed amendment.
Since the resolutions were adopted by a super majority of both houses, the amendment will now be put to a State-wide vote next November. Whether it will actually be adopted remains to be seen.
And what sort of projects might be funded by these monies? Recently, the DEP announced the award of a number of grants totaling $53 million to communities along the Passaic River, Raritan Bay, and tributaries, mostly drawn from settlement monies received in its Passaic River litigation. These grants resulted from a “competitive process” and are largely, although not entirely, intended to enhance public access to these polluted waterways. The various “improvements” to be funded by these grants include parks, elevated riverine walkways, docks, boathouses and launches, parking lots, and, in the town of Harrison, a “food truck plaza”, along with “wetland creation.” Presumably then, at least in the view of DEP, preservation of food trucks goes hand-in-hand with natural resource protection.
Hey, it’s Jersey, you got a problem with that?
Posted on January 6, 2017
I was an Adjunct Professor on the Seton Hall School of Law faculty teaching New Jersey Environmental Law. Although I retired from that position after 18 years, I still anticipate the upcoming Spring Semester. At this time of year, I would have completed my syllabus and would be preparing for my classes, one of which would include a discussion of P. Ballantine & Sons v. Public Service Corp. of New Jersey, 70 A. 167 (N.J. Sup. Ct. 1908) (“Ballantine”). This case is both an old friend and a decision reaching the right environmental law result long before there was something called environmental law.
The plaintiff was a major brewery in Newark. The defendant was a large corporation that owned a neighboring illuminating gas manufacturing plant. Both parties retained well-known lawyers whose names are, even today, in the names of two law firms active in New Jersey. From a legal viewpoint, Ballantine was a battle between two titans of industry using top counsel.
The holding in the case is simple. “If a landowner accumulates contaminating matter upon his land, and negligently permits it to percolate through the soil and pollute a neighbor’s well, he is liable for the injury.” In a jury trial below, the brewer prevailed and was awarded $20,725 in compensatory damages (over $5.5 million in today’s dollars). The facts were not so simple and the gas company appealed, primarily on the basis that the verdict was against the clear weight of the evidence.
In the case below, the brewery proved it drew about 7,800 gallons of water a day from two wells on its property to make its beer and porter. The water purity and temperature had been perfect until late 1902 or early 1903 when “it had given off a perceptible gaseous odor which, however, did not affect its usefulness for plaintiff’s purposes.” Although that may say something about the taste of beer in the early 20th century, by July of 1903, there was a “sudden appearance” in the water of gas tar, a by-product of illuminating gas manufacture, making the wells useless for making beer and porter. The brewer procured another supply of water and sought its procurement costs. The gas plant contended there was conflicting evidence as to the source of the pollution.
Here is where Ballantine is “modern.” The case became a battle of the experts as to material identification and fate and transport issues. There was testimony a predecessor owner of the gas plant dumped coal gas tar in the river and that it “was drawn or flowed there between the strata of rock which dip from the river towards the wells.” In an early anticipation of Daubert, the Supreme Court panel said this was “all theory, and seems to be inconsistent with what we understand the proof shows to have been the fact that the tar in plaintiff’s wells was oil gas tar.”
The record showed oil gas tar was stored in tanks and moved through pipes in “the possession and under the control of the defendant and within its peculiar knowledge.” The court found that, in these circumstances, negligence could be inferred and the costs were not excessive. The appeal was “discharged, with costs.”
I will miss teaching from this little gem. As we discussed it in class, I projected a slide show for the students showing a latter Ballantine Brewery, its delivery trucks and other Ballantine memorabilia. We got into the history of the two parties after the case as well as their impacts on the City of Newark and the state. We talked about New Jersey law and its early rejection of Res Ipsa Loquitor. I told them one of the Justices on the Ballantine panel went on to preside over New Jersey’s most famous trial, the Bruno Hauptmann/Lindberg baby kidnapping case. Ballantine elicited from me and from my law students all the things that made teaching fun. I will miss my old friend.
Posted on January 3, 2017
I first began to focus on the need to protect our environment in the 1960’s, starting with Rachel Carson’s indictment of one particular pollutant, the pesticide DDT in her seminal work, “Silent Spring.” As the decade of the ‘60’s proceeded, environmental protection began to focus on the local release/discharge of contaminants into the air, ground and water. Each state dealt with these problems in a scattershot manner until the EPA was formed in 1970 to administer laws passed by Congress to be uniform – commonly called “command and control.”
On Wednesday, October 17, 1973, the Arab-dominated Organization of Petroleum Exporting Countries (“OPEC”) decided to reduce the exports of the most basic transportable fossil fuel – oil - to the United States and other countries who aided Israel during the Yom Kippur. This was commonly called the “OPEC Embargo” and exposed our national dependence on Mideast oil.
Against this backdrop, on Monday, October 15, 1973, I left my corporate law practice and took my “Hamiltonian shot,” becoming EPA Region 3’s general counsel. I joined the newly created EPA under Administrator Russell Train to implement, apply and enforce the new environmental statutes - the Clean Water Act (CWA–1972), Clean Air Act (CAA-1970) and National Environmental Policy Act (NEPA-1969). Instead, because of the OPEC embargo, I was processing CAA variance requests to burn wood chips in furnaces in Philadelphia and fill my gas tank on alternative weekdays. When the embargo ended the following year, we went about achieving EPA’s mission to protect the environment and coordinate the three E’s – the economy, ecology and energy – focus on the latter would grow in importance – and argument – in the years to come.
I left my position in October 1975 and started a private practice in environmental law and later began to teach environmental law. Along came the Safe Drinking Water Act, the Resource Conservation and Recovery Act (“RCRA”), and on the eve of President-Elect Ronald Regan’s inauguration, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). The federal government was clearly on track to achieve its mission.
In January 1981, however, President Regan determined to “reverse” environmental protection by the federal government and return it to “state control,” welcoming to this cause a number of inexperienced, unqualified and hostile political friends to dismantle the federal program. The result – James Watt left his Secretary of the Interior post in disgrace on October 10, 1983; EPA Administrator Anne Gorsuch resigned in disgrace on March 9, 1983; Rita Lavelle, the EPA Assistant Administrator for Hazardous Waste and Superfund, wound up serving prison time for lying to Congress; and at least one Regan appointed EPA regional administrator was thrown out of office.
During the twenty-eight Bush/Clinton/Bush/Obama scandal free years, EPA went about its business of environmental protection, leading up to the presidential election of October 2016. The near unanimous global and scientific recognition that climate change was happening led to efforts to reign in carbon emissions primarily from the burning of fossil fuel (coal and oil), culminating this fall in the Paris Agreement. President Obama and Secretary of State John Kerry led the successful fight to get the requisite number of countries to sign on with the United States. Environmental protection became a global need, no longer a local problem.
And then came November 8, the election of Donald Trump.
As he proceeded to name the people he wanted to make up his cabinet, speculation began as to whether as President-Elect he would actually activate his campaign attacks on environmental protection. Now almost a month before his inauguration, he has actualized his campaign promises. First, he selected Oklahoma attorney general Scott Pruitt as EPA Administrator, a climate change denier who led the attack in court on President Obama’s Clean Power Plan (the vehicle US planned to use to reduce carbon emissions from fossil fuel in fulfillment of its Paris Agreement commitment). Second, he tapped Rex Tillerson, the CEO of ExxonMobil, the world’s largest fossil fuel producer and defendant in NY v. Exxon, to be his Secretary of State. Third, for Energy Secretary, he has designated Texas Governor Rick Perry, the man who in his 2011 campaign famously forgot that the third federal agency he would abolish was the Department of Energy. Finally, with these selections, he has made it abundantly clear that he meant what he said about reeling in the EPA.
Will he succeed during his administration or will he fail in his efforts to reprise the Reagan assault. Some of the big differences between the 1980’s and today are (1) environmental degradation is now understandably global, not just local, (2) the rest of the world is similarly impacted and is watching us, and (3) the stakes are much higher. Will Congress permit a legislative dismantling of the statutory structure it put together over the past 45 years? Will the myriad environmental NGOs be strong enough (and sufficiently funded) to take these attacks to court? Will EPA be able to preserve its regulatory program to implement environmental protection? Will the courts uphold these executive anti-environmental attack efforts or stop them? And in that regard, who will be Trump’s selection of SCOTUS Justice #9?
We wonder. Many of us worry. And all of us wait.
Posted on December 23, 2016
My practice, one way or another, is all about compliance . . . or noncompliance. This is as true of the litigation side as it is of the regulatory counseling side. I typically face the question of which of those terms best describes the situation a client brings to me. It’s always been true that the practice goes beyond the mere facts or law at hand. The real world also includes the client’s culture and values, politics, and economics. These aspects, and others in varying proportions, have usually controlled process and outcome.
Today I am witnessing what appears to be an unprecedented unraveling of these foundations. I see it in the words and actions of regulators, consultants, other attorneys, judges, and clients. Obviously this imposes itself on the lawyer’s task of figuring out what the problem is, on the one hand, and, on the other, what the best advice for a client might be, specifically how (and when) to address the problem. The path forward these days seems to be influenced, often significantly, by two related things: widespread mistrust of government/science/etc., and a social media rife with rumors, innuendo, assumptions, and the like. So I find myself asking: of what value is advice derived from traditional avenues of carefully established fact, well-analyzed law, professional judgment, and years of relationship building?
I find the answer in the first week at my first real law job clerking for a federal district court judge. On the third day of that job, I stood behind my desk, looked out the window, and thought, with despairing certainty: I don’t have the tools to do this job! I will never make it as a law clerk! I will never make it as a lawyer! Why did I ever go to law school? Time passed. Things cleared up. I learned how to begin to apply what I knew to what I had to do. And, while the view may be new, the path forward is the same as ever. Now, as I think about the potential unraveling of fundamental policies and foundations upon which we have rested for a generation, I’m looking out of that same window, in a sense.
Posted on December 20, 2016
In July I wrote what I thought surely would be my last blog on the more than three years of legal challenges by the City of Margate, New Jersey Commissioners with their decision not to appeal the state and federal courts’ upholding the State’s and Army Corps’ authority to build dunes in Atlantic County, New Jersey. I titled the blog “Signing Off” – concluding that the fat lady had in fact sung.
Well I was wrong.
Six residents have now paraded into U.S. District Court with their expert, Chuck Dutill, a civil engineer and hydrologist, to testify before Judge Renee Marie Bumb, who had decided the earlier case. Judge Bumb called the testimony “pretty fantastic,” but confirmed that this was the gist of the testimony:
“It sounds like from your testimony the Army Corps is turning the beach into a junkyard,” she said. “You’ve described a big parade of horribles: animal feces, oils, adults being hurt. It sounds pretty fantastic. Is that in some way hyperbole if you don’t mind? Is that your testimony?”
“That is absolutely my testimony,” Dutill replied.
“What I’m hearing is what the defendant proposes to do is turn the beach of Margate into the junkyard of Margate,” the judge said. “That is what I’m hearing.”
And until she rules – and as expected rules against the residents – and they decide to appeal, the fat lady continues to stand by for yet another reprise.
Posted on December 19, 2016
I’m not sure – but, here’s a thought.
As we all know, or should know, it’s fall, and college football in the South rules the weekends. Alabama is still the consensus No. 1 in all the polls, including the College Football Playoff (CFP) poll, the only one that truly counts after mid-season – neither the AP Top 25 nor the Coach’s poll will have a bearing on the contestants vying for the chance to play for the final trophy.
Strangely enough, even prior to the kickoff of the first college football game, our forefathers chose to establish the first Tuesday in November every four years as the day we face off in a more important college contest, that of the electoral college. At a college football game where 95% of the attendees (or more depending upon the stadium), a/k/a, fanatics, or fans, are in favor of one contestant, and the outcome is measured by points scored in favor of the winner of any given game, the CFP poll ultimately determines, by some seemingly independent process, the four “best” teams in the country who will compete for the ultimate prize, the National Football Championship.
Now, to the Electoral College, which is also believed by some to be totally disconnected from the popular vote of the participants and by others as totally complimentary of the popular vote. Here, the concept of the Electoral College was, by many accounts, crafted to achieve a balance of the demographics of the Country and to minimize the likelihood that the urban areas, or the aristocracy, alone, depending upon which version one reads, could determine who ultimately leads the strongest nation in the world. At best, while potentially, or actually in more than one instance, the Electoral College “Trumps” the popular vote just like the CFP trumps the AP-25 and Coach’s polls. Meaning, it doesn’t matter who the media or the college coaches think are the best four teams in the Country, or that 3 million more voters think the President should be, the CFP and the Electoral College will ultimately decide.
Like it or not, that’s just the way it is.