SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Posted on May 1, 2020 by Theodore Garrett

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

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

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

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

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

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

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

A Ray of Regulatory Sunshine

Posted on April 30, 2020 by Lynn L. Bergeson

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

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

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

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

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

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

Posted on April 27, 2020 by Rick Glick

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

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

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

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

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

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

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

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

Posted on April 24, 2020 by Jeffrey Porter

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

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

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

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

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

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

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

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

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

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

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

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

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

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

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

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

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

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

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

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

Posted on April 20, 2020 by Jeff Civins

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

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

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

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

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

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

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

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

Posted on April 17, 2020 by Jonathan Ettinger

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

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

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

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

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

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

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

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

Posted on April 16, 2020 by Seth Jaffe

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

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

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

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

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

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

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

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

Well done, Mr. Wheeler.

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

Posted on April 9, 2020 by Seth Jaffe

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

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

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

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

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

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

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

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

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

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

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

Surprising Solutions for COVID-19 Resource Challenges

Posted on March 30, 2020 by Mary Ellen Ternes

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

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

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

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

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

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

Posted on March 27, 2020 by Seth Jaffe

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

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

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

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

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

ANNOUNCEMENT OF 2020 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 26, 2020 by JB Ruhl

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

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

Eligibility: Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible annually to nominate one student-authored article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year. The article should be selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law. The article must have only one author, and the author may be a candidate for the J.D., LL.M., or S.J.D. degree.

Award: The Herrmann Award is a stipend of $3,500 to the author of the winning submission, whether an article, note, case comment, or essay, and $500 to the submitting law journal. The winner of the Herrmann Award will be invited to discuss his or her submission to the Fellows at the ACOEL Annual Meeting, which in 2020 will be held October 1-3 in Santa Fe, New Mexico. 

Judging Criteria: The prize will be awarded to the author of a student article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee. 

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

MACT Follies

Posted on March 20, 2020 by Adam Babich

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

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

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

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

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

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

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

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

Posted on March 13, 2020 by Peter Van Tuyn

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

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

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

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

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

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

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

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

Modern Day Alchemy: New Help for Treating Acid Mine Drainage

Posted on March 11, 2020 by Robert Uram

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

Rare Earth Recovery

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

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

Paint Pigments

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

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

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

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

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

Little Bear Run, Pennsylvania (Before and after Treatment)

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Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

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

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

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

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

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

That’s one step.  We need many others.

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

Posted on March 9, 2020 by Richard Horder

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

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

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

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

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

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

Cleaning Up Nature: The Swift Creek Conundrum

Posted on February 28, 2020 by Andy Fitz

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Dredged spoils along the Swift Creek channel; landslide visible at upper right (author photo).

Swift Creek. The name evokes a clear, fast-moving mountain stream. 

The Swift Creek at issue, however, is hardly clear or swift for most of its length.  A massive, mile-long landslide hangs at the head of its southern fork, in the foothills of Washington’s North Cascades. The landslide has exposed a weak bed of serpentine rock, which weathers quickly into clay and delivers a heavy load of sediment to the creek—some 30,000 to 150,000 cubic yards annually. When the creek reaches the Nooksack Valley below, much of this material settles, clogging the channel, turning the creek sluggish, and creating a constant risk of flooding each winter.

In an effort to protect farms and rural homes, the affected local government, Whatcom County, began periodically dredging Swift Creek in the late 1950s, piling the dredged spoils along the channel. In 1971, the U.S. Army Corps of Engineers undertook its own large-scale dredging of the channel and further shaped the dredged spoils into levees.

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Swift Creek in May 2016 (author photo).

In 2006, however, this work largely came to a halt. In its place, a regulatory conundrum emerged.

Since at least the late 1970s, Swift Creek’s sediment has been known to contain a naturally occurring chrysotile form of asbestos derived from the serpentine bedrock. In 2006, the U.S. Environmental Protection Agency (EPA) sampled the dredged spoils and completed an activity-based risk assessment. That assessment, and a subsequent assessment in 2011, concluded that asbestos levels in dust generated from the sediment pose a human health threat, with the lifetime excess cancer risk approaching 8 in 1,000 under the most intensive exposure scenario. Making matters worse, naturally elevated levels of metals in the sediment retard plant growth, making the dredged spoils an attractive target for local four-wheelers and dirt-bike riders.

Left wholly to nature, there is no environmental liability associated with Swift Creek’s sediment: the “potentially responsible” entity is Mother Earth. And there is no clear environmental authority under which to address threats associated with the sediment. Under Section 104(a)(3)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), EPA cannot respond to a “naturally occurring substance . . . from a location where it is naturally found.” Likewise, under Washington’s Model Toxics Control Act (MTCA), there must be intentional or unintentional “entry” of a hazardous substance “into” the environment in order to have an actionable release. RCW 70.105D.020(32).

Once humans move and reconfigure the sediment, however, potential liability
may arise from those activities. See, e.g., United States v. W.R. Grace & Co.—Conn., 280 F.  Supp. 2d 1149, 1155, 1175 (D. Mont. 2003). Therein lies the conundrum: absent human intervention, there can be unabated exposure to naturally occurring asbestos from the creek channel and flood deposits, but no authority to address the situation under cleanup laws. But any human intervention to abate that exposure is discouraged by the specter of liability under those very same cleanup laws.

For more than ten years, this conundrum stymied efforts to address Swift Creek sediment, despite continued discussion among EPA, the Washington Department of Ecology, and Whatcom County. Neither EPA nor Ecology had the authority, mandate, or resources to address what at its heart is a civil engineering effort. And the entity with the clearest public works mandate—the County—did not want to assume full ownership of a situation it did not have the resources to address by itself, with potentially open-ended liability. This concern was heightened by EPA threats of cost recovery and enforcement under CERCLA.

In 2013, Whatcom County did complete an alternatives assessment and Environmental Impact Statement (EIS) for addressing Swift Creek sediment. The preferred alternative was a series of actions to capture and manage sediment in the upper reaches of Swift Creek, before it reaches the valley floor, including sediment traps, sedimentation basins, periodic dredging of those features, and disposal of the sediment in a constructed repository. The historic dredged spoils lining Swift Creek would also be armored and covered with clean soil.

Two key developments broke the Swift Creek stalemate. First, the Department of Ecology and the Washington State Attorney General’s Office reached agreement with the County on the terms of a proposed consent decree to be lodged under MTCA. With no traditional “site” to clean up, the basis for the decree is creative. It is premised on MTCA’s authority to prevent “threatened releases”—here, releases that would inevitably arise as local government and residents are forced to deal with flood-distributed sediment, but for preventive actions. The covenant not to sue is thus prospective, providing liability protection for the County within the specific areas where sediment will be managed under the decree, for activities to be undertaken by the County under a “Swift Creek Action Plan” that largely incorporates the preferred alternative from the 2013 EIS. The County is responsible for the operations and maintenance costs associated with this sediment management, up to an annual cap.

Second, bolstered by this provisional agreement, Washington’s Legislature appropriated the first installment of capital funding for the project, totaling $6.4 million. With initial construction funds in place, the parties moved to enter the decree, which became effective on December 6, 2019. Based on the plan and decree, EPA has indicated it does not intend to exercise CERCLA authority at the “site,” such as it is.

There are challenges ahead. Full construction of the engineering controls is still dependent on further state capital appropriations, with an estimated remaining cost of $11 million. And it remains to be seen whether the engineering controls are a long-term solution or only a temporary stopgap. Based on a creative application of cleanup law, however, the Swift Creek conundrum appears to have been broken.

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Conceptual layout of engineering controls to be constructed under the consent decree (sediment repository not shown). Source: Swift Creek Action Plan, Washington State Department of Ecology (December 2019).

NEPA at 50: What Lies Ahead?

Posted on February 19, 2020 by Scott Fulton

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on February 18, 2020 by Nicholas Robinson

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

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

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

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

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

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

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

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

The “next’ pandemic is upon us.

Plastic Planet

Posted on February 12, 2020 by Mary Ellen Ternes

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

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

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

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

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

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

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

PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on February 5, 2020 by Jonathan Ettinger

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

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

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

Shaping the Future of EPA

Posted on January 29, 2020 by Ridgway Hall

What should EPA and environmental protection look like in the future? A report issued by American University’s Center for Environmental Policy in December, entitled Moving Forward: Future Directions for EPA and Environmental Protection, provides 6 principal recommendations.

The report was written by John Reeder, Executive in Residence at the Center and a 30-year veteran of EPA, based on a conference that was cosponsored last April by AU’s School of Public Affairs (where the Center is housed), its law school and ELI, with a talented and diverse field of speakers including 4 former EPA Administrators.  It was also informed by 5 focus group reports prepared by the EPA Alumni Association, which helped organize the conference.

At ACOEL’s October meeting, Dan Esty issued a challenge to us to undertake a multi-year project to transform our environmental protection framework from the existing “command and control” regulations to one using primarily market-based incentives. On November 21, I posted a blog article titled Dan Esty’s Challenge to ACOEL: Let’s Do It. I pointed out that 25 years ago a wave of thoughtful studies recommended moving away from command and control regulation towards systems featuring multimedia permitting, ecosystem-wide approaches, financial incentives, marketable pollution rights and other innovations, but that very little had come of these.

So what’s changed? Among other things, there appears to be an increasing recognition that when a company acts because it is in its financial interest to do so rather than because a regulation is requiring it to do so, it is more economically efficient (the transaction costs are lower) and the managers are likely to feel better about the fact that they were free to make the choice. Shifting the emphasis in the implementation of environmental laws in this way can yield better outcomes within the underlying regulatory framework. This translates to political acceptance by both industry and the public. In addition, thanks in part to the internet, we have more scientific, technical and economic data regarding environmental issues, we have far more sophisticated methods of using and transmitting that data, and we have more sophisticated abilities to monitor actions and impacts.

Furthermore, the nature of our environmental challenges has expanded to include climate change, energy policies, loss of biodiversity, agricultural practices, water availability and distribution (not just quality), land use, and the environmental behavior and effects of manufacturing wastes like endocrine disruptors and microplastics. Many of these issues must be addressed by multiple federal departments or agencies (Interior, Energy, Agriculture, NOAA  and the Corps of Engineers to name a few). Some, like climate change and the protection of oceans and fisheries, must be addressed on an international basis. Most of these issues cannot be effectively addressed through regulatory controls alone. Finally, issues relating to allocation of costs, environmental justice and public acceptance have become more prominent.

The challenges facing EPA are of two types: 1) threats to the environment or human health, and 2) “system” challenges, reflecting in large part the statutory framework under which EPA addresses those threats. The AU report focuses on EPA’s institutional capacity rather than on  specific policy proposals. The 6 major recommendations are as follows:

  1. Pursue State of the Art Science Capability. EPA will need to keep abreast of rapidly emerging scientific challenges, manage data from numerous sources, and reestablish technical assistance as part of its core mission. Sound science must be a top priority.
  2. Renew the “Environmental Protection Enterprise”. This involves striking the right balance in its relationships with states and tribes between maintaining a level playing field and encouraging flexibility and innovation, partnering with private sector entities, and focusing on outcomes rather than just regulatory compliance. It includes working with other federal agencies and encouraging regional approaches involving multiple layers of government and the private sector (“cooperative federalism”), such as the Great Lakes and Chesapeake Bay initiatives.
  3. Strengthen International Cooperation. Because many of our biggest environmental challenges are global, like climate change and protection of ocean resources, EPA should work with the State Department and other relevant agencies to strengthen relationships with other countries and international organizations to share information and address these issues on an international scale.
  4. Harness the Power of Consumer Choice and the Marketplace.The use of pollution pricing, cap and trade programs and other market-based incentives should be promoted, with existing regulations largely left in place as a backstop. EPA should continue to encourage corporate sustainability programs, public information campaigns like the Toxic Release Inventory and ecolabeling.  
  5. Advance a Forward-looking Regulatory System. EPA’s regulatory programs should anticipate rapid technological change and make use of vastly expanding monitoring and reporting technologies. They should emphasize transparency and public accountability, help reduce the “overhead” costs of regulations, and include market-based approaches wherever possible.
  6. Engage the Public to Raise Awareness About the Environment. EPA should promote public awareness and education from elementary school through college on environmental issues, challenges and opportunities. Its regional offices should work with state and local entities to make scientific information and teaching materials and online instruction available.

There is a lot more in this report than I can summarize here. It is thoughtful and important reading for anyone interested in the future direction of EPA and environmental protection.