Playing Nice with Others – EPA and State Cooperation In Today’s World

Posted on January 12, 2017 by Robert J. Martineau Jr.

As the Obama Administration comes to an end and the Trump Administration is about to begin, I want to reflect on the current relationship between EPA and state environmental agencies.  I have been active in the environmental law arena for over 30 years, in private practice, in the Office of General Counsel at EPA, and for the past six years as a state environmental commissioner.  In addition, for four of the past six years, I served as an officer for the Environmental Council of States (ECOS).  In each of those roles, I have witnessed the give and take relationship between EPA and state environmental agencies. 

This has not been a static relationship.  Over the past few years, the working relationship between state agencies, ECOS, and EPA has improved substantially - even when strong differences concerning particular regulatory initiatives or policies exist.  For example, even those states opposed to EPA’s Clean Power Plan rule readily acknowledge that EPA’s outreach to stakeholders, and especially their state partners, was unprecedented.   In many other cases, Administrator McCarthy and her team worked collaboratively as partners with states in addressing an issue.   Indeed, it has become the way to do business.   This change in culture across EPA is due in large part to the efforts of EPA Administrator Gina McCarthy, and current and former Deputy Administrators Stan Meiburg and Bob Perciasepe.  Together they reached out to states, brought them to the table and found committed, willing partners in ECOS members.  They listened and treated states as equal partners.   Their leadership made clear that all parts of EPA should follow that partnership model.   

Truly, the relationship between EPA and the states has matured to a working relationship of joint governance.  One of my state colleagues has commented that if you said “co-regulator” to EPA ten years ago, they would flinch. Today, states and EPA leaders use that term freely and are engaged in many projects together as partners to protect public health and the environment in an efficient and cost effective way.   We have moved from a parent- child relationship to equal partners.   This has been a positive both for state and federal entities, but also for regulated industry, environmental organizations, and the public. 

As Administrator McCarthy and her leadership team prepare to depart, it’s clear that the new Administration will have different policy goals.  That is the consequence of elections and change of Administrations.   Regardless of the substantive policy decisions that will be confronted in the days ahead, I hope the efforts made over the past few years by Administrator McCarthy and her team to foster a more collaborative approach between EPA and the states will continue.   

New Jersey Legislature Seeks to Protect NRD Recoveries, Flora, Fauna, … and Food Trucks

Posted on January 10, 2017 by Kenneth Mack

On December 19, both houses of the New Jersey Legislature adopted a resolution proposing an amendment to the New Jersey Constitution which would basically gather all Natural Resource Damages funds into a single account or in the words of the resolution:

 “credit annually to a special account in the general fund an amount equivalent to the revenue annually derived from all settlements and judicial and administrative awards relating to Natural Resource Damages collected by the State in connection with claims based on environmental contamination.”

These amounts would be “dedicated” and

“appropriated … by the legislature, for paying for costs incurred by the State to repair, restore or replace damaged or lost natural resources of the State or permanently protect the natural resources of the State, or for paying the legal or other costs incurred by the State to pursue settlements and judicial and administrative awards relating to natural resource damages.” 

Up to ten percent of the monies so appropriated could be expended for -- you guessed it -- “administrative costs of the State or its departments, agencies, or authorities for purposes authorized in this paragraph.” 

By way of background, the New Jersey Spill Act declares the State to be “the trustee, for the benefits of its citizens, of all natural resources within its jurisdiction” (N.J.S.A. 58:10-23.11a).  In the last (Democratic) State administration, the State brought a number of massive suits, notably involving the Passaic River and ExxonMobil, which resulted in some 355 million dollars in settlements.  The proceeds of the settlements were used by the Christie administration to balance otherwise deficit ridden State budgets. Although these shortfalls were caused mainly by the expenditures of the very same legislators (and their antecedents), this budgetary gap- plugging by a Republican was pilloried by the Democratically-held legislature (among others). The legislature nonetheless approved the transfer of these monies to the State’s general fund, making them usable for any purpose.  NGOs and, to some extent, municipalities in which the natural resource damages occurred, complained that not much was being spent on the environment, in general, or “restoration” projects in such municipalities, specifically.  Under New Jersey law, the only way to stop the Governor or legislators from “raiding” such recoveries at will is by way of constitutional amendment, so an effort to adopt one was necessary.  Hence, these resolutions.

A number of the most significant recoveries were obtained via (amply compensated) outside counsel.  Thoughtfully,  the proposed amendment includes a provision allowing for the compensation of such counsel in pursuing natural resource damages on behalf of the State.  At least one NGO had another idea, and advocated that the New Jersey Department of Environmental Protection (“DEP”) be empowered simply to assess Natural Resource Damages, thereby avoiding any expense for outside counsel or, presumably, such mundane concerns as due process and like concepts.  Thus the inclusion of the phrase “administrative awards” in the proposed amendment.

Since the resolutions were adopted by a super majority of both houses, the amendment will now be put to a State-wide vote next November.  Whether it will actually be adopted remains to be seen.

And what sort of projects might be funded by these monies?  Recently, the DEP announced the award of a number of grants totaling $53 million to communities along the Passaic River, Raritan Bay, and tributaries, mostly drawn from settlement monies received in its Passaic River litigation.  These grants resulted from a “competitive process” and are largely, although not entirely, intended to enhance public access to these polluted waterways.  The various “improvements” to be funded by these grants include parks, elevated riverine walkways, docks, boathouses and launches, parking lots, and, in the town of Harrison, a “food truck plaza”, along with “wetland creation.”  Presumably then, at least in the view of DEP, preservation of food trucks goes hand-in-hand with natural resource protection.

Hey, it’s Jersey, you got a problem with that?

Old Cases – Old Friends

Posted on January 6, 2017 by John A. McKinney Jr

I was an Adjunct Professor on the Seton Hall School of Law faculty teaching New Jersey Environmental Law.  Although I retired from that position after 18 years, I still anticipate the upcoming Spring Semester.  At this time of year, I would have completed my syllabus and would be preparing for my classes, one of which would include a discussion of P. Ballantine & Sons v.  Public Service Corp. of New Jersey, 70 A. 167 (N.J. Sup. Ct. 1908) (“Ballantine”).  This case is both an old friend and a decision reaching the right environmental law result long before there was something called environmental law.

The plaintiff was a major brewery in Newark.  The defendant was a large corporation that owned a neighboring illuminating gas manufacturing plant.  Both parties retained well-known lawyers whose names are, even today, in the names of two law firms active in New Jersey.  From a legal viewpoint, Ballantine was a battle between two titans of industry using top counsel. 

The holding in the case is simple.  “If a landowner accumulates contaminating matter upon his land, and negligently permits it to percolate through the soil and pollute a neighbor’s well, he is liable for the injury.”  In a jury trial below, the brewer prevailed and was awarded $20,725 in compensatory damages (over $5.5 million in today’s dollars).  The facts were not so simple and the gas company appealed, primarily on the basis that the verdict was against the clear weight of the evidence.

In the case below, the brewery proved it drew about 7,800 gallons of water a day from two wells on its property to make its beer and porter.  The water purity and temperature had been perfect until late 1902 or early 1903 when “it had given off a perceptible gaseous odor which, however, did not affect its usefulness for plaintiff’s purposes.”  Although that may say something about the taste of beer in the early 20th century, by July of 1903, there was a “sudden appearance” in the water of gas tar, a by-product of illuminating gas manufacture, making the wells useless for making beer and porter.  The brewer procured another supply of water and sought its procurement costs.  The gas plant contended there was conflicting evidence as to the source of the pollution.

Here is where Ballantine is “modern.”  The case became a battle of the experts as to material identification and fate and transport issues.  There was testimony a predecessor owner of the gas plant dumped coal gas tar in the river and that it “was drawn or flowed there between the strata of rock which dip from the river towards the wells.”  In an early anticipation of Daubert, the Supreme Court panel said this was “all theory, and seems to be inconsistent with what we understand the proof shows to have been the fact that the tar in plaintiff’s wells was oil gas tar.”

The record showed oil gas tar was stored in tanks and moved through pipes in “the possession and under the control of the defendant and within its peculiar knowledge.”  The court found that, in these circumstances, negligence could be inferred and the costs were not excessive.  The appeal was “discharged, with costs.”

I will miss teaching from this little gem.  As we discussed it in class, I projected a slide show for the students showing a latter Ballantine Brewery, its delivery trucks and other Ballantine memorabilia.  We got into the history of the two parties after the case as well as their impacts on the City of Newark and the state.  We talked about New Jersey law and its early rejection of Res Ipsa Loquitor.  I told them one of the Justices on the Ballantine panel went on to preside over New Jersey’s most famous trial, the Bruno Hauptmann/Lindberg baby kidnapping case.  Ballantine elicited from me and from my law students all the things that made teaching fun.  I will miss my old friend. 

“What’s past is prologue” —William Shakespeare, The Tempest

Posted on January 3, 2017 by Joseph Manko

I first began to focus on the need to protect our environment in the 1960’s, starting with Rachel Carson’s indictment of one particular pollutant, the pesticide DDT in her seminal work, “Silent Spring.”  As the decade of the ‘60’s proceeded, environmental protection began to focus on the local release/discharge of contaminants into the air, ground and water.  Each state dealt with these problems in a scattershot manner until the EPA was formed in 1970 to administer laws passed by Congress to be uniform – commonly called “command and control.” 

On Wednesday, October 17, 1973, the Arab-dominated Organization of Petroleum Exporting Countries (“OPEC”) decided to reduce the exports of the most basic transportable fossil fuel – oil - to the United States and other countries who aided Israel during the Yom Kippur.  This was commonly called the “OPEC Embargo” and exposed our national dependence on Mideast oil.  

Against this backdrop, on Monday, October 15, 1973, I left my corporate law practice and took my “Hamiltonian shot,” becoming EPA Region 3’s general counsel.  I joined the newly created EPA under Administrator Russell Train to implement, apply and enforce the new environmental statutes - the Clean Water Act (CWA–1972), Clean Air Act (CAA-1970) and National Environmental Policy Act (NEPA-1969).  Instead, because of the OPEC embargo, I was processing CAA variance requests to burn wood chips in furnaces in Philadelphia and fill my gas tank on alternative weekdays.  When the embargo ended the following year, we went about achieving EPA’s mission to protect the environment and coordinate the three E’s – the economy, ecology and energy – focus on the latter would grow in importance – and argument – in the years to come.   

I left my position in October 1975 and started a private practice in environmental law and later began to teach environmental law.  Along came the Safe Drinking Water Act, the Resource Conservation and Recovery Act (“RCRA”), and on the eve of President-Elect Ronald Regan’s inauguration, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”).  The federal government was clearly on track to achieve its mission.

In January 1981, however, President Regan determined to “reverse” environmental protection by the federal government and return it to “state control,” welcoming to this cause a number of inexperienced, unqualified and hostile political friends to dismantle the federal program.  The result – James Watt left his Secretary of the Interior post in disgrace on October 10, 1983; EPA Administrator Anne Gorsuch resigned in disgrace on March 9, 1983; Rita Lavelle, the EPA Assistant Administrator for Hazardous Waste and Superfund, wound up serving prison time for lying to Congress; and at least one Regan appointed EPA regional administrator was thrown out of office. 

During the twenty-eight Bush/Clinton/Bush/Obama scandal free years, EPA went about its business of environmental protection, leading up to the presidential election of October 2016.  The near unanimous global and scientific recognition that climate change was happening led to efforts to reign in carbon emissions primarily from the burning of fossil fuel (coal and oil), culminating this fall in the Paris Agreement.  President Obama and Secretary of State John Kerry led the successful fight to get the requisite number of countries to sign on with the United States.  Environmental protection became a global need, no longer a local problem.

And then came November 8, the election of Donald Trump. 

As he proceeded to name the people he wanted to make up his cabinet, speculation began as to whether as President-Elect he would actually activate his campaign attacks on environmental protection.  Now almost a month before his inauguration, he has actualized his campaign promises.  First, he selected Oklahoma attorney general Scott Pruitt as EPA Administrator, a climate change denier who led the attack in court on President Obama’s Clean Power Plan (the vehicle US planned to use to reduce carbon emissions from fossil fuel in fulfillment of its Paris Agreement commitment).  Second, he tapped Rex Tillerson, the CEO of ExxonMobil, the world’s largest fossil fuel producer and defendant in NY v. Exxon, to be his Secretary of State.  Third, for Energy Secretary, he has designated Texas Governor Rick Perry, the man who in his 2011 campaign famously forgot that the third federal agency he would abolish was the Department of Energy.  Finally, with these selections, he has made it abundantly clear that he meant what he said about reeling in the EPA. 

Will he succeed during his administration or will he fail in his efforts to reprise the Reagan assault.  Some of the big differences between the 1980’s and today are (1) environmental degradation is now understandably global, not just local, (2) the rest of the world is similarly impacted and is watching us, and (3) the stakes are much higher.  Will Congress permit a legislative dismantling of the statutory structure it put together over the past 45 years?  Will the myriad environmental NGOs be strong enough (and sufficiently funded) to take these attacks to court?  Will EPA be able to preserve its regulatory program to implement environmental protection?  Will the courts uphold these executive anti-environmental attack efforts or stop them?  And in that regard, who will be Trump’s selection of SCOTUS Justice #9? 

We wonder.  Many of us worry.  And all of us wait.

The Window, Again

Posted on December 23, 2016 by Steven J. Levine

My practice, one way or another, is all about compliance . . . or noncompliance.  This is as true of the litigation side as it is of the regulatory counseling side.  I typically face the question of which of those terms best describes the situation a client brings to me.  It’s always been true that the practice goes beyond the mere facts or law at hand.  The real world also includes the client’s culture and values, politics, and economics.  These aspects, and others in varying proportions, have usually controlled process and outcome.

Today I am witnessing what appears to be an unprecedented unraveling of these foundations.  I see it in the words and actions of regulators, consultants, other attorneys, judges, and clients.  Obviously this imposes itself on the lawyer’s task of figuring out what the problem is, on the one hand, and, on the other, what the best advice for a client might be, specifically how (and when) to address the problem.  The path forward these days seems to be influenced, often significantly, by two related things:  widespread mistrust of government/science/etc., and a social media rife with rumors, innuendo, assumptions, and the like.  So I find myself asking:  of what value is advice derived from traditional avenues of carefully established fact, well-analyzed law, professional judgment, and years of relationship building?

I find the answer in the first week at my first real law job clerking for a federal district court judge.  On the third day of that job, I stood behind my desk, looked out the window, and thought, with despairing certainty:  I don’t have the tools to do this job!  I will never make it as a law clerk!  I will never make it as a lawyer!  Why did I ever go to law school?  Time passed.  Things cleared up.  I learned how to begin to apply what I knew to what I had to do.  And, while the view may be new, the path forward is the same as ever.  Now, as I think about the potential unraveling of fundamental policies and foundations upon which we have rested for a generation, I’m looking out of that same window, in a sense. 

Doin’ the Dunes – I Thought It Was Over

Posted on December 20, 2016 by Joseph Manko

In July I wrote what I thought surely would be my last blog on the more than three years of legal challenges by the City of Margate, New Jersey Commissioners with their decision not to appeal the state and federal courts’ upholding the State’s and Army Corps’ authority to build dunes in Atlantic County, New Jersey.  I titled the blog “Signing Off” – concluding that the fat lady had in fact sung. 

Well I was wrong. 

Six residents have now paraded into U.S. District Court with their expert, Chuck Dutill, a civil engineer and hydrologist, to testify before Judge Renee Marie Bumb, who had decided the earlier case.  Judge Bumb called the testimony “pretty fantastic,” but confirmed that this was the gist of the testimony:

“It sounds like from your testimony the Army Corps is turning the beach into a junkyard,” she said. “You’ve described a big parade of horribles: animal feces, oils, adults being hurt. It sounds pretty fantastic. Is that in some way hyperbole if you don’t mind? Is that your testimony?”

“That is absolutely my testimony,” Dutill replied.

“What I’m hearing is what the defendant proposes to do is turn the beach of Margate into the junkyard of Margate,” the judge said. “That is what I’m hearing.”

And until she rules – and as expected rules against the residents – and they decide to appeal, the fat lady continues to stand by for yet another reprise.

Electoral College vs. College Football Playoffs

Posted on December 19, 2016 by Thomas Lavender

I’m not sure – but, here’s a thought.

As we all know, or should know, it’s fall, and college football in the South rules the weekends.  Alabama is still the consensus No. 1 in all the polls, including the College Football Playoff (CFP) poll, the only one that truly counts after mid-season – neither the AP Top 25 nor the Coach’s poll will have a bearing on the contestants vying for the chance to play for the final trophy. 

Strangely enough, even prior to the kickoff of the first college football game, our forefathers chose to establish the first Tuesday in November every four years as the day we face off in a more important college contest, that of the electoral college.  At a college football game where 95% of the attendees (or more depending upon the stadium), a/k/a, fanatics, or fans, are in favor of one contestant, and the outcome is measured by points scored in favor of the winner of any given game, the CFP poll ultimately determines, by some seemingly independent process, the four “best” teams in the country who will compete for the ultimate prize, the National Football Championship.

Now, to the Electoral College, which is also believed by some to be totally disconnected from the popular vote of the participants and by others as totally complimentary of the popular vote.  Here, the concept of the Electoral College was, by many accounts, crafted to achieve a balance of the demographics of the Country and to minimize the likelihood that the urban areas, or the aristocracy, alone, depending upon which version one reads, could determine who ultimately leads the strongest nation in the world.  At best, while potentially, or actually in more than one instance, the Electoral College “Trumps” the popular vote just like the CFP trumps the AP-25 and Coach’s polls.  Meaning, it doesn’t matter who the media or the college coaches think are the best four teams in the Country, or that 3 million more voters think the President should be, the CFP and the Electoral College will ultimately decide.

Like it or not, that’s just the way it is.

EPA Adds Vapor Intrusion to Hazard Ranking. Can You Say “Deck Chairs on the Titanic?”

Posted on December 16, 2016 by Seth Jaffe

EPA has finally issued a final rule including vapor intrusion in the Hazard Ranking System.  The good news is that this is appropriate, because VI is one of the few real hazards regulated by the Superfund program.  The bad news is that the Superfund program is so hopeless that promulgation of the rule will probably substantially multiply the cost of addressing VI without buying an ounce of additional public health protection.

In a blog post more than five years ago, I provided a rant that I feel has stood the test of time.  In that post, I asked why Superfund was ill-suited to address VI, even though it’s precisely what EPA should be doing.

"Why should this be so? Could it be because CERCLA is the last bastion of almost totally pure command and control regulation? Might CERCLA remedy decisions take less time if EPA did not have to select remedies, but instead only identified appropriate cleanup standards and let PRPs select the remedy? Might cleanups get implemented faster if the PRPs’ obligation was simply to meet cleanup standards and provide sufficient information to EPA or 3rd party auditors to demonstrate that the cleanup standards have in fact been met?

I hope that the new administration doesn’t roll back this rule while leaving CERCLA in place, because that would be backwards.  I hope instead that the administration leaves the rule in place, but takes a hard run at really reforming CERCLA.  The administration could work with Congress to amend CERCLA to provide that EPA would promulgate cleanup standards for different media and then allow PRPs to attain those standards without direct government oversight.

This is, of course, not a massive right-wing plot.  Many left-leaning states, including the great Commonwealth of Massachusetts, have done exactly that.  Massachusetts has been operating a privatized system for more than 20 years.  If CERCLA were thus amended, I think I could die, or at least retire, happy.  

And I won’t even try to pretend that this clip is really relevant, but it just seemed right.

WORRIED ABOUT OUR CLIMATE FUTURE? LOOK TO YOUR PLATE

Posted on December 15, 2016 by Peter Lehner

If the worst should happen—if the U.S. withdraws from the Paris climate agreement and rescinds President Obama’s Clean Power Plan—do we have any hope of protecting climate stability? Yes. Even in the face of such serious setbacks, all would not be lost. Clean energy and energy efficiency are already a part of our power system. Wind energy is less expensive than coal in some parts of the country, and the prices of wind and solar are expected to drop further still as projects already funded come online. Our vehicle fleet is more efficient than ever and will continue to save drivers money at the gas pump. And there’s another factor driving greenhouse gas emissions that we have enormous personal power to change: the way we eat. 

The effect of diet on climate change is extraordinary. According to a tool called the Global Calculator, developed last year by an international team led by the UK Department of Climate Change and the Environment, simply reducing (not eliminating) meat consumption worldwide—without any changes in other activities, including fossil fuel use—could move us nearly halfway toward meeting the 2° Celsius (3.6° Fahrenheit) limit in temperature rise set by the Paris agreement. By contrast, if the entire world ate meat in the way rich countries do now, emissions would go off the charts, even if we took big steps to cut climate pollution in other areas.

Eating meat—beef in particular—has a major impact on climate pollution because of the amount of carbon-storing forest that is cleared to raise grain for cattle, the emissions created by fertilizer used to grow that grain and the emissions from the digestive systems of cows themselves. Beef is responsible for about 20 times more climate pollution per unit of protein than lentils or beans and 8 times more than pork or poultry.

Eating meat, especially beef, has a major impact on climate pollution.

GLOBAL CALCULATOR

In the image above, the rising black line represents climate emissions if the world fails to take any other positive climate action. (All data is based on our modeling using the Global Calculator.) Continuing along our current path would lock us into 7.2°F of warming in this century and nearly 10.8°F in the long run, resulting in swamped coastlines, bleached coral reefs, increased disease, water insecurity and a host of other effects. On the other hand, if meat consumption falls to levels currently found in India (the caloric equivalent of eating one serving of chicken breast per week) and the proportion of beef in the meat we eat is reduced from 22 percent to 10 percent, as seen in China now, it would result in a major decline in emissions by 2050, as you can see in the falling green line.

The steep red line represents what would happen if meat consumption worldwide increased to current European levels (the equivalent of eating two servings of chicken breast per day) and the proportion of meat from beef increased from 22 percent to 28 percent, as seen now in Canada. In other words, if the world starts to emulate the diet of wealthier Western nations, emissions would rise sharply. In fact, emissions would climb beyond levels predicted under the worst-case scenario mapped by the Intergovernmental Panel on Climate Change in 2014. The panel warned of a two-foot rise in sea level by the end of this century, increasing the flood risks in coastal cities like Miami by 10 to 100 times. In other areas, droughts, deadly heat waves and tropical cyclones could also become more frequent and intense.

What’s alarming is that even if we pursue extremely ambitious reductions in climate pollution from transportation and energy, these efforts would not be enough to counteract the impacts of consuming meat at higher levels, as shown by the rising blue line on the chart.

Here’s the rub: The risk of catastrophic climate change will be almost impossible to avoid if we fail to address the impacts of meat consumption. As we ponder how the nations of the world will move forward to address climate change, and how America, in particular, will move forward under a Trump presidency, it’s heartening to know that a powerful solution like diet is available and relatively untapped.

No one expects the world to stop eating meat overnight, but we can reduce the amount of meat we eat. Many studies show that a diet high in plant-based foods and lower in red and processed meats benefits your health as well the climate. Restaurants and grocery chains are offering more plant-based options; there are even food delivery services like PlantPure Nation and Purple Carrot that make it easy to put a plant-based meal on the table. Food writer Mark Bittman’s “flexitarian” recipes are another good source of inspiration. As more people incorporate more plants and less meat into their diets, we’ll have a healthier population and a healthier planet, too.  

(This blog was first published by Earthjustice. http://earthjustice.org/blog/2016-november/worried-about-our-climate-future-look-to-your-plate)

Surveying the landscape – an approach to compensatory mitigation

Posted on December 9, 2016 by Thomas Lavender

Not that there is anything wrong with wetlands mitigation banking.  I, for one, would certainly like to own one with the perceived return on investment and lack of control on the market – but, there is another option that achieves the same “no net loss” goal for impacting wetlands.

While we all recognize that the Corps’ mitigation rule establishes a hierarchy that favors the purchase of credits from approved mitigation banks, permitted responsible mitigation is still allowable under certain circumstances.  In fact, most recently in South Carolina the landscape mitigation approach has been successfully used to further economic development projects.  In at least one instance, the landscape approach was used entirely in lieu of the purchase of mitigation banking credits.  In another, a hybrid approach was used which combined a permittee-responsible-project with the purchase of credits.

How did it work – you ask?  Rather well, I might say.  But how did it work? 

In each instance, the applicant involved a conservation entity to serve as the sponsor for the project.  Desirable property was identified which had previously been targeted for preservation by a state or federal resource agency.  The sponsor then entered into an agreement with the applicant to secure the mitigation property and, if necessary, perform any enhancement work to achieve the required mitigation credit for the project.  The applicant agreed to reimburse the sponsor for acquiring, holding, and enhancing the mitigation property.  In one instance, the sponsor will ultimately convey the property to a state resource agency.  The mitigation property will be transferred to the state resource agency, subject to a restrictive covenant to encumber the property as approved by the Corps and the resource agency.  The mitigation property only partially satisfied the mitigation obligation.  A small credit purchase for the balance was also necessary.   In the other instance, the mitigation obligation will again be partially satisfied by the purchase of the mitigation property by the sponsor on behalf of the applicant and then transferred to the federal resource agency.  However, the ratio of the credit purchase and the property purchase were approximately equal.  This approach seemed to work more effectively because it also provided for the involvement of an approved mitigation bank which did not object to the project.

Why do it – you ask?  Time and money – when time is money. 

On many large economic development projects there is often resistance from third parties or resource agencies.  Working with these third parties and resource agencies to identify desirable mitigation properties can facilitate consensus for securing a 404 permit in a timely manner.  The approach only works for the applicant when the permit timeline tracks with the project and the cost of the landscape mitigation approach is essentially equivalent to the cost of purchasing credits from an approved mitigation bank.

Try it, you might like it, Mikey. 

Conservation: Back to the Future

Posted on December 8, 2016 by Dennis Krumholz

In preparing the curriculum for my first environmental law class this coming semester, I thought it would enrich my students’ experience to read certain of the important antecedents of the modern era of environmental statutory, regulatory and case law.  Aldo Leopold’s A Sand County Almanac, a classic of conservation literature, came immediately to mind.  As a result, I have returned to a book that kindled my appreciation for ecology and the outdoors and, thereby, reinforced my interest in environmental law.

I began by reading the chapter in which Leopold muses about activities that take place during November at his sand farm on the Wisconsin River.  (Since my blog is due in early December, jumping in here seemed to make sense.)  Leopold recounts a myriad of activities in the mere twelve pages he devotes to describing this month’s developments.  One section is devoted to the unintended beneficial consequences that result from diseases that afflict his trees.  Various animals take advantage of the shelter and, especially, the food that these diseased and rotting trees provide.  Leopold’s insight is to look beyond the misfortune of losing trees; not only is this destruction a natural part of life, but - if only we are able to recognize it – death is offset by the sustenance the dying and dead trees provide to local animals.  While this “circle of life” approach is easily understandable these days, such an idea was radical when Leopold was writing in the 1940s.

The heart of the November chapter finds Leopold considering whether to chop down a white pine or a red birch.  Indeed, he considers conservation to be “a matter of what a man thinks while chopping, or deciding what to chop.  A conservationist is one who is humbly aware that with each stroke he is writing his signature on the face of his land.”  Leopold thoughtfully explores his motives in selecting to fell one tree or the other –which of the trees he planted, which is more scarce, which is likely to stand longer if untouched, which wood will fetch more money upon sale, the impact the tree would have upon animals and other plants if left standing … even his ancestors’ tree preferences.

Leopold casually reveals the many species that coexist in a deceptively simple sand farm.  He also educates his audience by gently illustrating the interrelatedness of the plants and animals and describing the seasonal impacts of cold and wind on each.  The descriptions of vegetation and, especially, the birds that nest in his trees and bushes, are enchanting.  One wishes to have Leopold take us by the arm and show us all that he observes and understands.

Leopold’s skill as a stylist, especially his use of a languid and folksy style, masks his considerable scientific knowledge.  We know that he was a college professor and that, among other fields, he understood evolutionary theory.  While it is obvious that this training informs his many observations and conclusions, yet, Leopold serves up this technical information so lyrically that readers whose experiences with botany and zoology were less than happy will feel at home.

A word about the philosophical aspect of the Almanac is warranted.  While Leopold’s observations are presented on the “micro” level, he carries a far broader message.  Leopold laments the loss of our natural environment but with an approach that educates more than criticizes.  “What is the value of wilderness?” is one of the many deeper questions lurking just beneath the surface.  Leopold believes that its value lies in and of itself, but also in its contribution to our wellbeing; the natural world is essential to the moral and spiritual welfare of humanity.

Environmental law began to catch up with Leopold’s ecological vision in the early 1970s.  Since then, it would be easy to focus our legal training on the interplay among various elements of so-called “positive” law in the protection of our natural world.  But omitting Leopold and others like him from the education of our future lawyers would be a costly error, as doing so would ignore the conservation and ecological ethic that lies at the very root of environmental protection.  Rereading Leopold reminds us of how and why our field of law first arose and why practicing it continues to hold our interest.  I urge my colleagues in the College to dip (back) into this resonant and loamy book.  I’ll bet dinner in Charleston if you, too, don’t come away with a refreshed appreciation of our natural world and a reminder of the part our professional activities play in preserving it for future generations.

AN ANTIDOTE TO INERTIA?

Posted on December 2, 2016 by Annette Kovar

Let’s face it – most seasoned bureaucrats (I confess I am one) often don’t react well to change.  Over time, there just seems to be an intrinsic inertia that builds in all bureaucracies. Federal and state environmental agencies are, unfortunately, no exception. While we in government do strive to avoid this inherent danger (problem?), the comfort of a routine can sometimes be the enemy of innovation. The catchphrases getting a lot of attention, and gaining some real traction, in government circles these days are “process improvement” and “performance measurement”.

Many state environmental agencies and the US EPA have undertaken a variety of self-examination techniques which fall under the general rubric “business process improvement” (BPI), including Lean, Six Sigma, and Kaizen to name just a few. The articulated objective is to examine key functions and processes with a view towards achieving a host of goals such as reducing costs to the agency, optimizing agency resources, and realizing better value for the agency’s “customers”. BPI may also help transform an organization’s culture to help embrace change and communicate better with the regulated community, the public, and other governmental partners. The Environmental Council of the States (ECOS) recently released a report entitled “State Environmental Agency Business Process Improvement Activity 2010-2016,” which accompanied the launch of an online database describing state BPI activities.

Applying process improvement goals in a meaningful way and tracking performance measurement through metrics helps agencies answer the question, “How are we doing?” Performance metrics can track costs and time saved, and identify areas needing improvement. It is not measuring for the sake of measuring, but rather measuring progress toward achieving identified performance goals, such as issuing an air quality permit or awarding grants within a specified period of time.

While the decision to engage in BPI may come as a top-down mandate, the implementation of actual techniques used to arrive at new goals will have to be tailored to each program’s process and appears in practice to be largely collaborative and creative, encouraging a “think outside the box” mindset. There will always be challenges—that’s probably inherent in the nature of government with the prospect of new leadership every four years or so. Process improvement and performance metrics won’t automatically diffuse the inertia in an organization. Change just for the sake of changing isn’t all that appealing without seeing real progress towards a goal.  Working together, however, initiatives borrowed from business may foster an institutional culture and organizational climate in government where personnel are more willing to accept change and perhaps come up with innovative ideas of their own.

(The author is Legal Counsel for the Nebraska Department of Environmental Quality.)

For PEAT’s Sake! Another Pathway Averting Climate Change

Posted on December 1, 2016 by Nicholas Robinson

After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times  (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere.  Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.

Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.

Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.

Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore.  Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.

Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.

Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions.  Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain. 

Some countries are taking steps to limit disturbance of peat deposits.  Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming.  Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions  of carbon dioxide from mining peat for use in compost remain at 400,000 tons.  To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats.  Peat is protected in federal parks lands of Alaska.

Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally.  Emission-trading schemes can help finance transitions from peat abuse to peat preservation.

Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change.  Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity.  Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases.  Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.

United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.”  It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.

This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.

Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030.  For peat’s sake, let us get on with it.

MITIGATING CLIMATE CHANGE WITHOUT THE CLEAN POWER PLAN

Posted on November 29, 2016 by Stephen L. Kass

President Obama’s Clean Power Plan is in trouble, both in the courts and politically. I believe that Plan is a lawful exercise of EPA’s regulatory power and deserves support from the public. But it is far more likely that by January 21, 2017 the new EPA Administrator will, at the direction of the White House, seek to rescind or eviscerate the Clean Power Plan because of both  aversion to regulatory action in general and campaign promises to the coal industry.  That would be a disaster for the U.S. (and global) environment since coal plant emissions are the largest single source of Greenhouse Gas (GHG) emissions in our nation and our refusal to reduce them will lead other nations to slow their own efforts to cut GHG emissions. The resulting international reaction, perhaps including threatened carbon charges on U.S. exports, will put intense pressure on the White House to take climate change more seriously.

There is, however, a way for the new Administration to reduce GHG emissions even more effectively than the Clean Power Plan – and without EPA regulatory action.  The White House could simply ask Congress for authority to purchase the nation’s approximately 350 operating coal plants and then promise to close half of them in five years and the balance in 10 years.  Such a plan would do far more than the Clean Power Plan to eliminate coal as a major source of GHGs in the US, and would do it faster and with more certainty than EPA’s complex and potentially unenforceable regulations.  Investors in renewable energy projects would also have a clear path forward, without the prospect of continued coal competition, so that such projects could once again accelerate even without large-scale subsidies.    

This purchase alternative, which I call “Plan A,” could also be attractive both to existing coal plant shareholders and their workers.  Coal plant shareholders and lenders now face the prospect of near-term loss of their entire investment as bankruptcies ripple across the nation’s coal fields.  Workers too face near-term unemployment with or without the Clean Power Plan.  Under Plan A, workers would receive generous compensation as part of the purchase of their plants, along with assistance in meeting outstanding mortgage, car loan and medical bills, scholarship assistance for themselves and their children at nearby community colleges and priority in filling jobs at new renewable energy projects.

Given the age and condition of the coal plants being purchased and the relatively small number of coal workers still active in the country,  the total cost of  this Plan A alternative would likely be less than or equal to the public health benefits that EPA estimated would result from closing down only a portion of those plants under  the Clean Power Plan.  In short, Plan A could be a win-win solution for GHG emissions without relying on EPA regulations but on Executive and Congressional action that would dramatically improve the global environment and challenge other nations to do the same.     

MUSINGS ON THE FUTURE OF EPA ENFORCEMENT – WILL IT GET TRUMPLED?

Posted on November 28, 2016 by John H. Johnson

Speculation about the environmental implications of the impending Trump presidency is running rampant.  That was the case as well when Ronald Reagan was elected President.  I served as an attorney in EPA Region 4 during his administration so I have a sense of dynamics that will be in play at the regional offices during the Trump administration.  With this historical perspective, I offer the following thoughts on the potential impact of the Trump administration on EPA enforcement at the regional level. 

·         Initial Frontal Assault – The early years of the Reagan presidency were marked by a robust and concerted effort to declaw EPA, largely carried out through political appointments at Headquarters and at the Regional Administrator level (the oft-repeated refrain was “doing more with less”).  Based on his condemnation of the “Department of Environmental Protection” during the campaign, I’m inclined to expect the same from President-elect Trump.  However, the list of names currently being floated for the positions of EPA Administrator and Assistant Administrator ranges widely from a climate denier to well-respected former program managers at EPA.  So, at this point, the jury is out on whether President-elect Trump will follow the Reagan administration’s lead or, like the George W. Bush administration, take a more restrained approach to regulatory implementation and enforcement, while recognizing the Agency’s fundamental legitimacy.

·         Effectiveness of a Frontal Assault – The efforts of the Reagan administration were largely unsuccessful and relatively short-lived.  At the regional level, this was due in no small part to muted but resolute resistance to those efforts from career employees.  If the Trump administration pursues similar goals, I would expect similar results.  I anticipate that rank-and-file enforcement personnel in the regional offices will continue to pursue and prosecute instances of statutory/regulatory noncompliance (consistent with budgetary constraints).  In light of the largely completed trend of delegating environmental programs to the states, enforcement actions undertaken these days by the EPA regional offices frequently involve allegations of significant regulatory noncompliance that state programs are unable (or unwilling) to address effectively.  Regional political appointees will be hard-pressed to halt or forestall meritorious enforcement actions.  In addition to wanting to avoid any appearance of impropriety, those appointees will be subject to an NGO watchdog network that is considerably more developed and vibrant than it was during the Reagan years.  If EPA doesn’t enforce, the NGOs will. 

·         Times Have Changed – Like me, today’s regulatory enforcement landscape bears little resemblance to what it looked like 36 years ago.  I can well recall spirited conversations in the late 70’s/early 80’s with reluctant program managers for some of the Region 4 states concerning the states’ adoption and enforcement of a regulatory framework that mimicked the basic structure of the major federal programs (air, water, and waste).  Those days are long gone, and I would anticipate that any efforts to suppress enforcement at the federal level will have minimal impact in those authorized states that have active enforcement programs.  Also, while some NGOs (e.g., NRDC, Sierra Club, Environmental Defense Fund) were quite active during the Reagan administration, particularly in high profile enforcement matters, the proliferation since that time in the number and variety of well-financed NGOs at the national, regional, and state level will likely compensate for any decrease in EPA enforcement that may occur under President Trump.  Ironically, what we may see in some cases is initiation of enforcement actions by EPA that blunt the use of citizen suits by NGOs, followed by settlements on terms considered less stringent than the NGOs would prefer.

Given President-elect Trump’s penchant for unpredictability and the current uncertainties surrounding the ultimate composition of the Trump environmental team, I’m not confident in my predictive powers, other than to say that we are about to embark on what I will gently call an interesting time in the history of environmental regulation.  Whether it proves to be déjà vu remains to be seen.

TRUMP POWER: PROSPECTS FOR DE-REGULATING (AND UN-ENDANGERING?)

Posted on November 18, 2016 by Richard G. Stoll

Q&A

Q:  What two things do Jeb Bush, John Kasich, Marco Rubio, Rand Paul, Chris Christie, Carly Fiorina, Mike Huckabee, Bobby Jindal, Ted Cruz, and George Pataki have in common?

A:  (1) None of them ever claimed that climate change is a Chinese hoax; and 
(2)  Every one of them promised to revoke the Obama Clean Power Plan (CPP) if elected.

How Bad Is Bad?

I’ll come back to the CPP.   But first, the question so many are asking:  how terrible is Mr. Trump’s election going to be for the environment?  Let me begin by reminiscing.  In 1980, I was in EPA’s Office of General Counsel when the “killer trees” President was elected.  I don’t remember actual tears in the office the next day, but people were pretty distressed and many were threatening to leave the agency.

Things really did look bad for a while.  Remember Anne Gorsuch Burford, Rita Lavelle, James Watt and many others with similar agendas?  But then remember the intense and angry public reaction when it appeared that core environmental protections for clean air and clean water were in jeopardy.  These people were forced out of office.  William Ruckelshaus returned at the top of EPA, and the ship was essentially righted.

With that history as a guide, I don’t think the Trump Administration (disclosure:  I neither supported nor voted for him) will try to make any significant changes to the vast bulk of protective air, water, waste, etc. rules now on the books.  I once calculated there are over 20,000 pages of EPA regulations in the C.F.R.  That’s millions of words.  I think that after four years of a Trump Administration, fewer than 1% of those words will be deleted or amended.

Top Target

Now back to the CPP.  I am pretty sure that will fall into the 1%.  Others have written about what might happen to the CPP on judicial review and I won’t try to add to that guessing game.   The key thing to remember is that the CPP is currently stayed by the Supreme Court, and that stay will remain in effect until any final Supreme Court disposition – which will be many months from now.

There is a good chance that the Trump EPA will not wait for any final judicial review but rather will soon undertake a rulemaking to revoke at least the more far-reaching and controversial elements of the CPP (i.e., the provisions “going beyond the fence-line” to force wind and solar in place of coal).  As explained in one of my recent blogs, there would be no need to develop a new factual record in such a rulemaking.  So this process may take a couple of years, but for much of that time the CPP will remain blocked by the Supreme Court stay and the earliest CPP standards aren’t scheduled to take effect until 2022. 

As also explained in my blog, thanks to a recent 3-0 D.C. Circuit opinion authored by Judge Merrick Garland (and the Supreme Court precedent that he relied upon), those in the Trump EPA should have smooth sailing on judicial review if they take the time to clearly articulate their policy and legal rationale.

And what would public reaction be to such actions?  Cutting the most controversial parts out of the CPP would not jeopardize the legal basis for core clean air and water protections as the early Reagan cutbacks were perceived to do.  So even if revisions to the CPP provoke lots of noise from traditional public interest groups opposing any cut-backs in GHG regulation, that noise may not resonate much with  a general public much more interested in jobs, health care,  and public safety. 

Un-endanger Me?

Public reaction could be far different, though, if – as indicated in some press reports --  the Trump EPA were to go beyond significantly cutting back on the CPP and deploy a nuclear option:  reversing the Obama EPA’s 2009 GHG “endangerment finding.”  By doing this EPA would be trying to free itself of any obligation to regulate GHGs under the Clean Air Act.  (Note:  I am not addressing the more limited August 2016 aircraft emission endangerment finding.)

I think such a reversal would be extremely unwise.  First, I think it would be far more vulnerable on judicial review than a significant CPP cutback.  Reversing the finding would require the building of a massive new factual record.  And with the growing scientific consensus that man-made GHGs are causing at least some adverse effects, even conservative judges may have difficulty upholding such a decision.

Second, having EPA in effect deny there is any climate problem from air emissions could more easily foment the kind of intense and angry public reaction that the early Reagan EPA suffered.   Recall from the above that none of the other Republican candidates gunning for the CPP ever said global climate was a Chinese hoax.

Finally, I believe such a reversal is entirely unnecessary as a legal matter.  As long as EPA keeps some form of GHG controls on the books, it will have carried out its legal obligations stemming from the endangerment finding.  Nothing in the CAA or any judicial decision requires that the degree of GHG regulation be driven by an endangerment finding.  There is nothing remotely like the MACT mandate to achieve limits being met by the best 12% in a source’s category.  In short, EPA does not need to touch the endangerment finding to accomplish the goal of amending the CPP to remove its more far-reaching and controversial provisions.

More Targets and Concerns

Getting back to the basic question of how much the Trump EPA may change things, there will certainly be more rules targeted in the 1% -- the Obama Clean Water Rule for almost sure.  And there are valid concerns about how much EPA’s funding and enforcement efforts may be cut back even if most rules stay on the books.  Spoiler alert:  I may do blogs on these topics soon.

But my main concern for  people at the Trump EPA now is that they remember what happened when the Reagan EPA tried to de-regulate in a manner that was perceived as threatening core values of clean air and clean water.

Trump’s Impact on Environmental Law? Let the Speculation Begin!

Posted on November 15, 2016 by Seth Jaffe

What will a Trump Presidency mean for environmental law?  trump-climateI’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:

  • It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules.  I don’t see Clean Air Act amendments happening.  Significant amendments might be possible to the Endangered Species Act and Superfund.
  • Changing regulations is more difficult than one might think.  As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives.  For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it.  The Clean Power Plan is another matter.  All Trump needs there may be a new Supreme Court Justice.
  • The easiest target is executive orders.  The social cost of carbon?  Toast.  Guidance on incorporating climate change into NEPA?  Toast.

Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.

Trump Presidency?

Deep-six the Clean Power Plan

Goodbye to winter

Does Trump Election Boost Children’s Climate Crusade?

Posted on November 14, 2016 by Rick Glick

As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change.  On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss. 

Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions.  Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.  

The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings.  In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding:  “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable.  Although Judge Aiken was undeterred by these considerations, I still believe that to be true.  Still, did the election of Donald Trump give new impetus to the case?

The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team.  This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.

It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility.  Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions?  Could the election create a sense of urgency that a court may feel the need to address?  Maybe, but this still strikes me as tough case to sustain.

A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax.  Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there.  California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session.  Local environmentalists think the chances of a successful local climate initiative are high.  The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.

The Herrmann Environmental Writing Award: This Year’s Outstanding Entry in a Crowded Field

Posted on November 8, 2016 by Mary Ellen Ternes

The American College of Environmental Lawyers annually presents the Herrmann Environmental Writing Award to the individual who has written and submitted what we judge to be the best article from a student-edited law journal or equivalent publication published by an accredited U.S. law school, including an article, note, case comment or essay.  The winning piece is 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 award is named in honor of our College colleague Stephen E. Herrmann, who is a distinguished, nationally recognized environmental lawyer and who has – for some forty years – been a leader in the area of environmental law as a practitioner, teacher and writer.

This year, there were twenty-nine separate entries for the Herrmann Award.  A panel of ACOEL members reviewed and evaluated each entry based on its originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law.  After completing that review, the reviewing panel announced at the 2016 ACOEL annual meeting in New Orleans that this year’s winner of the Herrmann Environmental Writing Award is Ms. Irene Weintraub Shulman.  Ms. Shulman’s article – published in the Cardozo Law Review [link] – is “NEPA and Uncertainty in Low-Risk, High-Impact Scenarios: Nuclear Energy as a Case Study.”  In addition to winning the award, Ms. Shulman received a stipend of $3,500, and the submitting law journal (Cardozo) received $500.  Ms. Shulman was also invited to attend a portion of the College’s meeting in New Orleans.

ACOEL remains gratified at the level of interest and academic excellence represented by all the submissions we received.  And we again congratulate Ms. Weintraub Shulman and the Cardozo Law Review on their fine submission.

Climate Change Displacement and Dislocation-Coming to a City or Town Near You!

Posted on November 3, 2016 by Wendy B. Jacobs

It is time not only to plan and prepare, but also to bring human rights and land use policies together into the discussion and much-needed governance reforms. When one thinks of population migrations, one often thinks of international movements. The issues of human rights are front and center in that context, but we don’t yet have a developed language or set of principles to apply when thinking it through here in the U.S. Hence, last week, I co-hosted a 2 and ½ day workshop on the subject with my colleagues in the International Human Rights and Immigration Clinics. We brought together experts on human rights from all over the world to focus on 4 case studies. One was the Horn of Africa where pastoralists are on the move to escape drought conditions; one was Central America/Mexico from which people are fleeing not only gang violence and poverty but increasingly severe climate conditions; a third case study focused on Native Alaskan communities; and, a fourth on coastal cities in the U.S.  In addition to international experts, also participating were government representatives of several coastal cities, an expert on the Hurricane Sandy property buy-outs, several climate justice activists (including the NAACP), and people working to relocate Native Alaskans. 

Together we brainstormed how to build on the Nansen Initiative and other internationally-developed principles for creating governance structures and funding mechanisms to implement plans to protect displaced persons. (Brief mention was made of imposing a carbon tax and then applying the funds to adaptation measures.) A key point of consensus was the need to use “bottom up” approaches (including local referendums) to ensure that policy makers and decision makers understand the needs of affected communities when pursuing much needed legal reforms and to begin planning now for ultimate displacement instead of waiting for disaster to strike. Many barriers exist, however. A major barrier to effective and cost-efficient planning for and management of dislocations in the U.S. (and elsewhere) is the “siloing” of jurisdiction and expertise between the many tiers of government (domestic and international). Another is the dependency of municipalities on a strong tax base which leads many to resist the notion of “retreat” or “relocation” of at-risk populations. Furthermore, land-use planning is managed separately from disaster relief planning in the U.S. More resources are (inefficiently) disbursed for responding to disasters than avoiding them. Indeed, the sinking of communities into the sea is not even considered a “disaster” under current U.S. law. Many legal reforms are needed, ranging from zoning policies to building codes to jurisdictional issues to preemption. One example: the National Flood Insurance Program not only creates perverse incentives to continue building and re-building along the coast, but it does not require that municipalities adopt zoning codes that take sea level rise or storm surges into account. We discussed legal and policy mechanisms for managing infrastructure in communities that will need to be abandoned and creating infrastructure elsewhere to support people forced to relocate. Alaskan communities are caught in a terrible Catch 22: some still lack fundamentals, such as running water, but the government does not want to invest in infrastructure in communities that will have to relocate and yet the government has been tied up in knots and unable to build the necessary infrastructure in the areas to which these peoples will relocate. And, we discussed climate change gentrification and the need to ensure affordable, sustainable, safe and healthy housing for the dislocated poor.

There is much work to be done. If any member of the College is interested in working on any of these issues with us, please let me know!

The Enforcement of CERCLA Section 106 Orders; the Seventh Circuit Suggests a New Twist

Posted on November 2, 2016 by William Hyatt

Superfund practitioners have long known that unilateral orders issued by EPA under Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), commonly known as the Superfund statute, can be very potent enforcement tools.  Recipients of such orders who “willfully” choose to defy them, “without sufficient cause,” face the prospect of potentially ruinous civil penalties under Section 106(b) and treble damages under Section 107(c)(3).  The term “sufficient cause” is not defined in CERCLA and has been subjected to very limited judicial interpretation.  Making matters worse, by virtue of Section 113(h), Section 106 order recipients cannot obtain pre-enforcement review of such orders.  Instead, they must wait until EPA brings an enforcement action, or one of the other triggers listed in Section 113(h) occurs (while the penalties and treble damages continue to accumulate, for a period which could last for years), before they can obtain a judicial determination of whether or not their defiance was “without sufficient cause.”  This enforcement scheme has thus far withstood due process challenges on the ground that no penalties or treble damages can be imposed until there is a court hearing.  Waiting for that court hearing can produce extreme apprehension on the part of defiant order recipients.

In United States v. Glatfelter, one of the prodigious number of reported decisions relating to the Lower Fox River Superfund Site, the Court of Appeals for the Seventh Circuit, after concluding that permanent injunctions will not be available to enforce Section 106 unilateral orders, suggested how that apprehension might be relieved:

“Nothing we have said prevents the government from seeking declaratory relief to establish that a PRP lacks sufficient cause for noncompliance, such as the arbitrariness of the selected remedy or a defense to liability.” 

This suggestion may trigger a whole new round of litigation regarding Section 106 orders.  For instance, does a private litigant enjoy the same right to seek declaratory relief?

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

Posted on October 27, 2016 by Seth Jaffe

In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the Endangered Species Act (“ESA”).  Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play.  Specifically, the FWS announced that

"we will be initiating an entirely new status review of the North American wolverine,hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

Why You Should Pay Attention to ECOS

Posted on October 26, 2016 by Martha Rudolph

ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS?  And, why should you care?  As the current Past President of ECOS, I acknowledge upfront that I might be biased – but consider the following.  ECOS is the national non-profit, non-partisan association of state and territorial environmental agency leaders.  ECOS was founded in late 1993 at a time when the relationship between states and the EPA was strained.  As Mary A. Gade, then director of the Illinois Environmental Protection Agency, put it:  “The times called for states to assume primary responsibility and leadership for environmental protection.  As individual states began to articulate this new perspective, state commissioners realized the need to band together for information-sharing, strength, and support.” 

Today, reflected in the ECOS 2016-2020 Strategic Plan, much of ECOS’ original purpose remains:  “To improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of the United States of America. Our belief is that state government agencies are the keys to delivering environmental protection afforded by both federal and state law.”

While the purpose remains consistent, how ECOS achieves it has evolved.

One example lies in the ECOS-organized forums where states and EPA meet to discuss - and often debate - environmental concerns and our respective roles in implementing and enforcing environmental programs.  While the early ECOS years were not without success working with EPA, the tenor of the overall relationship with EPA was uneven.  Today, ECOS has a productive relationship with EPA.  We still discuss, debate, and disagree, but in a much more constructive way.  EPA representatives at all levels routinely attend and engage in the spring and fall ECOS meetings, as well as other ECOS conferences.  ECOS members have been invited to internal EPA budget meetings to share our budget concerns and needs.  ECOS and EPA have worked on several joint-governance projects, including the creation of E-Enterprise for the Environment.  Through E-Enterprise, state, EPA and tribal representatives work to streamline environmental business processes and share innovations across programs to improve environmental results, and enhance services to the regulated community and the public by making government more efficient and effective.

ECOS is fast becoming the “go-to” organization for Congress, the White House, federal agencies, national organizations, and the media to learn about state issues, concerns, positions, innovations and ideas regarding environmental matters.  Through engagement with senior government officials, testimony before Congress and many position letters, ECOS has expressed state perspectives on key legislative and regulatory issues, like reform of the Toxic Substances Control Act, funding for state environmental programs and water infrastructure, increased authority over coal combustion residual sites, workload flexibility in state-EPA agreements, enforcement training, expediting federal facility cleanups, and environmental justice tools. 

ECOS has developed relationships with the Department of Energy and the Department of Defense:  these agencies regularly participate in ECOS.    ECOS’ Legal Network brings state environmental agency counsel together with EPA counsel and DOJ’s Counselor, to explore lessons learned from successful enforcement and compliance initiatives, and to discuss best practices and enhanced collaboration. 

So, how about the relationship among the states themselves?  ECOS has also become a venue for states to explore differences in positions and ideas.  Not surprising, membership within ECOS is politically diverse.  ECOS has recognized and embraced this diversity by creating a space for states to express their opinions and positions, encouraging members to learn from each other, to reach “across the aisle” to understand differing perspectives, to compromise where needed and to develop strong and lasting relationships.  ECOS will pull in experts from within the states and from other organizations to provide valuable and sometimes critical perspectives and analyses on important issues, so that state environmental leaders can better understand the complexities and impacts of environmental programs and initiatives.  The lawyers of ACOEL are one source of that expertise, and they have provided valuable legal analyses to ECOS and its members on the Clean Power Plan and WOTUS.  ECOS is even reaching across state agency lines, as shown by this spring’s Memorandum of Agreement with ECOS, EPA, and the Association of State and Territorial Health Officials to advance cooperative initiatives pertaining to environmental health, acknowledging that the public health and well-being of U.S. citizens relies on the condition of their physical environment.

So, why should you care about ECOS?  Because the vast majority of day-to-day environmental program adoption, implementation and enforcement is done by the states.  As Mary A. Gade said when ECOS was first created: “Charged with advancing a state’s environmental agenda, state commissioners strategize daily with governors, state and national legislators, and local government officials to accomplish their goals.  State environmental commissioners have political access, substantive expertise and, most importantly, legislative combat experience.”  When you organize a group of battle-ready commissioners who lead state environmental programs, and who meet and work together on a regular basis, wouldn’t you want to know what they are doing?  My advice:  check out http://www.ecos.org and find out what you are missing.

WHO YA GONNA CALL?

Posted on October 25, 2016 by Keith Hopson

(Best read while humming the theme song from Ghostbusters)

In an unprecedented move (to my knowledge) the Industrial and Hazardous Waste Permits Section of the Texas Commission on Environmental Quality (TCEQ) recently requested permit holders provide the agency with their facility’s primary and secondary emergency response points of contact.  Specifically, they ask for the names and office and cell and/or pager numbers.

The information is typically included in a facility’s permit, but my personal experience is a change of phone numbers or even personnel may or may not result in a timely permit modification.  The fact the agency intends to keep this information in a spread sheet format should make the data more readily available in an emergency than having to extract the information from one or more permits.

The inspiration for this somewhat unusual request was the recent proliferation of earthquakes in our neighboring state to the north although any other natural (floods, hurricanes, or tornados) or manmade disasters could well result in the same need. 

A simple action?  Yes.  Could it be very beneficial?  Certainly; because, as we all know, in an emergency it’s important to know who ya gonna call …

Flint litigation: an interim update

Posted on October 13, 2016 by Jeffrey Haynes

Along with the flood of news coverage of the Flint water crisis comes the flood of litigation.  So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the expected plea deals.  Here are some highlights.

In April, a federal district judge dismissed for lack of subject matter jurisdiction a §1983 claim for “safe and portable water” as preempted by the Safe Drinking Water Act.  The case is on appeal.

Class actions have been filed against state and municipal officials in federal court, the Michigan Court of Claims, and Genesee County Circuit Court, seeking damages for personal injuries, property damages, and relief from water bills.  Along with the usual governmental immunity defense, defendants assert a statute of limitations defense, with a fair likelihood of success.  The governmental immunity defense is complicated by Governor Snyder admitting fault.  That admission strengthens plaintiffs’ gross negligence exception to governmental immunity.

So far, the Attorney General’s criminal charges have resulted in the usual plea deals by underlings.  The Flint water quality supervisor whom I lauded in a previous post as the only principled public servant in this mess (a position with which the Attorney General agrees) pled no contest to willful neglect of duty; the plea is essentially nothing, because the court took the plea under advisement with dismissal in one year if the supervisor cooperates with the investigation.  A state official reached a second plea deal, pleading no contest to willful neglect of duty regarding an outbreak of legionnaire’s disease with the usual cooperation clause.

Politics saturates the Flint legal landscape.  Attorney General Bill Schuette is widely expected to run for governor in 2018 and must therefore appear to be doing something, such as filing an unusual professional negligence and public nuisance claim against the Flint outside engineering firms.  And when the Flint mayor notified Michigan of intent to sue the state, the state receivership board with continuing jurisdiction over Flint removed the city’s authority to sue.

Stay tuned.