Posted on April 13, 2016
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
The complaint here is similar to, but broader than, others of its ilk. As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere. Perhaps in response to that case, the plaintiffs here appear to have focused their arguments on the government’s public trust responsibilities with respect to various waters of the United States, though the opinion does not make clear precisely what the complaint alleges to be the subject of the public trust obligation.
The plaintiffs not only allege that the United States has violated its public trust obligations, but that that violation in turn constitutes a violation of the plaintiffs’ substantive due process rights. Magistrate Judge Coffin takes pains to make clear that this is only about a motion to dismiss, but I still think he got it wrong.
Indeed, I think that Magistrate Judge Coffin ignored that well known latin maxim: “Oportet te quasi ludens loqui.” (Which is how the on-line translator I used translated “You must be joking.” I hereby disclaim any warranty that this is even close to correct.)
Call me old-fashioned, but I believe in judicial restraint. And that applies to everyone. Traditionally, conservatives have accused liberals of judicial activism. To my totally objective mind, in recent years at least, it is the conservative judges who could more fairly be called activist. For one case, at least, the shoe seems to be back on its original foot. I just cannot see this decision standing. The District Judge should reject Magistrate Judge Coffin’s Findings and Recommendation. If he or she doesn’t, this case is sufficiently novel and important to warrant interlocutory appeal, and the 9th Circuit should reverse. And if that doesn’t happen, it will be up to the eight (oops, I meant nine) members of the Supreme Court to get it right. One of them surely will.
Posted on April 5, 2016
More than 40 years after the Corps and EPA first adopted regulations to define their jurisdiction over the discharge of dredged and fill materials into waters of the United States under Section 404 of the Clean Water Act, the agencies find themselves mired in litigation over the Clean Water Rule, their most recent attempt at rulemaking on the issue. 80 Fed. Reg. 37054 (June 29, 2015). The Clean Water Rule seeks to address issues raised by the Supreme Court’s decision in the Rapanos case. Challenges to the Clean Water Rule have been filed in eight Courts of Appeal and ten District Courts. Not only is there disagreement over the substance of the rule, there is disagreement over which court or courts have jurisdiction to review challenges to the rule. This disagreement pushes the resolution of the substantive issue far to the future.
It is discouraging to have this kind of uncertainty over a major piece of environmental legislation. While some people may see benefit in uncertainty, the lack of clarity on which court has jurisdiction needlessly wastes time and money that could be put to better use. Especially if the eventual ruling is that District Courts have jurisdiction, questions about the validity of the Clean Water Rule will linger for years.
To address the procedural issue, the Congress should pass legislation to specify a single court to hear all challenges to the Clean Water Rule. Under other laws, such as the Surface Mining Control and Reclamation Act, the Congress had the wisdom to specify clearly a single court with authority to review agency regulations--the Federal District Court for the District of Columbia. Similarly, Section 307(b) of the Clean Air Act gives the Court of [Appeals for the District of Columbia exclusive jurisdiction over challenges to regulations of national effect. Judicial review using a single court to review all challenges is orderly and efficient. By contrast, the flurry of lawsuits challenging the EPA and Corps new Clean Water Act regulations is costing the parties millions of dollars just to figure out which court (or courts) should review the challenges to the regulations. Is it too much to ask to have the Congress end the procedural jousting and specify a single court for judicial review?
Posted on April 4, 2016
With increasing recognition of the value of water across the globe, in 2008 eight U.S. states and two Canadian provinces established the Great Lakes and St. Lawrence River Basin Sustainable Water Resources Management Agreement, and the states created a parallel compact on the U.S. side approved by the U.S. Congress. The primary purpose of the Agreement and Compact is to prohibit diversions of water outside the basin, with very limited exceptions. The first real application for an exception to the Agreement and Compact is under consideration by the Regional Body created under the Agreement and the Compact Council created under the Compact. This is receiving much attention and close scrutiny in the U.S. and Canada because many feel it will set the course for many future applications.
The city of Waukesha, Wisconsin, sits just outside the basin in Waukesha County, which straddles the basin line. Waukesha has a problem: the aquifer it uses is contaminated with naturally occurring radium, and beyond that, the city has concerns about its capacity to serve future needs. As a result, Waukesha has applied for an exception to the Agreement and Compact to withdraw up to 10.1 million gallons per day from Lake Michigan, which would be used, treated, and returned to the Lake through the Root River.
Communities, like Waukesha, that are located in counties straddling the water divide line can ask for water diversions from the Great Lakes, governed by strict rules. The key provisions of the exception standard under the Compact and Agreement that Waukesha must meet are:
- The Water shall be used solely for the Public Water Supply Purposes of the Community within a Straddling County that is without adequate supplies of potable water;
- There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies;
- Caution shall be used in determining whether or not the Proposal meets the conditions for this Exception. This Exception should not be authorized unless it can be shown that it will not endanger the integrity of the Basin Ecosystem;
There is little dispute that the amount of water taken by Waukesha from Lake Michigan will have any impact on the Lake, especially since all of the water not consumed in Waukesha will be returned, with a small supplement of water from outside the basin to replace the consumed water. The concern is over the precedent it would set for straddling communities and counties all around the basin in Canada and the U.S. and the potential cumulative effect. The real question is whether these three portions of the exception standard are met.
The key word in the first standard noted above for review of the application is “Community,” which is defined in the Compact as “any incorporated city, town or the equivalent thereof, that is located outside the Basin but wholly within a County that lies partly within the Basin and that is not a Straddling Community.” Waukesha’s application indicates that the water will go to a “service area” that goes beyond the boundaries of the City to several towns and unincorporated areas in Waukesha County. They add that they are required by State law to provide water to the service area. Opponents of the application assert that a “service area” is not a “community” within the meaning of the Compact and on those grounds alone, should be denied. Waukesha asserts that the Compact contemplated the “service area” as a “community.” A definition this broad would open the door to areas well beyond the intent of the Compact’s limited exception to the prohibition of diversions.
In the second element of the exception standard, the availability of a “reasonable water supply alternative” is another consideration. Waukesha argues that treatment alternatives are not appropriate and that getting water from Lake Michigan is the best alternative. Opponents argue that there are reasonable alternatives, and that the nearby communities of Brookfield and Pewaukee are utilizing treatment for radium successfully now. They add that the standard is “reasonable,” and that it does not need to be the best alternative, even though treatment for radium may well be the best.
The third element of the standard highlighted is that the diversion will not endanger the integrity of the Basin Ecosystem. The return flow from Waukesha to Lake Michigan is through the Root River. Under the terms of the Compact, as well as State and Federal Law, the discharge must meet all the terms of a permit. Waukesha argues that this protects the Root River and will even improve it. Opponents say that the volume and thermal component, as well as unregulated contaminants such as pharmaceuticals, microbeads, phosphorus and others, will jeopardize the integrity of the Root River. In the summer months, the effluent from Waukesha could be up to 80% of the flow of the River.
Beyond the three elements of the exception standard, there is a question of precedent with this being the first application for an exception to the prohibition against diversions under the Compact and Agreement. Waukesha claims that it meets the exception standard, and that only other straddling communities and counties around the basin might benefit from approval. Opponents claim that the exception standard must be applied strictly because there are so many straddling counties and communities across the eight Great Lakes states and two Canadian provinces that could qualify for exceptions. Furthermore, they argue that jurisdictions outside the straddling counties and communities will be watching closely for an opening to broaden the exceptions to the Compact.
The Regional Body of the eight states and two provinces will meet April 21 and 22, 2016 to make a recommendation on the application to the Compact Council consisting of just the eight states, which will meet in June. It will require a unanimous vote of the Compact Council to approve the application. The decision has implications well beyond Waukesha’s application, and could chart the course for future attempts to divert water from the Great Lakes and St. Lawrence.
Posted on March 28, 2016
On February 9, 2016, the Supreme Court issued a stay of U.S. EPA's Clean Power Plan (“CPP” or "Power Plan,” 80 Fed. Reg. 64,662, October 23, 2015) for reducing CO2 emissions from existing fossil-fueled electric generating units. The Court's action was unprecedented because challenges to the Power Plan by 27 states and numerous utility, business, and labor parties were still being heard before the U.S. Court of Appeals for the D.C. Circuit. West Virginia et al. v. EPA, DC Cir. No. 15-1363. The stay will remain in effect until the conclusion of all litigation against the rule.
Among the core legal arguments against the Power Plan is EPA's reliance on "outside-the-fence" measures to reduce CO2 emissions. Section 111(d) of the Clean Act calls for EPA to set guidelines for states reflecting a standard of performance for "sources" based on the "Best System of Emission Reduction" ("BSER") that has been “adequately demonstrated.” EPA defined BSER to include emission reduction actions that could be taken throughout the electric grid, such as limiting generation from coal units while increasing the output of existing natural gas combined-cycle units, and increasing reliance on new renewable energy sources. The data reviewed below show that the standard of performance established for coal-based generating units based on this BSER, 1,305 lbs. CO2/MWh, is not achievable in practice by any conventional coal unit.
The Power Plan also calls for efficiency improvements at coal units that could reduce CO2 emissions. By adjusting units’ past heat rate data, EPA estimated that potential heat rate improvements of 2.1% to 4.3% were achievable for each of three regions in the U.S. See 80 Fed. Reg. at 64,789. However, implementing these "inside-the-fence" measures would result in less than 100,000 tons of emission reductions - about two/tenths of one percent - of the overall 413-415 million ton CO2 emission reduction from base case levels projected to result from full implementation of the rule by 2030. See, EPA Tech. Sup. Doc., State Goal Computation, Table 5 (extrapolated to 48-state basis), Aug. 2015; CPP Reg. Impact Analysis at Table 3-5.
An "inside-the-fence" analysis
EPA's methods for measuring the potential emission reductions achievable through efficiency improvements did not take into account the effects of different coal types on CO2 emissions. Such "subcategorization" is specifically authorized by Section 111 of the Clean Air Act. This post seeks to open a line of inquiry into an alternative approach to achieving CO2 emission reductions based on the emission characteristics of the best-performing units in the coal fleet and taking into account differences in coal type.
A statistical analysis of CO2 emissions from coal plants was performed using the DOE/NETL 2007 coal plant public data base. This data base contains detailed coal type and emissions control and performance data for 2005. The objectives of the analysis were twofold:
1) To determine whether plants burning different grades of coal (bituminous, subbituminous, and lignite) have sufficiently different emission rates measured in pounds of CO2/MWh to consider subcategorization by coal type; and
2) To assess the potential CO2 emission reductions associated with applying a standard of performance based on the best-performing units in each coal category.
The NETL data base was sorted to identify coal-fired units likely to remain in operation after implementation of EPA's 2012 Mercury and Air Toxics Standards (MATS) rule (77 Fed. Reg. 9,304, February 16, 2012). Three screening criteria were applied: unit capacity of 400 MW or greater, current age of 50 years or less, and heat rate of 9,000 BTU/kWh or higher, typical of the performance of conventional pulverized coal boilers.
This sort produced 272 units, totaling 176.7 Gigawatts (GW) of capacity, grouped as follows:
·141 bituminous units, totaling 94.0 GW, with an average emission rate of 2,055 lbs. CO2/MWh;
·110 subbituminous units, totaling 69.5 GW, with an average emission rate of 2,214 lbs. CO2/MWh; and
·21 lignite units, totaling 13.1 GW, with an average emission rate of 2,425 lbs. CO2/MWh.
The total generating capacity represented by these 272 units is comparable to EPA’s projection of 174 to 183 GW of coal capacity remaining in service in 2030, following full implementation of the Power Plan. See, EPA CPP Reg. Impact Analysis at Table 3-12.
Regression analyses performed on the three plant groups assesses the relationship between heat rate (the independent variable) and CO2 emissions per MWh of generation (the dependent variable.) The results are summarized in Chart 1 for all 272 sampled units. The linear regression trend line confirms a moderate positive association between plant heat rate and CO2 emissions (i.e., units with lower heat rates tend to have lower CO2 emissions per MWh, and vice versa.)
Differences among the three coal types measured in average CO2 emission rates per MWh support subcategorization by coal type. As shown in Table 1, the sampled lignite units have an average CO2 emission rate 13% above the sample mean, and 18% above the average for bituminous coal units. The average emission rate of bituminous units is 4% below the sample mean, while subbituminous coals have an average rate 3% above the sample mean.
These differences among coal types could justify subcategorization similar to EPA’s MATS rule. MATS provides separate mercury emission limits for low-BTU lignite coals compared with the standard set for bituminous and subbituminous coals (defined by EPA as coals with a heat content of 8,300 lbs. of CO2 per million BTU, or greater.) See, 77 Fed. Reg. 9,304, 9,379.
Illustrative emission rate calculations
The three sample coal groups were analyzed for average CO2/MWh emission rates by quintile (i.e., lowest 20% emitting units, next lowest 20% emitting units, etc.) Results of this subcategorization analysis are summarized in Table 1. Assigning the average emission rate in CO2/MWh for the best-performing 20% units of each group of units to the other four quintiles (an approach similar to that prescribed by Congress for section 112 “MACT” standards) reduces the allowed emission rates for each subgroup, and the indicated levels of CO2 emissions measured in tons.
The overall reduction of CO2 emissions for the three coal types is 117 million tons based on 2005 emission rates and tonnages. These data reflect NOx control retrofits in response to EPA’s 1998 NOx SIP Call, as well as scrubbers and other controls applied to meet CAA Title IV acid rain control limits. However, the data do not reflect additional retrofit control technologies added in response to the 2005 Clean Air Interstate Rule, as well as state laws and consent decrees. The additional parasitic load associated with add-on controls would increase average heat rates (BTUs per kWh) by reducing net plant generation and increasing CO2 emission rates per MWh.
Additional research and applications
Additional analyses using more recent data are needed to assess the CO2 emission effects of retrofit controls applied since 2005, including those deployed in response to the MATS rule. This research could include additional subcategorization analyses based on metrics such as boiler age, size, and type.
If subcategorization by coal type or other criteria were applied to determine standards of performance for existing fossil-based generating units, states should be provided with flexible implementation mechanisms such as emissions trading and averaging "outside the fence." This would ensure that emission reduction targets could be achieved in a cost-effective manner, without mandating unachievable or uneconomic emission limits for specific units.
The findings of this preliminary analysis are also relevant to the determination of New Source Performance Standards (NSPS) in light of the substantial CO2 emission rate differences among different coal types. EPA chose not to subcategorize by coal type in its NSPS rulemaking under Section 111(b), and issued a uniform performance standard for coal-based generation units of 1,400 lbs. CO2/MWh. Based on the sample unit data, meeting this standard implies a 42% reduction of CO2 emissions from lignite coals, and a 32% reduction for bituminous coals. Petitions for review of this standard also have been filed before the D.C. Circuit. North Dakota et al. v. EPA, DC Cir. No. 15-1381.
*The author is an attorney in private practice (firstname.lastname@example.org) who has specialized in Clean Air Act legislation and regulation since 1980. The coal quality and statistical regression data presented in this post were provided by the author to U.S. EPA staff in the pre-proposal stage of the development of the Clean Power Plan. The analysis set forth here is offered without prejudice to any legal positions by state or non-state petitioners before the D.C. Circuit in West Virginia et al. v. EPA or North Dakota, et al. v. EPA.
Table 1. Summary of CO2 Emission Rates and Potential Reductions by Coal Type for
272 Unit Sample (176,679 MW) Assuming All Units
Meet Top-20% Average Emission Rate of Each Coal Type
Avg. Lbs. CO2/MWh
Avg. Lbs. CO2/MWh Top 20% of Units
Pct. Diff. vs. 2005 Avg.
2005 CO2 Emissions (Mil. Tons)
CO2 Emissions @ Top-20% Rate
Chart 1. Regression Analysis of All 272 Coal Units,
Lbs. CO2/MWh vs. Heat Rate BTU/KWh
Posted on March 25, 2016
Third Party Auditing may not be the first choice of the estimated 12,000 companies covered by the Clean Air Act Risk Management Plan (RMP) rule. Many of these companies are not traditional "stationary sources" of air emissions, but are warehouses and other facilities that process or repackage chemical products containing toxic or flammable substances. Third Party Auditing is coming to those companies under EPA's proposed RMP rulemaking announced on March 14, 2016, when they have an accidental or "near miss" of a release involving an RMP-regulated chemical.
Why Third Party Auditing? Is it a good thing or a bad thing? It can be a good thing, depending on how the Audit is structured and implemented,. There are several recent judicial consent decrees containing Third Party Audit requirements that are being implemented successfully. EPA's new rule will require Third Party Auditing when there has been a fire, explosion, release or near release of chemicals. Experience with Third Party Audits shows that a well-designed audit protocol with emphasis on improved internal company environmental tracking and management systems can actually create efficiencies in product logistics and cost control.
Some brand-name companies such as PepsiCo use voluntary Third Party Audits to highlight independent audit programs and results:
In 2013, all company-owned plants were assessed against PepsiCo’s global Health and Safety program and, following completion of the audit, each plant developed an improvement action plan. In addition, 65 plants are OHSAS 18001-certified by independent consultants, and 31 facilities in the United States are part of the Occupational Safety and Health Administration Voluntary Protection Program, the industry standard for health and safety.
Is Third Party Auditing Under EPA's New Rule An Expansion of Existing RMP Requirements? Yes. Companies subject to RMP already are required to periodically review their risk plans and update terms each five years, or earlier, when conditions change. Most companies follow that practice. However, EPA cites the 2013 West Fertilizer explosion in West, Texas as one example of the ineffectiveness of existing RMP regulations to prevent a fire and explosion where RMP chemicals are stored or handled. From the West case and others, EPA sees a need for additional strengthening of the RMP rules.
Third party auditing as an enforcement compliance tool is becoming more common. The U.S. v. Tyson Foods Consent Decree (2014) required an independent third party auditor to investigate equipment processes and safety issues. The third party auditor was to evaluate ammonia refrigerant systems at 23 plants in four states, and report directly to EPA on the findings of discrepancies or violations. In addition to RMP requirements, other recent EPA and Department of Justice enforcement cases require injunctive relief in the form of Third Party Audits on RMP and General Duty Clause (GDC) compliance.
How Does the General Duty Clause Become Involved in Third Party Auditing? EPA's RMP amendments occur at a time when interpretation of the CAA Sec. 112(r) GDC by EPA also subjects each stationary source to audit and enforcement based on chemicals in storage. The GDC interpretation does not rely only on the presence of regulated quantities of Extremely Hazardous Substances at a facility and is not limited to enforcement of RMP requirements. GDC requirements focus on unsafe conditions at a facility, and the compliance thresholds arise from potentially applicable regulations, electrical, fire and explosion advisories by the National Fire Protection Association, American Petroleum Institute, American Chemistry Council, industry practice and other health, safety or environmental authorities. Any fire, explosion or injury incident, the reporting of a near miss that might have resulted in catastrophic damage or injury, or an inspector's subjective audit finding of the presence of dangerous conditions from an audit or after-the-fact review may trigger an EPA demand for a Third Party Audit.
Risky Business or Not? Increased use of Third Party Auditors will be required if EPA's proposed changes to the RMP rules are adopted Owners and operators will be required to engage and pay for the services of Independent Auditors when a release of a reportable quantity of regulated chemicals has occurred, or the facility has had a "near miss" incident that might have caused a catastrophic release. Manufacturers in the chemical, paper and oil/coal categories must also undertake a root cause failure analysis, and additional reporting on process hazard analysis following a release or near miss. But under those circumstances, companies facing a demand for a Third Party Audit can take the opportunity to investigate improved process safety, product management and internal management systems, all of which will result in reduced environmental and health risks, and overall cost savings.
Action Items? Get Out and Vote!
Proponents and Opponents of EPA's proposed changes to the RMP rules and requirements for Third Party Auditing can register their position on EPA's rulemaking docket. The deadline for comments is May 13, 2016.
Posted on March 23, 2016
The limited liability form of corporate organization generally offers small businesses the favorable tax treatment of a sole proprietorship or partnership, along with protection from personal liability, up to a point. That protection in Connecticut is far from bullet-proof when it comes to liability for environmental harms. Business people acquiring potentially contaminated property should ask: If I create a Limited Liability Company to take title to the property, will I be protected from personal liability for a clean-up? In Connecticut, the answer ranges from “no” to, at best, “it depends.” This is counter-intuitive to clients who believe they are protected by Connecticut’s Limited Liability Company statute which provides generally that a member of an LLC is not liable for the obligations of the LLC. See Conn. Gen. Stat. § 34-133 & 134.
The core of the conflict lies in language in the environmental statutes and case law from the state’s courts. Contrary to the tenor of the LLC enabling statutes, Connecticut’s pollution control statutes were amended in 1995 to include specifically a member of an LLC in the definition of a “person” subject to the issuance of a pollution abatement order. See Conn. Gen. Stat. § 22a-123.
In addition, the Connecticut Supreme Court in 2001 adopted the “responsible corporate officer doctrine” holding that a corporate officer whose conduct has a responsible relationship to a violation may be held liable for abatement of the violation through an order from the state environmental agency. See BEC Corp. v. Dept. of Environmental Protection.
In December, 2015, the Connecticut Appellate Court applied the responsible corporate officer doctrine to the sole member of an LLC finding her personally liable for pre-existing contamination at property acquired by the LLC which she created knowing the contamination was present. See Vorlon Holding, LLC, et al. v. Commissioner of Energy and Environmental Protection.
The risk of personal liability for owners of small businesses contemplating acquisition of environmentally challenged property increases the likelihood that these properties will become, or remain, unproductive “brownfields.” Fortunately, the legislature has created mechanisms within the last few years to provide funding for site assessments without liability attaching and tools to limit liability to potential purchasers who can meet the legislative requirements.
A more detailed discussion of the evolution of the responsible corporate officer doctrine in the federal courts and its application in Connecticut courts in environmental cases is available in an article by John R. Bashaw and Mary Mintel Miller.
Posted on March 17, 2016
In a highly unusual case that has led to a near unanimous call for legislative change by environmental lawyers in Connecticut, a Superior Court judge ruled that the Connecticut Department of Energy & Environmental Protection (“DEEP”) can unilaterally revoke a consent order that it negotiated with a company requiring the investigation of a contaminated site. The lawsuit was initially brought by DEEP, among other reasons, to enforce the consent order. However, after the defendant filed a counterclaim against DEEP alleging that the department had not acted reasonably and breached the order, the department unilaterally revoked the order and moved to dismiss the counterclaim. The court held that the state statute that authorizes the department to issue, modify, or revoke orders, allows the department to revoke consent orders.
Although the state agency may have had good reason to revoke the consent order in this case to help it improve its position in the litigation, that decision undermines the public policy in favor of encouraging negotiated settlements in environmental matters. Most environmental consent orders are carefully negotiated, with give and take on each side. If a private party knows that the environmental agency can simply revoke a consent order at any time, why would that party make concessions to resolve a dispute through an administrative order on consent?
The U.S. Supreme Court in United States v. ITT Continental Baking Company long ago recognized that administrative consent orders and judicial consent decrees are in the nature of contracts and should be construed basically as contracts. Therefore, the federal courts typically place a heavy burden on a party seeking to modify a consent decree. Even the Connecticut court which ruled that DEEP can unilaterally revoke consent orders questioned the wisdom of such authority.
It remains to be seen whether the Connecticut state legislature will clarify that the state environmental department lacks the authority to unilaterally withdraw from an agreement that it negotiated. A bill, S.B. 431, was recently proposed by the Judiciary Committee of the State General Assembly to reverse the Superior Court decision. The general assembly has until May 4, 2016, when the session ends, to pass such legislation. If the legislation does not pass, and DEEP retains such authority, it is likely to find it much more difficult to settle administrative orders on consent in Connecticut.
Posted on March 16, 2016
Federal tax policy greatly influences the donation of conservation easements and thus the contribution to habitat and natural resources that such easements provide. Recently enacted and proposed federal changes go in two somewhat opposite directions on this important tool for environmental protection .
The Good News: Enhanced tax benefits for conservation easement gifts made permanent: After a number of years of temporary extensions, Congress passed and the President signed in December, 2015 a permanent extension of the enhanced Federal income tax benefits for gifts of conservation easements. Enacted in Section 111 of Division Q of the “Protecting Americans from Tax Hikes Act of 2015” (PATH Act) (P.L. 114-113, 12/18/2015) this now permanent tax incentive provides a cost-effective way to help private landowners protect much more land through the use of conservation easements. Since 2006 when the provision was first established, it has helped landowners conserve more than 2 million acres of America’s most important natural, scenic and open lands and historic resources. Considered by many to be the most important conservation legislation in 20 years, the tax incentive:
- Raises the deduction a donor can take for donating a conservation easement from 30 percent to 50 percent of his or her adjusted gross income in any year;
- Allows qualifying farmers and ranchers to deduct the value of the donated easement up to 100 percent of their income; and
- Extends the carry-over period for a donor to take the easement tax deductions from 5 to 15 years beyond the tax year that the gift was made.
These changes apply to easement donations made at any time in 2015 and to all donations made after that. This will be a powerful tool to enable modest-income donors to receive greater financial benefit and thereby encourage them to donate a very valuable conservation easement on their property.
The (Sort of) Bad News: President's budget proposes major changes to conservation easement deductions: Released on February 9, 2016, the President's budget blueprint for Fiscal Year 2017 contains proposals to modify the now-permanent tax deduction for donations of land conservation easements. Although these are only proposals at this time, should they be enacted it is generally considered that they would significantly constrain land conservation efforts. The proposals are:
- Increasing the standards for being a “qualified conservation organization.” This replaces the four current “conservation purposes” for deductible easements with one: that any easement must be pursuant to a clearly delineated federal, state or tribal conservation policy and yields a significant public benefit.
- Making land trusts liable for any misreporting of the conservation purpose, public benefits and fair market value of an easement by the donor.
- Requiring additional reporting to IRS and public disclosure of easement purposes and valuations.
- Eliminating deductions for easements on golf courses.
- Prohibiting deductions for historic building easements attributable to the development potential above the existing profile of the building.
- A proposal for a new “pilot program” in which an interagency federal board distributes tax credits to land trusts, with the land trusts then allocating them to donors based on the importance of the easement for the mission of the land trust.
Although the Obama Administration has been supportive of land conservation generally, it has sought for a number of years to make changes in the tax administration of conservation easement deductions to place a greater burden on land trusts to police the conservation merits and proper valuation of easements. None of these items currently have support outside the Treasury Department however, and therefore are unlikely to be acted on by the current House of Representatives or Senate in the near future. Stay tuned to see if the balance of burdens and benefits on conservation easements sees major changes.
Posted on March 10, 2016
The law is full of fine distinctions. Today’s example? A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s Muskogee plant because the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction.
I have not seen any other cases present this issue so squarely. For the majority, the decision was relatively easy. Because the CAA has no limitations provisions, the default five-year limitations period set forth at 28 USC § 2462 applies. Section 2462 provides that suits must be brought “within five years from the date when the claim first accrued.” That “first accrued” language was Sierra Club’s downfall. The court decided that a claim “first accrues” when a plaintiff has a right to bring a claim. In the PSD context, that is when a defendant commences construction or modification without a permit. Because the Sierra Club did not file within five years after OG&E commenced construction, the complaint was late.
Not so fast, argued the dissent. As the dissent rightly noted, the CAA does not make commencing construction or modification without a required PSD permit a violation; it makes “the construction or modification of any source” without a permit a violation. Thus, the dissent argued, OG&E was still “constructing” its project without a permit during a period less than five years before Sierra Club brought suit and was still in violation, so the suit was timely.
I should note that, whether the dissent is correct or not, it did rightly distinguish two other cases, United States v. Midwest Generation and United States v. EME Homer City Generation, which have been cited in opposition to “continuing violation” theories. As the dissent emphasized, those cases concerned whether operation of the modified facility, after construction was complete, constituted continuing violations. The dissent agreed that post-construction operations cannot effectively toll the statute of limitations. However, that is a different question than whether continuing construction keeps the limitations period open. Indeed, the EME Homer City decision specifically contemplated the possibility that:
"the maximum daily fine accrues each day the owner or operator spends modifying or constructing the facility – from the beginning of construction to the end of construction."
That sounds like a basis for new claims accruing each day, thus triggering a new limitations period. I think that this case is a close question. However, as interested as the Supreme Court seems to be in the CAA these days, I don’t see it taking this case, and certainly not before there is a circuit split on the issue.
What is impossible to determine is what caused the Sierra Club to wait. Why take the chance? It does seem a self-inflicted wound either way.
(Very quickly, I’ll note that the majority also dismissed Sierra Club’s injunctive relief claims under the concurrent remedies doctrine. That’s an important issue, but not a difficult or interesting one, at least where the government is not a party.)
Posted on March 8, 2016
For many of us, the only “drone” we knew of growing up probably was that boring, monotonous lecture late on a sunny afternoon. Or if you were expert in biology, you would have known that a “drone” is a stingless male bee whose sole job is not to gather nectar or pollen, but to mate with the queen. Today, however, everyone over the age of 5 knows that drones are a hot gift item, anything that flies without a pilot onboard but controlled remotely. A “drone”, in government parlance, is generally termed a UAV (Unmanned Aerial Vehicle), or a UAS (Unmanned Aerial System) -- which is a UAV, plus the ground-based controls.
UAVs have spawned a wide range of legal and regulatory issues, including not only Federal Aviation Administration (FAA) licensing but significant privacy, tort and property rights matters. Given the existing and potential use of UAV-collected information about environmental conditions, the next big fight in environmental enforcement will be the admissibility of UAV-collected evidence. Many may not know of the growing use of, and potentially expanding realm for, drones in the environmental arena. The World Wildlife Fund has been using UAVs for several years for such disparate activities as 1) monitoring prairie dog colonies for potential habitat for one of North America’s most endangered mammals, the black-footed ferret. 2) undertaking surveillance activities to reduce poaching of elephants and rhinos in Africa and Asia, and 3) monitoring the three main species of marine turtles in Suriname to combat poaching of their eggs. Likewise, the Nature Conservancy has tested drones to monitor the sandhill crane population in the U.S. And a new NGO, Conservation Drones, has been working with groups all over the “developing tropics to use UAVs for conservation.”
It is not a big leap from use of UAVs for wildlife conservation purposes, to enforcement efforts against unlawful pollution of waterways and illegal logging. For example, a drone can obtain imagery of discoloration suggestive of discharges of hazardous substances; can detect differences in water temperature using thermal sensors to detect illegal discharges; can film illegal mining or deforestation activities; or can even collect small volume water samples from remote areas. But in the US, if one of your clients is the target of such surveillance, is the evidence admissible in an enforcement proceeding?
The answer is—maybe. It depends. The type of answers clients hate to receive from their trusted legal counsel. It is beyond the scope of this post to discuss all of the ongoing machinations of the Federal Aviation Administration as it attempts to develop final rules for the commercial (non-hobby) operation of UAVs. But while the federal government attempts to preempt the field, States have stepped in and, in conflicting ways, attempted to respond to the growing drone game. In 2015, 45 states considered 168 drone bills, and 20 states enacted legislation. In some states, use of a drone over the private property of another person, without prior consent, could result in criminal or civil prosecution or damage claims—even if the drone is used for the environmentally beneficial uses described above. Thus, one must become familiar with her or his state’s laws, as well as monitor the ongoing FAA and Congressional activities, to best effectively prepare and advise clients on this brave new world.
China currently is using UAVs to track excessive air and water pollution is China. In one city with 40,000 sources of industrial pollution and 900 industrial parks, drones are using “high-resolution digital cameras, infrared and laser scanners, and magnetometers…. Some UAVs are also fitted with an infrared thermal imaging unit that shows the operation of facilities at night.” How this information will be used in China remains to be seen.
At home in the US drones are going to fuel more and more back-and-forth legal maneuvers of environmental regulators and NGOs against companies and their lawyers. The gathering and use of drone-generated information may be as intense a fight as the sport use of the UAVs themselves. To get a preview of that emerging arena, check out the more recent “Flight Club” aka Game of Drones—the “bad boys” who want to be the next big sports league. Coming soon to a screen near you.
Posted on March 7, 2016
A recent BBC report about the enormous Aliso Canyon Gas Storage Facility gas well leak in California caught my eye. It compared the huge volume of methane emitted from this leak to other greenhouse gas sources, including tons of methane emitted by a large number of cows. Cows? A 2006 United Nations’ Food and Agricultural Organization report claims that the livestock sector, most of which is comprised of cattle, “generates more greenhouse gas emissions as measured in CO2 equivalent – 18 percent – than transport.” According to a Danish study, the average cow produces enough methane per year to do the same greenhouse damage as four tons of carbon dioxide. EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks contains a statement that, on a global basis the Agriculture sector is the primary source of methane emissions.
This got me thinking about industries and lifestyles as yet largely untouched by the need to address global climate change. Agriculture, including ranching, may be a mainstay of the US economy but we can no longer ignore its impacts on the planet. It is not environmental elitism to require farting cows – a fertile source of humor - be given serious attention in the climate change debate.
Throughout the history of environmental regulatory legislation and enforcement in the United States, conventional agriculture has, by and large, been given a pass. For example, section 404 F of the Clean Water Act exempts from the requirement to obtain a permit the discharge of dredged or fill material into waters of the United States discharges from “normal farming … ranching activities”, from “construction or maintenance of farm or stock pond or irrigation ditches”, and, with some limitations, from construction of “farm roads”. In large commercial agricultural operations “normal” farming activities are of a large industrial scale. Non-point source runoff of pesticide and fertilizer residues from huge farming operations is largely ignored and where farming activities are regulated, such as storm water discharges from concentrated animal feeding operations, regulation is largely by general permits instead of individual permits. Spreading of manure on open fields is, by and large, unregulated. It took EPA nearly forty years to impose regulatory requirements to protect farm workers from exposure to herbicides and other pesticides used in large agricultural operations. Do we see a pattern here? Quite clearly the large commercial agricultural sector has enjoyed a not inconsiderable status of environmental regulatory laissez faire for a very long time.
This brings me back to the farting cows. Bovine source methane emissions are not presently regulated under the Clean Air Act. While cows are mobile, the Supreme Court clearly didn’t have livestock in mind when it addressed greenhouse gas emissions from mobile sources in Massachusetts v. EPA, and at present EPA is having great difficulty justifying regulation of even conventional stationary sources of greenhouse gasses. Nevertheless, if the governments that signed the recent Paris Accords remain serious about reducing the precursors of global warming it would seem that they, including the USA, must deal with the bovine methane problem. Quite clearly individual point source emission controls are not the answer to controlling the emission of methane from cows. Collecting the emissions under a roof for rooftop capture and treatment as has been advocated by environmental advocates is not only impractical given the nature of ranching in the US, but attempts to do so would pit environmental regulators against animal rights advocates who argue strenuously and effectively that sequestering animals in tight containments is inhumane treatment.
The only means of reducing this source of greenhouse gas is to reduce the global dependence on meat and cow milk as a primary source of protein in the human diet, that is, significantly reduce the global population of cattle. This will require a far more significant human cultural re-adaptation than will be required to reduce greenhouse gas emissions from transportation and industrial greenhouse gas sources. That being said, there is yet another reason why such a cultural change is necessary. There is simply not enough land on the planet to sustain a meat and cow milk consuming culture as we have now with even the current global population of humans. I don’t have enough space in this blog post to give you the numbers, but suffice it to say that beef and milk are among the most inefficient sources of protein in terms of the number of acres of land required to sustain a single cow. Sorry, all you lovers of good cheese and a great steak, it looks like you are part of the climate change equation.
Posted on March 4, 2016
The United States Environmental Protection Agency recently modernized its implementation of its two primary self-disclosure incentive policies – the Audit Policy and the Small Business Compliance Policy – by creating a centralized, web-based “eDisclosure” portal to receive and automatically process regulated entities’ self-disclosed civil violations of environmental law. The Audit Policy and Small Business Compliance Policy provide penalty mitigation and other incentives for large and small businesses that discover, promptly disclose and expeditiously correct environmental violations and take steps to prevent future violations. According to EPA, the automated eDisclosure system will make the processing of more routine voluntary disclosures faster and more efficient, and save time and resources for both regulated entities and EPA. Nonetheless, while efficiency is desirable for both public and private parties, potential users of the new system should bear in mind that self-disclosure of a violation to EPA should be undertaken with the assistance of experienced environmental consultants and legal counsel.
In the future, all self-disclosed civil violations (except for disclosures under EPA’s New Owner Policy) must be made through the eDisclosure portal. Entities that disclose potential violations through the portal may qualify for one of two types of automated treatment, Category 1 or Category 2. Category 1 disclosure is available only for minor violations of the Emergency Planning and Community Right-to-Know Act (“EPCRA”). For Category 1 disclosures, the eDisclosure system automatically issues an electronic Notice of Determination (“eNOD”) confirming that the violations have been resolved with no assessment of civil penalties, on the condition that the certified eDisclosure is accurate and complete.
Category 2 Disclosures include all non-EPCRA violations, EPCRA violations where the entity can certify compliance with all of the Audit Policy’s nine conditions except that the method of violation discovery was systematic, violations of CERCLA § 103/EPCRA § 304’s chemical release reporting requirements, and EPCRA violations with ”significant economic benefit” (as defined by EPA). For these disclosures, the eDisclosure system automatically issues an electronic Acknowledgement Letter confirming EPA’s receipt of the disclosure and promising that EPA will make a determination regarding eligibility for penalty mitigation if and when it considers taking an enforcement action for environmental violations.
EPA stated in its December 9, 2015 Federal Register notice announcing the launch of the eDisclosure portal that it “is not modifying the substantive conditions in its Audit Policy or Small Business Compliance Policy.” However, anyone considering using the eDisclosure portal to self-report a civil violation of environmental law needs to be aware that EPA has significantly changed its longstanding approach to responding to Freedom of Information Act (“FOIA”) requests for such disclosures.
Since 1997, EPA has deemed resolved voluntary disclosures under the Audit Policy and Small Business Compliance Policy publicly releasable under FOIA. The agency will continue to take this approach to Category 1 disclosures submitted through the eDisclosure portal. Specifically, it will grant FOIA requests for eNODs issued for Category 1 disclosures in most cases.
However, EPA’s handling of unresolved voluntary disclosures will shift 180 degrees going forward. Until now, EPA has generally withheld unresolved disclosures pursuant to FOIA’s “law enforcement proceeding” exemption, Exemption 7(A). This exemption protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings ….” Now, simultaneous with its implementation of the eDisclosure portal, EPA has eliminated its practice of withholding unresolved disclosures and replaced it with a presumption in favor of releasing regulated entities’ voluntary disclosure information to the public. In responding to FOIA requests for individual unresolved disclosures, EPA now will determine on a case-by-case basis whether it “reasonably foresees that release would harm an interest protected by a FOIA exemption.” In doing so, it will aim “to be as accommodating as possible in responding to such requests,” with the result that it “generally expects to make Category 1 and Category 2 disclosures publicly available within a relatively short period of time after their receipt.”
As the agency explains it, this policy shift is consistent with the 2009 memoranda from President Barack Obama and Attorney General Eric Holder in favor of federal government transparency. Nonetheless, it could reduce the perceived benefits of the Audit Policy and Small Business Compliance Policy for some in the regulated community and provide a disincentive to self-report. Moreover, at least one commentator has suggested that EPA’s new willingness to release information in response to FOIA requests may “fuel… private attorney general litigations.” This could be particularly problematic where EPA releases disclosure information through a FOIA request before it has determined whether in fact the business in question is eligible for penalty mitigation or will not be a target of enforcement action. Although EPA is trying to reassure the regulated community that this policy change will not result in more citizen suits, potential eDisclosure portal users are legitimately concerned about such arguably premature releases of disclosure information, and should carefully evaluate their circumstances before making any disclosure, especially under Category 2.
The potential for the release of unresolved disclosures to cause harm to eDisclosure users could be further exacerbated as an unintended result of the expansion of intergovernmental data exchanges such as the Environmental Information Exchange Network, a partnership of states, territories, tribes and EPA working to provide increased access to high-quality environmental data.
In sum, by introducing the eDisclosure system, EPA has streamlined the self-disclosure process for certain environmental violations, which likely will reduce the time and expense involved in making such disclosures. However, EPA has not provided any additional detail or direction for businesses to use in determining whether a specific violation meets the substantive criteria of the Audit Policy or Small Business Compliance Policy. This determination – and the ultimate decision of whether disclosure will be beneficial – should be made with careful consideration of the relevant facts and applicable law, under the guidance of knowledgeable environmental consultants and legal counsel..
Posted on March 2, 2016
This is a reposting – the earlier post incorrectly omitted Prof. Jody Freeman’s name as a co-author. Richard Lazarus is also a co-author.
State Reactions to the Stay
Now that the Supreme Court has stayed the Clean Power Plan, States are in the process of deciding whether or not to proceed with implementation planning, and if so, at what pace to do so. The situation is still in flux. States like Pennsylvania, Virginia, Washington State, California, and most of the northeastern states that are part of the Regional Greenhouse Gas Initiative, have all said they will continue planning. Others, like Texas, Kentucky and West Virginia, have declared they will stop. EPA’s official count shows eighteen States as having halted efforts, with nine still deciding, and thirty still working: http://www.eenews.net/interactive/clean_power_plan#planning_status_chart. Even official statements from the States are somewhat misleading, however: some States that have announced a suspension of compliance planning, like New Jersey, are still sending officials to compliance meetings.
Still, there is a risk that, on net, momentum will slow, at least until the legal challenge to the CPP is resolved. That process could take more than two years.
Maintaining Momentum Through “No Regrets” Policies
During that time, anything that can be done to maintain momentum on CPP implementation and related policies that will promote clean energy (regardless of whether the rule eventually is upheld) should be supported, with a priority given to helping States pursue “no regrets” policies that will serve their interests whatever the outcome of the litigation. There are a variety of things States and utilities can do now to address shorter term Clean Air Act obligations, such as regional haze, National Ambient Air Quality Standards, or cross-state air pollution, that also would set them up nicely for CPP compliance should the rule be upheld.
Implications of Justice Scalia’s death
The D.C. Circuit will hear argument on the CPP in June 2016, and is expected to rule on the merits expeditiously, likely by fall of 2016. The panel is viewed as more favorable toward EPA than not, although certainly not a sure thing: Judge Rogers is seen as the most sympathetic to EPA, Judge Srinivasan is seen as at least open to the government’s arguments, while Judge Henderson is seen as hostile to the rule.
If this panel were to uphold the rule, and the Supreme Court were to remain without a confirmed ninth Justice, it is possible that the Supreme Court could split 4-4, which would normally result in an order affirming the lower court decision. However, there is also a chance that if there were a 4-4 split in a case of this importance and one that would decide the issue once and for all, the Chief Justice would not be content to issue such an order and would instead hold the case over for re-hearing once a ninth Justice is confirmed. If that ninth Justice were appointed by a new Democratic president, the rule’s prospects of being upheld likely would increase; if appointed by a new Republican president, prospects could be the same as they would have been with Justice Scalia on the court. That would require Justice Kennedy, the likely swing vote, to be persuaded by the government to vote to uphold the rule.
There is another interesting wrinkle: the D.C. Circuit panel could change. Judge Srinivasan has been identified as a potential Supreme Court nominee. If he were nominated, he would likely withdraw from pending cases not yet argued in order to prepare for (theoretical) hearings. But then, of course, a new judge would be lotteried in to fill his place, perhaps changing the balance of the panel. One might think this risk worth taking, since Judge Srinivasan in theory would wind up on the Supreme Court, where he might cast the deciding vote in this (and many other) cases. Yet even if Judge Srinivasan were confirmed, he would be recused from the CPP case because of his earlier participation on the D.C. Circuit panel that denied the stay, so the Court would remain at eight Justices for purposes of this case. Again, this would leave the prospect of a 4-4 tie affirming the decision below (and perhaps affirming a decision to strike down the rule).
Next Steps and Timing of Litigation
Whatever the composition of the D.C. Circuit panel, however, and whatever it decides, the losing parties might seek en banc review in the D.C. Circuit. The State and industry challengers would be almost certain to do so, because delay favors their side. This is because the Supreme Court took the unusual step of staying the rule not just until the D.C. Circuit rules on the merits, but for longer: until the Supreme Court either denies certiorari or grants review and decides the case. Delay means the Stay remains in force, which means the deadline for filing compliance plans keeps being pushed off, which means momentum slows, which favors those opposed to the CPP. En banc review is rarely granted, however, and the D.C. Circuit may be reluctant to further delay things by providing it when the Supreme Court has already associated itself with the case (by granting the Stay and making it all but certain review will be granted).
What all of this means is that the earliest the Supreme Court could decide the case--given the time necessary for the cert petition, briefing, argument and deliberation--is likely to be June 2017, and the latest the Court is likely to decide the case is June 2018. That means the Stay could remain in place for more than two years.
The fate of the CPP is clearly in the hands of the Supreme Court, which, with an open seat, is clearly in the hands of the President--and most likely the next president.
Implications for a New Administration
If the Court ultimately upholds the rule, a new president could still withdraw it and replace it with something else, or choose to implement it as-is. A new president might even bargain with a new Congress over suspending the rule in exchange for a more comprehensive economy-wide approach to greenhouse gas regulation, whether a carbon tax or a cap-and-trade approach, or something else. And if the Court, newly constituted, strikes down the Clean Power Plan, a new president would have to decide on Plan B.
EPA has thus far been mum about possible Plan Bs, but obvious options include a narrower interpretation of “best system” that would regulate power plants within the so-called "fence-line" only, relying exclusively on what the rule refers to as "building block 1.” EPA might be able to set a fairly stringent standard based on this building block alone, although doing so might, ironically, leave utilities far less flexibility to use alternative means of compliance than they would have using the agency’s current approach. EPA might also examine the Clean Air Act for other provisions capable of regulating existing power plant emissions, such as section 115, or even set a NAAQS for greenhouse gases--options that have been discussed before and rejected by the agency, but which could always be revisited.
Posted on February 24, 2016
The Department of the Interior’s Bureau of Indian Affairs (BIA) has promulgated new regulations involving the original procurement and renewal of Right-of-Ways (ROW) on tribal and allottee lands which take effect on March 22, 2016. These new rules will replace those in place since 1947, creating a series of significant problems. This post lists the problems and suggests a legislative solution.
1) Majority Consent of Life Estate Heirs is Needed for ROW to be Granted or Renewed
The new rules limit the length of a ROW to 20 years. The ROWs are not subject to state or local laws, and the new rules impose consent and approval requirements that do not appear in the current regulations. Under the current law, voluntary agreements could be struck between tribes, allottees, and a company, so long as the BIA Regional Director approved the deal. The BIA would approve if a majority of the allottee landowners consented and the amounts of money paid for the ROW were not less than the fair market value (FMV) of the allotment parcel. Under the new rules, however, the company must obtain a majority consent for the original ROW or renewal thereof, not only from the living life estate allottees, but from their heirs as well. This presents a huge obstacle, as companies will now have to find each of the heirs and then attempt to bargain with them individually. Under the current rules, if agreement could not be reached, then the company was free to use a 1907 statute to condemn the allottee land but never the tribal land.
2) Life Estate Holders Can Withdraw Previously Granted Consents
In two separate New Mexico ROW cases involving Western Refining’s pipeline and Public Service of New Mexico’s (PNM) overhead wires, the companies both originally obtained the written consent of a majority of the life estate holders who were paid fair market value for their consent. However, upon the BIA Regional Director finding a lack of a majority of heirs consenting, certain life estate holders informed the BIA that they were “unconsenting” in order to hold out for better compensation, even though they had cashed the original checks. Because the BIA allowed the holdouts’ action of “unconsenting” to stand, the companies lost their majority consent of life estate holders. Attorneys for the life estate holders are now suing PNM for trespass in federal court in Albuquerque.
3) Fair Market Value Has Become a Floor in Negotiations Rather Than an Appraisal Standard
Since the 1947 statute came into existence, the fair market value (FMV), as determined by BIA-qualified appraisers, of the allotment acreage to be crossed by the pipeline served as the negotiation basis between the company and individual allottees. The allottees, knowing that their land could be condemned under the 1907 statute dealing with ROWs, often bargained for a payment that was two or three times FMV. However, under the new regulations, FMV is a starting point, non-binding and irrelevant to an allottee who believes that the sky is the limit when dealing with large corporations.
4) The Condemnation Alternative is Under Attack Due to Tribal Ownership of Undivided Interests in Allotments
In the Public Service of New Mexico federal district court litigation, PNM sued the allottees of several allotments under the New Mexico condemnation statutes after failing to obtain the consent of a majority of life estate heirs for a 20-year renewal. The federal judge dismissed the condemnation lawsuit, because recently deceased allottees left their interests to the Navajo Nation. Even though those interests amounted to less than 1% of the entire allotment, the court labeled that interest tribal land, recognized the Navajo Nation’s sovereign immunity from suit, declared the Navajo Nation an indispensable party, and dismissed the lawsuit. PNM is appealing the dismissal to the Tenth Circuit. Without the ability to condemn, pipelines will be left only with choice of either paying ransom under the 1947 statute or facing allottee trespass actions.
Western Refining has also filed a condemnation suit against the unconsenting allottees under the New Mexico condemnation statutes. The case is before a different judge than the PNM case and is currently stayed pending a decision from the Interior Board of Indian Appeals on the majority consent of heirs issue.
The best solution to the four problems above requires the active involvement of the Legislative Branch.
Utilizing its plenary authority concerning tribal issues, Congress should pass amendments to the 1907 and 1947 statutes or create new legislation supplanting the current law that:
- Eliminates the need for heirs to consent
- Eliminates the ability of consenters to unconsent once consideration is paid
- Re-establishes the sufficiency of fair market value as the basis for the compensation to be paid
- Guarantees the right of pipeline owners to condemn allottee land regardless of partial tribal ownership
Nothing less than the free flow of energy-oriented interstate commerce is at stake.
Posted on February 22, 2016
In my last blog entry, I advocated for the amendment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to eliminate the bar on pre-enforcement review as one step toward improving the investigation and cleanup of sediment sites. In this entry, I propose that the U.S. Environmental Protection Agency (EPA) and potentially responsible parties (PRPs) significantly revise the dispute resolution process for EPA Administrative Settlement Agreements and Orders on Consent (“ASAOCs”) to require the resolution of disputes by neutral third parties unaffiliated with EPA or an affected PRP.
The goal of sediment remediation is to protect public health and the environment through prompt and cost-effective remedial action. Unfortunately, this goal has not been met at many sediment sites. At some sites, neither the public nor the PRPs have been served by investigations that have unnecessarily taken decades and wastefed hundreds of millions of dollars to undertake. EPA’s selection of remedies at many sites has been delayed and has not resulted in the selection of protective and cost-effective remedies.
Most sediment cleanups are performed in accordance with consent decrees, which appropriately vest dispute resolution authority in federal district court judges. In contrast, most sediment investigations are conducted under ASAOCs, which vest dispute resolution authority in EPA personnel. While many at EPA with responsibility for dispute resolution have the best of intentions and seek to be objective, the fact that they work for EPA, often supervise the EPA staff who made the decision leading to the dispute, and are often steeped in EPA practices renders most of them unable to serve in a truly independent role. To ensure fairer dispute resolution, ASAOCs should instead vest dispute resolution authority in neutral third parties with no affiliation with either EPA or the PRPs subject to the ASAOC. This would require the amendment of existing ASAOCs and the insertion of new dispute resolution language, which differs from EPA’s model language, in ASAOCs that have not yet been signed.
Additionally, while the dispute resolution official should be deferential to EPA, he or she should not rubber-stamp agency decisions, as currently is often the case. Where investigations have been mired in years of inaction, an independent dispute resolver with a fresh perspective may determine that EPA has sufficient data to make informed cleanup decisions and could compel agency action. At other sites where EPA is requiring PRPs to prepare feasibility studies advocating for remedies that almost certainly will fail, it is essential that a neutral decision-maker act independently to ensure that feasible remedies are selected.
EPA will resist any effort to revise its approach to dispute resolution, and it may require the intervention of elected officials or others to compel such a change. The public, EPA, and affected PRPs would all benefit from it.
Posted on February 22, 2016
As a private practitioner and former trial attorney at the U.S. Department of Justice, I have advocated for timely and cost-effective cleanups that protect public health and the environment. Unfortunately, only a minority of cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) have met these criteria. Of the many impediments to the thorough, prompt and cost-effective remediation of contaminated sites, and sediment sites in particular, one of the most significant is CERCLA’s bar on pre-enforcement review of the U.S. Environmental Protection Agency’s (EPA) remedial decisions. To promote more effective and timely cleanups of sediment sites, I suggest that CERCLA be amended to eliminate the current bar on pre-enforcement review. By allowing potentially responsible parties (PRPs) to seek and obtain judicial review of EPA decisions or failures to make decisions, more progress would likely be made on more sites.
CERCLA Section 113(h) states that, with limited exceptions, “No Federal court shall have jurisdiction … to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title ….” 42 U.S.C. § 9613(h). Despite many challenges, courts have generally upheld the validity of this provision. As a result, PRPs typically cannot challenge EPA's decisions unless EPA has sought to compel performance under an enforcement order or if EPA is acting under a consent decree. As the “opportunity” for challenge may not come until years after EPA has made its cleanup decision, most PRPs are not willing to face the risk of losing a remedy challenge and the potential imposition of treble damages.
CERCLA should be amended to allow parties to challenge agency action or inaction at other times in the process, such as during the preparation of remedial investigations and feasibility studies. At many sediment sites, EPA has delayed remediation and required parties to incur hundreds of millions of dollars during investigations. If PRPs had the opportunity to obtain judicial review of agency action and inaction earlier in the process, they could seek to compel the agency to act in a way that is consistent with CERCLA’s requirements.
Having worked at the Department of Justice when CERCLA Section 113(h) was drafted, I recall my colleagues stating at the time that a bar on pre-enforcement review was necessary to avoid the challenges of having a non-expert federal judge address complex scientific questions and to prevent PRPs from tying up EPA in litigation. I offer three suggestions in response to these concerns. First, if a federal judge were confronted with a particularly complex issue, the court could appoint a special master to handle the proceedings. Second, to encourage PRPs to seek prompt resolutions, a CERCLA amendment could require PRPs to fully comply with an agency’s directives pending resolution of the judicial dispute and impose a penalty on those parties whose challenge of agency action was unsuccessful. Third, agencies could seek an expedited hearing of disputed issues.
While it is very unlikely that Congress would consider a CERCLA amendment to address only this issue, PRPs should raise this issue the next time amendments are being considered. It will succeed only through the concerted efforts of advocates who seek more and better cleanups and those who seek prompt and reasonable government decision-making.
Posted on February 19, 2016
Amid the finger-pointing, forced resignations, and mea culpas, a question has hovered over the Flint water crisis. What did staff at the Flint water plant say before the switch to Flint River water?
For months, Michigan’s governor Rick Snyder and the Michigan Department of Environmental Quality have admitted mistakes but never quite explained why Flint switched from Lake Huron water to Flint River water without prior pilot studies. Critics assailed the saving-costs-at-the-expense-of-the-public-health attitude. Apologists apologized and promised remedial measures. But until last weekend, we did not know what the engineers and technicians who operate the Flint water plant thought of the switch.
On February 13, the Detroit Free Press reported that the Flint water lab supervisor questioned the switch. One week before the grandiose public ceremony celebrating the new era for Flint, the lab supervisor told DEQ he needed time to train staff and update monitoring to be ready to use Flint River water. He complained that higher-ups seemed to have their own agenda.
Like many members of this College, I have spent my career fighting the regulator attitude that “we’re the government experts—trust us” and being dismayed when courts blindly defer to an agency. But when faced with a choice, should we believe agency staff, or politicians and their flappers (see Gulliver’s Travels)? We should start by considering the views of the technical folks who take seriously their jobs to protect publichealth. We might get better policy.
From the Detroit Free Press, February 18, 2016
Posted on February 18, 2016
Citizen suits under federal environmental laws have been under fire through criticism of “sue and settle” where agencies, in particular the U.S. EPA, have been accused of intentionally relinquishing statutory discretion for the sake of settling lawsuits without participation by affected third parties. From this perspective, the scope of citizen suits has broadened. However, two recent federal circuit court opinions curb this growth.
On January 6, 2016, the Third Circuit and Sixth Circuit Courts of Appeals issued opinions that underscore certain limitations in the citizen suit provisions. The Third Circuit examined a Clean Air Act citizen suit in Group Against Smog and Pollution, Inc. v. Shenango Inc. (No. 15-2041) (GASP). The Sixth Circuit examined a Clean Water Act citizen suit in Askins v. Ohio Dept. of Agriculture, Ohio Envtl. Prot. Agency, U.S. EPA (No. 15-3147). Both courts affirmed dismissal of the citizen suits by the district courts based on statutory limitations Congress placed in each statute.
These two cases highlight a couple of important components of citizen suits. First, citizen suits are to serve as a backup to the non-discretionary functions and enforcement responsibilities of the States and the EPA. As the U.S. Supreme Court has said, “the citizen suit is meant to supplement rather than to supplant governmental action.” The Sixth Circuit stated, “Paradoxically, [Plaintiffs’] expansive reading of the citizen-suit provision would grant citizen greater enforcement authority than the U.S. EPA. . . . Congress did not intend to give citizens greater and faster enforcement authority against a state than the U.S. EPA.”
The other important component highlighted is the role of the “diligent prosecution bar” against citizen suits. Citizen suits are prohibited if the EPA or State agency “has commenced and is diligently prosecuting” the matter. While most courts seem willing to restrict citizen suits when there is clear prosecution (civil or criminal) in a state or federal court, the answer is less clear when there is no active or concluded matter at the courthouse or the enforcement action is only administrative. In GASP, the Third Circuit slightly tilted the bar in favor of the agency and regulated entity by concluding that if the agency has diligently prosecuted a suit, the presence of a final judgment, consent decree, or consent order and agreement would likely prevent a citizen suit challenge. This is logical given that environmental enforcement proceedings that are filed in court often, if not always, result in a judicially enforceable consent decree or consent order and agreement in which the regulated entity must fulfill specified obligations or be subject to stipulated penalties. It also provides certainty to the agreement reached between the agency and the regulated entity, which benefits all involved.
While these recent decisions were not momentous court opinions, the Third and Sixth Circuits did provide a bit more clarity to the role citizen and how our environmental laws are enforced. In this arena, I think we all would agree that a little clarity can go a long way.
Posted on February 17, 2016
For us gray hairs, the phrase used to be “Dateline”, now it’s “Tweetline” . . . Flash!. . . President Obama @POTUS “. . . Addressing climate change takes all of us, especially the private sector going all-in on clean energy worldwide."
Apparently “all of us” didn’t include five Supreme Court Justices, led by its Chief Justice, John Roberts. Indeed, it was SCOTUS going “all out” for climate change. As in, going “all out” to frustrate one of the EPA’s and President Obama’s signature efforts to respond to and act upon climate change challenges to the global environment. What EPA and the President got (by a split decision) instead was a stay that some have characterized as the quashing of the biggest environmental regulatory change in United States history.
That body blow to regulatory appropriation of the climate change debate was instigated by the challenge of virtually every major coal power company to the EPA’s issuance of binding emission reduction requirements for existing domestic power plants. The coal, fired power industry argued that EPA’s action was “draconian” and would cause the “shutting down or curtailing generation from existing plants and shifting that generation to new sources”. That, of course, was the precise intent of POTUS and other signatories of the Paris climate change accord last year.
SCOTUS’s stay was unprecedented and terse. Not a word of explanation about why the stay was issued. The proponents of the stay were modestly baffled. In the words of Basin Power’s legislative rep, Dale Niezwaag, the decision came as a surprise . . . "The supreme court has never issued a stay on a rule that hasn't been ruled on by a lower court. So this is precedent, setting from our point. When we put it in, we figured it was going to be a long shot, so we were very surprised that the Supreme Court ruled in our favor”.
There are takeaways galore. However, two are most intriguing to me. Was this unprecedented stay an unwarranted and thinly disguised, reach into the realm of executive branch constitutional authority? Second, did the Supreme Court simply muscle its way into a social and scientific debate that begs any legal or factual question of “irreparable harm” to either the power industry or the citizenry of the republic. In short, was the stay an expression of SCOTUS climate change denial?
The stay makes EPA’s rules unenforceable and will undoubtedly limit their intended goal of achieving emissions cuts to (ostensibly) slow global warming. More importantly, the ruling, in effect, invalidated POTUS’s pledge on climate agreement made in Paris last spring. How should one construe the interjection of the Supreme Court into a case that would have, under normal circumstances, been taken up by the Court of Appeals for the District of Columbia Circuit as soon as early 2017? Was a signal being sent to that court to heed the antipathy some believe certain SCOTUS justices have towards the global warming debate altogether?
In keeping with my “newsflash” metaphor, since I started writing this post, the country mourns the unexpected passing of Justice Antonin Scalia. The lack of a tie breaker justice for the foreseeable future could throw the question of the right of the EPA to forge ahead on the POTUS’s climate change agenda into months or years of limbo. Will the D.C. Circuit’s decision answer the question next spring? Will certain senators relent and vote in a replacement for Justice Scalia this year? Will the eight remaining justices do something other than call things a tie until they have a full complement on the bench?
Stay tuned to this blogspot for more breaking news.
Posted on February 12, 2016
The Supreme Court's unexplained stay of the clean power plan was "one of the most environmentally harmful judicial actions of all time," writes Michael Gerrard of Columbia Law School in a recent, excellent blog. Rather than venting outrage, Gerrard quickly moves on to explain that the Clean Power Plan isn’t the only way to cut carbon pollution.
Ramping up efforts like fuel efficiency standards for cars and trucks, and building efficiency standards, he notes, will also help reduce carbon pollution. Gerrard mentions a couple of points about agriculture, but often, this sector is overlooked when it comes to climate solutions. It’s worth taking a closer look at some of the opportunities to reduce climate pollution from our food system.
Food waste is the second largest component of most landfills. As it rots, it releases methane, a potent greenhouse gas. A recent report by the UN Conference on Trade and Development estimates that 2 percent to 4 percent of all manmade climate pollution arises simply from food rotting in landfills.
Keeping food waste out of landfills can help reduce methane pollution. Massachusetts, California, Connecticut, Rhode Island, Vermont, and some cities have enacted laws to manage organic waste disposal in landfills. The idea is to create incentives to reduce food waste and divert it to other purposes, such as animal feed or composting. Instead of being thrown away and becoming a source of pollution, this “waste” can be put to good use. Landfill gas collection systems can be further incentivized. And the nascent effort to reduce food waste from businesses and households can be significantly ramped up.
Another major source of greenhouse gases is the over application of fertilizer. Excess nitrogen fertilizer causes two big problems. The first is water pollution. Nitrogen that isn’t taken up by crops runs off farms and enters larger waterways, where it stimulates the growth of algae and creates “dead zones” deprived of oxygen. The second, and less frequently discussed issue, is the volatilization of nitrogen into nitrous oxide, a greenhouse gas about 300 times more potent than CO2. The IPCC estimates that 12 percent of all non-CO2 greenhouse gas emissions come from synthetic fertilizer application.
A number of techniques can reduce these emissions while also providing a cost benefit to farmers. Farm policies could encourage practices like cover cropping, which reduces the need for fertilizer by making soils more rich and fertile. Crop rotations can do the same, yet current crop insurance programs actually discourage the use of these practices. Precision application technologies for fertilizers are getting ever better, but their uptake on farms is slow.
Manure from animals, and the "enteric emissions" from cattle (more commonly thought of as belching) are two more significant sources of climate pollution. Enteric fermentation alone may account for as much as 40 percent of all non-CO2 greenhouse gas emissions, according to the IPCC. Changes in diet might help with these emissions, but this is an area that needs more research.
Some of the emissions from manure can be captured if manure lagoons were covered and better managed. As it stands, these pits are only slightly regulated and are major sources of water pollution sources as well as odor nuisances. An even better practice is to raise cows on rotating pastures, where their waste can enhance soils and help store carbon. And, of course, if Americans did shift to a diet lower in red meat, as per the recommendation of the Dietary Guidelines Advisory Committee, we could further reduce climate pollution from cattle.
Agriculture is one of our nation's most important economic sectors, and is especially vulnerable to the extreme weather impacts of climate change. Its product -- food -- is critical not only for our economy, but is an integral and uniquely personal part of our everyday lives. When we think about how to address climate change, it makes sense to think about food and agriculture. The food we choose to produce, and how we produce it, use it, and dispose of it, all have an impact on climate pollution—and therefore have the potential to become climate solutions.
Posted on February 11, 2016
There is no safe blood lead level in children.
In following the inexplicable regulatory missteps in the Flint public water supply debacle, I could not help but think of the progress that has been made in removing lead from the environment and out of our children’s blood. In spending my professional career addressing environmental issues and problems from a state, federal and private practice perspective, I often have wondered what difference does it make. In the case of lead, we can actually measure our progress and success.
As a teenager, I filled my ‘54 Ford with regular leaded gasoline. Lead was not only in gasoline, it was everywhere. Recognizing the significant and often irreversible health effects of lead, regulatory programs were initiated at the federal, state, and local levels to “get the lead out.” The implementation of these programs reduced or eliminated lead from gasoline, foods and food packaging, house paint, water pipes, plumbing fixtures, and solder used in plumbing and drink cans.
Did these programs work? In 1978, approximately 13.5 million children aged 1-5 had blood lead levels (BLLs) greater than or equal to 10 micrograms per deciliter (ug/dL) of blood, which was until recently the level of concern recommended by the Centers for Disease Control (CDC). The recommended level is now 5 ug/dL. Also, back in the 70s, the average BLL was approximately 15 ug/dL. Black children and children living in low-income families were at greater risk.
We have come a long way from the 70s. The average BLL in children dropped to 1.4 ug/dL by 2008. Below is a table graphically demonstrating this dramatic decrease in BLLs. The table is based on data from National Health and Nutrition Examination Survey, United States, 1971 – 2008, taken from a CDC report, Lead in Drinking Water and Human Blood Lead Levels in the United States, August 10, 2012.
As we beat ourselves up over the mistakes in Flint, we should take a moment to reflect on and be re-energized by the demonstrable success of these regulatory programs. What we have done has made a difference! Flint reminds us that more must still be done.
Timeline of lead poisoning prevention policies and blood lead levels in children aged 1–5 years, by year — National Health and Nutrition Examination Survey, United States, 1971–2008
Posted on February 11, 2016
I am a terrible predictor of what cases the Supreme Court will hear and what the Court will decide on those matters it chooses to hear. For example, I wrongly predicted that the Supreme Court would never consider reviewing the D.C. Circuit’s decisions in cases involving other recent EPA regulations, but the Supreme Court chose to hear those cases, which led to its decisions in Utility Air Regulatory Group v. EPA and Michigan v. EPA. And if asked to guess whether the Court would issue a stay of EPA’s Clean Power Plan under section 111(d) of the Clean Air Act, I might well have said that the odds were greatly against that happening – despite the merits of the arguments being raised by those seeking the stay.
Perhaps, though, my poor predictive abilities are the result of my looking at each case in isolation instead of looking at them in combination and considering whether the Supreme Court’s February 9, 2016 stay decision is an outgrowth of the combined knowledge gained by the Court in its recent reviews of those other Clean Air Act cases. Specifically, as pointed out by State Petitioners in their briefs in support of a stay of the Clean Power Plan (see here and here,) EPA has touted its Plan as being one that will completely transform the way energy is created and delivered in this country even though – argued State Petitioners – the plain statutory language (of Clean Air Act section 111(d)) does not authorize such Agency action, and the approach of the Clean Power Plan is at odds with EPA’s 45-year history of implementing section 111(d). Maybe such claims struck a chord with the Court, which – in UARG – told EPA that the Agency cannot make “decisions of vast ‘economic and political significance’” under a long-extant statute, like the Clean Air Act, without “clear congressional authorization.”
And then there was Michigan, where the Court determined that EPA had proceeded unlawfully in adopting another extensive and expensive Clean Air Act regulatory program. State Petitioners in the Clean Power Plan litigation made sure that the Court was aware that by the time the Court issued its decision in Michigan – a case where the underlying rule was not stayed during the pendency of litigation – the affected parties had spent billions of dollars to meet the terms of the underlying, un-stayed rule. In other words, justice delayed in Michigan was justice denied.
None of this is to say what the Court will or will not do if and when it reviews arguments on the lawfulness of the Clean Power Plan. I make no predictions on that. But I believe the Court acted appropriately in calling for the completion of litigation before requiring affected parties to make the massive, unprecedented, costly, and transformative changes to the energy industry that the Clean Power Plan demands.
Posted on February 10, 2016
The Supreme Court’s unprecedented, unexpected and unexplained action yesterday staying implementation of the Clean Power Plan is one of the most environmentally harmful judicial actions of all time. However, the damage it does to the United States’ ability to meet its Paris pledge is less than it might seem. But that is not because the Clean Power Plan wasn’t important; it is because the Plan didn’t do nearly enough.
The Intended Nationally Determined Contribution (INDC) that the U.S. submitted in advance of COP21 reiterated the prior goal of achieving a 17% reduction below 2005 levels in 2020, and conveyed a new pledge of a 26% to 28% reduction by 2025. The INDC cited the Clean Power Plan as one of the actions being taken to meet those pledges, but did not present any numbers on what actions would lead to what reductions.
More detail was presented in the Second Biennial Report of the United States under the Framework Convention on Climate Change, submitted by the Department of State in January 2016. As the report makes clear, the Clean Power Plan’s actual emissions reductions do not begin until 2022, and thus have no bearing on achievement of the 2020 goal. From 2020 to 2025, the Report expects carbon dioxide emissions to fall from 5,409 to 5,305 MtCO2e (Table 4) with implementation of the Clean Power Plan, energy efficiency standards, fuel economy standards, and numerous other measures that are already on the books, and down to 5,094 in 2030. (The report does not separately specify how much of this is due to the Clean Power Plan alone; the numbers result from a complex modeling exercise that included numerous interrelated actions.)
That is not nearly enough of a reduction to meet the 26% target (much less the 28% aspiration) for 2025. Instead, a host of additional measures are also needed. The Biennial Report lists these as possibilities to reduce carbon dioxide emissions:
- Full implementation of Phase II heavy-duty vehicle fuel economy standards.
- Finalization of proposed, new, or updated appliance and equipment efficiency standards.
- Increased efficiency of new and existing residential and commercial buildings.
- Reduction in industrial energy demand in several subsectors.
- Additional state actions in the electricity sector.
- Enhanced federal programs that lead to greater efficiencies in industry and transportation, including greater biofuel deployment and commercial aviation efficiency.
To address other greenhouse gases, the Biennial Report lists these possible added measures:
- An amendment (already in the works) to the Montreal Protocol on Substances that Deplete the Ozone Layer to phase down production and consumption of hydrofluorocarbons.
- Measures to reduce methane emissions from landfills, coalmining, agriculture, and oil and gas systems.
- More efficient nutrient application techniques that reduce nitrous oxide emissions
Even all of the above is not enough to meet the 2025 goals. The Biennial Report puts heavy reliance on the land-use sink – on the ability of forests and other vegetated areas to absorb a considerable amount of the greenhouse gases that are emitted. And even with an “optimistic sink” scenario and a number of other favorable assumptions, the key summary graph in the Biennial Report (Figure 6) shows a reduction of about 27% in 2025.
In sum, while the Clean Power Plan is the biggest game in town in terms of achieving the Paris goals, it is by no means the only game in town. While we express our justifiable fury over the Supreme Court’s action, we need to bear in mind that there are many other things that the U.S. must do in the next several years to control greenhouse gas emissions.
Posted on February 10, 2016
Yesterday, the Supreme Court stayed EPA’s Clean Power Plan rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.
Everyone, supporters and opponents alike (and yours truly), thought that there was no possibility that the Court would grant a stay. And it is precisely because a Supreme Court stay of a rule pending judicial review is such an “extraordinary” – to use DOJ’s own word – form of relief that one has to conclude that five justices have decided that the rule must go.
This isn’t just a preliminary injunction; it’s a preliminary injunction on steroids. First, everyone seems to acknowledge that it’s unprecedented for the Supreme Court to stay a rule pending judicial review. Second, the standards in DOJ’s own brief make pretty clear that a stay will only issue if the Court is pretty convinced on the merits. Finally, it’s worth noting that the Court implied that it does not even trust the Court of Appeals, because the stay will remain in force, even if the D.C. Circuit affirms the rule. The stay will only terminate either: (1) if the Court of Appeals upholds the CPP and the Supreme Court denies certiorari or (2) if the order is upheld and the Supreme Court also upholds it.
Back to the drawing board for EPA. Perhaps § 115 of the Clean Air provides a way out!
Posted on February 8, 2016
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services—such as water filtration, pollination, flood control, and groundwater recharge—rather than commodities—such as crops, timber, and mineral resources. Because many of these services exhibit qualities similar to public goods, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. In 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, in which it explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law has been slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into achieving “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). This and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated. But a more coherent federal ecosystem services policy appears on the horizon.
On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies have until March 30, 2016 to submit documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft a best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”
ACOEL Fellows should watch the Memorandum’s implementation over the next year closely. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final months of the Obama Administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative.