The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

Why You Should Pay Attention to ECOS

Posted on October 26, 2016 by Martha Rudolph

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

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

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

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

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

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

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

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

The Supreme Court Doesn’t Think Much of Paris in the Springtime

Posted on February 17, 2016 by William Session

            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.

Supreme Court Puts Clean Power Plan on Hold, but Clean Agriculture Can Move Forward

Posted on February 12, 2016 by Peter Lehner

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. 

Unprecedented Program Leads To Unprecedented Response

Posted on February 11, 2016 by Andrea Field

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. EPAAnd 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.       

EPA and DOJ Cannot Sugarcoat This: SCOTUS Stays the Clean Power Plan

Posted on February 10, 2016 by Seth Jaffe

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!

Regulatory Update

Posted on February 5, 2016 by Stephanie Bergeron Perdue

Back when I initially started this blogging exercise for a 1/11 posting, I had a clever title in mind: WIS 2016?  (aka What’s in Store 2016?)  But now it’s February.  And I even missed the filing deadline for a Groundhog’s Day-related theme.  BTW, for those who may NOT have heard, Punxsutawney Phil and Staten Island Chuck failed to see their shadows.  Early spring.  Ah, perhaps I should go with a thawing theme as in when will there be any definitive outcomes for some of our favorite environmental issues?  And I commit to use as many abbreviations and acronyms as possible. 

1)      CPP – No foreseeable thaw.

If I could use a symbol, kind of like the artist formerly known as Prince, I would.  What’s that?  Surely you jest.  CPP is THE Clean Power Plan.  At any rate, way back in January 2016, the D.C. Circuit denied the various Motions to Stay this controversial rule.  And then there was the Stay Application filed by the 26-state coalition, led by West Virginia, and industry types in the SCOTUS.  DOJ/EPA has until 2/4 to respond; the States are expected to file a reply 2/5.  What’s at stake?  Regulating emissions from existing power plants under FCAA 111(d) in a, well, unprecedented manner.  Yes, Texas is one of the states challenging the rule.  Let’s momentarily set aside the fact that the rule deals with power plants and focus solely on the structure of the regulation – hence my use of the term unprecedented.

2)      NAAQS (pronounced naks), more specifically ozone – No foreseeable thaw.

Yes, the October 2015 EPA regulation was also challenged by multiple groups and states, including Texas/TCEQ which filed its Petition for Review on 12/23/2015.  The rule proposal ranged from 65 ppb to 70 ppb; 70 ppb was the final number which lowers the standard 5 ppb from the last revision in 2008.  Statements of Issues for the case are due 2/4/2016. State designations for attainment/NA are due October 2016.  The attainment deadlines are from 2020 to 2037, depending on the classification.  What will you be doing on Groundhog’s Day 2037??

3)      WOTUS (pronounced wo-tus) – Some thaw, mostly muddying the water.  (Sorry)

EPA’s final “Clean Water Rule: Definition of Waters of the United States” was published on 6/29/2015.  Fast forward to 12/8/2015 on which date oral argument was held in the 6th C. COA. I am stepping over the N. Dakota litigation as well as litigation pending in Galveston, Texas. At the moment, there is a nationwide stay against the rule courtesy of the 6th C.  This is in effect while the court sorts out the jurisdictional issue as to whether the rule should be challenged at the federal district court level or appellate level.  BTW, I don’t really like to refer to this rule as WOTUS.  I know, it rhymes with SCOTUS and POTUS. How ‘bout U.S. waters or federal waters?  Most people would still look at us, like, what the heck are they discussing?  That’s a nice segue to note that this federal rule clarifies (ahem) what waters are subject to regulation under federal law, i.e. the CWA.  I’m not sure bright (shore)lines are on the horizon.

4)      EPA SSM SIP Call – Thaw

I had to say thaw for some variety.  And compared to above matters, this case is actually further along.  This rule deals with the use of an affirmative defense in emission event cases and applies to 36 states, including Texas.  (I should mention that Texas’ rules are SIP approved and withstood challenge in the 5th C. COA. Yes, Texas is challenging.)   Briefing is due between 3/6/2016 and 9/4/16; oral argument is anticipated in late November or early December 2016.  I’m refusing to spell out SSM SIP because it makes me feel like I am a knowledgeable insider.

Does Colorado Support the Clean Power Plan? Yes. And No.

Posted on December 9, 2015 by Seth Jaffe

 

I have never understood why 43 states – including the great Commonwealth of Massachusetts – have independent elected attorneys general.  I’m sure my new colleague, former Massachusetts Attorney General Martha Coakley, would disagree with me, but I just don’t think that the value of having an AG independent of the Governor is worth the lack of policy consistency.  Exhibit A to my argument is the current dispute in Colorado between Governor John Hickenlooper and Attorney General Cynthia Coffman concerning EPA’s Clean Power Plan.  What’s the problem?

Hickenlooper supports the CPP; Coffman opposes it.  Indeed, Coffman does not just oppose it; on behalf of the State of Colorado, she’s joined the litigation seeking to stop the rule.  Excuse me, but shouldn’t the Governor speak for the citizens of Colorado on such matters?  Absent some kind of conflict of interest requiring independent counsel, the Governor has to be the boss.  I’m sure most citizens see it that way; it would be nice if reality mirrored perception.

I’d assume that the Colorado Governor has authority to retain separate counsel – and I hope my friends in Colorado will tell me if I’m wrong.  I’d love to see Governor Hickenlooper retain his own counsel and intervene in the litigation on the side of EPA.  What would the Court do if Colorado appeared on both sides of the V?

hickenloopercoffman

What Do Opponents of the Clean Power Plan and the Oklahoma Sooners Have In Common?

Posted on October 23, 2015 by Seth Jaffe

So the Clean Power Plan has been published in the Federal Register.  For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP. 

Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue.  West Virginia apparently won the race and is the named plaintiff in the main petition filed so far. 

Perhaps because Oklahoma has been one of the most persistent, and vocal, opponents of the CPP, this called to mind the origin of the Sooner State’s nickname – which seems particularly apt, since Oklahoma was one of the states that couldn’t wait for the rule to be promulgated to sue.

Sooners

Oklahoma is not actually among the plaintiffs in the West Virginia suit.  Oklahoma filed its own petition today.  One wonders whether Oklahoma was banished from playing with the other states as a result of its impatience.  Unlikely, since most of those in the West Virginia suit also filed early, but it did call to mind that other famous event in the history of the west, as recorded in Blazing Saddles.