NGOs 1, Trump EPA 0: The First Skirmish in the Great Environmental Rollback War Goes to the Greens

Posted on July 11, 2017 by Seth Jaffe

Last week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017.  The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.

Notwithstanding Judge Brown’s dissent, EPA’s position on the merits seemed barely credible.  I understand the argument that the stay was not final agency action and thus not judiciable.  It just doesn’t seem compelling to me.  If EPA had amended to rule to extend the compliance deadlines, that clearly would have been subject to judicial review.  Why should the answer be different because EPA styles its action as a stay, rather than a revision to the regulations?  The impact is exactly the same.

As to EPA’s position that the four issues which it was reconsidering could not have been addressed during the original rulemaking by the industry groups now seeking reconsideration, EPA’s position was almost embarrassing.  As the Court repeatedly demonstrated, not only could the industry groups have addressed the issues during the original rulemaking, but they actually did so.  Moreover, EPA did consider those comments and, at least in parts, adopted them in the final rule.  My favorite example is the court’s discussion regarding the criteria for exemption for well-site pneumatic pumps.  As the Court noted:

[The American Petroleum Institute] … proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal.

The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption.

The real question at this point is whether this decision is any kind of harbinger.  Practitioners know that the record of the Bush EPA in rolling back Clinton rules was shockingly poor, given Chevron deference.  Are we going to see the same again?  The Court threw EPA what could prove to be a rather large fig leaf by noting that the decision does not prevent EPA from reconsidering the methane rule.  The Court also quoted FCC v. Fox Television Stations – the same case on which EPA is relying in its rollback of the WOTUS rule:

[EPA] is free to [reconsider the rule] as long as “the new policy is permissible under the statute.., there are good reasons for it, and … the agency believes it to be better.”

This is where the battles are going to be fought over the next several years.

Landfills Stink – So Let’s Have More

Posted on May 27, 2016 by Charles F. Becker

In 1991, Iowa passed a law prohibiting the delivery of yard waste to landfills.  It was during a time when there was a general panic that landfills were filling up too fast.  Twenty-two states have passed similar laws.  They all saw it as a win-win: compost could be created and sold by the city and the landfills would last longer.  A couple short decades later, several states have had second thoughts.  In 2015, Iowa passed a law that allows certain landfills to start accepting delivery of yard waste.  The reasoning is instructive. 

Landfills contain a staggering amount of potential energy.  The tires, paper products and plastic wastes, when burned for energy recovery, could light up a town.  But the cost of getting the BTUs out of the waste doesn’t make economic sense – yet.  There are exciting, new processes on the horizon that will have us mining that garbage for the energy sink it actually is, but that is still a ways off.  One form of energy recovery that is economically viable, however, is methane recovery.  As the garbage breaks down, it gives off methane gas that can be captured and burned.  Many landfills across the country do this type of recovery and find it simple and profitable.

To effectively produce methane, however, garbage must degrade.  The recycling push of the 80s and 90s took away the really good degradables from the waste stream – boxes, newspapers and yard waste were targeted as prime recyclables.  The effect was that the best fuel for garbage degradation (and thus methane creation) was banned.  Sure, it went towards the worthy goals of paper recycling and creation of high quality compost, but at what cost?

Iowa decided to look into that question.  They considered the cost of producing compost from yard waste and compared it to the cost of recovering additional methane that would be made possible by returning the green gold of yard waste to the landfill degradation process.  As it turns out, recycling loses. 

            The analysis turned on a number of factors:

·         The cost of buying, maintaining and fueling the trucks, machinery and facility needed for composting would be eliminated resulting in a yearly savings of $2 million;

·         Methane recovery would increase from the equivalent of powering 11,000 homes to powering 18,000 homes;

·         According to a study commissioned by the city of Des Moines, annual greenhouse gas emission would be reduced by 11% and the landfilling option would provide more than three times the greenhouse gas benefit presented by composting. 

Sierra Club is on record as opposing the trend (Georgia, Arkansas, Florida and Nebraska also now allow landfilling of yard waste) because it will result in landfills reaching capacity sooner.  In the case of one Iowa landfill, its estimated life would be reduced from 2054 to 2052.  Also, Sierra Club argues that more uncaptured greenhouse gases will be produced, but this seems to ignore the net savings from the other GHG reductions identified in the study.

I don’t have any idea whether returning yard waste to landfills is a net positive for the environment.  As counterintuitive as it seems, it appears to hold promise.  And if it does, where else might full cost accounting be used to guide environmental legislation?  At least some states are asking the question - and I suspect more will follow.

What Will You be Reading Over the Holidays?

Posted on December 30, 2014 by John Manard

You’ll have to turn to more traditional holiday reading because EPA’s methane reduction strategy for the oil and gas industry won’t be available until next year.  On March 28, 2014, the White House released its Strategy to Reduce Methane Emissions and instructed EPA to develop a comprehensive plan to reduce methane emissions from landfills, coal mines, agricultural operations, and the oil and gas industry.  The White House further directed EPA to address oil and gas sector methane emissions by building on the emission reduction successes of existing regulations and voluntary programs. 

EPA responded to this directive by publishing five white papers on methane emission sources in the oil and gas sector in April 2014, and requesting peer review and comment on each. The white papers address methane and volatile organic compound (VOC) emission mitigation techniques for: compressors, hydraulically fractured oil well completions and associated gas from ongoing production, equipment fugitive leaks, liquids unloading, and pneumatic devices.

Contemporaneously, EPA proposed enhancements to its long-standing and successful voluntary program for methane emission reductions—the Natural Gas STAR Program. EPA initiated the Natural Gas STAR program in 1993 to encourage voluntary methane emission reductions in the oil and gas sector through the application of cost-effective technologies and improved work practices.

EPA seeks to enhance the existing voluntary program with 17 “Gas STAR Gold” methane reduction protocols and a heightened recognition incentive for participating companies.  There is a proposed Gas STAR Gold protocol for each of the source activities addressed by a technical white paper, with the exception of methane emissions from well completions following hydraulic fracturing.  Other proposed Gold STAR protocols address methane emissions associated with casinghead gas, flares, glycol dehydrators, hydrocarbon storage tanks, and pipelines.

To achieve Gas STAR Gold status, a participating company must certify that at least one of its facilities has implemented all applicable Gold STAR protocols. Companies with at least 90% of their facilities implementing all applicable Gold STAR protocols achieve “Gas STAR Platinum” status.  

While few doubt that EPA will pursue methane emission reductions via a regulatory framework, it is speculation only whether EPA’s approach will consist of methane reductions as: (1) a co-benefit of regulations aimed at VOC emissions; (2) direct regulation of methane emissions; or (3) a combination of these approaches. Regardless of the regulatory direction EPA takes, expanded and enhanced voluntary measures will certainly be part of its comprehensive strategy for reduced methane emissions.

EPA’s next step will be to announce the type of regulatory framework necessary to achieve White House goals, and explain how voluntary efforts fit into that framework. Although EPA aimed to announce that planned strategy by the end of the year, recent reports indicate that a January 2015 announcement is more realistic. It looks like we will have to look elsewhere for our leisure holiday reading. (Thanks are due to Karen Blakemore in our Baton Rouge office for all that is good and useful in this post.)

EPA to Revisit Emission Guidelines for Existing MSW Landfills

Posted on July 29, 2014 by Carolyn Brown

In an Advanced Notice of Proposed Rulemaking (ANPRM) published in the July 17, 2014 Federal Register, EPA requests public input on reduction of emissions from existing municipal solid waste (MSW) landfills.  “Landfill gas” (LFG) contains methane, carbon dioxide and nonmethane organic compounds (NMOC).  NMOC includes various organic hazardous air pollutants and volatile organic compounds and was the focus of EPA’s initial landfill emission regulations in 1996.  However, the current driver for EPA’s focus on this source category is the President’s Climate Action Plan and the March 2014 Strategy to Reduce Methane Emissions

With respect to landfills, the Methane Strategy calls for EPA to update its rules to reduce emissions from new, modified, and reconstructed landfills; to explore options to reduce emissions from existing landfills; and to encourage energy recovery from LFG through voluntary programs.  The ANPRM addresses the existing landfill component of the strategy.  EPA notes that LFG is typically composed of roughly equal parts of methane and carbon dioxide and less than one percent of NMOC.  Methane has a global warming potential 25 times greater than carbon dioxide and is also identified as a precursor to ground-level ozone.

MSW landfills are a source category for which EPA has issued new source performance standards (NSPS) under Section 111(b) and emission guidelines under Section 111(d) of the Clean Air Act.  Both the NSPS and the emission guidelines were promulgated in 1996.  The designated facilities to which the guidelines apply are existing MSW landfills for which construction, reconstruction or modification commenced before May 30, 1991.  EPA required state plans to control MSW landfills of a certain size and NMOC emission rate if the landfill had accepted waste at any time since November 8, 1987, or had additional design capacity available for future waste deposition.

In the ANPRM, EPA states that it is not statutorily obligated to conduct review of emission guidelines but has the discretionary authority to do so when appropriate.  Despite the focus on the methane strategy, the circumstances EPA identifies for making the review appropriate here are “changes in the landfills industry and changes in size, ownership, and age of landfills” since the emission guidelines were promulgated in 1996.  The ANPRM states that any changes to the emission guidelines would apply to landfills that accepted waste after November 8, 1987, and that commenced construction, reconstruction or modification prior to the publication of proposed revisions to the landfill NSPS.  Landfills currently subject to the 1996 NSPS would have to comply with those requirements as well as any more stringent requirements in the applicable revised state plan or federal plan implementing the revised Section 111(d) guidelines.

Among the topics on which EPA requests comment are the following: (1) extent to which reduction in methane emissions should be taken into account in revising the guidelines; (2) possible changes in the regulatory framework such as eliminating or reducing the design capacity threshold for applicability; (3) criteria and timing for capping or removing the landfill gas collection and control system (GCCS); (4) emission reduction techniques and GCCS best management practices; (5) alternative monitoring and reporting requirements; and (6) what constitutes sufficient LFG treatment, including use of LFG as fuel.  Comments are due September 15, 2014.

Transboundary Water Quality Disputes -- What Once Was Old Is New Again

Posted on February 11, 2011 by Allan Gates

There is nothing new about transboundary water quality disputes under the Clean Water Act. Introductory classes on environmental law commonly trace the history of Supreme Court decisions arising from Milwaukee’s battles with Illinois over sewer discharges into Lake Michigan, the challenge Vermonters’ raised against New York paper mill discharges into Lake Champlain, and Oklahoma’s objections to a permit EPA issued to a sewage treatment plant in Arkansas. Given the length of time that the Clean Water Act program has been in place and the large number of instances in which upstream discharges drain into and therefore arguably affect water quality in downstream states, one would expect that most of the relevant legal questions would be well-settled. Recently, however, transboundary water quality disputes have arisen with increasing frequency.

Coal bed methane development in Wyoming has given rise to disputes with Montana over salinity impacts in the Powder and Tongue Rivers. Efforts by the state of Washington to protect dissolved oxygen levels in Spokane Lake have prompted a dispute over Washington’s attempt to impose wasteload allocations that would limit nutrient discharges by upstream sources in Idaho. Oklahoma’s efforts to restore the Illinois River to pristine scenic river conditions have resulted in recurrent and steadily intensifying disputes with agricultural interests on both sides of the border and point sources located predominantly in the headwaters on the Arkansas side. EPA’s imposition of nutrient water quality standards in Florida could have direct effects on discharges originating in Georgia; and the agency’s showcase multi-state TMDL for the Chesapeake Bay has recently precipitated challenges by state and national agricultural interests. In what undoubtedly is the most dramatic transboundary claim under the Clean Water Act, environmental groups have filed a petition with EPA asking the Agency to impose nutrient water quality standards and adopt TMDLs for the main stem of the Mississippi River, all of its tributaries, and certain related coastal waters in the Gulf of Mexico.

These recent disputes have recurring themes that arise out of weaknesses or unresolved questions regarding the Clean Water Act program. The statute empowers each state to exercise sovereign independence in adopting water quality standards that apply within the state’s own borders (so long as minimum federal standards are met), but the statute does little to address or even give consideration to the interests of other states that may be directly affected by those standards. Transboundary disputes frequently involve situations in which the regulatory burdens fall disproportionately on interests in one state while the resulting environmental benefits are realized largely or entirely in another state, but the Clean Water Act does nothing to address questions of transboundary fairness. Transboundary disputes frequently involve regulatory decisions that have enormous financial and long term planning consequences, but the decisions are often based upon limited factual data, imperfect scientific analysis, and less than comprehensive computer modeling. The Clean Water Act offers no process for seeking to assure that the quality of the decision making will be commensurate with the gravity of the consequences at stake. Indeed, the program largely makes the magnitude of financial consequences simply irrelevant. Disparities between the magnitude of the consequences and the limited quality of analysis and data supporting the regulatory decision are particularly problematic when the regulatory decision is being made by one jurisdiction that has no political accountability to the other.

It is perhaps no surprise that most of the recent transboundary water quality disputes are arising out of efforts to regulate the discharge of nutrients. Nutrient pollution is the largest unresolved water quality issue nationally; and the adverse effects of excess nutrients frequently occur at locations far downstream from the original source. The fact that most of the current transboundary water quality disputes involve nutrient pollution probably makes the disputes even more difficult than normal to resolve. Nutrient pollution has no simple, universally accepted means of measurement. It is costly and time consuming to establish a clear causal link between a given discharge of nutrients and an observed adverse effect; and many of the most important sources of nutrient pollution are non-point sources which are beyond direct control under the Clean Water Act. Unfortunately, this appears to be a recipe for increased frustration and controversy.
Transboundary water quality disputes may not be a new phenomenon, but it does not appear that we are any closer to finding a good way to resolve them.