WOTUS: Legal Issue or Scientific Issue?

Posted on August 1, 2018 by Seth Jaffe

Last month, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected, it asks what are the jurisdictional limits in the Clean Water Act.

It’s cynical, because, by failing to take on the science behind the 2015 rule, which seemed fairly persuasive to me, EPA and the Corps avoid the hard regulations necessary to protect our waters while clothing themselves in feel-good words about the integrity of the statute and the important role given to states under the Clean Water Act.

Part of the beauty of the SNPR is the way it carefully navigates between whether the broader jurisdictional interpretation taken by the 2015 rule is prohibited under the Clean Water Act or simply not required under the Clean Water Act.

The agencies are also concerned that the 2015 Rule lacks sufficient statutory basis. The agencies are proposing to conclude in the alternative that, at a minimum, the interpretation of the statute adopted in the 2015 Rule is not compelled, and a different policy balance can be appropriate.

I’m not sure I agree with the administration’s interpretation of the scope of the CWA, but it’s not crazy.  If I had to bet, I’d assume that it would survive judicial review.

The problem is that this simplistic legal approach ignores the science and ignores the missions of both EPA and the Corps.  If the 2015 rule is more protective of the nation’s waters, and if there are questions about the scope of jurisdiction under the CWA, then shouldn’t the administration be asking Congress to clarify EPA’s and the Corps’ authority so that they can regulate in a manner consistent with what good science says is necessary to protect the waters of the United States?

I’m not holding my breath.

Big Tribal Victory in Culvert Case, Big Implications for Taxpayers

Posted on June 13, 2018 by Rick Glick

On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.

The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.

The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.

A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?

The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."

Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.

The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.

NOT VERY NEIGHBORLY

Posted on May 17, 2018 by Linda Benfield

Southeast Wisconsin’s continued relief from nonattainment rules is not assured yet. And did we mention we are about to build a large new factory just over the Illinois border?

Southeast Wisconsin labored under some form of ozone nonattainment status for 20 years – but in July 2012 the area was declared to be in compliance with the then-applicable 8 hour ozone standard. The region has enjoyed five years of relief from the enhanced permitting, emission offsets, and other restrictions on expansion that come with Nonattainment New Source Review.

That glorious period appeared to be coming to a close when, on December 20, 2017, EPA informed Governor Walker that the proposed nonattainment areas for the more restrictive 2015 ozone standard would include all of five southeastern Wisconsin counties, and parts of four other counties bordering Lake Michigan. The Walker administration and the business community were not pleased.  

In public comments filed with EPA, the State of Wisconsin and every major business group for the state and affected counties pushed back on EPA’s policy decision, with arguments based heavily on the scientific data collected during the past 20 years. Commenters emphasized that the air quality and meteorological data does not support including the entire geographic boundaries of all of the counties, there is a seasonal component to the nonattainment data, and as the state has emphasized for years in nearly every context involving air emissions, most of the ozone impacting southeast Wisconsin is transported from outside Wisconsin, including from our neighbor to the south – Illinois.

EPA listened, and on May 1, 2018, released a substantially pared down final list of counties designated as nonattainment for ozone –the list only includes the lakeshore areas of six counties. Notably, because of gaps in the certified data, Racine County, which will be home to a new $10 billion development by Foxconn Technology Group, will not be included in the nonattainment area. Foxconn and its affiliated vendors will manufacture liquid crystal display screens at the Racine location, which was chosen over other contenders, including sites in Illinois.

Stirring up trouble in our Midwest neighborhood, on Friday, May 4, 2018, Illinois Attorney General Lisa Madigan announced that she will file suit in the D.C. Circuit challenging the ozone designations. Her announcement ties the designations to the Foxconn development and  complains that EPA’s action puts “a company’s profit ahead of our natural resources and the public’s health.”   

The new designations have not yet been published in the Federal Register, but this neighborhood dispute may be headed to court. Responding to Ms. Madigan’s press release, Governor Walker said “The State of Wisconsin will push back.” If Illinois wants to pick a fight, Wisconsin could consider a counter claim, or its own suit against Illinois under Section 126 of the Clean Air Act, which allows downwind states to pursue out of state upwind emission sources. Ozone monitors in southeastern Kenosha County have shown for years that emissions from Illinois are the primary source of nonattainment on the Wisconsin side of the border.

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

And the Regulatory Reform Caravan Keeps Moving on Down the Road

Posted on February 26, 2018 by Donald Shandy

On January 25, 2018, The EPA published a guidance memorandum withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act. This new EPA guidance allows stationary sources of hazardous air pollutants (HAPs) that are classified as “major sources” to limit their HAP emissions to below major source thresholds and thereby be reclassified as “area” sources at any time. As Bill Wehrum, assistant administrator of EPA’s Office of Air and Radiation, puts it, “It will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.” I agree.

A major source is one that emits or has the potential to emit 10 tons per year of any single HAP or 25 tons per year of combination of HAPs. For the last 20 years, once a source became subject to a MACT it remained in that status even if it reduced emissions below the major source threshold(s).

The new policy follows a similar theme emerging from the Pruitt EPA: legally speaking, the once in always in policy was not supported by the language of the Clean Air Act. Under this new policy, a source can voluntarily accept limitations (even after previously triggering major source status) and avoid major source requirements. This would eliminate some of the resource intensive burdens of MACT such as recordkeeping and reporting requirements.

In 2007, the Bush EPA proposed a rule that would have replaced the historic policy. After taking comment on the proposal, the EPA never took a final action and it has never been withdrawn. Based upon the new guidance, EPA intends to revive the pending rulemaking consistent with the Wehrum guidance document. 

This new policy is a significant incentive for major sources to take efforts to reduce emissions on an actual or potential basis and fall below the triggering thresholds. As such, this new policy is good for business and the environment.

PASSING LESS GAS

Posted on December 5, 2017 by Keith Hopson

While some still debate climate change, on 11/22/17, eight of the oil and gas industry’s biggest players signed on to a set of Guiding Principles for reducing methane emissions across the natural gas value chain.  BP, Eni, Exxon Mobil, Repsol, Shell, Statoil, Total and Wintershall, in collaboration with international institutions, NGOs and academics, drafted the Guiding Principles.

The five guiding principles are: continually reduce methane emissions; advance strong performance across value chains; improve accuracy of methane emissions data; advance sound policy and regulations on methane emissions; and increase transparency.  Click here for the entire Guiding Principles document.

It will be interesting to see if these “voluntary principles” eventually become enforceable regulations.  Likewise, it will be interesting to see if these guidelines become “industry standards” and, accordingly, whether by acquiescence, private litigation, or lender requirements, become de facto regulations.

Time will tell.

It is significant to see so many major oil and gas industry actors responsibly, firmly and publicly commit to both reduce methane emissions and advance monitoring.  Perhaps now others in the industry will be more inclined to join the responsible eight and commit to pass less gas.

What’s Happening with the Other Clean Air Act (CAA) §111(d) Rule?

Posted on November 24, 2017 by Steve Kohl

Long ago and in what seems like a faraway place, the D.C. Circuit vacated the NESHAP for boilers and the NSPS for Commercial and Industrial Solid Waste Incineration (CISWO) units. (See “EPA in the D.C. Circuit – Where Has All the Deference Gone”, ACOEL Blog, September 23, 2008). The demarcation between boilers and other process heaters and CISWI units is whether or not they burn waste. The D.C. Circuit held that EPA had improperly drawn that line. Since the source categories are mutually exclusive under the Clean Air Act, the improper line drawing resulted in the improper definition of each source category, resulting in the demise of the rules. Fast forwarding (sort of) to 2013, EPA finally promulgates a new and improved boiler NESHAP and new NSPS rules for new and existing CISWI units. These rulemakings were only made possible by the Non-Hazardous Secondary Materials (NHSM) rule which defines what is or is not a waste when burned. It takes the entirety of 40 C.F.R. Part 241 to provide this definition and the processes for determining if something is a waste or a fuel. 

Now comes the fun part. An existing boiler burning clean wood had to be in compliance with the NESHAP by early 2016, but the same existing boiler burning “dirty” wood categorized as a waste under the NHSM rule didn’t have to comply with the NESHAP since it is not a boiler but an incinerator. Well, it must have to comply with CISWI existing incinerator standards, right?  Well no. In fact, there really aren’t any applicable NESHAP requirements for existing boilers burning waste. 

The CISWI standards for existing units, 40 C.F.R Part 60, subpart DDDD, are §111(d) guidelines, which additionally must address the requirements enacted for incinerators in §129 of the CAA.  Those who have followed the Clean Power Plan (CPP) about which much has been written, including several ACOEL blogs (Is You Is Or Is You Ain’t Transformative?Unprecedented Program Leads To Unprecedented ResponsePulling the Plug on Greenhouse Gas Emissions), recognize that most states were in the process of developing state implementation plans (SIPs) to implement the CPP when the Supreme Court stayed the rule.  That’s because the CPP was also a §111(d) “guideline” for existing electric steam generation units. Actual application of the CPP was dependent upon SIPs approved by EPA which implement the guidelines or, if a state defaults, a federal implementation plan (FIP) implementing the CPP guidelines. Similarly, the CISWI standards for existing units must be implemented through approved SIPs or a FIP.  The SIPs or FIP required to implement the CISWI standards for existing units are required to be in place within five years, or February 7, 2018 and compliance is required by that same date.  However, no such SIP has been approved and no FIP finally promulgated.  Polite inquiries to EPA have provided no insight to the ultimate timing.

The delay in taking final agency action to implement CISWI standards for existing sources creates some interesting circumstances.  A state may recognize that through a renewal or a reopener of a facility’s Title V permit it should incorporate CISWI requirements, but it really can’t since there isn’t a federally enforceable requirement for CISWI. Subpart DDDD guidelines contain some provisions for determining whether certain sources qualify for an exemption from CISWI under §129. If they are exempt from CISWI, then they should be complying with the currently applicable boiler NESHAP, but there really isn’t any applicable rule for determining the validity of an asserted exemption. Subpart DDDD guidelines also provide that if a waste-burning source does not want to comply with CISWI and instead intends to comply with an applicable NESHAP, it must cease burning waste six months in advance of the date its chooses to switch from being a CISWI source to a NESHAP source. So if that dirty wood burning boiler doesn’t intend to comply with CISWI as of the ostensible compliance date of February 7, 2018, should it have switched to clean wood in July of 2017 even though there was no applicable rule requiring the six month period?

Final promulgation of the FIP or approval of the submitted SIPs would not appear to be a heavy lift since the proposed FIP and the submitted SIPs essentially mirror subpart DDDD.  So the delay to what is now four years and nine months out of the five years allowable under the CAA is somewhat incomprehensible. It begs the question, “What’s happening with this §111(d) rule?” 

Turn On, Plug In, Peel Out

Posted on September 18, 2017 by Samuel I. Gutter

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal.  It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S.  And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer. 

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles.  Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers.  Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors.  GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years.  Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.  

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future.  And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years?  Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play.  China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles.  And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up.  And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror. 

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery.  But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share.  As prices drop and driving range increases, electric vehicles will become more affordable and practical.

Fasten your seatbelt, there might be an EV in your future!

WHICH WAY ARE THE WINDS BLOWING ON THE INTERNATIONAL TRANSPORT OF AIR POLLUTANTS?

Posted on September 5, 2017 by David Flannery

At a time when the international transport of air pollutants is squarely before the DC Circuit in connection with the challenge to the Cross State Air Pollution Rule Update (State of Wisconsin, et al v. EPA, Case No. 16-1406) there is new information confirming that “but for” international transport, every air quality monitor in the nation would be achieving compliance with both the 2008 and 2015 National Ambient Air Quality Standards (“NAAQS”) for ozone Assessment of International Transport and Improved Ozone Air Quality

In November 2016, EPA proposed a rule addressing implementation of the 2015 ozone NAAQS in which it requested comments on whether the international transport provisions of Section 179B of the federal Clean Air Act should be limited to nonattainment areas adjoining international borders. Section 179B allows a state which is not in attainment with the ozone NAAQS to seek relief from certain implementation requirements of the Clean Air Act if it can show that the NAAQS would be met “but for” international emissions. Among those responding to this request for comments, the State of North Carolina noted that “contribution from sources outside of the U.S. has become more prominent in the overall ozone profile for many areas” and that “transport of ozone is well documented and not restricted to impacting only areas adjacent to Canada or Mexico.” http://www.csg.org/aapca_site/news/documents/NorthCarolinaDEQ-2-13-2017.pdf

In his letter of June 6, 2017 EPA Administrator Scott Pruitt extended the deadline for promulgating designations related to the 2015 ozone NAAQS by 1 year and in doing so, identified international transport as one of the complex issues that EPA would review during the extension period (https://www.epa.gov/sites/production/files/2017-06/documents/az_ducey_6-6-17.pdf).  However, in its Federal Register notice published on August 10, 2017, EPA withdrew its announced 1-year extension of the deadline for promulgating initial area designations for the 2015 ozone NAAQS (https://www.federalregister.gov/documents/2017/08/10/2017-16901/withdrawal-of-extension-of-deadline-for-promulgating-designations-for-the-2015-ozone-national). The notice of withdrawal of the 1-year extension makes no specific mention of international transport, although the notice offers the following statement: 

The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed. 

While, as noted above, it is becoming increasingly clear that “but for” international emissions every monitor in the nation would be complying with ozone NAAQS requirements, the implementation of that conclusion is for the moment, at least, blowing in the winds of regulatory change.  

Preempted, Preempted Not

Posted on July 27, 2017 by Karen Crawford

First Circuit Rules that Puerto Rico Municipal Ordinances on Coal Ash Preempted

In mid-May, the First Circuit addressed whether a municipality may prohibit the beneficial use and disposal of coal ash at landfills within their borders when the state agency has authorized such activities.  In AES Puerto Rico, L.P. v. Trujillo-Panisse, No. 16-2052 (1st Cir. May 15, 2017), a coal fired power plant owner, AES-PR, challenged two municipal ordinances attempting such a prohibition as preempted by federal and Commonwealth law and were in violation of the United States and Puerto Rico constitutions.  Utility Solid Waste Activities Group and American Coal Ash Association participated on brief as amici curiae brief.  The district court granted summary judgment for the municipalities on AES’s federal claims and declined to exercise jurisdiction over the Commonwealth claims.

The First Circuit determined the ordinances could not be enforced to the extent they directly conflicted with Commonwealth law as promulgated by the Puerto Rico Environmental Quality Board, but reversed summary judgment in favor of the municipalities and remanded for the district court to enter judgment for AES-PR based on its claim of Commonwealth preemption.  The court reviewed the RCRA program and its intent to precipitate cooperation between the federal, state, and local governments.  After a serious discussion of the delegation of authority to states and the fact that Puerto Rico’s Environmental Quality Board was given authority to manage solid waste (including coal ash) by the Commonwealth, unlike the district court, the court determined the EQB resolutions (and permits) carry the force of law and its permits allowing disposal in a sanitary landfill supersede a local ordinance prohibiting that disposal.  Succinctly, the court pointed out that the Commonwealth’s public policy to give municipalities as much autonomy as possible is limited by a higher power and that “a municipality cannot ‘promote and further its own public policy’ if that policy conflicts with Commonwealth law.” 

NJ Appeals Court Finds Consumer Fraud Cases Against VW Not Preempted by CAA

This week, however, a three-judge panel of Superior Court of New Jersey, Appellate Division affirmed trial court rulings in two cases denying Volkswagen Group of America Inc.’s (VW) motions to dismiss the complaints, finding the CAA does not preempt such state court actions.  David. L. Felix, et al. v. Volkswagen Group of America Inc. and Eduardo Deang v. Volkswagen Group of America In. et al., No. A-0585-16T3 and A-086-16T3, July17, 2017, Sup. Ct. NJ – App. Div.  The motions argued the complaints were expressly or impliedly preempted by provisions of the CAA, citing language in 42 U.S.C.A. 7543(a), “… No state or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.”  Both plaintiffs alleged misrepresentation and violations of New Jersey’s Consumer Fraud Act, among other claims.  The decision included interesting arguments on interpretation and attempted distinguishing of prior tobacco, product defect and airline deregulation cases.

With respect to express preemption, the court disagreed with VW’s argument that plaintiffs’ complaints are in reality attempts to enforce EPA’s emissions standards because plaintiffs would have to prove those standards were exceeded to prevail.  Instead, the court determined that the plaintiffs were not seeking to enforce an EPA emission standard or force the manufacturer to adopt a different emissions standard, but rather the claims were centered “on VW’s alleged deceitful, fraudulent practices and its alleged breach of a duty not to mislead consumers.” 

The court also determined that the CAA did not impliedly preempt plaintiffs’ claims because the savings clause explicitly contemplates continued state involvement in regulation of motor vehicles, and that because plaintiffs’ claims do not hinge on compliance with EPA standards, there is no direct conflict with the federal regulatory scheme.

Trumping Trump on Climate Change

Posted on July 25, 2017 by Dan Esty

President Donald Trump’s decision to back away from the Obama Administration’s Clean Power Plan and other policies to reduce U.S. greenhouse gas (GHG) emissions in fulfillment of America’s commitment to the 2015 Paris Climate Change Agreement might be seen as bad news for the global environment.  And it is.  But the news is not quite as bad as many fear.  Even if the President’s actions slow progress toward the U.S. “nationally determined contribution” to the emissions reduction goals of the Paris Agreement – a cut of 26-28 percent by 2030 – that will not stop the overall downward trend in GHG emissions for several important reasons. 

First, American Presidents have limited executive authority, meaning that a number of the climate change policies put in place by President Obama cannot be reversed with a stroke of President Trump’s pen.  Second, the shift away from coal as America’s electricity generation fuel of choice will continue – driven by prior regulatory requirements and the economics of the energy marketplace.  Third, many critical decisions that shape the carbon footprint of a society are made not by presidents and prime ministers but by mayors, governors (or other sub-national elected officials), and corporate leaders.

President Trump’s March 28 Executive Order directs his EPA Administrator to “review” the prior administration’s Clean Power Plan and “as soon as practicable, suspend, revise, or rescind” it.  But this is not a simple process.  The Clean Power Plan represents a regulatory strategy for implementing a Clean Air Act obligation to control emissions from any air pollutant found to “endanger public health and public welfare.”  The Supreme Court confirmed in Massachusetts v. EPA (2007) that this obligation is not discretionary with regard to greenhouse gas emissions. 

Thus, the Trump EPA can change the strategy for responding to greenhouse gases but cannot walk away from its obligation to control them unless it reverses the “endangerment” finding issued by former EPA Administrator Lisa Jackson in 2009.  To undo this prior conclusion, current EPA Administrator Scott Pruitt would need to establish a new scientific foundation that would justify a different policy conclusion.  Given the overwhelming scientific consensus that the build-up of greenhouse gas emissions in the atmosphere threatens to produce various harmful effects – including sea level rise, increased frequency and intensity of hurricanes and other windstorms, changed rainfall patterns, as well as more frequent droughts, floods, and forest fires – such an effort would be quickly challenged in any number of courts and almost certainly overturned.  Indeed, in the face of overwhelming scientific evidence that the build-up of GHG emissions in the atmosphere is a problem, a “non-endangerment” conclusion would be an almost paradigmatic example of an “arbitrary and capricious” regulatory action.  EPA will, therefore, almost certainly choose to revise the Clean Power Plan rather than dump it altogether. 

In introducing his climate change executive order, President Trump promised that his actions would bring back American coal production and power generation.  No such thing will happen.  Hundreds of U.S. coal-fired power plants have been shut down in the past decade – most in response to the Obama Administration’s Mercury and Air Toxics Standards.  These plants will not be reopening.

Not only have coal-burning power plants been the target of numerous regulatory restrictions, they also now face stiff competition from cleaner-burning and cheaper natural gas power generation as well as rapidly expanding renewable power production.  Nothing President Trump has done will reverse these trends.  Indeed, given the momentum toward a clean energy future and the prospects that a future president will redirect the Trump climate change policies and restore the U.S. commitment to lower greenhouse gas emissions, no utility is going to invest in new coal-fired power plants, and many power generators will proceed with planned retirements of existing coal units.  Simply put, the President’s shifting of gears on climate change policy does not over-ride the broader economic logic for movement toward cleaner and cheaper energy options.

In the face of the President’s disinterest in the Paris Agreement in particular and his hostility toward environmental regulation more broadly, leadership and political support for climate change action in the United States has shifted out of Washington.  Of particular note, more than 200 mayors, 10 governors, and nearly 1700 business leaders have formed a coalition called America’s Pledge that aims to ensure that the U.S. emissions reduction commitment is fulfilled.  Led by California Governor Jerry Brown and former New York Mayor Michael Bloomberg, the participants in America’s Pledge are pushing forward with climate action plans at the city, state, and corporate scales. 

Some of these leaders, moreover, have expressed interest in formally “signing” the 2015 Paris Agreement if the United States ends up withdrawing.  While there are constitutional limits to what sub-national jurisdictions can do in the international realm, legal work is underway to find a mechanism that would allow these mayors, governors, and CEOs to make a commitment to the goals of the Paris Agreement “to the full extent of their authority.”

The breadth and depth of these non-federal-government climate change initiatives means that American greenhouse gas emissions will continue to decrease regardless of what energy policies the Trump Administration puts forward.  In fact, one of the critical features of the climate change strategy that the world community agreed upon in Paris in 2015 was a shift from a top-down approach that relied upon national government actions to a bottom-up game plan for emissions reductions that called upon a much wider array of actors to join the effort to promote energy efficiency and a shift toward renewable power.

As it turns out, presidents and prime ministers don’t have that much say over the day-to-day decisions that determine the carbon footprints of their societies.  Mayors, governors, and CEOs are really the ones who make the critical choices about transportation options, housing and development patterns, product and production strategies, technology and infrastructure investments, and other decisions that determine the trajectory of greenhouse gas emissions.

Thus, while President Trump can take the United States out of a leadership role in the global effort to combat climate change, he will not be able to reverse the domestic momentum for action on climate change.  His policies may slow the pace of U.S. emissions reductions, but movement toward a decarbonized energy future will continue.

HOW DOES A DEMOCRACY DECIDE SCIENTIFIC FACTS? SCOTT PRUITT’S RED TEAM/BLUE TEAM CLIMATE REALITY SHOW

Posted on July 19, 2017 by Karl Coplan

Reuters reports that EPA Administrator Scott Pruitt, responding to a suggestion in a Wall Street Journal editorial, is planning to set up a “red team/blue team” war-game style debate to resolve the question in his mind about the validity of scientific predictions of catastrophic anthropogenic global warming. According to Administrator Pruitt, this “debate” would be televised. Pruitt said that this debate was “not necessarily” meant to undermine EPA’s 2009 Endangerment Finding that triggers Clean Air Act regulation of greenhouse gases, and added that he would prefer that Congress weigh in on the matter.

The prospect of a reality television show style competition designed to resolve for the United States a matter of scientific consensus reached by just about every other nation in the world should concern anyone hoping that EPA’s initial moves to regulate greenhouse gases might survive the Trump administration. But this prospect also illustrates tensions between the administrative state that allows a coherent system of environmental regulation to exist, and the American polity’s identity as a self-governing democracy where political truth is determined by trial in the “marketplace of ideas” guaranteed by First Amendment freedom of expression.

This “marketplace of ideas” metaphor, of course, was first voiced by Justice Oliver Wendell Holmes in his eloquent dissent in Abrams v. United States :

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In a later dissent, in Gitlow v. United States, Holmes expressed that his commitment to the results of this free competition in ideas was so strong that should the arguments in favor of a proletarian dictatorship gain majority approval, he must accept that result.

The foundations of the administrative state are in tension with this notion of popular resolution of scientific and economic truths. Administrative agencies are given authority to resolve scientific and technical issues while carrying out broad Congressional mandates, such as the Clean Air Act mandate to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” The basic theory behind this delegation of authority is threefold – 1) that agencies will be staffed by experts better able to resolve technical and scientific issues than Congress; 2) that Congress lacks the resources and attention to engage in the details of regulatory decisionmaking; and 3) that some policy decisions must be at least partially insulated from the political process.

But this delegation of scientific and economic factfinding is always conditional – Congress always retains the power to withdraw the delegation or overrule agency determinations through affirmative legislation.

Is the urgency of climate change a political truth on the order of the choice between socialism and capitalism? Is our commitment to the verdict of the marketplace of ideas in a democracy stronger than our commitment to urgent action to address climate change?

On the other hand a television reality show format may not be what Justice Holmes had in mind when he posited his marketplace of ideas. Further thoughts on this topic appear in an article I wrote a few years back, “Climate Change, Political Truth, and the Marketplace of Ideas.”

The Annual Texas Environmental Superconference—Austin in August?

Posted on June 26, 2017 by Jeff Civins

The Texas Environmental Superconference is one of a kind. Held each year in Austin in sweltering early August, this conference consistently sells out, attracting over 500 participants from the public and private sectors.Indeed, now in its 29th year, it was the winner of the first American Bar Association Section of Environment, Energy & Resources (ABA SEER) award for Best State or Local Bar Environment, Energy and Resources Program of the Year.

The key to the conference’s popularity is its unabashed willingness to integrate humor into content--with annual themes, skits, quizzes, prizes, and, for the past several years, even a conference song.Past themes have included Yogi Berra quotes (“It’s like déjà vu all over again”); Clichés (“The best thing since sliced bread”); Shakespeare (“Much Ado About Pollution”); “Star Wars (“May the farce be with you”); and Willie Nelson songs (“On the Road Again”).Dwarfing all other past conferences, though, was the Disney movie-themed conference, which featured the song “SuperconferenceAustinTexasExpialidocious” and is the subject of 2 You Tube videos. (introductory remarks and conference song).

Speakers generally weave the conference themes into their presentations and, on occasion, even appear in costume.For example, an EPA chief of enforcement appeared as Harry Truman in the politically-themed conference, “Join the Party,” and as Darth Vader, in the Star Wars-themed program. And an EPA General Counsel appeared as a tiara-wearing Wonder Woman in the super hero-themed program.A former EPA Regional Administrator and TCEQ Chairman appeared variously as the Beatles, the Odd Couple, Game Show contestants, and Yoda and Luke Skywalker.

This year’s conference – to be held on Thursday-Friday, August 4-5, 2017 – has as its theme board games and is entitled “Let the Games Begin.”The Wednesday evening session on enforcement is entitled “Trouble.”Registration is at Environmental Superconference-2017.

Participants look forward to attending each year for the chance not only to experience a fun and informative program, but also to network and to informally discuss issues of concern with other environmental professionals representing diverse perspectives, e.g., private and public sectors; regulators, regulated community, and environmental organizations; legal and technical professionals; and local, state, and federal governments.

The conference is organized by the Environmental and Natural Resources Law Section of the State Bar of Texas, in conjunction with other environmental professional organizations, including ABA SEER, the Air & Waste Management Association—Southwest Section, the Water Environment Association of Texas, the Texas Association of Environmental Professionals, and the Environmental Health and Safety Audit Center.Proceeds from the conference are used to fund environmental internships, student writing awards, and section outreach programs.

Thanks to a generous contribution from Supporter, EARTHx (formerly Earth Day Texas), the Superconference this year is offering –and last year offered--scholarships for employees of non-profit organizations with environmental matters as a significant focus.

The Annual Texas Environmental Superconference is the answer to the question, why come to Austin in early August?

Trump’s “Tortured” Maneuvering Can Be Legal Maneuvering

Posted on April 11, 2017 by Richard G. Stoll

Bob Sussman is a former high-ranking Obama and Clinton EPA official with a stellar academic and professional background.  He recently published in Inside EPA a thought-provoking piece entitled “Trump’s Tortured Maneuvering on Climate Change.”

No matter what your views on climate, Bob’s piece is worth reading.  I find much to agree with in Bob’s observations, but would respectfully disagree with one. 

Focusing on the president’s March 28 Executive Order (EO), Bob raises the valid question of why Mr. Trump touted it on job-saving, energy independence grounds.  Bob makes a strong case (as if he really needed to) that coal mining jobs are dwindling due to market forces and that the U.S. energy outlook is just fine. 

Bob posits that Trump’s job-energy independence focus reveals a divide and major discomfort within the Administration on whether and how much to deny that humans are involved with climate change.  He notes that the March 28 Order side-steps any position on both the “Endangerment Finding” and the Paris Accords.   

So far so good.  My respectful disagreement relates to Bob’s argument that the Trump EPA would have a difficult time sustaining major cutbacks to the Obama Clean Power Plan (CPP) on judicial review.  He speculates that a new Trump CPP might simply retain “building block 1” (plant efficiency improvements) from the 3-block “beyond-the-fenceline” Obama CPP.  He argues that “the courts may well balk at this approach as a contrived effort to duck the challenge of climate change by taking refuge in narrow legal arguments.”

Here is why I disagree:

a.  Following the 2007 Supreme Court Massachusetts ruling and EPA’s subsequent Endangerment Finding, EPA is not required by the Clean Air Act (CAA) to issue GHG rules with any particular degree of stringency – EPA must just issue rules.

b.  The “beyond-the-fenceline” features of the Obama CPP are based upon truly adventurous interpretations of the words of the CAA.  There is certainly nothing in the CAA that requires those interpretations.  (Recall the U.S. Supreme Court has taken the unprecedented step of staying the Obama CPP throughout the entire judicial review process.)  Even if the D.C. Circuit were to uphold these interpretations, it would only be upholding the Obama EPA’s discretion to adopt them; the Court could not rule that such interpretations were mandated by the CAA.

c.  The Supreme Court and D.C. Circuit case law are clear on the following points:

i.  A new administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, even where there are no new facts or information, so long as the new administration adequately explains the basis for the reversal;

ii.  There is no heightened standard of judicial review when an agency reverses course; and an agency need not convince the court that the reasons for the new policy are better than the reasons for the rejected one.

See my recent ACOEL blog for the citations to the cases.

d.  Because the statutory interpretations supporting beyond-the-fenceline requirements are so adventurous (and stayed by the Supreme Court), it should be easy for the Trump EPA to defend a new CPP as a matter of policy based on CAA interpretations that are far less adventurous.

e.  If and when the new CPP reaches the Supreme Court, it is difficult to see the Court departing from the precedents of the cases cited in my ACOEL blog, particularly with Justice Gorsuch filling Justice Scalia’s seat.

POTUS, SCOTUS & WOTUS: What Do They Have in Common With Michael Stipe and Jack Black?

Posted on March 15, 2017 by Jeff Thaler

Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.

Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”

An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.

Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.

Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.

Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.

One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.

In sum, we live in interesting times.   Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned. 

Technology Forcing

Posted on March 6, 2017 by Steve McKinney

We environmental lawyers are well-acquainted with the technology-forcing requirements of many statutes.  I, however, do not love technology and I hate being forced. 

The idea behind “technology forcing” statutory provisions is that if Congress adopts requirements beyond the demonstrated capability of currently available technology, that will cause smart people to develop new technology that will meet the new requirements.  Simple.  Better technology is just waiting to be developed.  The cost or other impacts of new technology are seldom regarded as good reasons to hesitate.  There may even be an implication that trying to count that cost or consider those impacts is an unreasonable hindrance to the unlimited and irrepressible march of technology, which is always good, right?

Not so fast.  In my standard Dad-think, I bought our youngest daughter a brand-new, highly-acclaimed-for-safety-and-reliability Honda Accord to begin her new post-graduate life of go-everywhere-any-time-of-night independence.  The reliable-as-a-hammer reputation of Honda, however, has been seriously tarnished for me because this car won’t always start.  One Sunday morning in January as my daughter prepared to depart Birmingham for Washington, D.C., the dashboard of that Accord lit up light a fireworks display before going black and taking the entire electrical system of the auto with it.  Because delay was not an option, she took her mother’s less efficient but more reliable old Lexus to DC while Dad spent Monday morning at the dealership.  The problem?  In pursuit of technology-forcing CAFÉ standards, Honda had a bright idea (all puns intended).  Honda added a sensor to detect when the Accord’s battery had sufficient residual charge to switch the car’s alternator out of service until needed.  Periodic reduction of the marginal drag of the alternator on the engine’s main drive belt at least theoretically benefited the Accord’s highway mileage rating.  Unfortunately, when the new sensor fails, as it did that Sunday morning, the entire electrical system goes haywire and the engine will not run.

When I came to understand that this tiny piece of technology that had been added to my car to chase a microscopic mileage advantage had also become a critical failure pathway for my precious daughter’s car, I was angry.  I admit it.  I cussed.  When the failure occurred again 45 days later on the Sunday morning my daughter was planning to return to DC with her Honda after bringing her Mom’s car home, I really cussed.  The earlier fireworks had likely damaged the car’s battery that now became the critical failure barrier to normal operation.

Cooler heads will explain that thousands of Honda Accords have probably operated millions of miles with that microscopic mileage advantage adding up.  But the personal travails of one little environmental lawyer at least microscopically demonstrate that there are costs and impacts to technology-forcing requirements.  The rest of this story might be even more entertaining.  What do you think will happen when a different kind of lawyer figures out that there may be thousands of Accord owners driving around with new technology-forcing battery sensor switches that are prone to failure and might cost you a battery?

Rifle Shots – Unleashing the Power of the Tweak

Posted on February 24, 2017 by JB Ruhl

Here’s a thought exercise: I’ll give you a budget of 25 words (including conjunctions, articles, and all the other little ones). You use up a word by either deleting, adding, or replacing one in an existing federal environmental or natural resources statute. How much could you transform the field of practice with just those 25 word edits? The answer is, quite a lot.

When we think of statutory reform, we usually think big, right on up to “repeal and replace.” But after more than 25 years of very little legislative action on federal environmental and natural resources statutes—the National Wildlife Refuge Improvement Act, Sustainable Fishing Act, and the recent Toxic Substances Control Act reforms are a few exceptions since the 1990 Clean Air Act amendments—much rides on the accumulations of judicial and agency interpretations of the meaning of a word here and a phrase there. As we enter a period of potential legislative volatility in this field, therefore, the rifle shot may be just as much in play as the nuclear bomb.

Like any statutory reform, rifle shots can make regulatory statutes either more or less regulatory. For example, one could add “including carbon dioxide” or “excluding carbon dioxide” in just the right place in the Clean Air Act and with those three words put an end to a lot of debate and litigation. Given the current political climate, however, it’s reasonable to assume any rifle shot would be aimed at reducing regulatory impacts. But even with just 25 words in the clip, one could transform the impact of several regulatory programs before running out.

For example, delete the words “harm” and “harass” from the statutory definition of “take” in the Endangered Species Act (ESA) (16 U.S.C. 1532(19)) [LINK 1] and you have a very different regulatory program. Much if not most of the land use regulation impact under the ESA stems from the inclusion of those two words; without them, the ESA’s prohibition of unpermitted take would restrict actions like hunting, killing, shooting, and wounding, but could not reach indirect “harming” from habitat modification.   Of course, the interagency consultation program under Section 7 (16 U.S.C. 1536(a)(2)) [LINK 2] would still be in place, prohibiting federal agencies from taking actions that “jeopardize” the continued existence of species. But just add “substantially” before “jeopardize” and the practical effect of that prohibition is greatly reduced.

I’ve managed to transform the ESA, vastly reducing its regulatory impact, with just three word tweaks. Twenty-two to go. Here are some more examples.  I’ll let readers evaluate the impacts.

·         Speaking of evaluating impacts, the environmental impact review process of the National Environmental Policy Act (NEPA) can really slow things down (42 U.S.C. 4332(B)). [LINK 3] To “streamline” the process, add the word “direct” before “environmental impact” in subpart (C)(1), which would eliminate the current practice of requiring analysis of indirect and cumulative impacts, and delete subpart (C)(iii), which requires agencies to evaluate “alternatives to the proposed action,” to remove a factor that bogs down much NEPA litigation. (Six more words down, sixteen to go.)

·         Heard all the commotion about which “waters” are subject to the Clean Water Act? Clear that up by changing the statutory definition of “navigable waters” (33 U.S.C. 1362(7)) [LINK 4] to read “waters of the United States subject to navigation.” That would be pretty extreme—it would remove most wetlands from jurisdiction—so one could control how far jurisdiction extends over wetlands by adding and their adjacent wetlands.” This would draw the line much closer to navigable water bodies than current interpretations reflected in Supreme Court opinions and agency regulations—Rapanos and the Water of the United States Rule become history. (Seven more words down, nine to go.)

·         And if you also want to put to rest the question whether the Clean Water Act applies to groundwater, edit the front end of the definition to read “surface waters.” (Another word down, eight to go.)

·         The Circuits are split over whether the Migratory Bird Treaty Act’s list of prohibited activities (16 U.S.C. 703(a)), [LINK 5] which includes to “take” or “kill,” sweeps within the statute’s reach any “incidental” taking or killing—injury or mortality that is not the direct purpose of the activity, such as strikes by wind turbines. Easy to solve! Add the word “purposeful” before the list of prohibited activities. (Another word down, seven to go.)

·         And, while we’re at it, let’s go ahead and add “excluding carbon dioxide” to the Clean Air Act definition of “air pollutant” (42 U.S.C. 7602(g)). [LINK 6] Adios, Clean Power Plan. (Three more words down, leaving just four to go.)

I’ll leave it to readers to think about how to use the last four words. The point here is that the system of environmental and natural resources law has become quite fragile. With Congress out of the picture for so long, courts and agencies have built up an interpretation infrastructure under which a single word or phrase often carries a tremendous burden of substantive and procedural program implementation. As a consequence, a mere tweak here and there can have dramatic effects on the program.

Granted, anyone who closely follows the statutes tweaked above will quickly appreciate the impact of any of the tweaks, and I’ve chosen some powerful examples unlikely to slip by any such experts. But subtler tweaks buried deep in a larger bill could more easily fly below the radar.

It remains to be seen whether Congress takes this rifle shot approach or goes bigger.  Rifle shots don’t eliminate or “gut” entire programs, which may be the current congressional appetite, but the above examples show the potency of this approach. I for one will be keeping my eyes out for rifle shots in bills every bit as much as I will be following the big bomb reform efforts. Do not underestimate the power of the tweak!

ATSDR...A New Role under the Clean Air Act?

Posted on February 6, 2017 by Todd E. Palmer

In recent months, the Agency for Toxic Substances and Disease Registry (ATSDR) and the “minimal risk levels” (MRLs) established by ATSDR have played a direct role in EPA’s efforts to regulate stationary sources under the Clean Air Act. The ATSDR is an advisory agency created by CERCLA in 1980 to help EPA assess health hazards associated with Superfund Sites. ATSDR’s role was expanded by the 1984 RCRA Amendments to assess risks from hazardous substance releases at landfills and surface impoundments. In 1986 SARA further expanded ATSDR’s responsibilities under CERCLA to assess the health impacts of hazardous substance releases. 

In response to its CERCLA mandate, ATSDR has developed MRLs which define the level of daily human exposure to a hazardous substance release that is likely to result in no appreciable risk of an adverse non-cancer health effect.  MRLs are designed to be a screening tool and are not intended to identify levels that would trigger cleanup or other action.  As a result, exposure to a hazardous substance above an MRL does not necessarily mean that adverse health effects will occur. Rather, MRLs “are set below levels that, based on current information, might cause adverse health effects in the people most sensitive to such substance-induced effect.” 

In comparison to the MRLs developed under CERCLA, there are two sets of standards established by EPA under the federal Clean Air Act to address health impacts from air emissions.  One of these is the National Ambient Air Quality Standards (“NAAQS”) which define the concentration of a criteria pollutant in ambient air deemed to be protective of human health.  State implementation plans are designed to achieve compliance with NAAQS.  Likewise, the air emissions from permitted stationary sources are analyzed to ensure consistency with NAAQS.  NAAQS are developed through a rigorous process that solicits input from the scientific community and public at large, and are promulgated as rules which are invariably subject to legal challenge and judicial review.  

EPA also establishes emission limitations under Section 112 of the Clean Air Act to control toxic air emissions.  These standards limit the emissions of hazardous air pollutants from specified categories of stationary sources.  EPA assesses the risk to public health and the environment that remains after implementation of these limitations and must promulgate new health based standards to mitigate those residual risks.

In recent months EPA has moved beyond the NAAQS and toxic air pollutant standards to rely upon the ATSDR and its MRLs in identifying the allowable, and ostensibly enforceable, concentration of pollutants in ambient air under the Clean Air Act. 

In one case, EPA asked ATSDR to evaluate the ambient air quality surrounding a stationary source.  ATSDR concluded that the monitored concentrations of manganese from that source exceeded the pollutant’s MRL.  Based on this finding, US DOJ filed a civil complaint against the facility.  One of the claims alleged that the monitored manganese concentrations presented an imminent and substantial endangerment to public health and that injunctive action was necessary under Section 303 of the Clean Air Act. The complaint requested a judicial order requiring installation of fence-line air monitors and implementation by the source of all measures necessary to prevent exceedance of the MRL for manganese at those monitors. In effect, EPA identified the MRL as the allowable concentration of manganese to be emitted under the Clean Air Act.  The case has settled.

In other matters, EPA Region 5 utilized the information from an ATSDR health consultation to justify issuance of a Section 114 order under the Clean Air Act which required installation of fence-line PM10 monitors around a facility with outdoor storage piles where manganese emissions were also an issue.  The company refused to install the monitors and EPA filed a civil complaint seeking to enforce the Section 114 order. EPA sought summary judgment, relying in part upon an ATSDR finding that manganese concentrations in the ambient air surrounding a nearby facility exceeded the MRL.  The underlying ATSDR assessment also used PM10 Air Quality Guidelines (AQG) from the World Health Organization (WHO) to conclude that ambient PM10 concentrations might cause respiratory problems for sensitive individuals.  Notably, the WHO AQG are more conservative than the NAAQS (the WHO AQG for PM10 is 50 μg/m3 as a 24-hour mean, whereas the NAAQS for PM10 is 150 μg/m3 averaged over that same time period).  The case settled.

It’s worth noting that ATSDR has finalized approximately 150 inhalation based MRLs covering pollutants emitted by a broad range of industrial facilities.  However, I think it is safe to assume that stationary sources do not view MRLs as imposing any additional Clean Air Act strictures on their operations since the MRLs are not listed as applicable requirements in air permits.  Moreover, the Title I and V permitting programs do not require sources to perform dispersion modeling to ensure compliance with MRLs. 

It remains to be seen whether EPA under the new administration will continue to reach out to ATSDR and utilize the MRLs in addressing air pollutant emissions, particularly where such limits have never been vetted through a rulemaking process.   I wouldn’t bet on it.

The DOJ Environment Division and State Joint Enforcement

Posted on January 25, 2017 by John Cruden

As I reflect on my tenure as Assistant Attorney General, I have been especially proud of the Division’s cooperation with state and local governments in matters encompassing all aspects of the Division’s work – affirmative and defensive, civil and criminal. When we combine forces with our state and local partners, we leverage the resources of multiple sovereigns and, ultimately, achieve more comprehensive results for the American people.

In 2016, we had unprecedented success in civil enforcement with states, due primarily to the record‐breaking settlement with BP in the Deepwater Horizon Oil Spill litigation. In April 2016, the trial court entered the final consent decree in the litigation, thereby resolving civil claims of the United States and the five Gulf Coast states against BP. The claims arose from the 2010 blowout of the Macondo well and the resulting massive oil spill in the Gulf of Mexico. BP will pay the U.S. and the five Gulf States more than $20 billion under the consent decree, including: 1) a $5.5 billion civil penalty; 2) more than $8.1 billion in natural resource damages; 3) $600 million in further reimbursement of clean‐up costs and some royalty payments; and 4) up to $6 billion in economic damage payments for the Gulf States or their local units of government. This resolution is the largest settlement with a single entity in Department of Justice history; it includes the largest civil penalty ever awarded under the Clean Water Act, the largest ever natural resources damages settlement and massive economic damages payments to our state partners.

And, just this month we announced our plea agreement and civil consent decree with Volkswagen.  In addition to the combined $4.3 billion penalty, corporate felony plea, and individual prosecutions, the previous civil consent decrees also provide $2.7 billion to all states for projects they select from the CD options to offset NOx pollution caused by the illegal car emissions.  When the various settlements with VW are combined, and their value estimated, it approaches $20 billion. 

Our state connections were vital to our criminal work. Cooperation ranged from providing training to state partners to close coordination in wildlife and pollution investigations.  Prosecutors from ENRD’s Environmental Crimes Section presented at several events where state investigators learned of opportunities and methods for developing wildlife and environmental crimes cases, either in concert with federal counterparts or independently. Our prosecutors also trained their counterparts on the Division’s recently acquired authority over worker safety matters.

But environmental enforcement is not where ENRD’s work with state and local partners ends. We also are working with our counterparts at the state and local level in a relatively new area of responsibility for the Division – civil and criminal enforcement of federal laws that provide for humane treatment of captive, farmed, and companion animals across the United States. In July 2016, ENRD and the Office of Justice Programs co-hosted a roundtable discussion on Animal Welfare Enforcement. We were joined by more than 100 leaders in the area, including representatives of federal agencies, states and local governments, as well as researchers, scientists and others in the animal welfare field. The roundtable allowed us to focus collectively on information sharing, organizational strategies and cooperation in animal welfare enforcement.

Finally, ENRD continued to develop and enhance relationships with our state counterparts by participating in several forums designed to share experiences and expertise. In the spring of 2016, for example, I had the honor of being the first ENRD Assistant Attorney General invited to speak to the annual meeting of the Environmental Council of the States, the national association of state and territorial environmental agency leaders. I joined colleagues from EPA, New Mexico and academia to discuss innovative ways to measure the success of environmental enforcement. ENRD attorneys also partnered with the National Association of Attorneys General to present webinars on topics of mutual interest, such as e‐discovery, and share expertise regarding federal bankruptcy law in the context of environmental cases. Finally, just this week we collaborated with the National Association of Attorneys General to publish Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation, which is now available on the DOJ website.

As I depart from the Division, we are in good shape. In December, the Division accepted an award by the Partnership for Federal Service, which ranked the ENRD as the #2 best place to work in all of the federal government, as well as the best place to work in the Department of Justice. With more than 300 Federal agency subcomponents competing, our new rank places us well into the top 1% of all Federal workplaces.

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

Posted on November 18, 2016 by Richard G. Stoll

Q&A

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

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

How Bad Is Bad?

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

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

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

Top Target

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

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

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

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

Un-endanger Me?

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

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

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

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

More Targets and Concerns

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

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

Is You Is Or Is You Ain’t Transformative?

Posted on October 4, 2016 by Andrea Field

More about that title later, but first let me set the stage.  On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor petitioners challenge EPA’s Clean Power Plan (CPP, the Plan, or the Rule).  The Plan regulates carbon dioxide emissions from existing power plants under Clean Air Act (CAA) §111(d).  I will refrain from addressing issues on which the trade and mainstream press have opined at length (e.g., the judges’ frustration at being asked to make policy decisions because Congress has failed to act and that participants – judges, lawyers, parties, reporters, the public – had to sit through almost 7 hours of argument in one day, in addition to the hours many spent waiting in line).  Instead, I offer an ACOEL-centric tour, in non-chronological order, of the five “segments” of the September 27 argument. 

Argument Segment #2:  The Battle Between CAA §§112 and 111(d).  Aficionados of the College’s 2014 white paper on EPA’s §111(d) regulatory authority will recall the difference of opinion over whether – under the 1990 Amendments to the CAA – EPA is prohibited from regulating power plants under CAA §111(d) if EPA already regulates power plants under CAA §112.  Plan challengers point to the plain meaning of §111(d)(1)(A) as it appears in the U.S. Code.  Plan supporters point to the existence of a “conforming amendment” to §111(d)(1)(A) found in the Statutes at Large but omitted from the U.S. Code, and they argue that EPA’s approach is a valid attempt to reconcile that amendment with the U.S. Code.  After listening to the judges express frustration at not being able to satisfyingly reconcile the two versions, I recalled D.C. Circuit Judge Leventhal’s concurring opinion in Citizens to Save Spencer County v. EPA, in which he concluded that contradictory CAA provisions should be viewed as “countermanding.”  Quoting from Eugene Field’s poem “The Duel” – about the fight between the gingham dog and the calico cat – he summed up the irreconcilable differences as follows:  “The tension between the two animals culminates in these final lines of doggerel:  ‘The truth about the cat and pup is this, They ate each other up.’ ”

Argument Segment #3:  Constitutional Issues.  If forced at knife-point to articulate the first portion of this argument, which began at 2:35 p.m., right after the lunch break, I would be unable to do so, other than to say that the word “commandeering” cropped up a lot.  More interesting was how the second advocate for petitioners on this point – Professor Laurence Tribe of Constitutional law fame – was able to expand his separation-of-powers argument into a further analysis of issues argued during the morning session. 

Argument Segments #4 and #5:  Notice and Record-Based Issues.  At the end of a very long day, the panel heard arguments on (a) whether EPA’s standards are “achievable” and whether parts of the Plan’s approach have been “adequately demonstrated” under §111; and (b) whether the final rule is so different from what was proposed that the public lacked notice and an opportunity to comment.  Petitioners arguing the former point (the unachievability of program requirements) faced a weary panel, which pondered what the options for state and source relief would be if the Rule is upheld but later turns out to be a train wreck.

A colleague describes as follows the situation that gives rise to parties complaining that they had no notice of what a final rule would require because EPA’s proposal was so different:  “EPA may propose an apple and finalize an orange.  That’s OK; they’re both fruits.  What EPA may not do (and what petitioners argue EPA has done here) is to propose an apple and finalize a pork chop.”  Dick Stoll passionately argued – in his June 7, 2016 post for ACOEL – that previous 3-judge panels in the D.C. Circuit have not properly dealt with this lack-of-notice issue.   Those panels refused challengers’ attempts to overturn pork chops, saying challengers of pork chops must first file administrative petitions for review under CAA §307(d)(7)(B) and then wait (for what could be years, if ever) for EPA to act on those petitions.  Dick argued that the only way the previous 3-judge panel decisions would ever be overturned was by action of the entire court, sitting en banc.  I cannot promise Dick the entire court will overturn the previous panels’ reading of §307(d)(7)(B), but I can say that Tom Lorenzen teed up the issue.  When asked by Judge Griffith whether this argument appeared in petitioners’ briefs, Lorenzen said it did not because when petitioners wrote their briefs, the case was going to be heard by a 3-judge panel.  But said Lorenzen, looking up at Judge Griffith, “Now we are here.”  To which Judge Griffith replied, “And who else to ask but an en banc court?”  “Exactly,” said Lorenzen. 

Argument Segment #1:  Core Legal Issues.  Although I visit Argument Segment #1 last, the fate of the Clean Power Plan may well rest on how the panel addresses the issue raised at the very beginning of the day:  whether or not the Plan is “transformative.”  The Supreme Court, in UARG v. EPA, held that EPA cannot engage in a “transformative expansion” of its regulatory authority absent “clear congressional authorization” to do so.  Petitioners argue that EPA’s Clean Power Plan amounts to a transformative expansion of EPA’s explicit regulatory authority and thus is illegal.  EPA argues the program is not “transformative”; indeed, says EPA, the Rule is very similar to other CAA programs that the D.C. Circuit has upheld.  So, is the Rule “business as usual” or is it “transformative”?

And so we return to the title of this post.  I cannot predict what the D.C. Circuit will decide, but I think its determination will revolve around how the en banc panel answers the following question about the Clean Power Plan:  Is You Is or Is You Ain’t Transformative?  And that question prompts me to offer these final lines of doggerel in memory (and honor) of Judge Leventhal:

 

To predict the end here, it’s informative

To know if C-P-P is transformative.

To prevail in this Court,

One must prove that the sort

Of change caused by that Rule is enormative.

Flatulence Isn’t Super fun(d)

Posted on September 2, 2016 by Peter Hsiao

Do air emissions of pollutants constitute a “disposal” under the federal hazardous waste laws?  The Ninth Circuit said “no” in Pakootas, et al. v. Teck Cominco Metals, Ltd. based upon its reading of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  The decision both sets important precedent and showcases the judicial process to discern legislative intent when a statute’s plain language is stressed by an unusual fact pattern.  If air pollutants can create CERCLA disposals, then emissions from any stationary or mobile source, including animal emissions of methane (which is considered a pollutant subject to CERCLA by EPA), may be the basis of cleanup liability.

The decision involves a smelter located just north of the border with British Columbia.  An earlier decision in that case held that a foreign-based facility can be liable under CERCLA for slag discharges into a river running to the United States.  Plaintiffs then alleged the facility arranged for disposal by emitting hazardous air contaminants which were carried by the wind and deposited in Washington State.  The district court denied a motion to dismiss and certified the matter for immediate appellate review.

Reading the plain language of CERCLA, the Ninth Circuit found that “a reasonable enough construction” of the law would be that the facility “arranged for disposal” of its air pollutants.  No legislative history or EPA rules shed light on this subject.  However, the Court concluded it was not writing on a blank slate.  Noting that CERCLA incorporates the definition of “disposal” from the Resource Conservation and Recovery Act (RCRA), the Court cited its prior decision in Ctr. for Cmty. Action and Envtl. Justice v. BNSF Rwy. Co., which held that diesel particulate emissions “transported by wind and air currents onto the land and water” did not constitute “disposal” of waste within the meaning of RCRA.  To be a disposal, the solid or hazardous waste must first be placed into or on any land or water and thereafter be emitted into the air.  The Court also cited its en banc decision in Carson Harbor Vill., Ltd. v. Unocal Corp., holding that passive migration was not a disposal under CERCLA. 

The Court thereby found that arranging for “disposal” did not include arranging for air “emissions.”  This interpretation of “disposal” was largely consistent with CERCLA’s overall statutory scheme.  The Court expressed concern that plaintiffs’ more expansive reading would stretch CERCLA liability beyond the bounds of reason.  “[I]f ‘aerial depositions’ are accepted as ‘disposals,’” the Court said, “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense.” 

The Court did not discuss in detail the statutory interplay with the Clean Air Act, which regulates air emissions under a complex regulatory and permit scheme.  Under CERCLA, federally permitted releases are excluded from liability.  But because air permits often specify the control equipment parameters rather than an emission limit, a CERCLA plaintiff may allege that the mere existence of a permit does not provide a blanket immunity from liability and the facility would remain liable for any releases that were not expressly permitted, exceeded the limitations of the permit, or occurred at a time when there was no permit.  The Court in passing did note its skepticism that the federally permitted “release” exception evidenced any Congressional intent regarding the meaning of “disposal.”

The Ninth Circuit is the highest court to exclude air emissions from the reach of CERCLA and RCRA.  The Court’s citation to Carson Harbor does not provide an exact analogy since a passive landowner has not “arranged” for the initial release of hazardous substances, as compared to the smelter operations which result in air emissions.  But the Court’s unwillingness to create potentially unlimited CERCLA liability for air emissions is compelling.  Under CERCLA, liability is strict, joint and several and retroactive.  Air emissions are widely transported and dispersed in relatively small concentrations by large numbers of potential sources, making CERCLA liability findings and allocations difficult if not impossible. 

The Court thereby divined Congress’ intent to make CERCLA’s scheme workable, apart from a literal reading of its text.  For judges to “repair” statutory language in this way is controversial.  The decision is reminiscent of the U.S. Supreme Court holding that the Obama health care plan provides tax credits to millions of people who purchase insurance from a federal marketplace, even though the statute only provides credits for those who purchase from marketplaces “established by the state.”  According to Justice Roberts, that was the only way the law would work, and despite the plain wording in the statute, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”  CERCLA also is not a model of clarity, and the Ninth Circuit similarly incorporated practicality as a factor in discerning Congress’ intent to avoid overreaching in assigning liability for the cleanup of toxic chemical releases.

Who Moved My Cheese?

Posted on August 31, 2016 by Michael Hardy

Spencer Johnson’s classic came to mind when I learned of new plans for the Burger power plant on the Ohio River.  The Burger plant has had a makeover from an electric generating facility to a massive chemical plant feasting on the abundant natural gas in the Marcellus and Utica regions of Western Pennsylvania and Eastern Ohio.

When I returned from active duty, my employer said, you will practice environmental law. Because I was accustomed to taking orders, I said "yes sir". That led me to cooling towers for the Davis Besse and Perry Nuclear plants on Lake Erie. More dramatically, however, it led me to years of dealing with coal-fired generation in Ohio.  Rich with coal and numerous coal-fired plants on Lake Erie and the Ohio River (and other rivers as well), I thought Ohio would supply cheap, coal-fired energy for many people for years.  Unfortunately, I did not predict the obsolescence of coal-fired electric generation or the recent emergence of natural gas as the leading source of fuel for power. I saw clients invest billions of dollars in pollution control equipment only to see the emission reduction goal posts moved beyond reach as regulators adopted progressively more stringent measures to address new national ambient air quality standards, lake breeze fumigation, long range transport, acid rain, regional haze, hazardous air pollutants, and greenhouse gas emissions.

When I started my  practice, virtually all of the Ohio base load units burned coal. And thousands of Ohio miners worked and their families prospered. Barges carried coal down the Ohio River or unit trains took coal to the Lake Erie plants.  I saw Little Egypt take big bites of coal and overburden in southeastern Ohio. I remember when an interstate (77) was closed to let the mammoth excavator proceed to the next seam of coal on the other side.

I have stood on the air pollution control deck of a massive Ohio River power plant that spans a highway. I have wiped the floor with white gloves of a coal fired plant on Lake Erie. I have worked with the dedicated professionals who took pride in maintaining those plants. So it saddens me to read that talented engineers are being laid off from engineering companies in Akron, and major utilities are selling megawatts on the Ohio River.  AEP and First Energy have announced plans to auction generating units.

Some of us remember that our success was measured in jobs retained while reaching a reasonable accommodation with the environment.  I hope my successors have that opportunity .

So with  sadness and regret – but also an appreciation that my career started in 1973, at the beginning of the burgeoning practice of environmental law, when "Coal Was King" and the Burger plant was alive and well – I hope you watch this short video of the demolition of the Burger coal-fired power plant to make way for a natural gas cracker.  Here is the demise of the Burger "tall stack." May Burger rest in peace.  

Rolling Thunder?

Posted on August 18, 2016 by Steve McKinney

Today, the U.S. EPA and Department of Justice announced that Harley Davidson has accepted defeat on defeat devices.   The icon of rebellion lost its black luster years ago when bankers, professors, and, of all things, lawyers, became the most noticeable owners and riders of their iron horses.   The Gucci sunglasses betrayed the weekend gangsters to mere citizens who at first trembled at the rumble of Harley motors. 

But now, the historic purveyor of the rawest available form of horsepower has agreed to stop selling popular “super tuners” for “Super Glides”, “Fat Boys”, “Road Kings”, “Electra Glides” and other iconic rides.   The engine tuner kits are guaranteed to raise the rumble another notch or two.   The problem?   Emissions.   What?!  Yes, emissions. 

Well, actually cheating about emissions.  EPA says Harley’s “super tuned” engine emissions are higher than the emissions certified for stock engines.   I’m shocked.  The aftermarket nature of these horsepower enhancers does not matter.   Harley is not supposed to help rabble rousing bikers exceed their emissions allowances, says EPA.

Wow.  Is blaming Harley for breaking the rules within the rules?  Has the last hope of rebellion been reduced from “rolling thunder” to a Vespa’s whine?  I would take my stack of Harley t-shirts out in the backyard tonight for a ceremonial bonfire, but Birmingham has banned open burning until November.

Taking Colin to the Limit One More Time

Posted on August 4, 2016 by Andrea Field

This post started as a piece about a recent Fifth Circuit decision:  Texas v. EPA. In that case, the state of Texas (and others) challenge EPA’s disapproval of Texas’s (and Oklahoma’s) plans for controlling regional haze and EPA’s decision to impose its own haze-control program instead.  To make my drafting process more entertaining (and the task of posting more challenging for our official poster, Colin Gipson-Tansil), I set a goal for myself:  to include within my post at least 25 valid links to others’ posts during the past year.  Fortunately for me, there is almost nothing in Texas v. EPA that doesn’t link to one or more recent posts. 

Jurisdiction and Venue.  Many of the past year’s posts point out problems caused by the failure of the Clean Water Act to state unambiguously which federal court has jurisdiction to hear a specific challenge to an EPA action under that statute. Stoll’s 9/2/2015 post, Glick’s 10/9/2015 post, Horder’s 11/3/2015 post, Perdue’s 2/5/2016 post, and Uram’s 4/5/2016 post.  Texas v. EPA demonstrates that choice-of-court problems also exist under the Clean Air Act’s judicial review provision, §307(b)(1).

Clean Air Act §307(b)(1) – said the Fifth Circuit – is a two-fold provision:  first, it confers jurisdiction on the courts of appeals, and then it delineates whether the appropriate venue for challenges will be the regional circuits (if the challenged action is locally or regionally applicable) or the D.C. Circuit (if the action is nationally applicable).  Believing EPA’s disapproval of its regional haze program to be locally or regionally applicable, Texas filed its challenge in the Fifth Circuit.  EPA moved to dismiss or transfer the case to the D.C. Circuit based on a separate, not-as-well-known prong of §307(b)(1), which directs that a petition for review of what seems like a non-national action may be filed only in the D.C. Circuit if the action is “based on a determination of nationwide scope or effect and if in taking such action [EPA] finds and publishes that such action is based on such a determination.”  After an exhaustive de novo evaluation of that portion of §307(b)(1), the Fifth Circuit determined that because the challenged EPA actions are locally or regionally applicable and because they are not based on any determinations that have nationwide scope or effect, the Fifth Circuit is the appropriate court to hear the case.

But wait.  There are other link-worthy aspects of Texas v. EPA, including the following.

Explanations of Decisions to Stay Challenged Actions.  During the past year, posts have discussed whether and how much a court needs to explain the basis on which it stays a challenged rule pending completion of litigation concerning that rule’s validity. Jaffe’s 2/10/2016 post, Gerrard’s 2/10/2016 post.  If it is a lengthy explanation you seek for when and why a court should stay an EPA action pending completion of litigation, the Fifth Circuit provides that in Texas v. EPA.

Deference.  Other recent posts have addressed when deference to an agency interpretation is – or is not – appropriate. Kovar (12/10/2015); Percival (1/27/2016); Field (2/11/2016); Haynes (2/19/2016); May (6/9/2016); Civins (7/5/2016); Jaffe (8/2/2016).  In Texas, the Fifth Circuit put clear limits on deference, holding that the level of deference owed to an agency’s conclusions is “substantially diminished when the subject matter in question lies beyond the agency’s expertise.”  Thus, while the Fifth Circuit was prepared to defer substantially to EPA’s views on environmental science, it declined to defer to EPA’s views on whether its actions would impair the reliability of the electricity grid.  Since “EPA has no expertise on grid reliability” (that is FERC’s domain), the “deference owed to EPA’s assertions about grid reliability [is] diminished and the agency must support its arguments more thoroughly than in those areas in which it has considerable expertise and knowledge.” 

That limitation on deference could have an impact on the most talked-about case by ACOEL members this past year:  West Virginia v. EPA, in which more than two dozen states and many other parties challenge EPA’s Clean Power Plan. Jaffe’s 9/10/2015 post, Gerrard’s 2/10/2016 postJaffe’s 10/23/2015 post, Jaffe’s 12/9/2015 post, Percival’s 12/16/2015 post, Stoll’s 12/21/2015 post, Perdue’s 2/5/2016 post, Jaffe’s 2/10/2016 post, Field’s 2/11/2016 postSession’s 2/17/2016 post, and Freeman’s 3/2/2016 post. The Fifth Circuit’s limit on deference is the basis of a recent Federal Rules of Appellate Procedure 28(j) letter sent to the D.C. Circuit by the petitioning states in West Virginia.   According to those states, the Fifth Circuit’s decision in Texas v. EPA supports, among other things, the petitioning states’ argument that EPA has failed to show that the Clean Power Plan will not detrimentally affect grid reliability. 

Perhaps the link in which I take the most pride, though, is this last link – to Seth Jaffe’s October 2, 2015 Brief Rant on Cost-Effectiveness Analysis.  In that post, Seth argues that if the purpose of a rule is to improve visibility, EPA should use a measurement of visibility – a deciview (dv) – to assess visibility improvement. Well, in Texas v. EPA, the Fifth Circuit seemed to be heading in the direction of agreeing that in considering the cost of a regional haze program, EPA should use the $/dv metric.  Alas, at the last minute, the court pulled back on a complete endorsement of the $/dv metric:  because the petitioners had a “strong likelihood of establishing other flaws” in EPA’s actions, the court said it did not need to decide whether  EPA “fell short of its obligation to consider the costs of its regulations” by failing to use $/dv metrics.  So, Seth may have to wait a while longer before seeing a court mandate for EPA’s use of $/dv metrics to evaluate visibility improvements.  I, however, achieved my goal of including a record number of links in this post.