A SEP in the Right Direction: The Path Toward Win-Win Scenarios

Posted on August 23, 2016 by Scott Fulton

One of the interesting questions that emerged in the strategic planning process for the Environmental Law Institute is whether ELI could offer more support in the development and/or administration of supplemental environmental projects, or “SEPs”. 

Having played a role in the birthing of the original SEP framework in the early 1990s while at EPA, and through my own experience as a practitioner, I am convinced that penalty mitigation through the performance of SEPs can come as close to a win-win as is possible in the enforcement context.  Rather than having penalties, payable as they are only to the U.S. Treasury, lose their site-specific identify and value, SEPs allow diversion of some of those resources to projects geared toward environmental or process improvements that not only achieve compliance, but also provide discrete and measurable environmental benefits. 

Development and implementation of a suitable SEP can at times be challenging.  For these reasons, companies sometimes opt in favor of paying a large penalty rather than a reduced penalty with a SEP.  Meanwhile, the government appears to be keener than ever about utilizing this tool.  EPA’s draft Environmental Justice Plan 2020 Action Agenda, for example, observes that “when these types of projects are feasible, they can play an important role in cases that raise environmental justice concerns. Thus, EPA is setting the goal of increasing the number of SEPs and mitigation projects affecting overburdened communities.” 

So here’s the thought.  Perhaps to lighten the SEP load for defendants and government alike, an entity like ELI could help in the conceptualization and, in appropriate cases, the administration of SEPs.  As it happens, ELI already has experience in this area.  For example, in the context of settlement negotiations between a state environmental regulatory agency and a defendant (I’ll not disclose identities here), ELI was brought in to help shape and then implement a SEP to develop a training module on the regulations at issue in the case.  Under the SEP, in addition to developing the training materials, ELI is to deliver at least two in-person classes to targeted audiences comprised of manufacturers and/or consumers, and to make these informational briefings more broadly available online (via, e.g., webinars, and audio-video recordings suitable for posting, including on the ELI website).

And this SEP is not a one-off.  As a research and education institute, a convener experienced in community outreach and engagement, and a non-partisan presence having affinities with both regulators and the business community, ELI is well-suited to work with companies and their representatives to craft and execute approvable SEPs.  These range from education of stakeholders about regulatory requirements and measures that go beyond compliance; to research, analysis, and publication of information on best practices for compliance and beyond; to monitoring and evaluating the success of on-the-ground SEPs undertaken by other organizations.  Also, it probably goes without saying, but because we’re a non-profit, we can and must do our work on a cost-basis.  In other words, we’re cheap. 

Just a thought to tuck away for the next time a SEP enters your or your client’s equation.

Turning the Lights Off on Environmental Justice?—Not this Administration

Posted on June 24, 2016 by Renee Cipriano

In the United States, Environmental Justice (EJ) began to take shape in the mid-1990s with the signing by President Clinton of Executive Order 12,898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.”  Over the years, the commitment to EJ has ebbed and flowed.  However, in 2011, EPA unveiled “EJ 2014,” the Obama Administration’s comprehensive plan for EJ.  The plan breathed new life into the EJ movement and focused on incorporating EJ concerns into EPA’s regulatory arenas.

EJ 2014 produced a number of very detailed implementation plans with targeted action.  For example, EPA developed its National Enforcement Initiatives for fiscal year 2011-2013 by targeting enforcement in communities considered “overburdened”.  In EPA’s permitting programs, the Agency sought to ensure that it provided EJ communities potentially impacted by the permitting decision a meaningful opportunity to participate.  Moreover, EPA asked permittees to provide “supported analysis” that no unacceptable, disproportionate impact to the community would result from the permitted activity. 

Sounds good, right?  Some would say “just ok.”  Although EPA could point to what it identified as successes of EJ 2014, criticisms of EPA’s commitment to the integration of EJ into programmatic decisions in a meaningful way remained.  EJ community activists and other interested non-governmental organizations still questioned EPA’s regulatory ability to demand that disproportionate impacts be addressed.  Could a permit be denied or conditioned solely because the regulated activity had a disproportionate impact on an overburdened community?  What is “an actionable, disproportionate impact” and what does “overburdened” mean?  Were EPA’s significant rulemakings truly addressing EJ concerns through clear mandates or restrictions?  And what about the countless complaints filed with the EPA Office of Civil Rights under Title VI of the Civil Rights Act?  A broken system, some say, claiming that over 95% of Title VI complaints are dismissed. 

Arguably, the Obama Administration has achieved the best successes in EJ to date.  Not only can EPA point to real impacts at the federal level, but there are also visible signs of EJ integration in state-administered environmental regulatory programs.  The Administration probably could have rested easily on its good work with EJ in the remaining months in office with very little push back.  Not this Administration, however, and not where environmental justice is concerned. 

Two very significant initiatives are underway right now with seemingly little consideration given to the end of the Obama Administration.  First, in January 2016, the United States Commission on Civil Rights (Commission) announced its intention to hold a briefing on EPA’s work under Title VI of the Civil Rights Act and Executive Order 12,898 with a focus on the civil rights implications of siting coal ash disposal facilities near minority and low-income communities.  With this announcement and briefing, the Commission has sought to further its 2016 statutory reporting project on EJ.  In particular, the Commission has identified its work to address and reduce the “backlog of Title VI complaints” handled by EPA’s Office of Civil Rights.  The Commission has also tasked its State Advisory Committees (SACs) to undertake a similar review.  The Commission’s activities with respect to EJ are clearly underway in earnest, as is the work of the SACs.

Second, in May 2016, EPA released the final draft of its EJ2020 Action Agenda.  According to the Agency, “EJ2020 is EPA’s EJ plan of action that will involve every EPA office and region.  EJ2020 consists of “eight priority areas and four significant national environmental justice challenges.”  The Action Agenda, currently open for public comment until July 7, 2016, builds on EJ 2014 and specifically includes addressing national challenges, including lead disparities, drinking water systems, air quality, and hazardous waste sites, as a way to measure success.   

In addition to EPA’s work on the national challenges, the Agency’s rulemaking and permitting efforts under EJ2020 should be of great interest to environmental regulatory practitioners.  EPA has released new guidance (June 2016) presenting its “analytical” approach for EJ review of significant rules.  Also, EPA plans to use permit terms and conditions to address EJ concerns and has folded into its agenda “next generation-esque” community-based monitoring approaches.

With no indication of slowing down, the Obama Administration is certainly looking to leave the lights on for environmental justice through the next administration.  The EJ2020 agenda and the results of work by the Commission may very well set a tone and approach that cannot easily be undone.  Yet significant challenges remain to incorporate EJ considerations in regulatory decision making.  Questions also exist: are the EJ policies truly advancing the interests of overburdened communities?  In May 2016, for example, the U.S. Court of Appeals for the Ninth Circuit upheld EPA’s broad discretion in settling Title VI actions, even after the Agency had excluded the overburdened community members from participating in the settlement negotiations.  Whether EPA can address this and other challenges remains to be seen.  For now, any commitment by this Administration to tackle EJ challenges is overshadowed by the presidential election and the uncertain future direction of EPA.   We can only wait and see if the lights will dim or burn brightly on this important initiative.

Perspectives of Twenty-four Pioneers on the Past and Future of Environmental Law

Posted on June 16, 2016 by Leslie Carothers

On Earth Day 2016, the Environmental Law Institute presented to the public a collection of 24 videotaped interviews conducted over the past five years to record the career experiences of many pioneers of environmental law.  The men and women profiled were active in the environmental movement in the sixties and early seventies.  They served as Democratic and Republican legislators, organizers and advocates for public interest organizations, administrators of national and state environmental agencies, academics producing new ideas and educating new lawyers, and legal counsel to business and government agencies contending with a host of new environmental laws.   ELI’s interviewers wanted to learn why these pioneers chose to enter the field of environmental law, what they see as its major successes and shortcomings, and how they view the health of environmental activism and public commitment today.

Among other things, the oral histories provide interesting insight into the roots of activism for early environmental lawyers and what different life experiences and motivations may influence today’s new environmental lawyers.  Practically every pioneer spoke of enjoyment of nature and the out of doors experienced through growing up on a farm or in rural areas or visiting campsites and parks on family vacations and scouting trips.  They witnessed both the beauty and the degradation of natural and scenic resources and were inspired to seek ways to protect them.  The other factor mentioned most often was the example and energy of other social movements in the sixties and seventies, first and foremost the civil rights struggle.  Personal experience and the climate of social activism combined to motivate many environmental pioneers to become leaders in the new environmental movement. 

Most of the pioneers express optimism that new generations of young women and men will take up activism and environmental law to attack today’s agenda of complex and serious problems.   But many worry that the communications technology building young people’s impressive expertise may also be keeping them glued to their screens and disconnected from the natural world.  Robert Stanton, former Director of the National Park Service and the first African American to hold the position, comments in his interview that we should not be unduly critical of young people who spend so much time inside.  He observes that when he was growing up, there were only a few black and white TV channels to compete with going outdoors!   Still, a lifelong activist like Gloria Steinem believes that excessive dependence on electronic connections can weaken the interpersonal qualities of empathy that depend on face-to-face communication and can dilute the emotional drivers for action in concert with others.  Activism means more than making a statement and pressing “send.”    The impact of technology is just one of many issues discussed in an engaging set of interviews available to all.  Visit ELI’s website at http://www.eli.org/celebrating-pioneers-in-environmental-law for a unique source of perspective on the evolution of environmental law and the prospects for further progress on pressing problems in today’s very different social and political setting.

ACOEL Delegation Visits Haiti

Posted on June 14, 2016 by James May

A delegation of ACOEL Fellows visited Haiti, May 30-June 2, to share ideas about ways to advance environmental law and justice with leading members of the bar, academia, civil society, and the business community.

This visit takes place at a transformative time for the environment in Haiti. Deforestation hovers at around 95% as people are forced to burn charcoal for fuel or income, rivers and streams are choked by trash and runoff, motor vehicles are largely unregulated, and the public health system is overwhelmed. And of course, Haiti still suffers from the introduction of cholera in October 2010, resulting in more than 9,000 deaths thus far.

The visit was at the invitation of host institution Universite de la Fondation Aristide (UNIFA)(http://unifa-edu.info/contenu/). The delegation -- Alexander Dunn, Lee DeHihns, Tracy Hester, Dennis Krumholz, Jeff Thaler, and Jimmy May – had a transformative experience. Professor Erin Daly (Vice President for Institutional Development) served as the local liaison, with ACOEL Fellow and Professor James R. May serving as coordinator on behalf of the College's Committee on International and Pro Bono Programs, which he co-chairs with Professor Robert Percival.

The delegation met with many of Haiti’s leading policymakers, thinkers and advocates, former President Jean Bertrand and Mme. Mildred Aristide, Me. Fabrice Fievre (Co-Dean of UNIFA Law School), Me. Mario Joseph (director of the nation’s leading human right law firm, Bureau des Avocats Internationaux, http://www.ijdh.org), Me. Jean Andre Victor (director of Haiti’s leading environmental rights firm, L'Association Haïtienne de Droit de l'Environnement), Me. Stanley Gaston, (President of the Port-au-Prince Bar Association), Me. Leslie Voltaire (Haitian architect and urban planner), and Me. Cedric Chauvet (a leading business-person). The delegation also enjoyed various cultural opportunities, including in Port Au Prince, Petionville, and Cite Soleil.

The delegation also visited SAKALA (a leading community center serving among Haiti’s poorest children, http://www.sakala-haiti.org), and the 'uncommon' artists’ community of Noailles, Haiti (http://www.uncommoncaribbean.com/2015/03/10/visiting-the-uncommon-artists-enclave-of-noailles-haiti/).

UNIFA is a leading private university in Haiti, and focuses on promoting dignity and social justice, including by advancing environmental sustainability. Earlier this year it hosted conferences dedicated to environmental human rights issues and their relationship to health, engineering, and law in Haiti (“Environmental Concerns: Today and Tomorrow”) (brochure available at: http://unifa-edu.info/contenu/wp-content/uploads/2016/05/programmation-semaine-scientifique-2016.pdf), as well as to the environmental and social consequences of mining in Haiti (https://www.facebook.com/Aristide-Foundation-for-Democracy-306681307454/?fref=nf)."

ACOEL looks forward to continuing conversations about ways to coordinate and collaborate going forward. 

Fresh Breeze or Last Sigh? Budha Ismail Jam et al v. International Finance Corporation, No 15-cv-00612 (JDB) (D.D.C.)

Posted on May 16, 2016 by Todd D. True

The Tata Mundra “Ultra-Mega” coal-fired power plant on the coast of India north of Mumbai is a behemoth by any measure.  Capable of producing over 4,000 megawatts of electricity from five huge boilers, it can consume over 12 million tons of coal per year and requires millions of gallons of seawater a day for its once-through cooling system.  Indeed, the plant is so large it requires its own coal port, its own water intake channel (nearly 150 meters wide) and its own outfall that discharges warm water equal to almost half the mean flow of the Potomac River.

For generations, the area where the plant is now located supported a system of small fishing villages where fishing families move from inland locations to the coast for several months each year following the monsoon to catch and dry fish which they sell to traders.  This income has supplemented income from agriculture and provided the villages and families with a subsistence living. 

The arrival of the Tata Mundra Plant changed all that:  construction disrupted access to fishing locations; dredging altered the natural systems and the fish disappeared as water salinity and temperature changed; fresh water supplies dwindled as the plant’s water use led to increased saltwater intrusions into groundwater; and a way of life that had sustained families and villages disappeared.

So what does this story of displacement and disruption half way around the world have to do with environmental law in the U.S.?  In today’s world, where it’s clearer day-by-day that everything is connected to everything else, the answer is “more than you might think.” 

The Tata Mundra Plant would not have been built without financing from the International Finance Corporation (IFC) based in Washington.  The IFC is an organization of member states and part of the World Bank Group.  To its credit, the IFC recognized the environmental risks of the project from the outset noting that it had the potential to have “significant adverse social and/or environmental impacts that are diverse, irreversible, or unprecedented.”  And, consistent with its lending policies, it put in place as part of its loan agreement social and environmental performance standards and requirements to mitigate these impacts. 

It all looked good on paper.  But then the plant was built and the IFC looked the other way.  We know this because individual villagers who depended on the resources the Tata Mundra Plant destroyed complained through a local fishing union and village government to the IFC’s ombudsman office.  That office issued a scathing report criticizing the IFC for its multiple failures to ensure implementation of the protective measures in its loan agreement.  The IFC shrugged; the ombudsman’s office has no enforcement powers.

Frustrated with their inability to achieve any meaningful accountability through the IFC, a handful of individual fishers and villagers, a local fishing union, and a village governmental entity filed a complaint against the IFC in the U.S. District Court for the District of Columbia, Budha Ismail Jam et al v. IFC, No 15-cv-00612 (JDB), in April of 2015.  The IFC moved to dismiss the complaint on sovereign immunity grounds.  The IFC is covered by the International Organizations Immunities Act (“IOIA”), which Congress passed in 1945, and is entitled to the “same immunity” in U.S. courts as foreign nations. While the immunity enjoyed by foreign nations has changed significantly since 1945, the IFC asserted that its had not -- and remained near-absolute.

The District Court concluded, in light of longstanding D.C. Circuit precedent dealing with immunity from wage garnishment proceedings for an employee of one of the IFC’s sister international organizations, the Inter-American Development Bank, that it was bound to dismiss the complaint against the IFC on sovereign immunity grounds.  Budha Ismail Jam et al v. IFC, No 15-cv-00612 (JDB), Memorandum Opinion (Mar. 24, 2016 D.D.C.).

This outcome raises serious questions about the accountability of international lending organizations like the IFC that finance potentially environmentally destructive project around the world while professing to follow the most stringent lending practices for protecting people and the environment.  If we are “all in this together,” a serious failure of accountability on the other side of the world is not something we can just shrug off as someone else’s problem.  We live in a global commons – industrial projects built anywhere can affect us all.  The most obvious example is the effects on the climate from the dramatic expansion of fossil fuel-based power generation around the world, much of it built with international financial support, often originating in the U.S.

Nor is the law of sovereign immunity as clear or unfavorable to the plaintiffs as the District Court’s decision suggests.  First, since 1945, sovereign immunity for foreign states has developed a well-recognized exception for commercial activities, activities that do not enjoy immunity.  IFC lending decisions – on which the IFC makes a profit – are nothing if not commercial activity.  Second, and maybe more significantly, sticking with an out-dated, circa-1945 version of sovereign immunity actually undermines the credibility of the IFC itself.  For the IFC to continue enjoying the financial support of its member states, its commitment to responsible lending must be real and reliable, not illusory.  If it continues to finance projects without real environmental accountability, its members may become inclined to withdraw their support because they will not want it lending to their neighbors: environmental harms don’t recognize geo-political boundaries and irresponsible financing for a polluting facility in one country may well harm another.

Because the facts of Budha Ismail Jam et al v. IFC are so stark, because accountability in international finance for major industrial projects is increasingly important both here and abroad in a world facing rapid climate change and its effects, and because the plaintiffs are appealing the District Court’s order of dismissal, this is a case worth watching.  It could be the first whisper of a new breeze in accountability for the environmental effects of international lending decisions -- or the last sigh from beneath a suffocating blanket of sovereign immunity.

Flint: Pb or not Pb, that is the Question

Posted on February 11, 2016 by Paul Seals

There is no safe blood lead level in children.

In following the inexplicable regulatory missteps in the Flint public water supply debacle, I could not help but think of the progress that has been made in removing lead from the environment and out of our children’s blood.  In spending my professional career addressing environmental issues and problems from a state, federal and private practice perspective, I often have wondered what difference does it make.   In the case of lead, we can actually measure our progress and success.

As a teenager, I filled my ‘54 Ford with regular leaded gasoline.   Lead was not only in gasoline, it was everywhere.  Recognizing the significant and often irreversible health effects of lead, regulatory programs were initiated at the federal, state, and local levels to “get the lead out.”  The implementation of these programs reduced or eliminated lead from gasoline, foods and food packaging, house paint, water pipes, plumbing fixtures, and solder used in plumbing and drink cans.  

Did these programs work?  In 1978, approximately 13.5 million children aged 1-5 had blood lead levels (BLLs) greater than or equal to 10 micrograms per deciliter (ug/dL) of blood, which was until recently the level of concern recommended by the Centers for Disease Control (CDC).   The recommended level is now 5 ug/dL.  Also, back in the 70s, the average BLL was approximately 15 ug/dL.  Black children and children living in low-income families were at greater risk.     

We have come a long way from the 70s.  The average BLL in children dropped to 1.4 ug/dL by 2008.  Below is a table graphically demonstrating this dramatic decrease in BLLs.  The table is based on data from National Health and Nutrition Examination Survey, United States, 1971 – 2008, taken from a CDC report, Lead in Drinking Water and Human Blood Lead Levels in the United States, August 10, 2012.

As we beat ourselves up over the mistakes in Flint, we should take a moment to reflect on and be re-energized by the demonstrable success of these regulatory programs.   What we have done has made a difference!  Flint reminds us that more must still be done.

 

Timeline of lead poisoning prevention policies and blood lead levels in children aged 1–5 years, by year — National Health and Nutrition Examination Survey, United States, 1971–2008

"We All Let the Citizens of Flint Down"

Posted on February 4, 2016 by Alexandra Dapolito Dunn

With busloads of concerned citizens from Flint and nearby cities gathered around the Rayburn House Office Building on February 3, environmental regulators and science experts appeared before the U.S. House Committee on Oversight and Government Reform (Committee) to give testimony regarding lead contamination in Flint, Michigan’s public drinking water.  As detailed in this recent NPR podcast, well worth the 40 minute listen, between 6,000 and 12,000 children are estimated to have elevated blood lead levels following the City’s drinking water source change from Detroit water to water from the Flint River in 2014. 

How could a crisis like this have happened? While at first water policy groups were quick to highlight the nation’s aging water infrastructure and investment gap – EPA’s most recent estimate is that $384 billion is needed to assure safe drinking water from 2013 to 2030 – and certainly lead pipes to homes in older communities is a costly replacement problem – at the root of Flint was classic government dysfunction combined with assessments of safety that make sense to regulators but perhaps not to everyday people. At the hearing Joel Beauvais, acting Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Water faced questions from Committee members about the Agency’s delayed response to the situation, while the Michigan Department of Environmental Quality’s acting Director Keith Creagh was to explain why state officials did not act to address contamination immediately. Both officials attributed the crisis to breakdown in communication between the agencies that inhibited officials’ swift action. What happened in Flint “was avoidable and should have never happened,” according to Beauvais; while Creagh’s testimony stated that “[w]e all share responsibility in the Flint water crisis, whether it’s the city, the state, or the federal government… We all let the citizens of Flint down.”

The hearing ultimately took on a forward look, noting a reaffirmed commitment to protecting public health. “We do have clear standards. We do have clear accountability, so we have a clear path forward, said Creagh. “We are working in conjunction with the city, the state and federal government to ensure it doesn’t happen again.”  Beauvais noted “it is imperative that Michigan, other states, EPA and drinking water system owners and operators nationwide work together and take steps to ensure that this never happens again.”

EPA and Michigan state and local officials are now in non-stop mode to ensure that prompt, concerted efforts are taken to address public health hazards. Members of Congress are introducing bills to fund Flint’s systems and to aid the affected citizens.  Even philanthropic groups are stepping in.  EPA’s Inspector General is doing a deep dive into the Agency’s response, Michigan Governor Snyder is seeking answers, and even the Federal Bureau of Investigation is looking into criminal aspects of the matter. Flint’s drinking water will get better – and yet the affected population may never fully recover from their excessive lead exposures.  

The #FlintWaterCrisis is a sober reminder of the need to keep the nexus between environmental quality regulation and public health protection very tight.  As professionals in the environmental field, we cannot fear having frank conversations in the open about risks – and the importance of taking precautionary steps – when human health is at issue.  

Pioneering Environmental Law: Remembering David Sive (1922-2014)

Posted on May 2, 2014 by Nicholas Robinson

Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments.  He fashioned legal arguments and remedies where others saw none.  His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.

David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains.  He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England.  He had a mature concept of the ethics of nature long before he began to practice environmental law.

His early cases were defensive.  He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River.  Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law.  The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act.  The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced.  When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).

When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled.  This was no “NIMBY” response.  Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting.  This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century.  The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army.  The Army’s West Point Military Academy overlooks the River and Storm King.  

David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard.  David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida.  He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him. 

David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970).  Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge.  Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants.  He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires.  David Sive saved the beaches, parks and marinas of the Hudson shore.

Public interest litigation to safeguard the environment was born in these cases.  Public outrage about pollution and degradation of nature was widespread.  In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia.  David Sive was prominent among participants.  His essential argument was that “environmental law” needed to exist. 

On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ).  The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY).  This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee.  That year launched the “golden age” of NEPA litigation.  Courts everywhere began to hear citizen suits to protect the environment.

David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression.  In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law.  From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes. 

David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice.  He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts.  To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI).  With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school.  He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.

This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report.  The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed.  New legal theories and remedial initiatives will be needed that do not exist today.  The wisdom of ecologist Aldo Leopold can inform the next generation.  Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India.  The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.

Jurisprudential Fracture Chiropracture: Pennsylvania Justices Make a Salutary Adjustment of Erroneous Precedent

Posted on January 28, 2014 by Deborah Goldberg

On December 19, 2013, in Robinson Township v. Pennsylvania, a three-justice plurality of the Pennsylvania Supreme Court revived the previously moribund Environmental Rights Amendment of the Pennsylvania Constitution, which provides: 

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.  Pennsylvania’s public natural resources are the common property of all the people, including generations to come.  As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Pa. Const. art. 1, § 27.  According to the plurality, lower courts interpreting the provision had been disregarding the constitutional text in favor of a judge-made rule under which the Environmental Rights Amendment offered protection only through implementing legislation.  The plurality noted that when “prior decisional law has obscured the manifest intent of a constitutional provision . . . [,] adjustment of precedent is . . . salutary.”  Slip op. at 64.

The realigned jurisprudence, under the plurality’s interpretation, now recognizes a directly enforceable right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment, which limits state power; common ownership of public natural resources, meaning all resources that “implicate the public interest” (air, water, wild flora and fauna) but are outside the scope of purely private property; and a trustee relationship, under which both state and local government must manage those resources for the benefit of “all the people,” including future generations.  The trust provision may be enforced by “citizen beneficiaries. . . in accordance with established principles of judicial review,” id. at 85, as well as by municipalities on behalf of their citizens. 

Relying exclusively on the trust provision, the plurality ruled that provisions of a state law that purported to preempt local environmental regulation of oil and gas operations and that required localities to authorize drilling in all zoning districts violated the Environmental Rights Amendment.  A concurring opinion by one justice, based on substantive due process, resulted in a 4-2 decision invalidating those provisions.  The decision thus transforms a state ceiling on environmental regulation of the oil and gas industry into a floor.  

In more than 70 pages addressed to the Equal Rights Amendment, the plurality dropped tantalizing hints about the further potential reach of its analysis.  The opinion suggests that government actions imposing “much heavier environmental and habitability burdens” on some properties and communities than on others—i.e., causing environmental injustice—violates the trustee’s obligation to manage the trust corpus for the benefit of “all the people.”  Under the plurality’s interpretation, moreover, respect for the rights of future generations requires that the state’s power to promote prosperity “be exercised in a manner that promotes sustainable property use and economic development.”  Id. at 79.  Whether Pennsylvania’s judiciary is ready for the new jurisprudence of environmental rights contemplated by the plurality remains to be seen.  A motion for reconsideration is pending before the Supreme Court.

A Longer View of “Standing”?

Posted on July 26, 2013 by Nicholas Robinson

Environmental adjudication today is global. Fifty nations have established more than four hundred specialized environmental courts and tribunals, supplementing their courts of general jurisdiction. A new body of ecological jurisprudence, ripe for comparative law analysis, has emerged.

This world-wide phenomenon should not be surprising.  As the environment degrades (see UNEP GEO5), disputes arise and courts are engaged. Most nations have adequate environmental statutes, but problems fester with weak or corrupt enforcement. Courts put the teeth back into these laws.  Throughout South Asia, courts establish judicial commissions to oversee remediation of refuse dumps or abatement of acute pollution.  In China, a court in Quingzhen enforced a state-owned chemical enterprise from polluting drinking water and mandated remediation.  In Brazil, a rule-of-decision (in dubio pro natura) guides judges to protect nature when the merits are balanced or in doubt.   In the Philippines, the Supreme Court established a new, extraordinary, Writ of Kalikasan (nature). This precedent shifts the burden of proof to the party alleged to have and violated environmental law; the respondent must prove it has not harmed the environment and has complied with all laws.

Judicial decisions also enforce constitutional guarantees of environmental rights.  Of the 196 member states in the United Nations, 147 currently recognize a right to the environment comparable to human rights. Procedural access to justice was enshrined as Principle 10 in the 1992 United Nations Rio Declaration on Environmental and Development and has become a treaty of obligation across Europe (Aarhus Convention, 2161 UNTS 447).

In the United States, federal courts have shaped administrative law for two decades through environmental cases.  The United States inspired Principle 10 initially through the Administrative Procedure Act § 10 and the National Environmental Policy Act litigation, confirmed by the citizen suit provisions in federal statutes.  It is ironic that as most nations liberalize standing in environmental matters, the U.S. Supreme Court’s rulings are gradually restricting such access.  Although many state courts continue to liberalize standing, U.S. federal courts are out of step with trends worldwide.

Courts are crucial to realizing the objectives of environmental laws.  The Environmental and Law Court of New South Wales (Australia) boasts three decades of innovative environmental adjudication.  From the oldest of such courts, in New Zealand (1950’s), to the most recently formed court in Kenya (2010), courts provide prompt effective decisions.  Not all nations are responsive to environmental claims.  Courts in most Arab states have so far resisted reforms to provide access to justice, as has Russia. 

Environmental disruption is a gathering storm across the earth.  Courts, embedded in society, ignore environmental claims at the risk of proving Lord Denning’s maxim, “the delay of justice is a denial of justice.”  Early judicial action has a new gloss and remedies escalating ecological harm.  Delay aggravates the harm, rendering later remedies more costly and difficult.

In the majority of nations, the courts increasingly understand this reality. Will the U.S. Supreme Court join the laggard nations, and retard access to environmental justice?

New EPA Case Studies on Environmental Justice and Permitting

Posted on June 4, 2013 by Elliott Laws

With the 20th anniversary of Executive Order 12898 soon approaching, EPA has been planning on extensively incorporating “environmental justice” into its permitting processes.  This executive order required all federal agencies to address disproportionately adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations in the U.S.

To that end, nearly two years ago, EPA issued “Plan EJ 2014” as a roadmap – not as a rule – to implement the executive order throughout the agency.  Specifically, Plan EJ 2014 formally introduced EPA’s priorities of promoting increased public participation in the permitting process and considering more stringent permit conditions.  In February of this year, EPA selected two case studies that highlight the agency’s approach to achieving these permitting priorities.

The first case study involved a recent Prevention of Significant Deterioration (PSD) permit for the Pioneer Valley Energy Center, a power plant expected to generate up to 431 MW in Westfield, Massachusetts.  From the developers’ filing of the permit application in November 2008 through EPA’s issuing of the final permit in April 2012, Region 1 incorporated what it has described as environmental justice into this permitting process by providing enhanced public engagement opportunities and including more stringent conditions in the permit.  These stricter conditions were aimed at limiting the applicant’s ability to burn ultra-low sulfur diesel for testing of its emergency generator when air quality would already be diminished.

The second case study involved a National Pollutant Discharge Elimination System (NPDES) general permit for oil and gas exploration in Cook Inlet, Alaska.  Even as this permit has evolved over time, now with federal and state authority split, the subject conditions have been based on environmental justice considerations dating back to 2006-2007.  In the permit’s 2007 iteration, Region 10 incorporated environmental justice into this permitting process by collecting and considering tribal traditional knowledge about the effects of development and by imposing more restrictive permit conditions.  These conditions imposed new monitoring requirements, extended the area where discharges were prohibited for all sources from 1,000 to 4,000 meters from sensitive coastal areas, and explicitly did not authorize several types of drilling discharges for new sources.
 
There are two striking facets of these case studies.  First, even as EPA found no disproportionate adverse effect on minority populations, low-income populations, or tribal populations, EPA still included somewhat more restrictive permit conditions based upon environmental justice considerations.  Second, the imposed conditions do not appear to be particularly onerous – perhaps explaining why the permittees did not challenge the additional restrictions.  Opinions vary as to the impact of these “EJ conditions” on the permitting process, as EPA likely  could have imposed these restrictions under existing statutes and regulations without any reference to environmental justice. 

Nevertheless, EPA seems to be testing the limits of its authority and telegraphing its intent to continue these efforts.  Consequently, practitioners and permit applicants should be wary of EPA seeking to impose potentially unnecessary conditions based upon environmental justice.

Enforcement of Environmental Laws in the US on the Rise

Posted on November 1, 2011 by Jarred Taylor

In the US, criminal prosecution of environmental violations is on the rise.  Environmental enforcement remains one of the few areas in which government resources continue to grow.  USEPA’s criminal enforcement program has more than 350 specially trained investigators, chemists, engineers, technicians, lawyers, and support staff.  USEPA opened 346 new environmental crime cases in 2010, the second highest number of new cases since 2005.

In 2010, at just the US federal level, criminal charges were brought against 289 defendants, a 45% increase over 2009 and the highest number since 2005.  251 of the 289 cases (87%) included charges against at least one individual defendant, as opposed to a business or corporation.  Of the cases completed during 2010, 88% resulted in either a guilty plea or conviction at trial.  Defendants convicted of environmental crimes in 2010 were assessed a total of $41 million in fines and restitution and were ordered to pay $18 million for environmental projects, an 80% increase over the previous year.

Since 1990, when 75% of all environmental criminal charges were brought against companies, the focus has changed dramatically, with nearly 75% of such charges now being brought against individuals.  Multiple violations can be stacked (aggregated) for purposes of sentencing, meaning that even misdemeanor violations may result in jail terms of over one year.  In 2010, individual criminal defendants were sentenced to a total of 72 years of jail time.

These statistics, the resources being devoted to criminal enforcement, and the often low burden of proof needed to obtain a conviction, demonstrate that the prosecution of environmental criminal liabilities will only increase in future years in the US. 

Birds, Butterflies, and the Doctrine of Standing

Posted on June 22, 2011 by Susan Cooke

A recent Seventh Circuit decision authored by Judge Richard Posner provides a useful review of the doctrine of standing in the context of an alleged environmental injury. In American Bottom Conservancy v. U.S. Army Corps of Engineers (No. 09-cv-603-GPM) issued on June 14, the Seventh Circuit concluded that the plaintiff conservation organization had standing to appeal the U.S. Army Corps of Engineers’ issuance of a Section 404 permit. Members of the Conservancy had offered sufficient evidence to support their allegation that destruction of the wetlands near a state park would diminish the wildlife population (including birds and butterflies) visible to them, and thus their enjoyment of the wildlife.


The Army Corps permit authorized Waste Management of Illinois, Inc. (WMI) to remove soil from wetlands which it owned near the park and to use that soil as cover for its neighboring landfill. Once it completed the excavation of those wetlands and adjacent acreage, WMI intended to convert the area into a new landfill. WMI agreed to configure compensating wetlands of even greater size in the immediate vicinity and next to the state park.


After casting a critical eye at several grounds articulated in the past to support the doctrine of standing, Judge Posner identified the “solidest grounds” as being “practical” ones. Those included “preventing the federal courts from being overwhelmed by cases” and ensuring that “the legal remedies of primary victims of wrongful conduct will not be usurped by persons trivially or not at all harmed by the wrong complained of.”

Based on his finding that the wetlands to be destroyed were close enough to the park to impact birds and butterflies that could fly into or over the park or be seen from it, Judge Posner concluded that there was sufficient proximity to demonstrate the probability of harm to the park’s wildlife. He then rejected the district court’s conclusion that members of the conservation organization must show that they would no longer visit the state park. Instead, he declared that it was only necessary to show that their “pleasure is diminished”.

Judge Posner also disagreed with the district court’s finding that the injury was “merely speculative” because about 30% of the wetlands would be preserved and compensating wetlands of twice the size would be built. Judge Posner found it more significant that more than two-thirds of the existing wetlands would be eliminated, that the compensating wetlands would not be built until after all soil removal had occurred, and that the time for the new wetlands to reach maturity would exceed the short lifespan of at least some species (such as the six week lifespan of a butterfly), Judge Posner found the probability of injury, even if small, to be real.

In sum, Judge Posner concluded that the plaintiff had met its burden of alleging a probable harm to its members (the “injury in fact” which consisted of being deprived of the pleasure of watching wildlife) and of seeking relief that would address such injury (retraction of the Army Corps permit). He noted that for standing purposes plaintiff need not show the magnitude of the injury, as distinct from its directness. Consequently, the Seventh Circuit reinstated the Conservancy’s lawsuit. The Seventh Circuit also denied WMI’s request that the district court’s dismissal be upheld on the merits because WMI had not filed a cross appeal seeking to dismiss the case with prejudice.

Judge Posner’s analysis of the case law and commentary on the standing issue reveals his concern about conflating the “zone of interests” for standing and the merits of a case. As he noted in Harzewski v. Guidant Corp., 489 F.3d 799 (7th Cir. 2007), involving an ERISA class action, interpreting standing requirements too broadly would merge the standard of proof for standing with the standard of proof on the merits. His latest effort to address the issue should provide helpful guidance in an area where the prerequisites for establishing standing have been a matter of serious debate.

 

Supreme Court Hears Oral Argument In American Electric Power Case

Posted on April 21, 2011 by Theodore Garrett

On Tuesday, April 19, 2011, the Supreme Court heard oral argument in American Electric Power v. Connecticut, a case where the Second Circuit held that States and private plaintiffs may maintain actions under federal common law alleging that five electric utilities have caused or contributed to global warming, and may seek injunctive relief capping defendants’ carbon-dioxide emissions at judicially determined levels. The questions before the court are: 1) whether States and private parties have standing to seek judicially fashioned emissions caps on the five utilities, 2) whether a cause of action to cap carbon-dioxide emissions can be implied under federal common law when the Clean Air Act speaks directly to the same subject matter, and 3) whether claims seeking to cap defendants’ carbon-dioxide emissions at “reasonable” levels based on a court’s weighing of the potential risks of climate change against the socioeconomic utility of defendants’ conduct, would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, 217 (1962).

The transcript of Tuesday’s argument is available online here.

Although one must be cautious about predicting results based on questions raised during oral argument, it is difficult to review the transcript of argument without concluding that the justices were very skeptical about a federal common law action to address climate change.

Several of the Justices questioned whether the relief sought by plaintiffs was properly the role of EPA rather than the courts. Justice Ginsberg observed that “Congress set up the EPA to promulgate standards for emissions, and now what -- the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.” (Tr. 37)

Justice Roberts expressed a similar concern, namely that with global warming “there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming, and I think that's a pretty big burden to post -- to impose on a district court judge.” (Tr. 40-41) Justice Alito similarly was concerned with how a district judge would deal with the tradeoffs involved in providing relief. (Tr. 59).

Justice Kagan agreed, saying that plaintiff’s complaint “sounds like the paradigmatic thing that administrative agencies do rather than courts.” (Tr. 41-42) Justice Kagan further wondered whether plaintiff’s theory would mean that they “have a Federal common law cause of action against anybody in the world,” (Tr. 51) This prompted Justice Scalia to ask whether one could aggregate “all the cows in the country” and bring a climate change suit against all farmers, or all homes that emit carbon dioxide in their heating systems. (Tr. 52-53). Justice Breyer wondered what would happen if a district judge thought that a $20 per ton tax on carbon was the best way to deal with the problem. (Tr. 61). This prompted Justice Scalia to ask what standard would prevail if a district judge set an emission limit and EPA subsequently set a different standard. (Tr. 65). He added that this is a “displacement of the normal process of administrative law.” (Tr. 66)

Just What We Need: More Community Engagement in Superfund Sites

Posted on May 26, 2010 by Seth Jaffe

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

 

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.

 

In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

On Financial Markets and Environmental Regulation

Posted on January 14, 2009 by Kevin Finto

I save the instructions for an item so I can try to figure out what is wrong when it breaks. Given the state of our financial markets, I went looking for the instructions. I couldn’t find a copy of Adam Smith’s nine hundred page, two volume set The Wealth of Nations, first published in 1776. I did; however, find the next best thing: P.J. O’Rourke’s On the Wealth of Nations, (Atlantic Monthly Press 2007), a concise 250 page explanation that is both informative and entertaining. In reading through O’Rourke’s summary, I noted that Smiths three principles that determine market behavior (i.e, pursuit of self interest, division of labor and freedom of trade) explain a lot about why the markets currently are frozen up. We have had perhaps too much of all three, and too much of a good thing rarely turns out well.  Being an environmental lawyer, it also struck me that unintended consequences of current environmental regulations might be at least in part responsible for our current financial situation.  Finally, given the change in administrations, it occurred to me that the interplay between the market economy and environmental regulation and policy will continue, so we need to be smart about it.  

 

Adam Smith identified three critical aspects of proper market function that have been called his “invisible hand.” The first is that people act in their own self interest. This is the basic motivation for capital investment, risk taking and human labor. The second is that we get more productivity and higher quality of life if there is a division of labor such that the people who are good at things do them and those that are not pay the people who are good to do them for them. Third, and the one most important to our discussion, is that the less regulation on trade among the people doing these specialized tasks, the better. Smith was, of course, most concerned about tariffs and their effect on international trade, but certainly any regulation imposes some friction on the markets.

This brings us to the question of how environmental regulation may have caused, at least in part, the current financial crisis. To make this point it is helpful to think of financial markets, which we want to be “fluid,” like a system of tanks and pipes in a waterworks.  Water is analogous to money in this example.  Adam Smith’s first principle, self interest, is a motivating force, like a pump in our system. The second principle, division of labor, is a set of pipes which are sized according to the amount of economic activity they carry (Wal-Mart is a bigger diameter pipe than say your local shoe repair shop). Regulations are analogous to valves that restrict flow in the system. 

 

Both water in a pipe and money in our financial markets follow the path of least resistance. Putting aside questions about excessive self interest (read greed) and excessive division of labor (read opaqueness or lack of accountability) which may have contributed to the financial meltdown, regulations played a role as well.   Just as valves can direct the flow of water in a system, regulations direct the flow of money in our economy. Traditional, capital intensive, economic multiplying investment opportunities, say in energy infrastructure or manufacturing facilities, have faced stringent regulation which imposed significant resistance to that investment opportunity -- small pipes with lots of valves. On the other hand, many financial investment vehicles offered little or no resistance; they were big pipes with no valves. Guess where the money flowed? 

 

            So what implications does this have for future environmental policy or regulation. With a change in parties in the adminstration, the old debate between those favoring market based regulation and those favoring command and control is rekindled. As the new administration considers economic stimulus packages and regulations on environmental impacts, it will be well served to understand that it is not only the absolute amount of regulation, but also the relative amount of regulation, on economic options can have a significant impact on the markets as well as unintended consequences. Moreover, while terms like “free market” and “markets forces” may be derogatory in some circles, the reality is that market-based environmental programs have worked so well. No one can seriously debate the success of the acid rain program far more productive than command and control regulations would have been in that situation.  The reason is that market-based programs rely on the same human nature that Adam Smith recognized in his first principle and that gets our entrepreneurial and creative juices flowing.  That is what is needed to solve economic and environmental problems.  Ignoring market concepts in environmental regulation only leads to unintended consequences, conflict and gridlock, which the markets and we can no longer afford.