ACOEL’s Alex Dunn to Serve as Regional Administrator for EPA Region 1

Posted on December 13, 2017 by Andrea Field

Last month, EPA Administrator Scott Pruitt announced the well-deserved appointment of the ACOEL’s own Alexandra Dapolito Dunn as Regional Administrator for EPA Region 1.  The press release accompanying the announcement described Alex’s exceptional qualifications and extensive environmental experience.  It also included endorsements and accolades for Alex from a remarkably diverse group of people, including senior regulators in the Region 1 states, representatives from environmental advocacy groups, and academics.

Those of us in the College both congratulate Alex and thank her for helping to raise the profile of the American College of Environmental Lawyers by somehow ensuring (we don’t know how and we don’t care) that Administrator Pruitt’s press release included numerous references to the College.  The announcement not only noted Alex’s membership in the ACOEL (and her recent election to the College’s Board of Regents), but also it included the endorsement of Alex by John Cruden and noted John’s current position as ACOEL president.

So, best of luck, Alex, and thanks for your efforts to help us achieve John Cruden’s goal of spreading the word on the ACOEL!  

The Truth about Sue and Settle that Scott Pruitt Ignores

Posted on December 4, 2017 by Jonathan Z. Cannon

Seth Jaffe’s post about EPA Administrator Scott Pruitt’s sue and settle directive is right on. As he notes, the Administrator punts on the question at the core of his holy war against sue and settle: that is, what is the evidence that sue and settle has been abused in the way he presumes?  In particular, was sue and settle systematically used during the Obama administration as a vehicle of collusion between environmental groups and sympathetic agency officials, catering to the greens through rulemaking in secret? That was the characterization advanced by the Chamber of Commerce and other pro-business and anti-regulatory groups that made sue and settle a battle cry in their war against Obama’s environmental policies. Without citing any evidence, Pruitt has proceeded as if that characterization is correct.

A careful, fact-based, analytically disciplined examination of the practice of sue and settle during the Obama administration shows that this characterization is not correct.  That examination appeared in a law review note by a former law student of mine, Ben Tyson, who went on to clerk for Chief Justice Roberts on the Supreme Court.  I recommend that anyone who is interested in this issue -- and who delights in careful research and analysis – read the entire article. But here’s a brief summary for those who don’t have the time.

Tyson’s analysis is based on eighty-eight sue and settle cases arising under the Clean Air Act, Clean Water Act, and the Endangered species act during the Obama administration.  This data set includes twenty-eight cases that were missed by the Chamber of Commerce in its 2013 report, Sue and Settle: Regulating Behind Closed Doors.  In his analysis Tyson is careful to distinguish between decision-forcing consent decrees, which simply require the agency to do what it is statutorily required to do and do not have a potentially adverse effect on public participation in rulemaking, and substantive consent degrees, in which the agency agrees to propose a particular regulatory change, with dismissal of the litigation dependent upon adoption of that change after public notice and comment. Of the total eighty-eight sue and settle suits, seventy-nine were brought by environmental groups.  But all but four of these suits by environmentalists sought decision-forcing consent decrees, not substantive outcomes. And in three of those four cases, there was at least one industry intervenor that had a right to be heard on the proposed decree.  Tyson concludes: “Sue-and-settle, when used by environmental group plaintiffs, is not principally about secret, backdoor rulemaking.” Instead, overwhelmingly, environmental groups used litigation to enforce existing statutory requirements. 

Ironically, although industry brought far fewer sue and settle suits overall (only nine compared to the environmental groups’ 79), five of those suits resulted in consent decrees with substantive terms. And there was no environmental intervenor in any of those cases to contest entry of the consent decree. Based on the data, industry used sue and settle to achieve substantive outcomes more often than environmental groups. And the total number of substantive sue and settle suits by industry and environmental groups was relatively small (9, or 10% of the 88 cases). Improving public participation is always worth attention, but one wonders what all the fuss was about.

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

Posted on November 27, 2017 by Seth Jaffe

EPA Administrator Scott Pruitt earlier this month issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support.  These include:  (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.

So far, so good.  However, at a certain point, the Administrator seems to have gone off the rails.  First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.”  Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?

What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.”  Instead, the Directive merely states that:

"It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups."

The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”

The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson.  I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water.  Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.

EPA Tries Again to Keep Toxic Pollution Information from Communities

Posted on November 21, 2017 by Peter Lehner

Your Thanksgiving turkey, like most meat in America, was probably produced at an industrial animal facility in rural America. These facilities hold thousands or tens of thousands of animals in a confined space and can produce as much waste as a mid-sized city. They are prodigious factories that generate dangerous air and water pollution, yet unlike other factories, they’ve been given a free pass from reporting their toxic emissions.

Community and environmental groups have been pushing the Environmental Protection Agency to address pollution from animal feedlots for decades, and recent court decisions seemed to indicate that the veil of secrecy surrounding these operations might finally be tugged back. However, instead of following the court’s latest ruling to ensure that industrial animal factories report toxic emissions, the EPA is proposing a sweeping exemption that would shield thousands of livestock facilities from reporting. 

This move represents the third attempt by the EPA to block these reporting requirements. Under President George W. Bush, the EPA suspended them in 2005, claiming the issue was being studied, then pushed through an illegal exemption in 2008, which was rejected in court.  And now, Scott Pruitt’s EPA is making a fresh attempt to make the exemption even broader. It’s a move that favors industry over the health of affected communities. The EPA itself has rejected this exemption, a proposal favored by industry, three times before.

While polluters are benefiting from the EPA’s dereliction of duty, people who live near these facilities continue to suffer. “During the summer we can’t keep our doors or windows open because of the stench,” writes Iowa farmer Rosemary Partridge, who lives near 30,000 hogs concentrated in factories near her farm. Partridge has worked with Earthjustice since 2015 to fight for more oversight of industrial animal agriculture. “Sometimes it gets so bad [my husband and I] get headaches and feel nauseous.”

Toxic gases from animal waste, which is often stored in open pits and sprayed over fields, include substances like hydrogen sulfide and ammonia that can cause nausea, headaches and chronic lung disease. Children in nearby schools have a heightened risk of asthma. Dairy farm workers have fallen into manure pits and drowned after being overcome by toxic fumes.

Feedlots tend to be clustered in low-income communities, and in some parts of the country, especially the Southeast, in communities of color. Earthjustice and others brought a civil rights complaint in 2014, which EPA found to have merit, over the concentration of hog farms in North Carolina.

A recent stinging report from the EPA’s independent Office of the Inspector General recommended that the EPA stop shielding polluters. Yet the agency still took a third, wild swing at stopping pollution reporting requirements for industrial animal agriculture. It’s time for the EPA to put down the bat and take the field for healthy communities.

Paper or Cyber? Protecting Confidential Information

Posted on November 9, 2017 by Ronald R. Janke

Equifax, Yahoo, South Korea – reports of the theft of computer-based information by known, suspected or unknown hackers have become commonplace.  A recent report of the hacking into a Securities and Exchange Commission database containing confidential information is of special interest to environmental lawyers, because it poses the question of how can regulated entities electronically submit confidential information to government agencies and be confident that such information will not be stolen through a breach of cyber security. Environmental lawyers are almost universally ill-equipped to answer that question. Even with the help of cyber security experts, the growing number of reported hacks of corporate and government networks provides little comfort for submitting confidential data electronically.

Currently, the best practice may be to submit any confidential information in hard copy.  In my experience, agencies protect such information by techniques such as storing documents with confidential information in separate, locked files, using a log to record when a document is removed and returned and who has taken it.  While a document with confidential information may be stolen from a file or erroneously filed with publicly-available documents, someone has to be physically present to obtain that document.  In contrast, documents stored electronically can be subjected to a cyber-attack by anyone located anywhere in the world.

Agencies may require or prefer to receive all information electronically.  Applicants for permits and other approvals may have little choice in such circumstances, but they can initiate a conversation with the agency employee responsible for receiving any confidential information.  Expressions of concern over cyber security may instill some sense of personal responsibility in the recipient for protecting the confidentiality of sensitive information by limiting how it is accessed and used.  While agency rules may apply equally to all confidential information, the duty to protect confidential information is more personal when it is in a document located in a file drawer maintained in one’s office than when information is stored electronically on a computer database, perhaps with thousands of other documents.   In the latter case, cyber security becomes ultimately the duty of information technology specialists who design and maintain the agency’s computer networks.

TIME FOR ACOEL TO STAND UP FOR ENVIRONMENTAL LAW

Posted on November 6, 2017 by Stephen L. Kass

On this 10th anniversary of the founding of ACOEL, it is appropriate to devote some thought to what we have achieved in furthering ACOEL’s goals of “maintaining and improving the ethical practice of environmental law; the administration of justice; and the development of environmental law at both the state and federal level.” My focus here is on the most significant threat in our history to our third goal (development of environmental law) and, as a consequence, our second goal (administration of justice).

For the first time since the enactment of the National Environmental Policy Act (NEPA) in 1970, our federal government is led by officials (the President, the EPA Administrator, the Secretaries of Energy and Interior, the Attorney General and White House staff)  openly committed to eviscerating or repealing  large portions of the federal laws on which environmental protection in our country is premised.  While there have been times when new administrations,  EPA Administrators or Cabinet Secretaries have sought to reverse policies or programs under individual statutes, our nation has not previously experienced a wholesale attack on the entire range of protections promised by NEPA, the Clean Air Act, the Clean Water Act, the Superfund Law, the Toxic Substances Control Act, the Oil Pollution Act, the Endangered Species Act, the Coastal Zone Management Act and a myriad of less well-known laws and regulations that have helped the U.S. confront our own environmental challenges while leading the world in the development of environmental law.  Because environmental impacts are increasingly recognized as disproportionately affecting the poor, the curtailment of environmental enforcement under many of these laws also undermines the belated efforts our nation has begun to make toward environmental justice.  The White House’s and EPA’s joint denial of human-induced climate change (and the censoring of EPA employees who attempt to speak about it) is the most visible – and dangerous – part of this initiative, but it is only part of the larger effort to rescind or hollow out the body of environmental law on which our nation, and the world, have come to depend.

ACOEL should speak and act to reverse this dangerous and irresponsible trend within our federal government.  I recognize that many of our individual members, or their firms, may represent one or more clients who believe that, at least in the short run, their businesses will benefit from fewer environmental regulations, more lenient enforcement of environmental standards or the reversal of efforts to reduce greenhouse gases.  Because of their professional commitments, it is of course appropriate, and in some cases necessary, for those ACOEL members to recuse themselves from participation in any such statements or actions by our organizations as a whole.  Yet ACOEL has acted as an institution in the past in advising ECOS (the Environmental Council of the States) on Clean Air Act and Clean Water Act developments, and we are currently carrying out, or planning, important environmental law training programs in Africa, Asia and Cuba.  To do that with credibility requires that we actively defend, both publicly and privately, the corpus of environmental law of which we are justly proud in our own nation.  ACOEL’s goals, and our organization’s significance, require that we do no less.

Trump’s 2-For-1 Order: Still Arbitrary and Capricious After All These Months

Posted on September 15, 2017 by Seth Jaffe

In June, I posted about Foley Hoag's brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO.  By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated.  The Order is thus the definition of arbitrary and capricious.

Late last week, OMB issued a memorandum to executive agencies, requiring them to develop “Regulatory Cost Allowances” for FY 2018.  The memorandum is only one page.  In that one page, it uses the word “cost” 11 times.  The word “benefit” does not appear.

The memorandum notes that the purpose of the Order is to “lower regulatory burdens” and “to be prudent and financially responsible in the expenditure of funds, from both public and private sources.”

I hate to beat a dead horse, but one would have thought that the absolute size of the “regulatory burden” is not what’s relevant; what’s relevant is whether that regulatory burden is exceeded by the benefits of proposed regulations.  One would also have thought that requiring expenditures of private funds for regulatory compliance would be seen as “prudent” if those compliance costs are exceeded by the benefits.

Indeed, one would have thought – and I do still think – that seeking to lower regulatory compliance costs without regard to the benefits provided by government regulations is just plain crazy.

Silly me.

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.  

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.”

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

Posted on July 11, 2017 by Seth Jaffe

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

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

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

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

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

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

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

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

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?

The Millennial Environmental Voice: We Can’t Hear You Now

Posted on June 8, 2017 by Linda Benfield

The United States’ environmental agenda shifted abruptly with the election. Instead of implementing greenhouse gas initiatives, bolstering incentives for renewable energy projects, and fine-tuning various air, water and waste standards, we are suddenly discussing the future of the Endangered Species Act, debating withdrawal from the Paris Accord, filing away the Clean Power Plan, and considering the limits of science in regulatory decision-making.

Through all the discord, angst and celebration of the changed focus of environmental regulation, the Millennials have yet to assert their generational voice. Born between 1981 and 1996, these citizens are 21-36 years old. In 2015, they became the largest share of the American workforce at 33%, and there are estimates that Millennials will make up 50% of the American workforce by 2020. With those numbers, and their age, they have the potential to significantly impact elections for the next 35 years.

But who are they, and how will they impact the environmental agenda?  Only 50% of Millennials voted in the 2016 election – the worst turnout of any voting-age generation, and a decrease in their voting participation from the 2012 election. The tropes for this generation peg them as “socially conscious,” and willing to deeply engage in causes they believe in. However, empirical “time-lapse” research comparing responses from different generations at the same point in the responders’ lives, actually indicates that Millennials are no more altruistic than previous generations, and no more determined to seek meaning in their work and lives or do work that is worthwhile to society. This generation also faces different economic and social challenges than their parents did, and it is not clear how that perspective will translate to addressing environmental challenges.  

In the last 50 years, we have fundamentally changed the environmental “baseline.” Millennials never experienced burning rivers, and they didn’t grow up underneath the Denver “Brown Cloud.” The Clean Air Act, the Clean Water Act, and 40 C.F.R. are their baseline - and that is a different perspective than their Baby Boomer parents had when they were fighting against tangible environmental degradation. The Millennials can fundamentally impact our election results – if they vote. And until they vote, we won’t know what the environmental voice of this powerful generation sounds like. 

Trump's "2 for 1" EO: Can You Say "Arbitrary and Capricious"?

Posted on June 6, 2017 by Seth Jaffe

Last month, Mark Walker posted about Executive Order 13771.  Mark’s post was generally favorable, noting that a number of other countries have implemented some version of what is known as a “regulatory budget.”  This post provides something of a counterpoint to Mark’s. 

Put simply, I think that the Order is indefensible.  It’s not about regulatory reform.  It’s a transparent attempt to halt environmental regulation in its tracks, without regard to the benefit those regulations provide.

This week, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging the EO.  One paragraph from the brief pretty much summarizes the argument:

It is important to note, as Executive Order 13771 acknowledges, that agencies are already required, where not prohibited by law, to ensure that the benefits of regulations exceed their costs. Thus, the only impact of the Executive Order is to prohibit agencies from promulgating regulations whose benefits exceed their costs, unless they eliminate two other regulations whose benefits also exceed their costs. This is the definition of unreasoned decisionmaking. It is also a thumb in the eye of Congress, which enacted public health and environmental statutes in order to benefit the public.

It is a bitter irony that the government is defending the EO in part on the basis that it is just another in a long line of regulatory reform EOs, even though the EO is in fact a repudiation of those prior orders, not an extension of them.  This order is not about cost-benefit analysis; it is about cost-only analysis.  By definition this approach ignores the public benefits that the underlying statutes are intended to provide.  Thus, the “savings clause” cannot save the EO, because there is nothing left to save.

Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Posted on May 30, 2017 by Seth Jaffe

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites.  Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation.  While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.

Let’s start with the basics.  Superfund is a mess.  It’s one of the most poorly written statutes in Congressional history, and Superfund cleanups take way too long, are way too expensive, and fail to deliver bang for the buck in either risk reduction or productive reuse.

In a perfect world, Superfund would be amended to privatize cleanups and put cost-effective risk-based cleanups at the center of the program.  However, Scott Pruitt cannot unilaterally amend Superfund.  Heck, he may not realize it, but even Donald Trump cannot unilaterally amend Superfund.

Given this reality, Pruitt’s memorandum identifies all of the appropriate goals for meaningful administrative reform.  They include:

  • a focus on identifying best practices within regional Superfund programs, reducing the amount of time between identification of contamination at a site and determination that a site is ready for reuse

  • overhaul and streamline the process used to develop, issue or enter into prospective purchaser agreements, bona fide prospective purchaser status, comfort letters, ready-for-reuse determinations

  • Streamline and improve the remedy development and selection process, particularly at sites with contaminated sediment, including to ensure that risk-management principles are considered in the selection of remedies

  • Reduce the administrative and overhead costs and burdens borne by parties remediating contaminated sites, including a reexamination of the level of agency oversight necessary.

The last is my personal favorite.

I somehow expect I’m not going to be praising this administration on a regular basis, but I can still acknowledge when they get something right.  Let’s just hope that the task force is for real and comes up with a set of meaningful administrative improvements.

Fingers crossed.

A 2-Fer

Posted on May 25, 2017 by Mark Walker

Trump’s 2-for-1 Executive Order 13771 (January 30, 2017) requires that two existing regulations be eliminated for each newly enacted regulation in order to control regulatory costs and burdens.  The EO requires that the total incremental cost of all new and repealed regulations in FY 2017 be $0 or less.  The EO applies to most federal agencies, including the EPA.

Can anyone seriously contend that we cannot afford to get rid of some existing federal regulations?  Apparently yes - the idea was immediately dubbed by some as “ridiculous”.  A lawsuit has already been filed challenging the EO as facially arbitrary, capricious and an abuse of discretion. 

Fourteen States recently filed an Amici Curiae brief in the lawsuit supporting the EO, pointing out that numerous Presidents, Democratic and Republican alike, have previously issued executive orders seeking to reduce the number of federal regulations and the overall regulatory burden.

The notion of eliminating one or more existing regulations for each new regulation in order to reduce costs is nothing new.  The Netherlands, Canada, Australia and the United Kingdom have all previously enacted similar policies.  The UK currently has a 3-for-1 policy, which is estimated to have saved billions.

Certainly the 2-for-1 policy presents administrative and procedural challenges.  There is the sticky problem of estimating costs, as the EO is intended to address total opportunity costs (opportunities foregone by society as a whole - workers, businesses, consumers, households, etc.), and not simply business compliance costs.  In addition, the repeal of existing regulations must be done in accordance with the Administrative Procedures Act, which itself can be time consuming and costly.

The EO contains a savings clause that says no existing regulations can be repealed where prohibited by law.  Therefore, regulations expressly required by law without the consideration of costs cannot be repealed pursuant to the EO.  However, discretionary regulations are fair game.  Once again, we’ll have to wait and see how this EO holds up after court scrutiny.

Can We Really Expect An Administrator Not To Administrate?

Posted on May 19, 2017 by Jeffrey Porter

This month EPA Administrator Scott Pruitt announced that he will personally pass judgment on any Superfund remedy estimated to cost more than $50 million.  Revisions to CERCLA Delegations of Authority 14-2 Responses and 14-21A Consultations, Determinations, Reviews and Selection of Remedial Actions at Federal Facilities, May 9, 2017.

Administrator Pruitt’s announcement begins with his unequivocal assurances that the “Superfund program is a vital function” of EPA, and that he is taking this action “to facilitate the more-rapid remediation and revitalization of contaminated sites and to promote accountability and consistency in remedy selection.”

Skeptics fear that Administrator Pruitt has some other secret objective.   But no one can seriously argue that this isn’t Administrator Pruitt’s decision to make.  The Superfund statute unequivocally says “[t]he President shall select appropriate remedial actions determined to be necessary” in accordance with the statute and the implementing regulations, and “which provide for cost-effective response.”  42 U.S.C. §9621(a).  The implementing regulations unequivocally delegate that responsibility to Administrator Pruitt  (well, to be precise, it is theoretically possible that another federal agency or a state can be a “lead agency” under the regulations but, in that unlikely case, the Administrator’s May 9th decision presumably wouldn’t apply).  

After all, it was a perceived need for prompt federal action to clean up the most complex contaminated sites in our country that drove the enactment of the Superfund statute over thirty-five years ago.  Because Congress perceived that need, the statute limits the ability of anyone, including state and local governments, to interfere with the selection and implementation of a Superfund remedy.

Over the decades, the contaminated sites posing the most immediate concern have been addressed, sites that would never have been prospects for Superfund listing thirty years ago have found their way into the program, and the Superfund statute has been interpreted, and reinterpreted, in regulations, countless judicial decisions, and EPA guidance documents.   If those regulations, judicial decisions and guidance documents have one thing in common, it is that they vest in EPA the maximum decision-making discretion permitted by the statute.

Because the sites posing the most immediate concern have been addressed, and what was once new is now the subject of thousands of pages of regulations, judicial decisions and guidance documents, anyone familiar with the Superfund program has to agree that regional program staff have, over the decades, been increasingly left mostly alone to make remedial decisions costing hundreds of millions of dollars.

And, as someone who has practiced in this area of environmental law for almost thirty years, I think it is equally clear that regional decision-making has attempted to soften the effect of Congress’s unambiguous statement of its intention that no one, including state and local governments, stands in the way of Superfund remedies by local consensus building, and that what Administrator Pruitt calls “consistency” has suffered as a result.

As a life-long Democrat, I have plenty of concerns about the Trump Administration’s environmental agenda.  But Administrator Pruitt has been anything but obtuse about his support of aspects of that agenda that concern me so I’m going to take him at his word regarding his intentions for the Superfund program, including because increased accountability and consistency in the Superfund program would be a very good thing.

Scott Pruitt Just Solved All of the Problems with Superfund. Not.

Posted on May 17, 2017 by Seth Jaffe

Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator.  I’m not optimistic that this will cure, or even ameliorate, what ails CERCLA.  

First, the memorandum gets off on precisely the wrong foot.  Administrator Pruitt states that:

 The Superfund program is a vital function of the U.S. Environmental Protection Agency, and under my administration, Superfund and the EPA’s land and water cleanup efforts will be restored to their rightful place at the center of the agency’s core mission.

What’s the problem with this statement?  When EPA has actually looked at the top risks addressed by its programs, risks from Superfund sites never even make the list.  Except for a limited set of circumstances, Superfund has been a colossal waste of money, resources, and focus for EPA.  If Administrator Pruitt wants to reform Superfund, he shouldn’t be “placing it at the center of the agency’s core mission.”  He should be further deemphasizing it.

Even if one assumes that this is just puffery, the new approach is flawed on the merits, for at least two reasons.

First, the problem with Superfund is that it’s the last bastion of command and control regulation.  I understand that Pruitt may want to take the reins precisely to reduce the number of ukases issuing from the regional offices.  However, the underlying problem will remain; he just thinks he’ll be providing kinder, gentler, command and control.  Wouldn’t it be better to support fundamental reform of CERCLA, to create a privatized program, such as in Massachusetts and other states?

Finally, while PRPs might just wish Superfund went away, in the real world, PRPs just want certainty and timely decisions.  Aside from a few cases where Pruitt might put the kibosh on expensive remedies that don’t eliminate real risks, I fear that in the majority of cases, all that will happen will be that cleanup decisions will be delayed; PRPs will pay more as a result of such delays.

This administration continues to give regulatory reform a bad name.

RCRA 2020: Has That Vision Been Lost -- Or Has EPA Just Temporarily Misplaced Its Reading Glasses?

Posted on May 2, 2017 by David Van Slyke

The Government Performance and Results Act (GPRA) was enacted in 1993 to improve governmental performance by requiring federal agencies to (1) develop five-year strategic plans containing long-term, results-oriented goals; (2) prepare annual performance plans and goals; and (3) prepare annual performance reports that review the agency's success or failure in meeting its goals.

Relative to U.S. EPA’s responsibilities under RCRA’s corrective action efforts, GPRA has been implemented through the “RCRA 2020” program under which EPA established (via a 1999 guidance document) two Environmental Indicators (“EIs”) to measure its progress in achieving national cleanup goals:

  • Current Human Exposures Under Control - Ensures that people near a particular facility are not exposed to unacceptable levels of contaminants.
  • Migration Of Contaminated Groundwater Under Control -  Ensures that contaminated groundwater does not spread and further contaminate groundwater resources.

The RCRA 2020 Corrective Action Baseline List currently includes 3,779 RCRA facilities.  Initially introduced by EPA in 1999, that initial list (much smaller -- only 1714 facilities) became the basis for EPA’s 2005 GPRA performance goals.  The list has been updated in 2008, 2010, and most recently in April 2013.  The Baseline List includes properties that are heavily contaminated, others that were contaminated but have since been cleaned up, and properties awaiting full investigation that may require little or no future corrective action.

EPA’s overall “aspiration goal” is to “largely implement[ ] final remedies at 95 percent of facilities requiring corrective action by the year 2020.”  While it is not at all clear what “largely implement” means, in addition to that goal the following GPRA goals for 2015 apply to the 2020 Baseline list (in percentages of facilities meeting those goals):

  • human exposures under control
  • migration of contaminated groundwater under control
  • final remedy construction
  • performance standards attained

It is now unclear, however, whether EPA is actually on track to meeting its 2020 goals.  While the Agency has published national EI results for the 2005 and 2008 baseline lists, including then-current statements for each facility as to whether or not the two key EIs have been met, EPA appears not to have generated (or at least not made publicly available) similar compiled results for the much more expanded 2010 or 2013 lists of facilities.  

Further, EPA’s March 21, 2017 memorandum regarding the President’s 2018 budget for the Agency would reduce the Headquarters and Regional program office resources for the RCRA corrective action program by 33.4 FTEs.  That budget memo also reduces the Office of Enforcement and Compliance Assurance’s (OECA) civil enforcement and compliance monitoring budget by a total of 262 FTEs; some unknown portion of that cut will fall on the RCRA corrective action program.  (In an ironic and perhaps inadvertently amusing entry, that same budget memo proposes to increase the OECA budget by 10 FTE “to provide 24/7 security detail for the Administrator.”)

At best, given today’s state of play, the current vision for RCRA 2020 is blurry.  At worst, well…, um…, the year 2020 is only 975 (more or less) days away.

Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

Posted on April 13, 2017 by Seth Jaffe

On Tuesday, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations.  The Court found that EPA had no statutory authority to exempt AFOs from the reporting regulations.

The decision is also important because it is another in a recent line of cases regarding the extent of agency authority to interpret statutes.  The issue was whether EPA had authority to exempt smaller AFOs from reporting requirements, on the ground that it could not:

foresee a situation where [it] would take any future response action as a result of such notification[s].

Although EPA did not explicitly justify its rule on de minimis grounds, the Court understood EPA to be making a de minimis argument and analyzed the rule in that context.  The Court concluded that EPA had not justified a de minimis exception, because:

an agency can’t use it to create an exception where application of the literal terms would “provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.”

Here, the Court found that there were benefits to requiring reporting without a de minimis exception.  That was enough to vacate the rule.

It is worth noting the concurrence from Judge Janice Rogers Brown, who agreed that EPA had overstepped, but was concerned about the panel opinion’s summary of Chevron as being focused on whether the agency’s interpretation is “reasonable.”  Stoking the anti-Chevron flames, Judge Brown wrote to make clear that the “reasonableness” inquiry does not apply at step one of Chevron.  Ever-vigilant, she wants to be certain that courts do not abdicate their duty to state what the unambiguous language of a statute means.

I don’t have any problem with that.  Phase I of Chevron is an important bedrock principle.  If there’s no ambiguity, there’s no deference.  However, it’s worth noting that Judge Brown also stated that:

an Article III renaissance is emerging against the judicial abdication performed in Chevron’s name.

Notwithstanding the congressional discussion of this issue, I remain skeptical that any such “Article III renaissance” is occurring.  One concurrence from one appellate judge who happens to be named Gorsuch does not a renaissance make.

Of course, the really important part of Judge Brown’s concurrence was her citation to Luck Be a Lady, from Guys and Dolls, the greatest musical of all time.

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.

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Posted on April 6, 2017 by Seth Jaffe

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there.  It also noted that courts are particularly deferential when reviewing agency scientific determinations.  Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding?  Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks?  Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Just asking.  It’s purely a hypothetical, of course.

Slashing EPA’s Budget Will Hinder Efforts to Improve Environmental Regulations

Posted on April 5, 2017 by Mark R. Sussman

          Since the election of President Trump and appointment of EPA Administrator Pruitt, more than a few articles and blogs have been written about the new administration’s plans to dismantle EPA, including the proposal to cut EPA’s budget by almost one third.   Even if one agrees that EPA needs to be “down-sized,” the massive cuts proposed by the Trump Administration are counter-productive.   If EPA fires thousands of environmental professionals, who will be left to repeal or revise unnecessary or unduly burdensome regulations?  Unlike Executive Orders, regulations cannot be rescinded or revised with the stroke of a pen.

          The hazardous waste regulations adopted to implement RCRA provide a case in point.  The Obama EPA adopted the final Hazardous Waste Generator Improvements Rule (discussed by a recent blog by Donald Stever) at the end of last year, acknowledging that the RCRA regulations are in many cases ambiguous, contain inconsistencies, and lack flexibility.  EPA took a year to address more than 200 comments before it finalized the rule.  Other aspects of the RCRA regulations also need to be modernized to encourage, rather than discourage, the reuse of materials derived from waste.

          Just one example involves the recycling of mercury-containing lamps, which have been regulated as Universal Waste since 1995.  Although fluorescent lamp manufacturers have reduced the amount of mercury in their lighting over time, such lamps are regulated as Universal Waste because many lamps exhibit the toxicity characteristic for mercury; and thus, would be classified as D009 hazardous waste.  While the Universal Waste Rules simplify the management of mercury containing lamps, the hazardous waste regulations and longstanding EPA interpretations of these rules impede the reuse of materials recovered through the recycling of universal waste lamps. 

          Two of the primary materials produced through lamp recycling are calcium phosphate powder and crushed glass.  Calcium phosphate powder removed from fluorescent lamps contains mercury at levels below the hazardous waste threshold, and the amount of mercury in such powder is typically further reduced by a retorting process.  Significantly, the phosphate powder also contains several rare earth elements, including Europium, Terbium and Yttrium, which are considered strategic materials by the United States Government, because of the need for such elements in many military and high-tech commercial products, such as cell phones, computer hard drives and other electronic equipment, and precision-guided munitions. 

          China controls about 95% of the production of rare earth elements.   Therefore, recycling calcium phosphate powder to produce rare earths provides a sustainable, domestic source of rare earths needed in the U.S. economy.  Unfortunately, as a waste derived material, regulators have limited the ability of businesses to stockpile calcium phosphate powder for future recycling, and much of this material is currently being disposed of in landfills, rather than being reserved for the recovery of rare earths.   

          Similarly, the crushed glass produced by lamp recycling has characteristics that make it a useful substitute for sand and other materials used in construction operations, such as for road sub-base and pipe bedding materials.  EPA’s view, however, is that since Universal Waste lamps would be considered D009 hazardous waste, glass produced as part of the recycling process is in the same hazardous waste treatability group as the initial universal waste lamps, and therefore, is subject to the Land Disposal Restrictions (LDR) for D009 –non-wastewaters. Thus, the glass must be tested to demonstrate compliance with the LDR standard of 0.025 mg/l for mercury using the TCLP test (designed to assess leachate in a landfill environment), before the glass can be used on land as a substitute for other products.  While the glass from lamp recycling typically complies with the LDR standard, the additional regulatory process discourages the reuse of this glass as a substitute for raw natural resources.

          If President Trump were truly interested in alleviating “unnecessary regulatory burdens placed on the American people”, EPA needs the resources to review specific regulations and identify those regulatory changes that will accomplish the President’s goals.  Slashing EPA’s budget, before identifying and promulgating the regulatory changes, will likely result in missed opportunities for improving environmental regulations.  Instead, massive reductions in staff and efforts to rescind many regulations without careful consideration will lead to mistakes and litigation, which is in no one’s interest.  Businesses need certainty, and the approach outlined by President Trump’s Executive Orders will instead result in more confusion and uncertainty.

TRUMP, TARIFFS, TERRA, and TWEETS

Posted on April 3, 2017 by Earl Phillips

Regardless of political leanings or perspectives held regarding this President and his administration or the likely effectiveness of tariffs in global trade, we likely agree that creating more good American jobs is a positive thing.  If his plan is successful, Donald Trump and this administration will, in part through the use of tariffs, reinvigorate domestic manufacturing. 

If willing to think more broadly, this may be achieved while at the same time improving (and setting the stage to further improve) the global environment and international worker safety.  These objectives need NOT be mutually exclusive.

Both the Republican and Democratic primaries featured unique candidates with compelling messages of creating and protecting jobs for Americans.  The Republican candidate survived his primary and went on to win the election, so let's consider the relevant promises and pronouncements of candidate, now president, Trump. His overarching refrain has been to "make America great again".  Consistent with this message, he has repeatedly assured the American public that he will promote, and ultimately increase, domestic manufacturing.  His vision is that this manufacturing, and the related jobs, will improve the lot of American workers.  While offering limited specifics, he has been unwavering in his commitment to level the economic playing field by imposing significant tariffs on goods and services manufactured abroad.

If President Trump is correct relative to the effectiveness of a tariff and willing to adjust this blunt tool to incorporate concerns for the global environment and humane working conditions, he can provide a path that leads to greater domestic manufacturing and jobs, as well as unparalleled international leadership with respect to the environment and worker safety.  This is possible provided President Trump is willing to leverage the appetite of overseas manufacturers to sell goods and services to Americans in return for a more level manufacturing playing field, as well as enhanced international Environmental Health and Safety (EHS) protections and benefits.

Assuming this administration does, in fact, look to tariffs as a means to stimulate domestic manufacturing, the following offers a path to proceed with the stated agenda while establishing a program designed to employ even more well trained Americans and improve the global environment:

 1. TARIFFs could be structured to afford the impacted offshore manufacturer with the following option: (A) PAY THE FULL TARIFF.  This option would presumably level the economic playing field between the offshore and domestic manufacturer of goods or provider of services; or (B) PAY A REDUCED TARIFF and EXECUTE AN EHS INSPECTION/ENFORCEMENT AGREEMENT.  This option would achieve not only the U.S. manufacturing and jobs agenda, but also would drive international EHS benefits.  A significant portion of the REDUCED TARIFF could be used to directly fund an environmental, health and safety inspection corps (EHS Corps).  This EHS Corps would be comprised of appropriately educated and trained American workers.  Notably, these EHS positions would be in addition to our domestic manufacturing jobs and represent even more American jobs for those with science, engineering, operations, and business and legal degrees.  THE INSPECTION/ENFORCEMENT AGREEMENT would also call for the participating company to submit to regular inspections, an enforcement regime and an administrative/judicial process similar to our federal template.  This Agreement would further level the manufacturing playing field while improving the global environment and driving international EHS performance to levels comparable to our federal programs.

 2. The EHS Corps would regularly inspect REDUCED TARIFF participants using a straightforward template approximating the United States federal EHS regulations.  This approach would not only compel offshore participants to achieve environmental protection and worker safety objectives similar to their U.S. counterparts, but also cause them to incur the same or similar resource and financial burdens to comply with this template or suffer enforcement consequences if they fail.  This compliance mandate when combined with the payment of the REDUCED TARIFF, would further level the playing field between offshore and domestic manufacturers.  Should a participant be a repeat or willful violator, then beyond the sanctions available within the REDUCED TARIFF inspection and enforcement regime, the U.S. would reserve the right to re-impose the FULL TARIFF or consider other import/export sanctions.

3. Strategically, the differential between the FULL TARIFF and the REDUCED TARIFF should motivate responsible corporations and businesses to elect the REDUCED TARIFF.  Beyond this, the REDUCED TARIFF should generate adequate revenue to fund the training and deployment of the EHS Corps as well as the inspection/enforcement process.

CONCLUSION:

President Trump and his administration can be true to their stated commitment to increase domestic manufacturing jobs through a more aggressive tariff while going one important step beyond, establishing the U.S. as an architect and catalyst for an improved, and more internationally uniform, approach to environmental, health, and safety concerns. 

 

NOTE:  THE CONCEPT OUTLINED ABOVE IS NOT AN ENDORSEMENT OF TARIFFS, BUT A REFLECTION OF ATTY. PHILLIPS BASED ON THIS ADMINISTRATION’S PRONOUNCEMENTS.  THIS IS NOT THE PRODUCT OF HIS LAW FIRM OR THE UNIVERSITY AT WHICH HE TEACHES.

 

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

Posted on March 31, 2017 by Seth Jaffe

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

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

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

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

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