Will The PM NAAQS Be the Real End of Agency Deference?

Posted on October 31, 2019 by Seth Jaffe

According to Bloomberg Environment (subscription required), EPA’s Clean Air Science Advisory Committee cannot reach agreement whether to recommend that the NAAQS for PM2.5 be lowered.  Even after two years, I guess I had not realized the extent to which the scientists relied on by this administration are willing to ignore what used to be generally known as the “scientific consensus.”

As I reported last month, EPA’s Office of Air Quality and Standards released a draft reassessment of the adequacy of the PM2.5 NAAQS.  The draft states that:

"The risk assessment estimates that the current primary PM2.5 standards could allow a substantial number of PM2.5-associated deaths in the U.S.

When taken together, we reach the preliminary conclusion that the available scientific evidence, air quality analyses, and the risk assessment, as summarized above, can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards."

Based on the analysis in the draft, it seemed obvious to me that EPA would have to lower the NAAQS to somewhere between 8.0 ug/m3 and 10.0 ug/m3.  I assumed and predicted that EPA would propose to lower the standard as little as possible, to 10.0 ug/m3. 

It turns out that four out of six members of EPA’s significant reconstituted Clean Air Science Advisory Committee think that the current standard should be retained.  I doubt that the American Lung Association will agree.

I have previously speculated, in connection with matters ranging from BLM standards for methane emissions on federal lands to the EPA/DOT decision on CAFE standards, that, if this administration consistently flouts the scientific consensus on appropriate regulatory standards, then, at some point, courts will stop defea

Environmental Protection Is an Afterthought at the Environmental Protection Agency

Posted on September 17, 2019 by Seth Jaffe

Last week, EPA and the Army Corps of Engineers promulgated the final rule repealing the 2015 rule defining the Waters of the United States. The repeal rule is 172 pages in its pre-publication version.  The word “science” is used 18 times in those 172 pages.  Almost all of them are used in quotes from the 2015 rule or characterizations of the intent of the 2015 rule.

I did not find a single sentence in the repeal rule stating that the science does not support the 2015 rule.  As I noted when the Supplemental Notice of Proposed Rulemaking was issued, the mission of EPA and the Corps is to protect the Waters of the United States.  If they’ve concluded that the text of the Clean Water Act doesn’t give them the authority needed to do so, the Administration could certainly propose amendments to the CWA to give them that authority.

That’s what used to be called “governing.”

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Posted on August 23, 2019 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Woe is WOTUS

Posted on June 7, 2019 by Seth Jaffe

When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory.  I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.

Whatever one may think of the merits of the competing theories, two district court decisions in the past week have made clear that it is, indeed, just plain nuts to have these cases before the district courts.

First up, Texas v. EPA, in which Judge George Hanks (an Obama appointee, no less) ruled that EPA and the Corps of Engineers had violated the Administrative Procedure Act in two ways by promulgating the 2015 Rule.  First, while the proposed rule had defined “adjacent waters” based hydrogeological criteria, the final rule used specific numerical distance criteria instead.  The Court concluded that the use of distance criteria was not sufficiently anticipated in the proposed rule and thus EPA violated the APA when it failed to take comment on the new approach.  Judge Hanks also concluded that the 2015 Rule violated the APA because the Agencies relied on what is known as the “Final Connectivity Report,” even though the comment period closed before the Final Connectivity Report was available.  As a result, Judge Hanks remanded the 2015 Rule to the Agencies “for proceedings consistent with this order.”  Of course, the Agencies have already announced that they intend to replace the 2015 Rule, so I think we all know what those proceedings will be.

Next up, Oklahoma v. EPA, in which Judge Claire Eagan (a Bush appointee, no less!), refused to issue a preliminary injunction against the enforcement of the 2015 Rule.  Simply put, Judge Eagan was not persuaded by any of the declarations submitted by the plaintiffs that they would suffer irreparable harm if the 2015 Rule were to remain in effect in Oklahoma.  She described them as “speculative.”  This was particularly troubling because:

the 2015 Rule has been in effect for varying periods of time since this case was filed, and the State can identify no evidence of an aggressive expansion of federal regulation of Oklahoma waters. … This case has been pending for nearly four years, and the Court would have anticipated a showing of substantial, actual harm in support of a motion for preliminary injunction.

We now have a situation where an Obama appointee has remanded the 2015 Rule and a Bush appointee has refused to enjoin its enforcement.  I do get some pleasure from these two judges upsetting preconceived notions in this partisan age about what judges do and how they decide.

Beyond that, however, I have no idea what these cases mean for the enforcement of the 2015 Rule.  I understand that this may all soon be moot, but in the meantime, it’s hard to defend this as a logical system of judicial review of agency action.  Indeed, I might even go so far as to say that it’s just plain nuts.

North to the Future: Alaska and the Risks of Pursuing a Trump Legacy

Posted on April 5, 2019 by Peter Van Tuyn

On the last Friday in March, Judge Sharon Gleason of the Federal District Court for the District of Alaska issued two opinions in closely-watched cases* concerning federal public lands and waters in and offshore of Alaska.  In both cases, the Trump administration’s actions were overturned by the court, having immediate impact on two State of Alaska priorities and potential impact on a number of other State and private development efforts. 

The first case concerns a land trade approved by Interior Secretary Ryan Zinke in which the United States agreed to transfer formal Wilderness in the Izembek National Wildlife Refuge to an Alaska Native Corporation.  Izembek Refuge is internationally significant and of critical importance to many species of wildlife, including migratory waterfowl.  For example, virtually the entire global populations of Pacific Brant and Emperor Geese migrate through Izembek.  The land trade was intended to enable the construction of a road between the Alaska communities of Cold Bay and King Cove.  In multiple analyses since the 1980s the Interior Department had found that such a road would harm wildlife in the Refuge.  In 2013 Interior Secretary Sally Jewell formally rejected a land trade due to harm it would cause to “irreplaceable ecological resources,” and because “reasonable and viable transportation alternatives” exist between the communities.  In 2018, Secretary Zinke reversed course and approved the land trade.  A coalition of conservation groups then sued.

In rejecting the land trade, Judge Gleason found that Secretary Zinke had not addressed anywhere in the record his reasons for reversing course; indeed, he had not even acknowledged the change in agency position. Relying on the seminal U.S. Supreme Court administrative law cases of Motor Vehicle Manufacturers v. State Farm and FCC v. Fox, which require an acknowledgement and reasoned explanation for such a change of course, Judge Gleason invalidated the land trade, writing that while a court should “‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ a court may not ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’”

Later that same day Judge Gleason issued an opinion in a challenge to a 2017 President Trump executive order concerning areas where offshore oil and gas leasing can take place.  In that case, conservation organizations and an Alaska Native-focused NGO challenged Trump’s  revocation of President Obama’s earlier withdrawals from oil and gas leasing of most of the United States’ Arctic Ocean and a number of canyons within the Atlantic Ocean. 

This lawsuit turned on an interpretation of presidential withdrawal authority under the Outer Continental Shelf Lands Act. Section 12(a) of OCSLA provides the president with the clear authority to withdraw certain areas of the Outer Continental Shelf from oil and gas leasing, and the central question in the lawsuit was whether it also provides authority for a president to undo existing  withdrawals that were intended, like Obama’s Arctic and Atlantic actions, to be of unlimited duration.  Judge Gleason found that section 12(a) authority works only in the direction of presidential withdrawals, and not the undoing (or “revocation”) of such withdrawals.

Looking to the future, should Acting (and likely soon-to-be-confirmed) Secretary David Bernhardt revisit the Izembek land trade, he will need to either win on appeal during his tenure (should he take one) or directly confront the agency’s previous rejection of a land trade and the reasons for that rejection.  Furthermore, Trump’s “energy dominance” effort to expand offshore oil drilling in the Arctic Ocean is dealt a blow.  Notably, the OCSLA issue is similar to one raised in litigation over Trump’s revocation of National Monument designations under the Antiquities Act and Judge Gleason’s treatment of the issue thus may influence other courts. 

More broadly than even these implications, the two Gleason decisions may portend the result of other Alaska-related federal policy and decision-making.  For example, the Corps of Engineers is fast-tracking Clean Water Act section 404 permitting for the proposed Pebble mine in Southwest Alaska.  And the proposed mine’s developers are trying to get EPA to reverse course on its intended use of its Clean Water Act section 404(c) authority to restrict or prevent any Corps’ permit for the mining of the Pebble ore deposit.  EPA’s proposed restrictions were based on a Bristol Bay Watershed Assessment, which the developer had waived challenging in settling a previous lawsuit with EPA.  Given the clarity of Judge Gleason’s Izembek opinion on what it would take for the agency to reverse course, and the settled science of EPA’s watershed assessment, securing a 404 permit won’t be as simple for proponents as winning a policy argument, which appeared to be the case with the Izembek land trade. 

Looking back to the Interior Department, the Bureau of Land Management is moving forward with oil and gas lease sales on the Coastal Plain of the Arctic Refuge.  Critics of that effort, including a former Interior official, say the legal process is being illegally shortcut, which is an attribute it may thus share with the Izembek land trade.  Interior is also speedily-redoing a 2013 management plan for the 23 million acre National Petroleum Reserve with a goal of expanding oil and gas leasing in the Reserve starting in 2020.    

Ironically, on Thursday, March 28, the day before Judge Gleason issued her decisions, Interior Secretary-nominee David Bernhardt had his confirmation hearing before the U.S. Senate Energy and Natural Resources Committee.  This committee is chaired by Alaska’s Senator Lisa Murkowski, who is a supporter of expanded oil and gas development on federal lands in and offshore of Alaska.  The judicial smackdown the next day, however, is sure to complicate Bernhardt’s efforts to implement such an agenda before the next presidential term, which is the timeframe which appears to underly Interior’s and other agencies’ efforts on Alaska issues.  And if the rush to secure more decisions in this presidential term leads to more losses in court, Alaska development interests could face complicated bureaucratic and legal landscapes, and strong political backlash, well into the future.

* Izembek case:  Friends of Alaska Wildlife Refuges, et al, v. Bernhardt, 3:18-cv-00029-SLG (March 29, 2019, D. Ak).

* Arctic OCS case:  League of Conservation Voters, et al, v. Trump, 3:17-cv-00101-SLG (March 29, 2019, D. Ak)

 

Any Press Is Good Press

Posted on March 25, 2019 by Seth Jaffe

Last week, the Washington Post (subscription required) published an article about the Trump Administration’s inability to defend many of its policies in court. Yours truly was among those quoted. I liked the story and it was largely accurate, including its quotes from me, except that Fred Barbash stated that I had “been looking forward to deregulation under Trump.”  On that issue, I can only say that Fred and I had a misunderstanding, because I was never looking forward to deregulation under Trump.

Aside from the relatively unimportant and mildly humorous issue related to me maintaining credibility with a number of people whom I respect, I’m doing this post because that line highlights an important issue – there’s a significant difference between deregulation and regulatory reform. I think much of our environmental regulatory structure could benefit from reform, but I don’t question the benefits of environmental regulation and I don’t support “deregulation.”

Indeed, as the article demonstrates quite well, President Trump has shown no interest in regulatory reform.  He just wants to kill as many regulations as possible – or at least persuade his supporters that that’s what he wants to do.  Like so many things about this President, he doesn’t actually care about results as much as he cares what his supporters think about him – that’s one reason why the article is a valuable piece of reporting.

And that's also part of the reason why, as I said in the article, Trump has set regulatory reform back for years.  If we want widespread public support for regulation, we have to persuade people that regulations benefit them.  That’s why environmentalists shouldn't fear cost benefit analysis and cost-effectiveness analysis; we need economic analysis to demonstrate the benefits of regulation.  We have a President who thinks all regulations are bad, but who cares only about the cost of regulations, not their benefits.  As a result,  cost-benefit analysis and cost-effectiveness analysis get a bad name.

And that’s bad for everyone.

Ode to Angus: The Macbeth Report

Posted on January 17, 2019 by Scott Fulton

In the Summer of 2017, ELI undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI and ACOEL communities and in cooperation with the Environmental Council of States (ECOS). Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI. As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting report, The MacBeth Report: Cooperative Federalism in the Modern Era, is, I believe, one of the more thoughtful pieces on cooperative federalism that has been rendered. Let me highlight some of the report’s key contributions.  

As the report reflects, there is considerable support at this juncture for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs; but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good of a, job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The report also considers the role that a citizenry — equipped with unprecedented amounts of environmental information and operating in a socially networked world — can play as a driver of environmental behavior going forward.

In terms of opportunities for adjustment or realignment, The Macbeth Report points to a number of options, including:

· Possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

· ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. The report advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can tuned. Permitting decisions may a good place to focus such pilot projects.

· Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice in implementation decisions.

· The report generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

· Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, the report recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give The Macbeth Report a look. Be sure to read again Steve Ramsey’s wonderful tribute to Angus, which we have embedded in the report. Many thanks to all who contributed to the thinking in the report, and, of course, a special thanks to you, Angus. 

Two Strikes Against the Administration’s WOTUS Suspension Rule

Posted on December 10, 2018 by Seth Jaffe

In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule.  Now, a judge in Washington has gone even further.  Judge John Coughenour has vacated the rule.

The core of the new decision is the same as that in South Carolina.  By refusing to take comment on the impact of the delay in the effective date of the WOTUS rule, the Administration acted arbitrarily and capriciously and thus violated the Administrative Procedure Act.

For my non-lawyer readers wondering what the difference is between a nationwide injunction against the Suspension Rule and vacatur of the Rule, I’m picturing a petulant President Trump, sitting in a corner.  First, his teacher tells him that he can’t play with his shiny new toy – that’s an injunction.  Then, still not satisfied, another teacher comes by and takes the toy away completely.  That’s vacatur.

Impact of Midterm Elections on Environmental Protection - A Green Wave, and a Green Wall

Posted on November 26, 2018 by Joseph Manko

Environmental protection was “federalized” in 1970 under President Nixon, with the creation of the EPA and the launch of several decades of federal statutes and regulations designed to make uniform the states’ environmental compliance requirements. 

During the past almost 50 years, I have seen the politicization of environmental protection and the best and the worst of federal leaders who were trusted with protecting our environment.  This politicization has grown more extreme since Donald Trump’s election in 2016.  Given the federal government’s important role in protecting the environment, it’s worth examining the impact of the midterm elections on environmental protection during his next two years in office. 

 One way of reviewing the election results is to consider the campaign conducted by the League of Conservation Voters (“LCV”) at both the federal and state levels, and LCV’s conclusions regarding that effort.  LCV publishes a National Environmental Scorecard covering the most important environmental legislation considered and the corresponding voting records of all members of Congress, as well as a list of the “Dirty Dozen” legislators at both the federal and state levels.  For the first time this year, LCV published two such lists at the federal level, one for the House and another for the Senate. 

Here are the numbers: 

 

·         Was it a blue wave or a blue flood?

·         Flipping the House - 39 changes, 26 targeted seats with 12 of 13 Dirty Dozen House members defeated

·         Successfully defending a number of pro-environmental Senators in six targeted seats

·         Defeating 10 of the 12 state Dirty Dozen in the 2017/2018 elections

·         Successively supporting 10 new green governors

·         Successively supporting candidates in 16 state legislatures

·         Advancing clean energy initiatives at the state level (eight of 10 critical ballot measures passed)

·         Positively impacting redistricting and gerrymandering in two states

·         Achieving effective Blue/Green Alliance (LCV and labor unions, and environmental organizations combined))

In addition, many states have expressed their intention to enact clean energy programs (e.g., carbon tax which is a tough sell, cap and trade, and renewable energy) to replace Obama’s Clean Energy Plan which EPA intends to repeal and replace.  Unlike Congress, there are essentially single-party legislatures in a number of states, with 30 Republican-controlled and 18 Democratic-controlled, and such party control could impact the scope and content of state programs.  The party affiliation of the governor could also be important.  There are now 26 Republican governors and 23 Democratic governors. 

 LCV’s analysis of the midterm elections is summarized in its post election tweet:  “For our clean air, clean water and public lands, this changes everything.”  However, divisive issues remain and could result in considerable controversy and debate.  Here are some examples:


·         Climate Change projections, as evidenced by the recent controversy about the rate of ocean warming

·         Most efficacious measures for reducing CO2 emissions and preserving existing reductions, such as from non-farmed soil and trees

·         Whether to exempt cross border traffic from environmental regulations

·         How to address catastrophic events such as floods and fires exacerbated by Climate Change

 

Last week’s NY Times editorial headline is entitled “Midterm Climate Report:  Partly Cloudy”.  And that may be a good summary of where things stand. 

At the federal level, for the next two years the Republicans will continue to control the Senate and Donald Trump will continue to live in the White House.  The unresolved question therefore is what impact the Democrats controlling the House will have on unwanted legislation and regulations. 

Perhaps more important, at the state level, there is little doubt that many states will fill the Trump-created vacuum as we return to pre-federalization days, with the states becoming environmental protection laboratories.  That of course raises even more questions regarding the future of environmental legislation and regulations and what standards – and how many – will emerge.

A Time to Pivot, Reset, and Recommit to Core Principles

Posted on November 5, 2018 by Scott Fulton

These past months have been turbulent times for my old agency, EPA. Shortly before this writing, Scott Pruitt resigned in a cloud of allegations about ethical and judgment lapses, proving once again that, in Washington, D.C., process fouls are often more undoing than policy choices. And, of course, if your policy choices are provocative, all the greater the need to, as my mother would say, “Keep your nose clean,” as the sharp knives will no doubt be out, ready to slice and dice if the opportunity is presented.

The charges against Pruitt are still under investigation by EPA’s Office of Inspector General and other bodies, so I’ll not go too far in speaking to them other than to say that they are striking — and likely unprecedented — in their number and pattern. Whether or not Pruitt is ultimately found to have violated the law, operating in a manner that creates openings for issues of this kind is itself problematic. These are unforced errors in the classic sense.

With this as backdrop, I thought I might take the occasion to offer some suggestions to Acting Administrator Andrew Wheeler, or to whomever the next confirmed administrator might be, about possible ways to help EPA recover its footing and put some separation between the turbulence of these past months and where the agency goes from here.

First, there would be value in some messaging that reinforces EPA’s core mission — environmental protection — and the environmental quality goals behind it. There are different ways to achieve the mission, and of course the work needs to be undertaken in a manner that envisions environmental quality and economic development as compatible objectives. But clarity is important in terms of the unique contribution EPA makes in ensuring that development occurs in a way that also satisfies the environmental quality guarantees embedded in our laws. This is a vital and difficult calling, and one with respect to which clarity is important.

One way to get this message out is to do so through the budget. I and many others have been baffled by budgets from this administration that propose cutting both EPA and the categorical grants to the states. Such budgets project a fundamental questioning of the need for an environmental protection enterprise anywhere in government, begging the need for some remessaging on this front.

Second, make adherence to the Standards of Conduct for Executive Branch Employees a personal and organizational priority. A successor coming in the wake of allegations of this kind always has the opportunity to distinguish him or herself on the basis of adherence to the highest ethical standards. This is of course a time-limited opportunity, but you will likely be remembered most for how you navigate a shift in this arena.

Third, after Pruitt’s stumbles, recommit to openness. A renewed commitment to transparency will help the agency in turning the corner. Therefore, Wheeler’s issuance of his own “Fishbowl Memo” in the tradition of William D. Ruckelshaus is more than welcome. “This memorandum reaffirms those commitments,” the Acting Administrator told agency staff. “I encourage all EPA employees to uphold the contents of this memorandum and conduct themselves and their business in a manner worthy of the public’s trust and confidence. Our success as an agency depends on it.”

Fourth, hit the reset button in the relationship with career leadership and staff. The word in the hallways of EPA is that the career folks have thus far been relegated to the distant sidelines during this administration and have rarely been present for administrator briefings and consultations. There are also rumblings — some of them exposed in the media coverage — that Pruitt had a tendency to act first and consult with the agency’s career experts only after a problem relative to the action emerged. This is how mistakes are made. All and all, the relationship between the political leadership under Pruitt and careerists at EPA has left a serious morale issue that needs to be addressed if the career workforce is to be put to productive use by this administration.

It is common for a new administration to come in suspicious of the loyalties and biases of the career institution that they inherit. But at some point, and usually long before where we are now, the administration comes to see the career institution as an expert support function that is ready and willing to help implement its policy agenda.

Can the Trump EPA recover from its stumbles? Sure, but likely only if it makes some pivots. Maybe by the time you read this, some of the steps suggested here will already have been taken. I hope so.

[This piece originally appeared in the September-October 2018 issue of The Environmental Forum® and is reprinted with permission

A Sliver of Hope for the Government’s Remaining NSR Enforcement Cases?

Posted on October 16, 2018 by Seth Jaffe

Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative.  The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.

However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief.  Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign.

I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce.  I’ll settle for three points.  First, it may not be a legal doctrine, but I’d apply the doctrine of common sense, rather than the doctrine of concurrent remedies.  Given that all courts agree that NSR does not impose ongoing operational requirements, it doesn’t even make sense to me to think of ongoing forward-looking injunctive relief with respect to a one-time violation that may have occurred twenty years or more ago.

I’ll add to that a related point.  As other NSR cases have noted, many of these facilities have changed hands since the projects at issue were constructed.  In those cases, the former owners aren’t subject to injunctive relief, because they don’t own the facilities and thus have no ability to install BACT.  The new owners aren’t subject to injunctive relief, because they did not violate the Clean Air Act.  In these circumstances, are we really going to make the availability of injunctive relief subject to the random circumstance of which facilities have been sold and which have not?  That just seems nuts.

Finally, I’ll emphasize that EPA and DOJ shouldn’t get too excited over this decision.  The Court was very clear that it was not deciding whether injunctive relief was appropriate, only that it wasn’t barred by the statute of limitations.  The Court’s language was unlike any I’ve ever seen before and is worth a read:

On remand, the district court must further consider whether any equitable relief is appropriate and proper under the legal and factual circumstances of this case in which the legal relief has been time barred. We recognize that we are not giving the district court much guidance in this task. … Perhaps the answer to this knotty question of injunctive relief will reveal itself after a full hearing and the presentations of the parties. And we hope that we are not being too cowardly when we sincerely wish the district court good luck.

And I’m sure that the District Court will appreciate the 5th Circuit’s good wishes.

PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.

 

We May Not Always Have Paris, But Perhaps We Can Do Better Than Paris

Posted on September 20, 2018 by Seth Jaffe

Last week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  (And a shout out to ACOEL fellow Pam Giblin, who is a Senior Policy Advisor at the CLC.) 

I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.

I understand the difficulty in convincing what passes for the GOP base at this point – and the GOP members of Congress – to endorse the carbon tax.  Oops, I meant dividend.  I’m hopeful that enough members will come around at some point.  My real worry is that the environmental movement will reject the plan because it calls for elimination of current regulations concerning carbon.

Years ago, Gina McCarthy used to say quite freely that the Obama administration would get most of its carbon reductions, not from direct regulation of GHG emissions, but instead from all of the other air regulations it was promulgating, such as the power plant MACT standards.

What environmentalists have to remember is that the reverse is also true – any robust program to reduce carbon emissions will also lower emissions of conventional pollutants.  Indeed, in defending the Clean Power Plan, environmentalists have made that very argument.  Why not acknowledge the same point in connection with a carbon tax and give up on a set of regulations that have always been clunky at best, are nowhere near as efficient a regulatory tool as a carbon tax, and which, as compared to a carbon tax, really benefit no one other than environmental lawyers and consultants?

God, wouldn’t it be a breath of fresh air to see Congress actually get something big done for the American people?  Let’s not screw this one up.

The D.C. Circuit Court Coal Combustion Conclusion: “C” is for Cookie, that’s good enough for me!”

Posted on September 19, 2018 by Kathy Beckett

As our blue friend, The Cookie Monster, looks for words that begin with “c” he immediately settles upon a single favorite, the cookie. There is a bias in the selection by The Cookie Monster, as he prefers only one thing, cookies.  By using one noun and offering no other, we can conclude The Cookie Monster has a bias against other “c” nouns like carrots, cabbage and  cauliflower.  Using The Cookie Monster preferred word “c” methodology as applied to the recent D.C. Circuit decision in Utility Solid Waste Activities Group, et al. v. EPA et al., No. 15-1219 (August 21, 2018), one can find several “c” words selected by the panel of judges, Henderson, Millett, and Pillard that predict the conclusion.  As with The Cookie Monster, early choice of words sends a message.

Beginning with the obvious, the petitions filed by industry and environmental advocates concerned “coal”, “coal residuals” to be precise.  The petitioners challenge the EPA 2015 Final Rule governing the disposal of coal combustion residuals produced by electric utilities and independent power plants.    The Court offers in their Background discussion an opening observation that contaminants that are cancerous are found in coal residuals that are disposed of in concentrated locations that are massive.  These disposal areas are constructed without composite liners sometimes using inadequate clay liners allowing the commingling of water and contaminants.  Background conditions may not be able to be restored.  Catastrophic risks are posed and consequences may be amplified.  A compendium of damage cases has been compiled.  Complete destruction of aquatic ecosystems are identified. 

With the initial “c” analysis as noted above, the casual reader can predict the EPA Coal Residual rule does not fare well with this panel.  A few opinion highlights are offered:

  • Congress’ passage of the Water Infrastructure Improvements for the Nation Act (“WINN Act”) will have to be managed by EPA later.
  • Continued operation of unlined impoundments pursuant to 40 CFR 257.101 is vacated and remanded for consideration.
  • Clay-lined impoundments are not actually lined, so the court vacates 40 CFR 257.71(a)(1)(i).
  • Capricious describes the legacy ponds regulation.
  • Cure for select portions of EPA’s coal residual rule is a remand of (i) the regulation of coal piles; (ii) the Proposed Rule’s notice of Coal Residuals pile regulation; and (iii) the 12,400-ton threshold for beneficial use (and notice thereof).

Concurring, Henderson construes disposal to mean CCR is not curb trash. 

How Much Does Trump Even Care About Deregulation?

Posted on September 13, 2018 by Seth Jaffe

Rick Glick’s September 11 post discusses Judge David Norton’s August 2018 decision to issue a nationwide injunction against the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States RuleAs noted in Rick's post, that case was not about the merits of the WOTUS rule.  It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.

Which brings me to the point of this post.

The Administration’s failure to comply seems so obvious that one has to wonder whether the Administration even cared whether the Suspension Rule could survive judicial review.  Indeed, this case seems part of a clear pattern.  The Court noted as much in quoting a summary of such cases from the plaintiffs’ brief:

Clean Air Council v. Pruitt (vacating the EPA’s attempt to temporarily stay a Clean Air Act regulation without “comply[ing] with the … APA”); Open Communities All. v. Carson, (enjoining the defendant agency’s attempt, “without notice and comment or particularized evidentiary findings, … [to] delay[] almost entirely by two years implementation of a rule” adopted by the previous administration); Pennsylvania v. Trump (enjoining two new “Interim Final Rules” based on the defendant agencies’ attempt to “bypass notice and comment rule making”); Nat’l Venture Capital Ass’n v. Duke (vacating the defendant agency’s “decision to delay the implementation of an Obama-era immigration rule … without providing notice or soliciting comment from the public”); California v. U.S. Bureau of Land Mgmt. (holding that the defendant agency’s attempt to postpone a regulation’s compliance dates “after the rule’s effective date had already passed … violated the APA’s notice and comment requirements by effectively repealing the [r]ule without engaging in the process for obtaining comment from the public”); Becerra v. U.S. Dep’t of the Interior, (holding that the defendant agency violated the APA in “fail[ing] to give the public an opportunity to weigh in with comments” before attempting to postpone a rule that had already taken effect).

To which the Court added its own footnote:

To this litany of cases, the court adds two more from the last several months— Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin. and Children’s Hosp. of the King’s Daughters, Inc. v. AzarAs these cases make clear, this court is but the latest in a series to recently find that an agency’s delay of a properly promulgated final rule circumvented the APA.  (My emphasis.)

I find it hard to believe that numerous smart lawyers, across a range of agencies, all suddenly forgot what the APA requires.  Isn’t it more likely that the Administration simply doesn’t care about the outcome?  The government of the most powerful nation on earth, that likes to think that it taught the world about democracy, doesn’t care about governing.  All it cares about is having Twitter material, to feed to its adoring fans and, equally importantly, to bait its many critics.

WOTUS Lives! . . . at Least in Half the States (for Now)

Posted on September 11, 2018 by Rick Glick

On August 16, a federal judge in South Carolina invalidated the Trump Administration’s suspension of the rule defining “waters of the United States” (WOTUS), under the Clean Water Act.  In South Carolina Coastal Conservation League v. Pruitt, the court found that the notice-and-comment opportunity supporting the Suspension Rule was too narrow and thus violated the Administrative Procedure Act.  The WOTUS suspension is the latest in a series of attempts by the Administration to stall implementation of Obama era regulations, none of which have met favor with the courts. 

As reported here about one year ago, the Trump Administration announced a two-step process to undo WOTUS.  The first step was to suspend WOTUS for two years, during which a revised WOTUS rule would be developed.  In the meantime, guidance on jurisdictional waters that had been issued in the 1980s by the EPA and Army Corps of Engineers would be reinstated.  The public notice of the Suspension Rule requested comments only on the suspension, but not the substance of either the Obama WOTUS rule or the 1980s guidance.

U. S. District Court Judge David C. Norton, a George H. W. Bush appointee, reasoned that the practical effect of the Suspension Rule is that the WOTUS rule would not apply and instead the 1980s guidance would control.  The court then noted that the definitions in the WOTUS rule and the 1987 guidance are “drastically different” and it is hard to comment on the Suspension Rule without talking about that difference.  That refusal to allow comment on the substantive differences violates the notice-and-comment provisions of the APA:  “An illusory opportunity to comment is no opportunity at all.”  The judge therefore rejected the Trump Suspension Rule, and imposed a nationwide injunction. 

Explaining the jurisdictional reach of the Clean Water Act has flummoxed the federal agencies and courts for decades.  Far from bringing clarity, the Obama WOTUS Rule drew over one million comments and multiple judicial challenges on the merits of the rule.  Initially the question was whether such challenges should be made in the U. S. district courts or the Circuit Courts of Appeal.  The Sixth Circuit held that the appellate courts had original jurisdiction and stayed all of the pending district court actions, but that decision was reversed earlier this year in a unanimous decision of the U. S. Supreme Court.  Thus, those lower court cases can continue.

Judge Norton, in South Carolina Coastal Conservation League, was clear that he was not ruling on the merits of the WOTUS Rule, but just the procedural correctness of the Suspension Rule.  In challenges on the merits, other federal courts have stayed the WOTUS Rule in 24 states.  Striking down the Suspension Rule means that WOTUS remains in effect in the other 26 states. 

At the moment, then, about half the country is subject to the WOTUS Rule, while the other half is not.  What could go wrong?

Strong Headwinds Face Water Quality Trading in the Chesapeake

Posted on August 2, 2018 by Ridgway Hall

The Chesapeake Bay watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. When the six states and the District asked EPA to establish a multi-state Total Maximum Daily Load under the Clean Water Act in 2010 and assign each state its fair share, they took on the job of reducing discharges of nitrogen from all sources by 25%, phosphorus by 24% and sediment by 10%. The goal is to have all necessary measures in place to achieve this by 2025 to meet applicable water quality standards. With funding at the state and federal levels in short supply, a search was on for the most cost-effective ways to reduce these pollutants.  The states with the biggest burdens, Pennsylvania, Virginia and Maryland, each turned to the emerging practice of water quality trading.

Trading enables a discharger for whom the cost per unit of pollution reduction is lower than for other dischargers to reduce its pollution below what the law requires and sell that extra reduction as a “credit” to another discharger for whom the cost per unit of pollutant reduction is greater.  The result is that the seller makes money from the credit sale, and the buyer attains compliance at a lower cost than it would otherwise incur. Sounds simple, doesn’t it?  In October the Government Accounting Office published the results of a nationwide survey in which it found that only 11 states have water quality trading programs, and the only significant use being made was in Pennsylvania, Virginia and Connecticut, even though EPA has been promoting it since 1996. (I discussed this in “Water Quality: Wading into Trading” posted Nov. 28, 2017).

To encourage the Bay states to adopt trading programs that will comply with the Clean Water Act and its implementing regulations, EPA published a series of “Technical Memoranda” (TMs) addressing key elements of a trading program including “baseline” (the maximum amount of pollution allowed under any applicable law before a credit can be generated), protecting local water quality where a credit is used, credit calculation, and accounting for uncertainty. This is needed where a nonpoint source, like a farm, is generating credits by installation of best management practices (BMPs) and the pollution reduction benefits must be estimated using modeling. The TMs also address credit duration, certification by the agency, registration and tracking on a publicly posted registry, and verification that the BMPs on which the credits are based are being maintained.  Finally, they address sampling and public participation. (See my blog post of Sept. 26, 2016 “New Tools for Water Quality Trading”).  Credits can also be used to “offset” new or expanded discharges. The TMs are not regulations, but set forth EPA’s “expectations”.

Common Elements

Pennsylvania, Virginia and Maryland have adopted trading regulations which are intended to be consistent with the TMs.  The principal elements include . . . [CLICK HERE TO READ THE REST OF THIS ARTICLE]

WOTUS: Legal Issue or Scientific Issue?

Posted on August 1, 2018 by Seth Jaffe

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

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

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

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

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

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

I’m not holding my breath.

Michèle Ma Belle

Posted on July 19, 2018 by Robert Falk

Michèle B. Corash, one of our giants of environmental law and my dear friend, mentor, and partner retired from active practice earlier this year.  She, her unique persona, and her achievements are well known to many, while Michèle’s other, quieter accomplishments, deeds, and attributes are likely known to only a few.  Because “these are words that go together well,” I will discuss just a small handful of her better and lesser knowns below.

As almost all of you may know, Michèle proudly served as general counsel of the U.S. Environmental Protection Agency from 1979 to 1982.  Prior to that she served as deputy general counsel for the U.S. Department of Energy, and, previously, was a special assistant to the chairman of the Federal Trade Commission.  (Since we shared a common initial job description in our federal government careers, in working together for almost three decades, one of Michèle favorite things to say to keep me on my toes was “once a special assistant, always a special assistant.”) 

As general counsel, Michèle, among other things, helped EPA give birth to CERCLA, as well as regulations implementing key provisions of RCRA and many of our other fundamental environmental statutes.  While her participation in the reach of our environmental laws is likely her more significant accomplishment, on the other side of the equation, she also served on then-Vice President George H.W. Bush’s Regulatory Reform Task Force, where she helped steer its recommendations to avoid the type of unconscionable approaches that we unfortunately witness all too often being undertaken by the current Administration. 

In her subsequent career in private practice, Michèle was widely recognized as a leader and innovator in environmental law.  She received the highest rating for environmental lawyers from Chambers USA virtually every year, and Legal 500 USA repeatedly ranked Michèle as a Leading Lawyer in Environmental Litigation.   On a wider stage, Michèle was listed in the Expert Guides to the World’s Leading Lawyers – The Best of the Best, and here on the “left” coast, California Lawyer also cited Michèle as one of the “Best of the West.”  (Perhaps of more significance to her personally, is that Michèle’s work was also recognized by The Los Angeles and San Francisco Daily Journal as having the “widest impact and is changing an industry or the law or the society as a whole.”)   

As many of you know, beyond her accomplishments in practice, Michèle was a founding member of the American College of Environmental Law and served as its President in 2008-2009 (culminating in a fabulous and still-remarked upon party in her penthouse condominium with its 360° view of San Francisco).  Prior to that, Michèle served on the ABA’s Standing Committee on Environmental Law and (after assigning me as a junior associate to be her special assistant for organizing it), chaired its International Conference on Environmental Law in Pacific Rim Nations in Hong Kong in 1991. 

Somewhat lesser-knowns about Michèle include her tireless promotion of women and diversity in the legal profession, in the business world more generally, and particularly within our firm.  (In addition to parties for ACOEL and many others, Michèle hosted current and former women attorneys and summer associates at a very well attended annual dinner at her home.)  Michèle also serves as a fabulous mentor to her nieces (who she regularly brought to work on Take Your Daughter to Work Day) and as a godmother to several close friends’ children.  As added evidence of her boundless energy, she has also been a longtime patron of the opera and remains an active member of the Board of the San Francisco Symphony. 

Although I could go on (and on) and tell you, many other things about what a wonderful mentor and friend Michèle has been over the years, instead, I prefer to conclude this serenade with Mr. McCartney’s lyrics:

Michèle, ma belle
These are words that go together well
My Michèle

Michèle, ma belle
Sont les mots qui vont très bien ensemble
Très bien ensemble

I love you, I love you, I love you . . . .

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Posted on May 29, 2018 by Seth Jaffe

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.  EPA said that they were.  However, the petitioners pointed to cross-sections in the record that showed a confining layer existed between the bedrock and overburden aquifers.  More importantly, the record showed that EPA did not even attempt to explain why the cross-sections did not undermine its determination.  That’s a no-no.  As the Court noted:

It was arbitrary and capricious for EPA to rely on portions of studies in the record that support its position, while ignoring cross sections in those studies that do not. … Although EPA ‘is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’

Counsel from DOJ tried to repair the damage in the litigation, to which the Court replied that:

These arguments come too late. We may only uphold a rule “on the basis articulated by the agency” in the rule making record.

Lesson for EPA?  Don’t ignore comments in the record – and don’t count on your lawyers to fill in the gaps.

Lesson for potential petitioners?  Make sure that the record looks as good as possible – and focus like a laser beam on EPA failures to respond to your evidence.

And who knew that there was a band called The Substantial Evidence?

How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

And the Regulatory Reform Caravan Keeps Moving on Down the Road

Posted on February 26, 2018 by Donald Shandy

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

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

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

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

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

More Guidance on Guidance: DOJ Will Not Enforce “Improper” Agency Guidance Documents

Posted on February 21, 2018 by Seth Jaffe

In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

Folders with the label Regulations and Guidelines

Now, DOJ has taken the prohibition a step further.  It will no longer rely on guidance issued by other agencies when taking civil enforcement action.  The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo.  I hate circumvention of notice and comment rulemaking by guidance.  However, as I noted when the memo was released, the problem with guidance documents is not how they are drafted; it’s how they are implemented.

For example, the new memorandum states that:

The Department may continue to use agency guidance documents for proper purposes in such cases.  For instance, some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations.

Well, but in the first instance, who decides whether a guidance document “simply explains or paraphrases legal mandates” or whether it instead “purports to create rights or obligations binding on persons or entities outside the Executive Branch”?

The agency does, of course – perhaps aided by its counsel, DOJ.

This will particularly be an issue where guidance has been in place for many years and has been relied on by both an agency and the regulated community as accurately describing what the law actually is.  Take, for example, the New Source Review Workshop Manual.  The Manual is not only not a regulation; it’s been in draft for 28 years.  Nonetheless, it’s been relied on as the bible for practitioners since then.  It might be exempt from this policy, which makes clear that it does not apply to internal training materials.  However, when internal training materials are used to say what the law is, that sounds like regulation masquerading as guidance to me.

Here’s another issue.  What are the implications of this guidance memorandum for cooperative federalism?  In a delegated program, what happens if states continue to rely on guidance documents in enforcing federal obligations?  Are we going to have one interpretation under federal law and another interpretation under state law?  Can you say “forum shopping”?!

Finally, I cannot resist pointing out the irony inherent in the AG issuing two separate guidance documents on the proper – and improper – use of guidance documents.