Banning PFAS in Food Packaging – Should states do the job of the FDA?

Posted on August 21, 2019 by Kenneth Gray

In June, Maine joined Washington State in presumptive bans on all per- and polyfluoroalkyl substances (PFAS) in 2022, if their respective state agencies make findings that there are “safer alternatives.” These laws were adopted in response to public and environmental group pressures over the presence of some PFAS in certain food packaging, the general ubiquitous and persistent nature of other PFAS, and the desire to “do something” about PFAS.

These state PFAS laws were adopted despite the fact that the U.S. Food and Drug Administration (FDA) regulates PFAS in food contact applications. Since 2000, FDA has authorized the use of food contact substances through the Food Contact Notification program and certain PFAS are currently authorized for use in specific applications related to their non-stick and grease, oil, and water-resistant properties. For example, the Maine legislature barely considered FDA’s regulations in its deliberations on the state law.  

While some PFAS do indeed pose risks under particular exposure scenarios, these new food packaging laws cast a broad net over the entire class of compounds. Apparently applying the discredited “precautionary principle,” these laws lump all PFAS together, despite known differences in toxicity, persistence, and fate. State legislators and administrators are taking independent action even as the FDA, the U.S. Environmental Protection Agency (EPA) and other national health agencies struggle with whether the PFAS compounds have enough commonalities to even identify appropriate subclasses of PFAS compounds.

In Maine, the law leaves important decisions to the Maine Department of Environmental Protection (DEP) and the sister agencies it may call on, none of which have experience regulating manufacturing of food packaging, much less understanding or regulating health issues related to food. FDA’s work on food additives requires federal funding and expertise. Maine’s law allows the DEP to force manufacturers to provide information on chemicals, potential for harm, and alternatives, but gives the department no additional resources to analyze that information. In its determinations, the DEP may consider the extent to which the food package is adequately regulated by the federal government or a Maine agency.  This begs the question --Can DEP really do FDA’s job better?  As to PFAS regulation, there is no funding mechanism.

A curious feature of the Maine law exempts the manufacturer of a food or beverage product in a food package as long as the manufacturer has less than $1 Billion in annual national sales of such food and beverage products (presumably U.S. sales). Which raises an additional question -- If a package really poses serious risks to food or beverages, is it sensible public policy to allow manufacturers with lower revenues to market those products?

Of course, the larger question is whether we are better off with individual states regulating the components of food packaging, since a significant amount of food packaging is created for national and regional markets. Not only is there no guarantee that different states will arrive at the same levels of concern for the same chemicals, but if the differing PFAS standards for drinking water are any indication, decisions on PFAS bans and alternatives will vary. It is not hard to imagine the difficulties and frustrations that packaging formulators will have trying to get packaging products to market.

To make the future more interesting, the Maine law also creates a new program regulating food contact chemicals, adopting multiple provisions generally modeled on the state’s Toxic Chemicals in Children’s Products law. DEP may create a list of food contact chemicals of high concern (up to 10, but since structurally related chemicals are included, entire classes can be listed), based on toxicity, persistence, and other factors. The DEP may then designate such food contact chemicals as “priority,” which triggers notice to DEP if more than 100 ppm in the package as a contaminant, or if they are intentionally added above a practical quantitation limit. (If there is no notice to the DEP, the package is simply banned.) The DEP may also request information for chemicals of concern and an assessment of alternatives, or may assess a fee and then secure an assessment by a contractor. And the DEP may impose fees for its work, and for managing information it receives. Perhaps most significantly, Maine may ban priority chemicals if there is a “safer alternative.”

Surely, we live in interesting times.

Carbon Taxes and Carbon Offsets -- A Path to Net Zero?

Posted on July 18, 2019 by Jeffrey C. Fort

Two recent press pieces caught my eye.  “UK Signs Net-Zero Emissions Requirement into Law,” and “GOP Pollster pitches Republicans on carbon pricing.” The first reflects recent studies with respect to a potential [or even likely] environmental calamity; the other suggests signs of political reconsideration on climate change.  As welcome as the latter is, and most economists praise the use of a carbon tax, it is likely not nearly enough.

According to the latest scientific forecast, meeting the Paris objective of no more than a 2 C increase in global temperatures from pre-industrial temperature levels will require worldwide net zero emissions of carbon-dioxide-equivalent (CO2e) gases by 2050.  In any event, the UK, France, Norway and Sweden have adopted a net-zero requirement to be achieved no later than 2050 and more than a dozen large US cities have done likewise.

How a net-zero requirement can be met, with all the extant emissions from industry, transportation and buildings, is perhaps the most important research and development task facing us.

Consider whether another approach should be considered. In a 2017 op-ed Wall Street Journal piece, James Baker and George Schultz recommended a “carbon tax” on emissions of carbon dioxide equivalent gases.   This recommendation is the centerpiece of a memorandum to “Interested Parties” by a Republican pollster and strategist suggesting that the Republican Party should heed polling results and embrace the Baker/ Schultz suggestion that the Republican Party ought to support a “Carbon Dividends” proposal. This proposal would feature “four pillars”: a tax (of $42/ metric tonne of CO2e, indexed to rise with inflation), an equivalent “dividend” to working class Americans, a border adjustment for carbon content of imported goods, and elimination of EPA’s regulatory authority concerning climate issues.  The tax revenues would be returned to private citizens with the lowest incomes, as a “Carbon Dividend” to mitigate the increased energy costs.

However, the Carbon Dividend proposal says nothing about reducing emissions other than by raising a “price on carbon.”  But will a tax achieve that goal? Some parties may choose to emit and pay the tax so there is no guarantee that emissions will be reduced and certainly not to achieve net-zero emissions. Any reduction in energy use by businesses would depend on the elasticity of the market for other inputs and competition for the output products. For businesses that have inelastic demand curves the costs just get passed through with no or little emission reduction.  In other words, a carbon tax will not yield significant environmental results, however admirable its intentions.

However, emission reduction credits, or “offsets,” is a tool which has been used for nearly 50 years under the Clean Air Act.  Verified offsets provide real reductions.   Verified offsets have been used to allow large new construction projects in dirty air areas, to reduce the costs of compliance measures in state implementation plans, and now as a means of reducing costs in most of the climate legislation around the world.  Offsets are not easy to create.  Using standard protocols, there must be a scientific method which has been adopted in a public process and adherence to that methodology then for a project to be undertaken.  Both are validated and verified by an independent third party. Only then is the “offset credit” created.  Offsets seem to attract entrepreneurs who have a “better idea” of what projects can be implemented at a much lower cost that an EPA-approved, command and control requirement.   The U.S. now has three independent offset verifiers which have produced millions of tonnes of extra reductions -- proving that the concept can work at scale.   These are real and verified reductions and the current prices are a small fraction of the $42 per tonne price in the Carbon Dividend proposal.  Verified offsets are a much better and cost-effective way to produce reduce real emission reductions.  

For a “tax” on carbon emissions, we would start with an existing and established measuring tool; those sectors covered by the Mandatory Reporting Rule (MRR).  The covered sectors have already been established as the most carbon-intensive industrial activities.  The MRR is established and tested and would not require a new system.

A proposed carbon tax systems could then allow a credit or a “deduction” for other state requirements for GHG controls.  State carbon reductions requirements (e.g. AB32 in California and RGGI in the Northeastern states or other state adopted requirements, see) could be recognized, which would reduce the taxable quantity.  Allowing offsets, including those purchased from sources “outside the [MRR] cap” would provide further reductions, and further reduce net taxable emissions.   But a complete elimination of taxable carbon emissions appears unlikely in the near term.

There are many sectors who now perform “voluntary” projects, at a cost far below $42/ metric tonne.  Among the sectors outside the MRR list, are:

  • agricultural and forestry programs (famers and foresters have produced substantial volumes of offset credits to date);
  • unregulated industrial processes, such as those emitting methane, nitrous oxides and hydrofluorocarbons, which are not subject to the MRR; and
  • abandoned coal and gas well vents.

Not only would using offsets provide an incentive for extra reductions on a voluntary basis, the existing voluntary programs are examples of innovation. Small businesses, new ideas, and new ventures have created most of the offsets now used in compliance and voluntary systems.

Carbon offsets are real reductions, and not just a fiscal policy redistribution.  In addition to providing a “dividend,” a carbon tax offset policy could stimulate new ideas and businesses as well as substantially reduce carbon emissions.  This would align sound climate policy with sound tax policy by using a tool developed long ago, updated based on recent experience.

HEY CONGRESS: PLEASE FIX THIS “JUST PLAIN NUTS” SITUATION

Posted on June 10, 2019 by Dick Stoll

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is “just plain nuts.”  He points to two recent (May, 2019) conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.

I similarly complained of a “whole lot of craziness going on” regarding WOTUS judicial review in my 2015 ACOEL post.  I related how inconsistent decisions coming out of various courts were leaving the rule in force in some states, yet throwing it out in other states.  Since then, we have seen even crazier situations with some counties left subject to the rule while other counties in the same State are not!

Here is a recent sad summary from the May 29, 2019 Inside EPA: “Due to a variety of district court decisions, the 2015 rule continues to apply in 23 states and 23 of New Mexico’s 33 counties, but it is blocked in 26 states and in the other 10 New Mexico Counties.”  And to make the patchwork even crazier, the 23 states where the rule remains in place are anything but contiguous – looking at a U.S. map, it appears someone threw darts.

As Rick Glick recently reminded us, we will soon have a brand new WOTUS from the Trump EPA folks.  This will inevitably trigger a slew of new judicial review actions in numerous federal district courts, with another crazy-quilt patch of inconsistent results sure to follow.

Seth appears to blame this situation on the Supreme Court, which ruled last year that initial judicial review of the WOTUS rule must lie in the federal district courts – not, as the federal government had urged, in a U.S. Court of Appeals.  Seth notes that “the Supreme Court had the luxury of ignoring the chaos that would ensue” from its decision.

I blame this situation squarely on Congress, however.  Given the way the Clean Water Act is drafted, I just don’t see how the Supreme Court could have ruled otherwise.  And it is telling that the Court’s opinion was unanimous.  That’s right, a unanimous opinion from this Supreme Court! 

The heart of the problem is straightforward.  Under the federal APA, direct judicial review of final agency rules lies in federal district courts except where Congress has provided that certain types of rules are to be reviewed directly in a Court of Appeals.  As I outlined in my 2015 “craziness” post, Congress has provided that all sorts of national rules under the Clean Air Act, the Resource Conservation and Recovery Act, and many other statutes, shall be directly reviewed by a Court of Appeals.

But in 1972 Congress took a different approach in the Clean Water Act, and specified that only seven types of final EPA actions would be directly reviewed in a Court of Appeals.  As the Supreme Court unanimously ruled last year, the WOTUS rule does not fit within any of these seven types of actions.  As a matter of pure (and unfortunate) logic, this means the district courts have initial jurisdiction over the WOTUS rule.

The federal government argued before the Supreme Court that the policy arguments in favor of direct Court of Appeals review are overwhelming.  The crazy-quilt patchwork that would take years (probably decades) to resolve would be avoided, as federal rules would require challenges filed in various Court of Appeals circuits to be consolidated in one Court. 

I wholly agree with these policy arguments, and I believe it is up to Congress to fix this mess. Just a few words added to the CWA would do it.  For example, Congress could simply provide that final rules defining the extent of “waters of the United States” would be the eighth type of action subject to direct Court of Appeals review.  Or many other formulations with just a few words could do the trick.

I know we live in polarized political times, and it is hard to secure Congressional consensus on major issues like reproductive rights, immigration, etc.   But should it be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid “just plain nuts” and “whole lot of craziness” inconsistencies throughout the nation?  If it is, I think that is just plain nuts.

A Rational Counter to the Green New Deal

Posted on May 15, 2019 by Dick Stoll

For anyone serious about climate policy, I highly recommend Bob Sussman’s Comment in the May 2019 Environmental Law Reporter. Sussman, a former high-ranking EPA official in the Clinton and Obama Administrations, has produced an amazingly comprehensive review of where we have been and where – in his view – we should be going with climate policy and law in the U.S.

He recommends a detailed mix of legislative and regulatory proposals covering all sectors of the economy.  His proposals are based (necessarily) on the assumption that Democrats will control both the White House and Congress beginning in 2021.  If this happens, he says, the Democrats “will need to be ready with a fully developed and actionable climate policy agenda . . . building this agenda will take time and must begin now.”

So is Sussman – like many Democratic Presidential candidates – endorsing the Green New Deal (GND)?  Hardly!  His baseline is to seek “economically responsible and realistic” measures.  And when he says “realistic,” he means politically as well as technically.

Sussman criticizes the GND as a “wild card” formulated by “idealistic newcomers” who could “unwittingly torpedo their own efforts.”  He urges those formulating new proposals to account seriously for concerns about (1) economic disruption, (2) an expansive federal bureaucracy, (3) picking winners and losers among energy technologies, and (4) the U.S. competitive position internationally.  Democrats, he writes, “need to acknowledge these political realities.” 

These are concerns and realities, of course, that the GND essentially flaunts.  He warns that the GND “will polarize the electorate and alienate the political center,” which would lead to “yet another policymaking failure that allows GHG emissions and global temperatures to continue to rise unchecked.”

Sussman’s detailed proposals are summarized neatly in Table I to his Comment.  He is realistic in dividing proposals that will need new legislation as opposed to beefed up regulations.  For instance, he is careful to note that cap-and-trade or “beyond the fenceline” approaches would need new legislation.  In this regard, he recognizes that anything like the ambitious Obama Clean Power Plan would be unlikely to survive judicial review given the current composition of the Supreme Court.

For the power and manufacturing sectors, he endorses legislation providing an integrated cap-and-trade system.  I have one caution in this regard.  I would hope that such legislation would not look very much like the Waxman-Markey bill that passed the House in June, 2009 (and was never brought to the floor of the Senate).

As I wrote in a piece for BNA that year, the House bill contained short deadlines for dozens of new EPA regulations – deadlines that could never have been responsibly met. This would have set up an inevitable round of citizens suits forcing new deadlines coupled with massive judicial review opportunities.  All this in turn would produce tons of work for lawyers accompanied by very few tons of emission reductions.   Hopefully any new cap and trade legislation can be sufficiently specific on programmatic elements and numeric details so the program could get off the ground without suffering through years of judicial process.

The 2018 Farm Bill is surprisingly climate-conscious.

Posted on January 31, 2019 by Peter Lehner

Roughly every five years, Congress revises and renews the Farm Bill to fund our nation’s food security, nutrition, and farm conservation programs. The 2018 Farm Bill, which passed with large bipartisan majorities in both chambers, is surprisingly climate-conscious. Its successes will serve as a foundation upon which future more aggressive climate-smart farm policy can be built.

The Farm Bill’s climate change benefits stem from a number of provisions that incentivize more climate-friendly practices. For example, the Farm Bill’s federal crop insurance program will now allow — rather than discourage — greater use of cover crops, a practice that has well-proven climate and water quality benefits. This program, which is now the primary federal subsidy to industrial farming, has often inhibited the use of climate-friendly practices such as cover crops and longer crop rotations, while at the same time encouraging planting on marginal lands, which are better suited as habitat for wildlife, buffers for streams, and carbon sinks. The 2018 law takes steps to end these perverse incentives.

The Conservation title of the bill contains a number of programs that will help curb climate change. This title continues to provide about $6 billion annually to the Conservation Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program, all of which saw modest improvements in the 2018 Farm Bill. The changes to EQIP, which generally provides a 75 percent cost-share for installation of approved conservation measures, best illustrate how these traditional programs can pay climate and environmental dividends, with the added twist of garnering the support of fiscal conservatives.

EQIP data from USDA indicated that only 14 percent of EQIP funding went to conservation practices identified as producing the most environmental benefits. To turn the tide, the new law allows states to identify 10 highly effective conservation practices to be eligible for a greater financial incentive. Since climate change induced farm losses harm both the farmer and the taxpayer -- for example, climate-driven natural disasters in 2012 incurred $17.3 billion in crop insurance payments – shifting to more efficient practices is a sound fiscal move as well. 

The Bill also increases funding for organic farming and for a range of practices that help store carbon in the soil and emit fewer greenhouse gases. It also lowers the set-aside for EQIP funds for livestock operators from 60% to 50%, which is critical since livestock operations are responsible for about 80 percent of agriculture's climate change impact.   

CRP pays farmers to take environmentally sensitive land out of production for 10 to 15 years.  Because producers often bring their CRP acres back into production when the contract expires, releasing any carbon stored in the soil during the off years, the benefits are often only temporary.  The bill supports climate-friendly practices like riparian buffer and prairie strips and authorizes 30-year contracts on a pilot basis.  The law also provides a minimum number of acres to be enrolled in the program that targets the most environmentally sensitive lands and pays producers to establish tree and grass buffers along streams.  These water quality provisions both have a climate impact and create a precedent for more climate-change-focused amendments in the future.

Finally, the 2018 Farm Bill increases Conservation Stewardship Program payment levels for cover crops, resource-conserving crop rotations, and management-intensive rotational grazing – all of which reduce water pollution, help slow climate change, and help producers weather climate change.  It also establishes a soil health demonstration program, funded at $15 million, setting a good precedent for larger future action by the federal government and states.

The same provisions that fight climate change, will also encourage practices that protect the drinking water of millions. Industrial-scale agriculture — the large chemical-dependent monocultures where the same crop is planted year after year and the production of grain-fed animals in enormous enclosed facilities — is one of the largest sources of water pollution in the country, such as the dead zone in the Gulf of Mexico or the eutrophication of the Chesapeake Bay. This agricultural water pollution can render water unfit for further human use and impose significant drinking water treatment costs on thousands or millions of communities and homeowners, such as when Toledo had to shut its water supply due to algal toxins, or the nitrate contamination in thousands of drinking water wells that could cause “blue baby syndrome.”  As a result of the clear and present threat, Sen. Debbie Stabenow (D-MI), a lead negotiator of the final bill, was able to build bipartisan agreement to support practices that could reduce this pollution.

As a climate bonus, the 2018 Farm Bill also takes some steps to help reduce food waste, most of which now rots in landfills, releasing large amounts of methane.  The bill funds pilot projects in ten states to develop local composting and food waste reduction efforts and promotes the donation of agricultural commodities.  It also creates a Food Loss and Waste Reduction Liaison in the USDA to coordinate federal programs and clarifies liability protections for food donations, among other measures. 

This legislation comes at a critical moment, when our country must decide whether and how to deal with the dramatic warming of the planet. Two recent climate reports confirm that we must act on climate change quickly, and that the extreme weather climate scientists have been warning us about are here and will worsen in the years ahead.

Our agricultural activities are both contributors to and victims of the changing climate. At the same time that industrial agriculture releases tremendous amounts of greenhouse gases from excess fertilization, tillage, manure, and animal emissions, our farms and ranches are also particularly vulnerable to the floods, droughts, heat waves, pests, and other problems that climate change exacerbates. For example, the 2016 California drought resulted in over $600 million in economic loss; Hurricane Maria in 2017 devastated 80% of Puerto Rico’s agriculture and caused $780 million in losses; heat waves threaten both crops and farmworkers.  It’s to everyone’s benefit to help those who produce our food be ready for the changing weather. 

Moreover, farmers and ranchers are uniquely situated to help slow climate change simply by preparing for it. Sustainable farmers and ranchers around the country have repeatedly demonstrated that many farming practices can help both slow and withstand climate change. There are many practices that increase carbon stored in soil or that use natural systems to reduce chemical needs and thus lower greenhouse gas emissions. At the same time, they increase the amount of water the soil can absorb and enrich the fertility of the soil, thereby helping farmers endure worsening conditions. These same practices also reduce water pollution and save farmers money.

Given the scale and scope of the climate problem we face, more needs to be done in the next Farm Bill — indeed, much sooner — to accomplish the change needed in the agricultural sector so that it can produce sufficient nutritious food in more extreme weather without making climate change and other pollution worse. This won’t be easy given that the Farm Bureau, one of strongest voices shaping US agriculture policy, repeatedly and fiercely opposes any efforts to curb climate change, and the U.S. Department of Agriculture, as part of Donald Trump's administration, never mentions climate change. Yet, it’s necessary.

The 2018 Farm Bill, by lifting up practices known to have multiple environmental benefits, is a promising place to start.

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.

500-Year Flood, Last Straw, or Asteroid Strike? Metaphorically Testing the Resilience of Environmental Law.

Posted on August 28, 2018 by JB Ruhl

Regardless of your politics, it’s hard not to describe the environmental policies of Trump Administration as…very different. Indeed, that’s exactly what his supporters want and his opponents fear. But the question is how much different. Enough, I would say, to test the resilience of environmental law.

With origins in ecology, resilience theory has swept into the social sciences as a way of thinking about how social systems withstand forces of change, especially extreme events like the so-called 500-year flood—the flood so big it is expected on average only once every five hundred years. It’s now common to read commentary and proposals on how to build resilience of cities to natural disasters, resilience of corporations to consumer crises, and resilience of the financial system to economic shocks. Well, as I have suggested previously, legal systems are social systems, and they have either enough or not enough resilience to bounce back from extreme “pulse” disturbance events or from a long onslaught of less intense “press” events. If they don’t have enough then, just like an ecosystem experiencing desertification after prolonged drought, a legal system could experience a regime shift and look nothing like its former self on the other side.

One thing that’s entirely apparent now is that, after 35 years of arguing and name calling in environmental law between the “left” and the “right,” we’ve been playing between the 40-yard lines after all. We see that because there’s a new team in town, and they are trying to set up their offense on the 10-yard line, first-and-goal. But I shift metaphors. Back to resilience, and floods, though I may come back to football.

Had any other Republican who threw his or her hat into the ring back in early 2016 been the nominee instead of Donald Trump and won the White House, we’d all have expected “disturbance” events of some magnitude—some pushback on the Clean Power Plan, some softening on climate change policy, some pull-back on the WOTUS rule. Democrats would have waved arms and sounded alarms. But really, in retrospect it would have been just a bunch of 25-year floods and a rare 100-year flood here and there. Then a Democrat would eventually take over and we’d have more of the same in the opposite direction, with role reversal. Hey, that’s politics (or it was politics). The bottom line is that 45 years after the environmental law statutory big-bang of the early 1970s, all these disturbance events added up have never swamped environmental law as we have known it—the laws and agencies are still there, plugging away, albeit it with different playbooks (football again) from administration to administration. In short, environmental law had resilience to spare!

The Trump Administration, at the very least, is a 500-year flood—it’s intended to be that or more. 500 years is a long time, but 500-year floods happen. The smug complacency of the previous paragraph missed one little problem: when a 500-year “pulse” event flood comes along after decades of continuous lesser-magnitude “press” disturbances, it’s possible the resilience reserve just isn’t enough to stave off the assault and prevent a regime shift. Maybe it can, but maybe this 500-year flood is the last straw. And then there’s also the possibility that the Trump Administration is more like an asteroid strike—you know, like the one that wiped out the dinosaurs. Even when the resilience reserve after a long press assault is at three-quarters, that’s a challenge. As in, no way.

So which is it: a 500-year flood environmental law can withstand, the last straw, or an asteroid strike? Everyone has his or her own positions, and I’m not (in this post) trying to tell anyone what they should hope for. Rather, stepping back from the political fray, what’s the evidence? Here’s my take.

First, I don’t think this is an asteroid strike. Those happen fast, and are unequivocal impact events. For environmental law, that would mean something like we wake up one day and there is no Clean Water Act, Clean Air Act, Endangered Species Act, and so on—they went the way of the dinosaurs. There is no evidence that is in the cards, even if it were in the plans. The fact is that our governance system, notwithstanding the critiques, makes it immensely difficult for any new administration, regardless of its agenda and mandate, to accomplish an asteroid strike on environmental or any other field of law. Power is too dispersed, procedures are enforced, courts step in, the public pushes back, election cycles are short, politics can turn to molasses, and so on. Notwithstanding all the hype from both sides, the Trump Administration so far has not proven to be that big of an event. Arguably, though, asteroid strikes have happened in our not too distant past—the Great Depression and WWII were impact events that threw our entire governance system into a regime shift, leading to the dawn of the regulatory state. Were an external global event of that magnitude and threat to occur, its combined effect with the Trump Administration’s agenda could be a very hard blow indeed.

Rather, the evidence thus far is that the Trump Administration, for environmental law and many other fields, looks like a 500-year flood.  It has pushed really hard on all those resilience mechanisms just mentioned, but they are pushing really hard back. And I don’t see it getting near the last straw. I follow the Endangered Species Act very closely from a centrist position—I am no starry-eyed fan or red-eyed critic—and I from what I observe there is zero chance of it going away. But there is a 100 percent chance it will experience broad and deep regulatory and policy reform—it’s well underway already—and perhaps some legislative tinkering. This almost surely will be an outlier disturbance event, like a 500-year flood, and may deplete the resilience reserve more than usual, but it will not wipe it out.  As for other corners of environmental law, I leave that to their respective experts, but my sense is that it is largely the same story.

Again, I’ve tried not to imprint my own politics onto this analysis. Like an ecologist studying an ecosystem under disturbance, I’m simply asking, how big a disturbance to environmental law are the policies of the Trump Administration? We all agree they are big and intended to be so. But ten years from now, will we be playing between the ten, twenty, thirty, or forty yard lines on the football field, or will we be playing soccer on the pitch? I guess only time will tell, but I’m sticking with my seats on the 50-yard line for now.

LAND CONSERVATION AND THE NEW TAX LAW

Posted on March 20, 2018 by Philip Tabas

The sweeping tax law enacted last December changes the U.S. tax code in ways that affect individuals, businesses, corporations, and tax-exempt entities. The law, the Tax Cuts and Jobs Act of 2017 (TCJA), enacts comprehensive tax reform and was crafted and passed by Congress along party lines. What will it mean for charitable giving and particularly for land conservation?

Tax policy has long been an important incentive to foster land conservation in the US. Indeed, there is evidence to show that the tremendous growth of the land trust conservation community resulted largely from the enactment of the 1980 Federal tax deduction for conservation easements. The TCJA retains that deduction but alters the incentive to use it and other tax strategies for land conservation.

Here’s how:

The charitable deduction:  The TCJA retains the charitable deduction but increases the standard deduction while repealing and limiting many itemized deductions, all while reducing marginal tax rates for individuals, corporations, and certain pass-through business entities. The Act raises the percentage limit on cash donations for those who itemize deductions to 60% of adjusted gross income (AGI), up from the current 50% of AGI. Finally, the “Pease rule” limiting all itemized deductions, including but not limited to charitable deductions, by certain high-income earners is repealed. No specific changes were made to IRC section 170(h) regarding gifts of conservation easements or to the ‘enhanced’ tax deduction for gifts of conservation easements (designed to encourage conservation easement donations by enhancing the ability of “land rich, cash poor” taxpayers to claim a tax deduction for such gifts).

What are the implications?

These changes have given rise to significant speculation that the TCJA will reduce charitable giving in general and adversely impact the charitable sector, including land trusts and conservation organizations. Gifts of land or easements for conservation are likely to continue to be made but the changes in marginal tax rates may diminish the after-tax value of such gifts.

It is likely that higher income taxpayers will continue to have financial incentives to donate easements while taxpayers of more modest means could have the tax value of their easement gifts reduced; this might alter the types of land conservation and ecological outcomes that can be incentivized by easement donations.

Estate tax changes: The TCJA also doubled the credit against the estate, gift, and generation skipping transfer tax effectively eliminating many estates from being subject to tax, although this provision will only be in effect from 2018 through 2025. Consequently, the Act is likely to weaken the tax incentive to make charitable contributions at death, including gifts of land or conservation easements, at least during that period.

Real estate changes: The TCJA retains the like-kind exchange tax deferral for real property under current law, but repeals such treatment for exchanges of personal property. Thus, easements or land with conservation significance may continue to be exchanged for other like kind property enabling the landowner to defer the recognition of otherwise taxable gain.

Syndicated conservation easement transactions: Over the past few years, there has been a dramatic increase in the number and valuations involved in so-called syndicated conservation easements transactions. These arrangements essentially are tax shelters designed to generate profits to investors in pass-through entities from a charitable donation of a conservation easement typically at inflated appraised values. The IRS recently issued Notice 2017-10 describing these transactions as “listed transactions” and requiring disclosures by participants and material advisors involved in these transactions. 

While It remains to be seen whether anything in the new tax law will affect such tax shelter transactions, the reduction in the highest marginal individual income tax rates and a new deduction for partnerships, Subchapter S corporations, and sole proprietorships are likely to combine to mean that syndicated easement promoters will have to have more aggressive easement valuations to make the after-tax returns comparable to what they were under the old law. This may make it harder to find investors. Hence, buying into one of these tax shelters may not bring the tax savings it used to, but that may simply prompt promoters to rebut that with bigger write-offs.

The conservation community is working to address such syndicated easement transactions by advocating for a bill currently before Congress (S. 2436, Charitable Conservation Easement Program Integrity Act) which would directly target the abusive transactions while continuing to reward true philanthropy that helps to conserve farms, ranches, working forests, wetlands and wildlife habitat for future generations.

With the Stroke of a Pen…or a Tweet?

Posted on February 1, 2018 by JB Ruhl

John Milner’s recent post on executive orders, memorandums, and proclamations taps into something that is quite new and different for environmental lawyers—a president who uses these and other “direct actions” to shape environmental policy from day one, and who is doing so largely by undoing his predecessor’s direct actions.  

I’ve recently completed two empirical studies of presidential direct actions from FDR through the first year of the Trump Administration. In one paper we look at what topics presidents have focused on overall through time and then drill down on environmental (and energy) policies. In the other paper we examine the practice of presidents revoking predecessor direct actions (through yet another direct action).

Despite what you may read in the media, President Trump is by no means unlike other presidents in using direct actions, and lots of them, to steer policy early in his term, or in revoking predecessor direct actions to get the job done. What sets him apart is how early in his term he focused on environmental and energy policy, and how aggressive he has been in revoking President Obama’s direct actions in those fields. And then there’s…the tweets. Let’s take these one at a time.

Direct Actions and the Environment: There is a rich history of presidents using the big four direct actions—executive orders, memorandums, proclamations, and determinations—to shape policy straight from the White House, but environmental policy has not played a big role. Once you take out public lands policy, including the Antiquities Act, environmental policy has been a small component of direct action activity. Energy policy has been more prominent, however, and to the extent the two fields are increasingly merging, one does see more presidential attention going their way, but not usually concentrated at the beginning of a term. President Trump is quite different in this respect, using direct actions to dramatically change environmental and energy policy right out of the gate. 

Revoking Direct Actions: Presidents have revoked predecessor direct actions throughout history, and with great frequency. Here President Trump is no different, except that he is the first to bear down so much on environmental and energy policy. Part of the reason, of course, is that President Obama used direct actions to shape much of his administration’s environmental and energy policy, meaning President Trump could not advance his policies without negating President Obama’s actions. But he has gone further than that. For example, while not completely unprecedented, his orders “shrinking” existing national monuments established by Presidents Clinton and Obama have, for the first time, called into question whether a president has the power to do so.  

Tweets as Direct Actions: The rising use by politicians of social media as a channel of communication has raised questions regarding the status of President Trump’s frequent “tweets” as official policy. If the pen is mightier than the sword, is a tweet from the President even mightier?

Until recently, no one could be blamed for thinking a tweet is just a tweet—but they warrant their own treatment (tweetment?) given how important a role they have come to play in the Trump Administration. For example, former White House Press Secretary Sean Spicer somewhat circularly explained the status of President Trump’s tweets, stating that “The President is the President of the United States, so they're considered official statements by the President of the United States.” CNNPolitics, White House: Trump’s Tweets are “Official Statements." Ninth Circuit Court of Appeals apparently took him at his word when ruling on the so-called “travel ban,” pointing to a Trump tweet as tantamount to an official presidential “assessment.” Hawaii v. Trump, No. 17-15589, n. 14 (9th Cir., June 12, 2017). Indeed, the Department of Justice recently declared in litigation that Trump’s tweets are “official statements of the President of the United States.” James Madison Project v. Dep’t of Justice.  It’s not entirely clear where we are supposed to go with that—are tweets truly direct actions, or just official statements, and what’s the difference?

Presidents through time have shaped policy through direct actions, revoked predecessor direct actions, and, more recently, tweeted. For environmental lawyers, though, President Trump has done all three in ways that seem to be changing the rules of the game. Stay tuned for more?  How can you not?

The Packers, Beer, Cheese Curds and …Regulatory Reform?

Posted on January 30, 2018 by Todd E. Palmer

If states are the crucible of policy experimentation, Wisconsin’s regulatory reform efforts deserve attention as the Trump Administration implements its federal deregulatory agenda.   Wisconsin has been pushing an aggressive deregulatory agenda for the last five years and its experiences might better inform the federal debate in this area.

The cornerstone of Wisconsin’s regulatory reform effort has been Act 21.  Enacted in 2011 during a Special Session of the Legislature, Act 21 prohibits a state agency from implementing or enforcing any requirement, standard or permit term unless it is explicitly required or authorized by statute or administrative rule. Although largely ignored for its first five years, Act 21 has become a significant force in the state.  A previous ACOEL blog post highlights a Wisconsin Attorney General opinion that interprets Act 21 as restricting the Wisconsin DNR’s authority to regulated high capacity wells.  That issue is working its way through state courts.  More recently, Act 21 has been the legal predicate for further limiting state agency regulation in other areas, including:

-          A decision issued by the Wisconsin DNR Secretary concluding that her department lacks explicit authority to impose a limit on the number of animals at large livestock operations or to require that monitoring wells be installed around such operations. The Secretary’s decision reversed an ALJ’s opinion to the contrary.

-          A State Attorney General opinion that animal unit limits in WPDES permits are unlawful because they are not explicitly authorized by a statute or rule.

-          A judicial settlement agreement executed by the State of Wisconsin agreeing to refrain from enforcing any standards applicable to feed storage leachate or runoff management unless promulgated as a rule.  The state further agreed to withdraw and not enforce draft program guidance that sought to impose such requirements. 

-          A State Attorney General opinion that state agencies cannot enforce rules that are not explicitly authorized by statute, even if those rules were promulgated before enactment of Act 21.

-          A State Attorney General opinion that state agencies do not possess “any” inherent or implied authority to promulgate rules or enforce standards, requirements or thresholds.  The general statements of legislative intent, purpose or policy that are often found in statutory provisions do not confer or augment agency rulemaking authority.  

In the wake of these developments, the State Attorney General recently observed that “Act 21 completely and fundamentally altered the balance [of government administrative power], moving discretion away from agencies and to the Legislature.” 

As Act 21 forces Wisconsin agencies to create rules to implement their regulatory programs, the State Legislature is turning its attention to the rulemaking process. The Legislature passed its own version of the Reins Act (Regulatory Executives in Need of Scrutiny) which, in the most general of terms, increases the procedural requirements and legislative oversight of the state’s rulemaking process.  It now takes roughly three years to pass an administrative rule in Wisconsin.   

Having added procedures that delay the rulemaking process, the Legislature is debating bills that would expedite the rule repeal process. These bills would establish an expedited process requiring agencies to inventory and petition the Legislature for repeal of certain rules. For example, one bill would require the repeal of state rules concerning air pollutants that are not regulated under the federal Clean Air Act.  Another bill would automatically repeal certain environmental regulations ten years after they take effect. Although the Wisconsin DNR could attempt to readopt an expiring rule, that effort could not commence any sooner than one year before a rule’s expiration. 

In the Judicial Branch, the Wisconsin Supreme Court will soon decide whether the state’s practice of deferring to agency interpretations of statutes comports with the Wisconsin Constitution.  Recent decisions suggest that the majority of Justices will answer in the negative.  A decision should be issued this summer and could impose additional restrictions on agency authority.  

Not surprisingly these reforms have been controversial.  ENGOs have filed lawsuits challenging permits that fail to include terms and conditions due to the restrictions of Act 21.   The regulated community has taken the opposite view, challenging permit terms and conditions that are not explicitly authorized by rule or statute.  At some point these roles are likely to reverse since the regulated community often relies upon implicit agency authority to establish permit conditions which it finds favorable. 

Much like the federal initiative, Wisconsin’s reforms have been wrapped in the trope of reducing the regulatory burdens placed on state businesses and thereby improve the state economy. So far the state’s economy is doing quite well.  These efforts warrant continued monitoring to gauge how the economy and environmental concerns have been balanced while implementing these reforms.   

It Ain’t Over ‘til It’s Over -- The Congressional Review Act & the Search for Zombie Regulations

Posted on December 7, 2017 by Allan Gates

Enacted in 1996, the Congressional Review Act (CRA) affords Congress the opportunity to review and disapprove final rules of federal agencies.  In the first 20 years of its existence, only one regulation was disapproved using the CRA.  In the first 100 days of the Trump administration, however, Congress invoked the CRA to disapprove thirteen separate regulations.  The White House advertised the CRA disapproval resolutions as the top legislative accomplishment of the administration’s first 100 days, proudly claiming that President Trump had signed more CRA resolutions than any other President in history.

By mid-summer most observers assumed the push to roll back Obama-era regulations using the CRA was over because the statute provides a narrow window of time for introducing resolutions of disapproval (generally 60 legislative days from the date the regulation is received by Congress), and it similarly limits the time within which expedited legislative procedures – including passage by simple majority vote in the Senate – can be used.

But wait, there’s more  – 

The window of time for introducing a disapproval resolution under the CRA begins to run on the day a regulation is submitted to Congress.  And it turns out agencies have not always been careful about sending their rules to Congress.   According to a 2014 report, hundreds of final regulations published in the Federal Register each year have never been reported to Congress.  Moreover, since the rules subject to review under the CRA are not limited to those published in the Federal Register, the report suggests there may be thousands of unreported interpretive rules, guidance documents, “Dear Colleague letters,” and the like.

Conservative activists aware of the inconsistent agency filing practices have begun to argue that all older regulations that were not reported to Congress are still subject to CRA review.  One conservative group has established a separate website, RedTapeRollback.com, proclaiming that:

“Powerful new ideas to use the CRA for older rules not reported to Congress are causing great excitement. This is a regulatory game changer!”

The website includes a database of rules it claims were not reported; and the website urges its visitors to, “Help us find and report more rules that were never submitted to Congress.”

The activists promoting use of the CRA to attack older, unreported regulations offer three rollback strategies.  First, private parties who are subject to the requirements of an older, unreported regulation could argue the regulation has never taken effect. There is certainly language in the CRA to support such an argument:

“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress [a report containing a copy of the rule.]”

Another provision of the CRA, however, has language that may preclude a private party’s ability to obtain judicial review of claims based on the CRA:

“No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The second strategy calls for the Trump administration to identify undesirable rules that were never reported to Congress, state that the rules have never taken effect because of the agency’s failure to report them, and abandon or vacate the rules.  Under this scenario, the Trump administration would roll back undesirable rules immediately without the necessity of going through notice and comment rulemaking procedures otherwise required to repeal the rules.

The third strategy suggests the Trump administration could identify undesirable rules that were never reported, report them to Congress, and encourage Congress to adopt resolutions of disapproval.  If this occurs, Section 801(b)(2) of the CRA precludes reissuance of a disapproved rule in the same or similar form unless Congress affirmatively adopts legislation authorizing the promulgation.

It may well be that the activists’ frothy enthusiasm for expanded use of the CRA will come to very little.  It is possible, perhaps even likely, that most of the unreported rules were insignificant, unobjectionable, or even exempt from reporting and review under the CRA.  Moreover, as a practical matter it is unlikely that Congress would be willing to devote significant amounts of floor time to debate the disapproval of a large number of older, unreported regulations.  Nevertheless, a cursory examination of RedTapeRollback’s database of supposedly unreported rules cannot help but give one pause.   Think the 2010 Chesapeake Bay TMDL and EPA’s 2008 Rapanos Guidance.

Interest in use of the CRA did not end with the flurry of disapproval resolutions in the first one hundred days of the Trump administration.  At a September House Subcommittee on Regulatory Reform oversight hearing focused on agency compliance with the CRA, witnesses urged Congress to attack older regulations that were never reported to Congress.  In late October, Congress passed and the President signed a disapproval resolution invalidating an arbitration regulation adopted by the Consumer Financial Protection Bureau, an independent agency whose regulations are not ordinarily subject to Executive review and approval.

The recent surge in use of the CRA has not gone without opposition.  The Center for Biological Diversity (CBD) has filed suit to vacate a CRA resolution that nullified an Interior Department regulation limiting the methods used to hunt wolves and bears in Alaska wildlife refuges.  Among other things, CBD argues that the CRA limitation on issuance of future regulations without express approval of Congress infringes on the constitutionally protected separation of powers.  The court’s decision in the CBD case is likely to provide guidance on the reach of the language quoted above that limits judicial review of claims arising under the CRA.

Against this background it is safe to say that we have not seen the last of the CRA in the Trump administration.  As Yogi Berra once said, “It ain’t over ‘til it’s over.”

The Intersection of Environmental Justice and Climate Change

Posted on September 20, 2017 by Lisa C. Goodheart

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts.  Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities.  For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks.  Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure.  It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably.  Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes.  Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ.  Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination.  In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts.  That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities.  This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making.  Its scope was limited to environmental agencies, and it contained no mention of climate change.  Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making.  In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.”  This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N.  Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated.  The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making.  The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities.  States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs.  This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster.  As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

With Litigation Guaranteed, the fate of national monuments will be uncertain for some time

Posted on September 1, 2017 by Brenda Mallory

At the end of August as the last days of summer pass, the Conservation community waits with bated-breath to learn what the Trump Administration will do to twenty-one significant national monuments and the century-old tradition they reflect. The consensus—among those who have dedicated their lives to protecting special places, the local communities whose economies have been bolstered by their presence, and a broad swath of Americans who simply enjoy having extraordinary places to visit—is that it won’t be good. The further consensus is that what the Administration is considering likely exceeds the President’s legal authority under the Antiquities Act. Both progressive and conservative voices have recently argued that the president lacks the authority to diminish or revoke National Monuments. While the motivations for making this argument may be different, the basic statutory and constitutional arguments are the same, and the significance of the president taking this uncharted path to diminishing national monument protections is recognized (in either a positive or negative light) even by the few who argue he does have the authority to do so.

The legal question begins where many of our most controversial issues today start –the scope of a law. Yet, at its foundation, a history of simmering tensions over the extent of Federal lands in the west and the Federal government’s control over those lands has fueled passions around this issue. For over 110 years, the Antiquities Act has stood as one of the most powerful tools for the protection of cultural, historic, and scientific resources. Some have described it as the first statute with an exclusively protective purpose.  The statute gives a President the discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” A key question is what does “other objects of historic or scientific interest” mean? This Administration appears poised to take on the longstanding, judicially endorsed conclusion that this phrase includes large landscapes like the Grand Canyon, and to bring to the fore the threshold question of whether a subsequent President can change the monument designation of a predecessor.

In April, President Trump signed an Executive Order instructing Interior Secretary Zinke to undertake a review of Antiquities Act monument designations since 1996. Secretary Zinke then launched the review process identifying 27 monuments that fit the EO criteria: 26 because they were over 100,000 acres and one for the purpose of determining whether stakeholder engagement had been adequate. Recommendations were submitted to the President on August 24, 2017, but have not been made public. The Commerce Secretary received a similar presidential directive and is undertaking a separate process for marine monuments and national marine sanctuaries.

Over its history, monument designations under the Antiquities Act have been challenged as inconsistent with the statute and have always been upheld. See, e.g., Cameron v. United States, 252 U.S. 450 (1920), Cappaert v. United States, 426 U.S. 128 (1976). However, no President has attempted to revoke a prior designation and there has been no judicial challenge in the previous circumstances where a President has modified the boundaries of a designation. All signs are suggesting that we are about to see both for the first time: the President is expected to revoke or substantially reduce one or more monuments and, if he does, a challenge is inevitable. While this will be a case of first impression, the overwhelming view of scholars, which I share, is that the President does not have the authority to take these actions because Congress has not delegated him the authority to undo a designation. See, e.g., a collection of articles submitted to the Department of Interior by 121 scholars and similar analysis for marine monuments. Of course, there is an alternate view.

Putting the law aside, the atmospherics associated with this early battle by the Administration are noteworthy. First, like many of its other actions, the unprecedented nature and scope of the attack is striking. While it was immediately obvious after the election that there would be some effort to challenge then-President Obama’s most controversial monument designations, with Bears Ears National Monument in Utah at the top of the list, few expected that designations completed decades ago, by three different Presidents would be under threat. Businesses and communities have grown and developed because of and in reliance on these monuments, inseparable from the benefits they bring to their local areas. Upending years of investment and expectation is stunning. Nor was it expected that the attack would include so many monuments, land and sea, or that Marine Sanctuaries, which are completed over many years and with considerable process, would be thrown brazenly into the mix.  

Second, like the Administration’s attack in other areas, the stated narrative driving the challenge to national monuments – alleged abuse of executive power, failure to consult or listen to stakeholders, ignoring elected officials, restoring balance to the use of Federal land – is at odds with the Administration’s own behavior in the process.  As noted in the above-referenced articles, revoking or substantially reducing the size of a monument is beyond the scope of the President’s authority, a clear abuse of executive power. Even conservative leaning scholars and publications have joined the ranks of those condemning the anticipated executive action as beyond the President’s authority. Moreover, Secretary Zinke has unapologetically spent his “review process” meeting primarily with opponents of the monuments and the summary of his report released last week dismisses as part of a “well-orchestrated national campaign” the 2.7 million comments generated during the review process that overwhelmingly support retention or expansion of national monuments. Next, while the Republican elected officials are getting Zinke’s attention, it is not clear that the views of their Democratic colleagues are being given the same weight. Finally, talk of balance in federal land use is in direct conflict with the newly ascribed goals of “energy dominance” and the expedited efforts to open unspoiled areas to oil and gas drilling, and other extractive activities. Taken together, it is clear that this battle is less about correcting “unlawful” designations by previous Presidents and more about aggressively shifting the policy focus on Federal lands to exploiting the natural resources. For monuments designated under the Antiquities Act, only Congress has the authority to change the designation; and Congress is the appropriate body to consider whether policy shifts warrant such changes.

Finally, the attack on national monuments is not occurring in isolation. Many other efforts to eliminate or impair environmental and conservation protections on Public lands are underway.  They encompass repealing protective measures such as the stream protection rule, withdrawing the rule regulating hydraulic fracturing; repealing the Clean Water Act Rule; eliminating the ban on drilling in the Arctic; and rescinding the Executive Order directing federal agencies to consider rising sea levels when building public infrastructure in flood prone areas. They also include process initiatives that appear designed to undermine the fact based decision-making necessary to ensure the protection of environmental and conservation measures. These initiatives include Zinke’s Order to streamline onshore oil and gas permits, his regulatory reform initiative to eliminate “unnecessary regulatory burdens,” and his Order jumpstarting Alaska Energy focused on opening the Alaska National Wildlife Refuge and the National Petroleum Reserve Area to oil and gas drilling.

With this backdrop, there is a sense of foreboding as the Administration’s monuments review process comes to an end. One thing is clear, whatever is in the upcoming announcement by the Administration, it will likely take years of litigation before these issues are resolved and this century-old law will be put to the test.         

H.R. 23: A VERY BAD FEDERAL WATER LAW BILL—AND A WORSE PRECEDENT

Posted on August 24, 2017 by Richard M. Frank

H.R. 23 is an important and most unfortunate environmental bill currently working its way through the U.S. Congress.  Sponsored by California Republican Congressman David Valadeo—with a strong assist from House Republican Majority Leader Kevin McCarthy—H.R. 23 passed the House of Representatives last month on what was largely a party-line vote, 230-190.  It has now moved to the U.S. Senate.

This California-specific legislation would “reform” federal and California state water and environmental laws in order to provide more water from federal and state water projects in California to state agricultural interests in the state’s Central Valley.  H.R. 23 would do so at the expense of environmental values.  (That’s not mere interpretation or speculation on the part of this observer—it’s the express intent of the bill.)

Why, exactly, is H.R. 23--which has largely evaded public and media attention to date--such a flawed legislative proposal?  Let me count the ways:

First, it would reverse an over century-long tradition of federal deference to state water law regarding the construction and operation of federal water projects.  Congress made that commitment in the Reclamation Act of 1902, which transformed the settlement and economy of the American West.  Congress has reiterated this commitment to cooperative federalism in numerous subsequent federal statutes.  But H.R. 23 reneges on that promise, expressly preventing California state water regulators from imposing any restrictions on the federal Central Valley Project that would protect environmental values.

Doubling down on its preemptive effect, H.R. 23 expressly exempts the CVP (and those who obtain water from it) from application of California’s public trust doctrine, which—as is true of many other states—operates as a longstanding, cornerstone principle of California natural resources law.

Additionally, H.R. 23 brazenly exempts operation of the CVP and other California water projects from the federal Endangered Species Act “or any other law” pertaining to those operations.

H.R. 23 thus is terrible news for California’s environment.  But why should environmental attorneys from other states be concerned about the bill?

The answer is again multifaceted.  H.R. 23 represents the first serious Congressional effort of 2017 to weaken application of the Endangered Species Act.  The broad ESA exemption contained in H.R. 23 could easily be replicated in future federal legislation affecting federal, state or local projects in other parts of the country.

Similarly, if the longstanding tradition of federal deference to application of state water law is breached by passage of H.R. 23, rest assured that similar attempts will be made concerning similar projects in other states as well.

H.R. 23 is opposed by both of California’s U.S. Senators, along with California Governor Jerry Brown.  Even more notably, California’s largest water district—the Metropolitan Water District of Southern California—has signaled its opposition to the bill, declaring that it “goes too far” in elevating agricultural water interests over California’s environment.

H.R. 23: an awful bill for California, and a terrible precedent for the nation as a whole.

Rifle Shots – Unleashing the Power of the Tweak

Posted on February 24, 2017 by JB Ruhl

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

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

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

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

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

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

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

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

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

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

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

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

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

Be Vewy, Vewy Quiet – EPA’s Noise Program Might Be Coming Back!

Posted on August 30, 2016 by Samuel I. Gutter

Many, many years ago, when I was a staff lawyer at EPA headquarters, my duties included advising the program that implemented and enforced the Noise Control Act of 1972.  My last involvement, though, was to help dismantle the program.  In one of the more curious footnotes to the deregulatory wave that swept EPA in the early years of the Reagan administration, EPA axed the program – sort of.  Leaving behind a regulatory ghost town, EPA revised its noise regulations to leave standing the bare structure of federally preemptive rules, while clearing the building of its regulatory and enforcement staff.  In effect, EPA took itself out of the picture, morphing the noise regulations into a self-certification program for manufacturers. 

And there, in 40 CFR Parts 201 through 211, the rules have resided (quietly) for the last 34 years – noise standards for rail equipment, trucks, and portable air compressors, as well as labeling requirements for hearing protectors.  (But not garbage trucks.  EPA promulgated final noise standards for those, but revoked the regulations on the eve of the DC Circuit argument in which EPA was to defend the rule.  Think about that next time you hear the hydraulics whining outside your bedroom window at 5:00 a.m.) 

Ah, but did the noise program really end?  As one of my EPA supervisors quipped at the time, the noise program is like a spider you’ve stepped on: you think it’s dead, but then its leg starts twitching.  Today’s twitch comes from the New York congressional delegation, specifically Congresswoman Grace Meng (D-NY), whose district lies in the flight path of LaGuardia Airport, and New York’s democratic senators, Chuck Schumer and Kirsten Gillibrand.  Together, they have introduced “The Quiet Communities Act of 2016.”  The bills (H.R.3384 and S.3197) would bring back EPA’s Office of Noise Abatement and Control.  The legislation focuses on aircraft noise (regulation of which has, since the early 1980s, rested solely in the hands of the FAA), and it’s fairly modest in scope, authorizing a program of studies and grants, not a return to command-and-control regulatory efforts.  However, both bills include a charge to EPA to “assess the effectiveness of the Noise Control Act of 1972” – kind of like checking on the Betamax hiding in your garage closet.

Let’s not get carried away by the imminent descent of the “cone of silence” over our nation, though:  www.govtrack.us gives the legislation a 2 percent chance of being enacted.  But hey, you never know.  All eyes on the spider!

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

Posted on July 14, 2016 by Seth Jaffe

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.

An image of a "No Trespassing" sign on a tree.

In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.

The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”.  Judge Skavdahl wasn’t having any of it.

"Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others.  Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy."

Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin.  The Judge was not sympathetic here, either.

"The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes."

The Court also rejected the equal protection claim.  Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny.  The Court found a rational basis in discouraging trespassing.

Finally, the Judge addressed the issue most significant from my point of view:  May information gathered as a result of a trespass be used in enforcement proceedings?  The statute requires “expungement” of such data.  The Court held that the Supreme Court has largely rejected facial challenges to such provisions.  Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.

Why does this matter?  Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property.  Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped.  Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!

I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.