CARB Continues Global Leadership Role on Climate with Adoption of Tropical Forest Standard

Posted on October 2, 2019 by Kevin Poloncarz

After nearly a decade of work, on September 19, 2019, the California Air Resources Board (CARB) endorsed its much anticipated Tropical Forest Standard (TFS). The TFS is a first-of-its-kind framework for assessing jurisdiction-scale offset credit programs that reduce emissions from tropical deforestation and degradation. It is widely expected to serve as a replicable model for adoption by other international greenhouse gas mitigation programs that utilize tropical forest reductions as offsets, including the International Civil Aviation Organization (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

The TFS framework ensures that reductions produced by a subnational jurisdiction’s systemic efforts to conserve its tropical forests are real, quantifiable, permanent, additional and enforceable – the hallmark criteria to ensure the environmental integrity of offset credits within emissions trading schemes, such as California’s Cap-and-Trade Program. It requires rigorous, independent third-party verification of both the emissions avoided by the jurisdictional plan and the jurisdiction’s adherence to social and environmental safeguards designed to protect indigenous communities.

Under the TFS, subnational jurisdictions wanting to issue offset credits for their overall forest conservation efforts must adhere to guiding principles endorsed by indigenous community leaders and state and regional governments whose territories include more than one-third of the world’s tropical forests. These principles mandate that indigenous communities are involved in plan development and implementation and share in the resulting economic benefits.

CARB’s endorsement of the TFS does not authorize emitters to use tropical forest offsets for compliance with its Cap-and-Trade Program at this time; CARB would need to amend its regulation to authorize such use and has no immediate plan to do so. Advocates for indigenous communities and environmental justice nevertheless opposed CARB’s action, arguing that it made it all but inevitable that CARB would soon adopt such an amendment and that doing so would allow emitters to continue emitting and consuming fossil fuels in California.

Against such opposition, leading scientists and environmental groups strongly supported CARB’s endorsement of the TFS as a critical near-term step to slow the loss of tropical forests and limit global warming to no more than two degrees Celsius. According to recent estimates, tropical deforestation now amounts to more emissions each year than 85 million cars over their entire lifetime, dwarfing California’s own anthropogenic emissions and those of all nations but the U.S. and China. As a consequence, no serious effort to mitigate climate change can exclude measures to avoid continued deforestation and degradation of tropical forests.

CARB’s action comes at a timely moment, as the impacts of climate change and slash-and-burn agriculture are resulting in an unprecedented surge in uncontrolled fires throughout the Amazon rainforest. Although the political situation in Brazil may make it difficult to crack down on illegal burning and deforestation, CARB’s adoption of the TFS may amount to one small step towards counterbalancing the incentives that promote deforestation.

Extending Fundamental Rights to Lake Erie?

Posted on October 1, 2019 by Steve Miano

An interesting legal battle is playing out in the United States District Court for the Northern District of Ohio over whether the City of Toledo’s establishment of a “Lake Erie Bill of Rights” passes constitutional muster.  On one side are the citizens of Toledo and environmental groups.  On the other, the State of Ohio and farming interests. 

Backdrop:

A recent amendment to the City of Toledo’s city charter, approved by 61% of its citizens, established the Lake Erie Bill of Rights (“LEBOR”). https://beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf  The LEBOR sets out several fundamental rights of Lake Erie, including the “right to exist, flourish and naturally evolve.”  The LEBOR also establishes the right of the citizens of Toledo to a clean and healthy lake and lake ecosystem, and authorizes citizens to enforce this right through an action against dischargers to the lake brought in the name of the Lake Erie Ecosystem. 

The LEBOR was enacted in the context of algal blooms and other threats to drinking water supplies and the lake’s ecosystem from chemical and nutrient discharges.  Proponents of LEBOR describe these discharges as assaults which continue to occur in spite of state and federal environmental laws.  The City claims that both the state and federal governments have failed to protect the lake.

Interestingly, the provisions of LEBOR conferring fundamental rights on Lake Erie and the citizens of Toledo are based on two broadly worded articles of the Ohio constitution, Articles 1 and 2, which provide: (1) “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which [include]… seeking and obtaining happiness and safety” and (2) “[a]ll political power is inherent in the people … and they have the right to alter, reform, or abolish the same, whenever they deem it necessary…”  These articles do not expressly address environmental rights, in contrast to the constitutions of states that have adopted environmental rights amendments.

The LEBOR further provides that “it shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,” and “[n]o permit, license … issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.”  The law also provides for strict liability for civil and criminal penalties against dischargers, and the recovery of legal fees and expenses of those citizens bringing suits to enforce LEBOR.

Perhaps most significantly, the LEBOR states that corporations that violate the law “shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law.”  Perhaps going beyond what a municipality is empowered to adopt, it provides that such violators shall not have the right to assert that federal or state laws preempt the LEBOR or that the City lacks the authority to adopt the law.  Finally, it provides that laws enacted by the State of Ohio or any agency will not apply in the City of Toledo if they violate the LEBOR.

Unsurprisingly, the LEBOR is being challenged by the State of Ohio and farming interests.  The challenges include claims that the law violates the US Constitution, including:  (1) the right to freedom of speech and the right to petition the courts under the First Amendment; (2) the right of equal protection; (3) Fifth Amendment protections against vagueness, and (4) the right of due process.  Moreover, the challengers argue the law exceeds the City’s authority and intrudes on powers entrusted to state and federal governments by, inter alia, invalidating state and federal laws and permits.  Interestingly, the petitioners also argue that since Lake Erie borders Canada, the law impermissibly interferes with international relations.  (See, e,g., https://www.courthousenews.com/wp-content/uploads/2019/02/DrewesErie.pdf)

The State of Ohio, in response to the LEBOR, also enacted legislation that bans “legal actions on behalf of or by nature or ecosystems.”  The bill, signed by the governor, states: “[n]ature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas. No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.” https://www.nationalreview.com/corner/ohio-bans-nature-rights/

The legal challenges are playing out in the US District Court for the Northern District of Ohio. Drewes Farm Partnership v. City of Toledo, Ohio, No. 3:19-cv-00434-JZ.

Many legal observers believe the LEBOR is unlikely to survive the constitutional challenges.  Nevertheless, it is an interesting case to watch.  This law is part of a trend to try to impart legal rights to nature. 

Does The Mineral Owner’s Dominance Foreclose Environmental Advocacy by the Surface Owner?

Posted on August 8, 2019 by Thomas Hnasko

Since the beginning of recorded mineral law, the owner of the mineral interests has enjoyed an elevated status in its relationship with the surface owner, resulting in the universally accepted notion that the mineral estate is the “dominant” estate.  Based on this long-standing characterization, courts have traditionally declared that, even where the deed creating a split estate is silent, the mineral owner enjoys an implied easement to use so much of the surface estate as is reasonably necessary for the exploration and production of minerals.  A recent, unpublished state court decision explored the intriguing issue of whether the mineral estate’s dominance allows its owner to prevent the surface owner from advocating for environmental protections for the surface in a public forum.     

In the case of Lone Mountain Ranch, LLC v. Santa Fe Gold Corp., No. D-101-CV-2013-02581, in which the author represented the surface estate owner, the mineral estate owner asserted that the surface owner’s participation in public processes designed to impose environmental protections for the surface constituted a violation of, or interference with, the mineral estate’s easement for access to and use of the surface for mineral development. The mineral estate owner claimed that such participation by the subservient surface estate would be detrimental to the development of the minerals and, therefore, contrary to the “dominance” enjoyed by the mineral estate.  At bottom, the mineral estate owner claimed that its easement deprived the surface owner of its right to advocate in a public forum for environmental protection of the surface estate.

Lone Mountain, as the surface estate owner, countered that such an interpretation would transform an access easement into a restrictive covenant and re-write the deed reservation splitting the estates to include promissory and obligatory terms that have nothing to do with physical access.  After hearing from professorial experts in the oil and gas and mineral disciplines, the court agreed with Lone Mountain and held that the dominance enjoyed by the mineral estate refers only to physical access, which the surface owner has no right to obstruct.  The court reasoned that an implied or express easement for access and development does not have the characteristics of a restrictive covenant and thus could not foreclose protected public participation and advocacy for environmental protections of the land.  As a result, instead of acting as a mere bystander to mineral development, a surface owner under a split estate deed may contest and resist mineral development under that estate based on environmental concerns that are unrelated to issues of physical access granted by the easement.

Over/Under—Great Environmental Fiction/Nonfiction

Posted on July 10, 2019 by Dick Stoll

I just finished reading two books that I would highly recommend to anyone concerned about the environment and global climate:

—  The Overstory, a novel by Richard Powers.  It won the 2018 Pulitzer Prize for fiction.

—  Underland, a 2019 non-fiction “deep time journey” by Robert Macfarlane.  

Each book is exceedingly sweeping in scope and chock full of scientific information and details that even I (a political science and English major) could essentially understand and find captivating.   An overriding theme of each book is that humans aren’t doing much good for this planet.  

Each book may fairly be called a magnum opus, and I can’t even begin to describe their full sweep in a blog like this.   So I urge you to do a little googling for reviews.   I am linking a good review of each here:

https://www.theatlantic.com/magazine/archive/2018/06/richard-powers-the-overstory/559106/

https://www.npr.org/2019/06/03/729156788/underland-connects-us-to-dazzling-worlds-beneath-our-feet

The Overstory is mainly about trees and people — how trees interact with each other, how people interact with each other, and how people interact with trees.   Lots of bad things get done by some people, some good things get done by some people, and lots of good things get done by trees.   

After reading the book, I am paying a heck of a lot more attention to trees than I ever did before.  In fact, my current iPhone wallpaper is a close-up of a beautiful redwood I recently photographed in northern California.  

Underland primarily focuses on what goes on under the earth’s surface — today, for millions of years before today, and projectively for eons to come. The author relates how humans have used the “underland” over history in various positive and negative ways for all kinds of storage, disposal, and extraction.  He describes intriguing and dangerous underground “journeys” of his own in several places around the world.  His last journey is to a repository being readied for nuclear waste way under Finland.  

Each book is laden with concerns about the future for the global environment and climate.   The Overstory hits hard on deforestation, Underland hits equally hard on melting ice.

I am retired now and have more time to read books like these.   But I encourage those of you still practicing to find the time.

WHO WINS WHEN FEDERAL MINERAL LESSEES COLLIDE WITHIN THE SAME ACREAGE?

Posted on June 14, 2019 by Tom Sansonetti

Berenergy Inc. has been operating seven oil and gas wells on three federal leases in the Powder River Basin area of Wyoming since the 1960s.  Peabody Energy has been strip mining coal on multiple federal leases in the same area since the 1970’s. Further background of this conflict is found in my previous post.

Peabody’s North Antelope Rochelle Mine is the largest coal mine in the United States with a mine plan that requires it to move in a south-to-north direction over several decades.  The mine has advanced to within a quarter mile of the Berenergy wells.  The wells are spaced as to form a picket-fence like barrier to the mine’s progress.

Berenergy’s well bores extend several thousand feet below the surface.  Peabody’s coal reserves are only 850 feet under the surface.  In order to mine through, Peabody would have to pull the piping and plug each of the well holes.

After passing through the well sites, Peabody could re-drill and replace the piping to allow the oil and gas production to continue. The cost to Peabody would be approximately $500,000. Mining through the well sites would take approximately four years. The cost to Peabody of moving the mining machinery around the seven wells would be approximately $180 million. 

The value of the 91 million tons of coal under or near the wells at current prices is $1 billion. Because of the mine plan’s northerly direction and the mammoth size of the operations, the cost of returning to the bypassed coal years later would be prohibitive. Thus, the coal would remain in place if bypassed.

Peabody offered to purchase the Berenergy wells for their appraised price of $477,000. Berenergy rejected the offer, instead requesting a much larger sum in order to “get out of the way.” Peabody refused to pay the requested amount and both Peabody and Berenergy approached the BLM, as the common lessor, to seek a resolution of the standoff.

As a valid lessee in good standing, Berenergy argued that its leases were “first in time” giving them the “first in right” to continue producing until the wells run dry. Berenergy pointed out that Peabody leased its coal with full knowledge of the existence of the wells and should have to wait to mine unless willing to meet Berenergy’s monetary demands. Berenergy petitioned the BLM to suspend Peabody’s leases.

As a valid lessee in good standing, Peabody argued that the “first in time” theory was not embodied in either statutes or regulations and without statutory guidance or legal precedent the BLM should adopt a “doctrine of accommodation” that would permit maximum recovery of both the oil and the coal. Peabody petitioned the BLM to suspend Berenergy’s leases so it could mine through.

On August 17, 2018, the BLM Wyoming State Director issued a decision allowing Peabody to mine through the well areas based on the provisions of Section 209 of the Mineral Leasing Act. This provision allows the Secretary of the Interior to suspend mineral leases in order to conserve natural resources.

Peabody immediately began pulling and plugging the well closest to its operations. Berenergy obtained a temporary restraining order in Wyoming federal district court and appealed the BLM decision to the Interior Board of Land Appeals. The IBLA ruled against Berenergy’s motion for stay of the BLM order and Peabody demanded that Berenergy post a multi-million-dollar bond in order to continue the litigation before the IBLA. Berenergy was not able to post the bond and dismissed its IBLA appeal, opting to return to the Wyoming federal district court for resolution of its “first in time” claim naming the BLM as the defendant. Peabody intervened in the case to support the BLM decision.

After lengthy briefing and an oral argument, Wyoming District Judge Scott Skavdahl ruled on May 13, 2019 in favor of the BLM and Peabody. The court ruled that the MLA’s Section 209 permitted the BLM to suspend leases in the name of the conservation of natural resources when two valid federal leases developed a conflict over acreage where the minerals in question could not be simultaneously produced. Given the vast disparity between the value of the remaining oil and gas reserves versus the coal reserves to be bypassed, the court found that the BLM’s use of a comparative valuation standard to aid in its decision-making was reasonable. The court noted that it could not find regulatory authority on “first in time” that contradicted the language in Section 209.

On June 11, Berenergy filed its appeal in the Tenth Circuit Court of Appeals. Stay tuned.

Von Humboldt's Gifts

Posted on August 6, 2018 by David B. Farer

Somehow I'd made it this far into my life without ever having heard of Alexander Von Humboldt.  Now, thanks to a wonderfully enlightening and beautifully written biography, I'm in a state of wonderment about this man.  (Thus the title of this blog, with apologies to Saul Bellow.)

The book is The Invention of Nature -- Alexander Von Humboldt's New World, by Andrea Wulf (Alfred A. Knopf, 2015; 473 pp.)

Von Humboldt (1769-1859) was a Prussian-born explorer and naturalist, a prodigious writer, a close friend of Goethe, friend and advisor to many including Thomas Jefferson and Simon Bolivar, inspirer of Charles Darwin (who took a copy of Humboldt's Personal Narrative with him on the Beagle), Henry David Thoreau, John Muir and many, many others.

As a young man, he undertook a five year, groundbreaking exploration of the Americas from 1799 to 1804 (spending much of that time in Latin America, including a year in Venezuela alone), and in 1829, at age 60, undertook another arduous expedition in Russia and Siberia.

As early as the 1790s, he was documenting the impacts of deforestation and deleterious agricultural practices and speaking plainly of the consequences; namely, climate change. During his lifetime, he encouraged climate studies around the world.  He investigated the interconnectedness of volcanos around the globe, of global weather patterns (inventing isotherms along the way), compared rock strata across the earth, and studied the negative impacts of human activity on the balance of nature.

Andrea Wulf delves into Von Humboldt's life in a lucid and engaging manner, documenting his origins, his development as an individual steeped in both science and the arts, his bold, groundbreaking expeditions, the development of his ideas and their exposition in his many books, his dramatic impact on others and the spreading and further development of his ideas by those who followed.

Wulf notes that his contemporaries described him as "the most famous man in the world after Napoleon," that aside from his numerous books and studies, he wrote on the order of 50,000 letters and received at least double that, and at the same time helped advance the careers and travels of fellow scientists and explorers.

Goethe, Wulf writes, compared Humboldt to a "fountain with many spouts from which streams flow refreshingly and infinitely, so that we only have to place vessels under them."

In 1834, at the age of 65, he began the book he intended to bring together everything he had been studying about nature. The first volume was published in 1845, and he named it Cosmos.  A Sketch of the Physical Description of the Universe, drawing the title from the Greek word for "beauty" and "order."

It became an instant best seller in its original German version, and was translated into ten other languages in the following few years.

"Cosmos," Wulf writes, "was unlike any previous book about nature.  Humboldt took his readers on a journey from outer space to earth, and then from the surface of the planet to its inner core.  He discussed comets, the Milky Way and the solar system as well as terrestrial magnetism, volcanoes and the snow line of mountains."

By the 1850s, his portrait hung "in palaces as remote as that of the King of Siam in Bangkok," and "his birthday was celebrated as far away as Hong Kong."

Wulf describes that John Floyd, the U.S. Secretary of War, "sent Humboldt nine North American maps that showed all of the different towns, counties, mountains and rivers that were named after him," and noted that thought had been given to renaming the Rockies as "Humboldt Andes."

He was mourned around the world upon his death in 1859, and then ten years later, on the centenary of his birth, there were celebrations from Australia to America, including commemorations and parades in many of the major cities of the U.S.

And yes, the Humboldt Current and hundreds of plants and animals are also named after him.  Wulf even documents that the state of Nevada was nearly named after Von Humboldt.  Yet as Wulf describes and then sets out to change, he has been nearly forgotten in the English-speaking world outside of academia.

It's a great read; stimulating, inspiring and a finely told life of a great man.

ENVIRONMENTAL RIGHTS IN PENNSYLVANIA

Posted on July 13, 2018 by John Dernbach

One year ago—June 20, 2017—the Pennsylvania Supreme Court issued a landmark decision on constitutional environmental rights.  The case, Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF), has implications that will take decades to sort out, as subsequent litigation is making clear.  And it may contribute to re-imagining of environmental law.

Almost a half century earlier—May 18, 1971—Pennsylvania voters adopted by a four-to-one margin an amendment to Article I of the state constitution, which is the state’s Declaration of Rights.  Section 27 provides:

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

Because Pennsylvania courts were concerned about its impact on development, and because the first two cases brought under Section 27 had weak facts, Pennsylvania’s Commonwealth Court in 1973 (Payne v. Kassab) articulated a three-part balancing test as a substitute for the text.  The test was easy to apply and, as a 2015 article shows, those seeking to vindicate environmental rights almost never won.  More fundamentally, the test had nothing to do with environmental rights, much less the text of Section 27. The Payne decision evinced the kind of judicial activism—or more precisely, judicial rewriting of the constitution—that the late Justice Antonin Scalia criticized.  But for more than 40 years, it was the law of Pennsylvania.

In PEDF, the petitioner challenged the state’s expenditure of hundreds of million dollars of funds from gas leasing on state forest land.  (Disclosure: I filed an amicus curiae brief in this case.)  PEDF argued that both state forests and the gas under them constituted “public natural resources” under Section 27, and that royalties and other money received from leasing must be spent to “conserve and maintain” those resources, and not used to balance the state’s budget.  A majority of the Supreme Court agreed.  In so doing, the Court held that the text of Section 27 is of primary importance in interpreting the Amendment, specifically setting aside the Payne v. Kassab balancing test.

The revitalization of Section 27 has led to a spate of environmental rights claims in litigation, much of it involving permits for shale gas drilling facilities and gas pipelines.  The Supreme Court appears to be charting a future course on Section 27 with caution.  In Gorsline v. Board of Supervisors of Fairfield Township (June 1, 2018), which was widely anticipated to further develop the law of Section 27, the Court instead decided the case based on the meaning of the township zoning ordinance.

A major outstanding question is what Section 27 means for day-to-day environmental permitting.  The large number of environmental statutes and regulations adopted and strengthened after 1971 provide much of the protection that Section 27 now also provides.  Here, Section 27 is most likely to make a difference when a litigant can demonstrate that the applicable regulatory program contains a significant gap (e.g., cumulative effects).

A broader question is what constitutional environmental rights can mean for environmental regulation as we know it, in which decisions are influenced by, and often based on, consideration of costs and benefits.  In Friends of Lackawanna v. Commonwealth, the Environmental Hearing Board (EHB), which hears appeals from decisions by the Pennsylvania Department of Environmental Protection, said in late 2017 that the people living near a landfill who are adversely affected by odors are not simply part of the costs and benefits calculus in municipal waste management; they have constitutional rights.   If DEP did not do a better job of protecting them, the EHB warned, it would.  And under the radar, I am told, the revitalization of Section 27 has caused some bad project proposals to quietly go away.

Widener University Commonwealth Law School has published a listing of available Section 27 resources with links. A lot is happening, and there is more to come.

Florida Gets A “Do-Over”

Posted on July 2, 2018 by Karen Crawford

Florida v. Georgia, 585 U.S. ____ (2018), Slip Opinion No. 142, June 27, 2018

On June 27, in a 5-4 decision the U.S. Supreme Court (SCOTUS or the Court) rejected the Special Master’s conclusion that the Court could provide no relief to Florida for its claims of harm from Georgia’s upstream water usage from the Flint River, ultimately affecting downstream flow in the Apalachicola-Chattahoochee-Flint River basin, a basin affected by operations of a dam and lake by the U.S. Army Corps of Engineers (Corps).  SCOTUS reserved judgement on the ultimate outcome of the case, and sent the case back to the Special Master for further consideration with specific direction as to the additional factual findings it considered necessary to decide this case.

Citing several historical decisions by the U.S. Supreme Court in equitable apportionment disputes over water rights between neighboring states, the Court characterizes the following guiding principles to be used in deciding such cases:

1.    The states possess an equal right to make a reasonable use of the waters in question.

2.    When confronted with competing claims to interstate water, the Court’s effort is to secure equitable apportionment, without quibbling over formulas.

3.    Given sovereign status and equal dignity, a complaining state’s burden is much greater than the burden ordinarily shouldered by a private party seeking an injunction, requiring a demonstration by “a clear and convincing evidence” that it has suffered a “threatened invasion of rights” that is “of serious magnitude.”

Once the Court finds the complaining State has met this burden, the Court must determine whether the State has shown it has not only some “technical right,” but a right with a “corresponding benefit” as a precondition to any equitable apportionment.  If so, then the Court will seek to arrive at a  just and equitable apportionment of an interstate stream, by considering all relevant factors, because equitable apportionment is flexible and should weigh all relevant factors by examining extensive and specific factual findings to properly apply the doctrine of equitable apportionment.  To do this, the Court has observed it must consider physical and climatic conditions, the consumptive uses in the several sections of the rivers at issue, the character of return flows, the extent of established uses, the availability of storage water/capacity, the practical effect of wasteful uses on downstream area, and the benefit to downstream areas against the damage to upstream areas if a limitation is imposed. 

In this case, however, the Court stated the Master instead made several assumptions regarding what should be key findings of fact, including that 1) Florida has suffered harm from decreased water flow into the subject basin, 2) Florida had shown that Georgia has taken too much water, and 3) inequitable use by Georgia had caused injury to Florida.  These assumptions were found by the Court to stop short of providing the necessary findings of fact required to decide the case.  As a result, all Parties agreed that the recommendation of the Special Master turned on one single, discrete issue --whether Florida has shown that a cap on Georgia’s consumption would address its injury if the decree did not bind the Corps as well.

The Court determined that the Master’s conclusion that Florida failed to meet its burden because it did not present “clear and convincing evidence” that its injuries could be redressed by a decree capping Georgia’s upstream water consumption if that decree does not also bind the Corps, was too strict a standard to apply to redressability at this point in the case.  The Court determined that the Special Master had not defined the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia’s use of the Flint River waters, and that unless and until that necessary fact was established, Florida needed only to show that, applying the principles of “flexibility” and “approximation”, it is likely to prove it is possible for the Court to fashion such a decree. 

The Court determined that further findings are needed on all of the evidentiary issues underlying the Master’s assumptions before the Master’s conclusion that Florida failed to meet its initial burden of demonstrating that the Court can eventually fashion an effective equitable decree could be reached and supported.  The Court stated that “to require “clear and convincing evidence” about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse.”  The Court addressed here only that Florida had made a legally sufficient showing as to the possibility of fashioning an effective remedial decree, thereby meeting its burden.

The lengthy dissent ultimately agreed with the Special Master’s conclusion that the Corps would not change its operations during droughts if the Court capped Georgia’s water use, and thus Florida would not benefit during droughts.  Further, the dissent argued there was no need to remand the case for further findings by the Special Master as the evidentiary findings ultimately rest with the Court.  But the majority opinion discusses the differences of view as to interpretation of the facts related to estimated water flows, further emphasizing the complex nature of these cases.  The dissent suggests that giving Florida another bite at the apple was unlikely to produce additional evidence to affect the outcome and would be unfair to Georgia.  Ultimately, the dissent appears to agree that the Master’s ordinary balance-of-harms analysis was sufficient, and he applied that test. 

Also, this blogger found the majority’s “Chevron-like” discussion of the deference that should be given to the Special Master’s findings interesting but a bit disturbing in that the Court cited a precedent that those findings “deserve respect and a tacit presumption of correctness.”   The Court’s division over today’s decision turned on both the correctness of the findings by the Special Master and whether he had correctly applied the applicable precedents to sufficient findings.  A clear disagreement is articulated by the majority and dissenting opinions surrounding the factual evidence related to whether the amount of water that would flow to Florida during drought conditions would ultimately be increased by a cap on Georgia’s water use from the Flint River.  The answer to this question turns on the behavior of the Corps in both storing the resulting additional water, then releasing that additional stored water from Lake Seminole during drought conditions.

Interestingly, in addressing Florida’s exceptions to the Master’s evidentiary determinations, the Court discussed the consequences of the United States’ declining to waive sovereign immunity from suit in this case at its outset.  An early motion by Georgia to dismiss Florida’s complaint on the grounds that the United States was a necessary party was denied as the Special Master concluded at that time that a decree binding the Corps might not prove necessary.  Ultimately, however, the Report of the Special Master was based on the conclusion that a decree binding the Corps was necessary to redress the injury to Florida.  The Court’s analysis of the evidence indicated that, since the cap on Georgia’s consumption was upstream of the Corps-operated dam and lake, the cap could effectively result in more water storage and more water that could be released to the Apalachicola River reaching Florida in both non-drought and drought conditions.  It also disagreed with the Master’s conclusion that effective relief was rendered impermissibly “uncertain” given the Corps’ revised Master Manual and its documented commitment that it will “work to accommodate any determinations or obligations the Court sets forth if a final decree equitably apportioning the basin’s waters proves justified in this case” and take such a decree into consideration in appropriate operational adjustments to the Master Manual, if applicable. 

Again, the Supreme Court stressed that Florida will ultimately be entitled to a decree only if it is shown that “the benefits of the [apportionment] substantially outweigh the harm that might result.”

For those keeping score on certain of these issues and looking for clues as to “life after Kennedy”, Justice Breyer penned the majority opinion, joined by Roberts, Kennedy, Ginsburg and Sotomayor.  Justice Thomas wrote the dissent, joined by Alito, Kagan, and Gorsuch.

Who Goes First? What Happens When Two Federal Mineral Lessees Clash Over The Same Acreage

Posted on February 7, 2018 by Tom Sansonetti

In January, the Wyoming Supreme Court declined to play umpire in a dispute between two federal mineral lessees. The decision merely defers an issue of first impression: what rules apply when competing mineral lessees occupy the same leasehold?

The Berenergy Corporation produces oil from several sites in Wyoming’s mineral rich northeast corner. Berenergy obtained its oil leases from the Department of the Interior’s Bureau of Land Management in the 1960s. Berenergy’s nine wells are spaced laterally on an east-west axis.

Peabody Powder River Mining extracts coal from several mines in the same area. Peabody also obtained its coal leases from the BLM, but in the 1970s. Peabody plans to mine the coal in a south to north direction for the next forty years.

Peabody’s mine is now within a mile of Berenergy’s wells. Peabody offered to pay Berenergy the fair market value of its wells. In response, Berenergy demanded a sizeable multiple of the appraisal value of the wells in order to get out of Peabody’s way. Not surprisingly, the parties could not reach an agreement and litigation ensued.

First, Berenergy sued Peabody in Wyoming state court claiming that its earlier-issued leases gave it priority on a “first in time is first in right” theory. Berenergy sought to require Peabody to mine around its wells if Peabody was unwilling to pay up.

Next, Peabody sued Berenergy in Wyoming federal court claiming that since both parties were federal mineral lessees with a common BLM lessor, the decision on priority should be made by a federal judge based on a doctrine of accommodation. Peabody argued that factors such as the number of jobs at stake, the amount of royalties paid to the government, the value of the respective minerals, and the ability to maximize production of both minerals should be used to decide if Peabody could mine through Berenergy’s wells or be made to mine around the wells. The latter decision would require Peabody to leave the bypassed coal in place forever as the mine proceeds in its northerly direction.

The Obama-era BLM declined to take a stance as to which lessee should prevail. Even though the BLM was a common lessor, the federal government declined to intervene or be impleaded as an indispensable party in either lawsuit.

In June 2014, the federal district judge remanded the case to the state district court for resolution under state law while dismissing the federal action for lack of federal question jurisdiction.

Following a weeklong bench trial, the state district judge, while acknowledging that the case was without precedent and one of first impression, issued an order in October 2016 rejecting Berenergy’s “first in time” argument and utilizing the doctrine of accommodation. The court’s ruling would allow Peabody to mine through if it paid Berenergy the full appraised value of its wells. Berenergy appealed the order to the Wyoming Supreme Court.

On January 4, 2018 the Wyoming Supreme Court vacated the state district judge’s order, declaring that there was no state law that applied to two federal mineral lessees in conflict with one another. Berenergy Corp. v. BTU Western Resources, Inc., 2018 WY 2, 408 P.3d 396 (Wyo. 2018).

The Court noted that the Berenergy wells had been valued at less than a million dollars while Peabody’s mining of the coal in question would create many jobs and generate tax revenues that dwarfed the revenues produced from Berenergy’s aged and nearly depleted wells.

But the Court stated that it was the BLM’s duty to resolve the conflicts between its two lessees.  Thus, the Court remanded the case to the state district court judge with instructions to dismiss the case unless the BLM agreed to be joined as a party.

By the end of 2018, the coal pit wall will contact the first of Berenergy’s oil wells. Peabody plans to pull the drilling pipe and store it for future use along with all of the associated oil field equipment. The well hole would be plugged as Peabody’s huge drag lines mine through the area.

No doubt temporary restraining orders will then abound. But where will they be filed? The federal district court has already decreed that the conflict is not a federal issue. As of January 4th, the Wyoming state district courts have been instructed to stay out of the conflict since state law does not apply.

So who does get to go first? Will the Trump-era BLM decide to get involved? And if so, under what rules? Stay tuned.

Troubled Waters – Blue Lakes Turning Green From Toxic Algal Blooms

Posted on February 6, 2018 by Virginia C. Robbins

Frank DeOrio knows a lot about protecting drinking water.  For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York.  He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed.  During Frank’s tenure, the City won awards for the best water in the state and the U.S. 

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes.   Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies.  Summer temperatures raise water temperatures, creating optimum growth conditions.    

Owasco Lake, September 18, 2017

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact.  These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another.  And unlike bacteria, boiling water does not remove these toxins. 

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time.  Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins.  What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic.  If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems.  One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic.  These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes.  And Owasco Lake provides drinking water to more than 50,000 customers.  In 2016, the City of Auburn was using filtration to treat its raw water.  When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin.  But would the new intake remain safe if the toxin shifted location?  The City decided against moving the intake and instead added carbon filtration. 

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities.  The water authority operates under a “filtration avoidance” authorization.  After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake.  The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers.  Nonetheless, the presence of this toxin in the raw water is a disturbing development. 

These examples are lakes in my area.  But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine. 

The broader challenges?  The science around algae toxins is emerging.  Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states).  Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins.  The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies.  And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies. 

Frank’s concerned.  So am I.  It may get worse before it gets better.  While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration.  Why wait to build that bridge from troubled waters to cleaner lakes?

READY FOR AN ENVIRONMENTAL BILL OF RIGHTS?

Posted on December 19, 2017 by John A. McKinney Jr

As this is written, a New Jersey legislator plans to introduce a bill that could lead to the amendment of the state constitution.  This amendment is being referred to the “Bill of Environmental Rights.”  Here’s the proposed language:

(a) Every person has a right to a clean and healthy environment, including pure water, clean air and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction. (b) The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people. (c) This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

Unlike a law which requires compliance, this amendment will be used to obtain the “pure water, clean air and ecologically healthy habitats” guaranteed as a constitutional right, no different than the rights of free speech and freedom of religion.  Because it is not clear what a “right to a clean and healthy environment” actually means, state courts will have to decide the breadth and scope of such rights and the how they are protected. 

New Jersey courts can handle it.  They have dealt with similar broad language in the constitution which requires the legislature to provide “a thorough and efficient system of free public schools.”  That phrase has been fought over, in the courts and in the legislature, since the 1970’s.  It is still a hot button issue.

Will the New Jersey constitution ultimately include a Bill of Environmental Rights?  I am not sure but if it does, it will continue the state’s reputation as a great place to be an environmental lawyer.

PASSING LESS GAS

Posted on December 5, 2017 by Keith Hopson

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

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

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

Time will tell.

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

Assisting in the Aftermath of Hurricane Harvey: Every Lawyer Can Help!

Posted on August 30, 2017 by Brian Rosenthal

Also authored by Andrea Field & Mary Ellen Ternes

Many in the College have been asking what lawyers can do to help those in need in Texas in the aftermath of Hurricane Harvey.  Answers to that question are pouring in from many sources.  The following are a few suggestions, based on what we are hearing from legal practitioners and aid organizations in Texas. 

First, if you are a member of the State Bar of Texas, you may have received a letter from Bar President Tom Vick.  It outlines specific ways in which you can provide legal and desperately-needed non-legal help.

Lawyers who are not members of the Bar of Texas, though, can also provide legal services.   Yesterday, the Supreme Court of Texas issued an emergency order to allow out-of-state lawyers to practice in Texas temporarily in the aftermath of Hurricane Harvey, and the Court provided a registration form for the temporary practice of law in Texas. According to Betty Torres – the Executive Director of the Texas Access to Justice Foundation, which is the largest funding source of legal aid in Texas – the following are some of the types of legal services that will be in high demand after the water recedes and people try to put their lives back together:  (i) assistance with securing FEMA and other benefits available to disaster survivors; (ii) assistance with life, medical and property insurance claims; (iii) help with home repair contracts and contractors; (iv) replacing wills and other important legal documents destroyed in the disaster; (v) assisting in consumer protection matters, remedies and procedures; and (vi) assistance with mortgage/foreclosure and landlord/tenant problems.

In addition, as is often the case, what is needed most right now is money.  For those who want to assist all Texans in need of essential legal services, please donate to the Hurricane Harvey Legal Aid Fund.

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.

When the “Why” is Wordless

Posted on July 17, 2017 by Janet Coit

This past weekend, I took a long walk in Colt State Park in Bristol, Rhode Island. The sun was sparkling off the waves on Narragansett Bay and all sorts of people were similarly drawn to the pleasant shore-side landscape. My stroll through the park lifted my spirits and reminded me of the power of such experiences.

One of my favorite parts of my job is working to conserve habitats and get people outdoors to enjoy our parks and nature preserves. And while I believe – and often explain – that the health of the economy is inextricably linked with the health of the environment, the intangible aspects of natural areas never fail to inspire me. Rachel Carson wrote of a “sense of wonder” elicited by observing nature. Yes! When I see the brilliant flash of a scarlet tanager, otters frolicking in the water, or scores of river herring returning upriver, I am thrilled to the core. What gifts to have these creatures in our world! And we still have a lot to learn about the complex natural systems that sustain them.

In his book My Green Manifesto: Down the Charles River in Pursuit of New Environmentalism, David Gessner posits that the current environmental movement is too cerebral, and that there is joy found in nature that people like Rachel Carson understood. He writes, “And the deeper story begins not with a theory but with particular places . . . that particular Homo sapiens fall deeply and strangely in love with. Later, all this becomes laws and rules and books and essays. But it begins well before and well below that. What later becomes words begins with wordlessness.”

I so relate to that connection with a particular place. Think of a spot you love – where you can feel nature around you. For many those places are on the coast, filled with salt, sand and sounds. Mine is the forest by a lake. Wherever it exists, having a natural place in which to revel is often what makes a person support strong environmental laws and care about protecting wild places. Let’s face it: our views are shaped by our experiences.

The connections people find in nature are central to our work. Making sure urbanites have access to safe parks and children have the chance to play outside improves people’s health now and ensures the development of environmental stewards for the future. Grandparents are often influential, guiding younger generations to explore nature. The “rewilding” of rivers that run through our cities and restoration of green corridors bring nature closer, providing children in more neighborhoods the opportunity to observe a hawk soaring above or the shadows of fish darting just below the surface.

Change is inevitable. As seas rise, species compositions change, and intense storms – and generations – come and go, one thing we know is that undeveloped habitats and larger intact systems are healthier, and have a better chance to withstand storms and stressors. Informed by science, we must help the places we love be resilient, and to have a chance to rebound and thrive. This means working to identify, reduce and mitigate harms from inevitable natural and manmade impacts.

Last month, my father John Coit died, after 93 full years. After his death, I felt an urgent need to visit his special place in the foothills of the Adirondacks. I found him there in the ferns, the dark water, and the soft breeze. I found solace in the wordless magic of nature that carries poignant memories and delights the senses. These experiences fuel my drive to protect the environment – for wildlife, for our children and grandchildren, and for something wordless.

Public Parks in Massachusetts – Here Today, Gone Tomorrow?

Posted on March 10, 2017 by Mary Ryan

The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources  . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.

In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.

The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”

Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”

The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups. 

PS:  As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”

Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.

President Theodore Roosevelt: A Conservative for All Seasons

Posted on March 8, 2017 by Irma S. Russell

The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick.  One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader.  In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation.  Like most presidents since his time, Theodore Roosevelt had a goal of making America great.  His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists.  President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations.  The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.”  I am persuaded of this point without reading the book.

The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing.  The U.S. National Parks website presents the evidence of President Roosevelt’s legacy.  Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state.  But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests.  The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources. 

Today, conservatives seem to be taking a markedly different approach to conservation and public lands.  Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands.  Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative.  Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities. 

More recently, however, Zinke has changed his approach to the preservation of public lands.  Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities.  Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands. 

Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences.  The legacy, access, and pride in the public treasures would be forever altered.  Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests.  This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere.  Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands. 

National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other.  Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition.  Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit.  As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public.  Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions. 

The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth.  Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands.  Even from a purely economic perspective, selling public lands would be the worst deal in history. 

Cuba Delegation Part 4: Las Terrazas

Posted on October 12, 2016 by Eileen Millett

I stood staring at the ruins of slave quarters on what had once been a 19th century coffee plantation situated in the northwestern part of Cuba ― Las Terrazas, in the Sierra de Rosario mountains.  I was struck by the unabashed preservation of the old with the new.  Slave quarters juxtaposed with Algarrabo cententarios trees growing up through the balconies and ceilings of La Moka, an ecological hotel.  La Moka is a modern twist on old colonial architecture, with a multi-tiered atrium lobby built around trees that disappear magically skyward.  We had journeyed 45 minutes from La Habana above the shores of San Juan Lake and beneath the mountains to another place and time. 

Las Terrazas is a biosphere with a protected ecosystem, a buffer zone that supports ecological practices, and an area that fosters ecologically sustainable development.  It combines a small community of about 1,200 people, many of them artists, with ecotourism.  The hotel and the buildings seem to melt into the mountains by design.   In those mountains, even with my Spanish proficiency, I struggled to understand Ariel Gato, in his artist studio, where hanging in the sun was his very own recycled computer paper for drawing, prints, and other art work.  Later, I learned his accent was shared by many farmers, or campesinos, influenced by the Haitian settlers who brought coffee, and spoke the French language.   Gato is renowned for his art work, but he is clearly more than simply an artist.  

In 1968, then-President Fidel Castro founded a green revolution, making Las Terrazas a green project.  Architect Osmany Cienfuegos mobilized work brigades that created terraces of timber, fruits, ornamentals and vegetables.  Starting in 1971, the brigades carved roads through the mountains to build homes, schools, playgrounds and clinics all surrounding San Juan Lake.  Owing to the success of the reforestation project, the biosphere came under UNESCO protection in 1984.

We walked through Las Terrazas and were treated to zip line tours, steel cables whisking people above Las Terrazas; enjoyed coffee that was muy sabroso; and learned something about the art of coffee-making along the way.  In the old days, slaves had to turn the coffee beans― red in their original form― every 30 minutes.  Still today, this dry method is used where water is scarce.   Coffee beans are spread out on huge surfaces to dry in the sun.  Beans are raked and turned throughout the day and then covered at night or during rain, in order to prevent the beans from spoiling.   From this vantage point on the ranch, we could see the port of Mariel, where the Brazilians and Cubans are building a major container terminal that will have the capacity to handle vessels deeper than Habana Bay, and will have facilities for offshore oil exploration.  We are marching toward a new day for Cuba.

Small expressions of sustainable initiatives seem to be on the rise in Cuba.  The day before visiting Las Terrazas, we visited a local permaculture project near Cojimar, a seaside village, best known for its setting in Ernest Hemingway’s novel The Old Man and the Sea.  Mosquitoes fell in love with me there, but we could have been in any 1950’s fishing village.  Nearby, we encountered a family-run business –Planta de Fregado—an ecological car wash that uses plant solids, gravity feed and carbon filtration for a completely organic car wash.  The owner was enthusiastically confident of replicating his system all over Cuba. 

In Cuba, the legacy of slavery and the old African traditions blend seamlessly with so much of the new world.  In some ways they are frozen in time and in other ways, not so much.  Little Zika problem here, at least with standing water outside, as we witnessed systemized mosquito spraying throughout the countryside.  However, the mosquito problem occurs with water indoors, as no amount of education convinces people not to keep glasses of water under their beds, in the corners of rooms and on dressers to ward off evil spirits or to bring good luck.  Officially Cubans are atheists, unofficially Roman Catholic, but in reality most Cubans practice Santeria, a system of beliefs that merges Yoruba myth with Christianity and indigenous American traditions.  The Cubans are unabashed in recognizing African influence in their music, their food and their religion.  Perhaps it has, too, influenced permaculture projects, and the biosphere reserve ― Las Terrazas.  

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

Posted on June 16, 2016 by Leslie Carothers

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

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

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

Looking Back Over 100 Years of the National Park Service, Looking Ahead to the Future of Environmental Law

Posted on May 20, 2016 by Benjamin F. Wilson

August 25, 2016 is the 100th anniversary of the National Park Service.  The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us.  As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park.  I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.

As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession.  Why – and how – we do what we do?  What challenges will the next 100 years hold?

I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond.  Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself).  Sadly, we lost Henry earlier this year.

Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it.  We have made progress, but new challenges have emerged.  Easy answers, if they ever existed, are fewer and farther between.  So what, then, does the future hold for the next generation of environmental lawyers? 

Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals.  As an example, we can look to the past.  Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962.  Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands.  Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges.  While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities.  Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion. 

I expect climate change will dominate the agenda for the young lawyers of our current era.  They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change.  Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.

We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties.  Autonomous vehicles and drones also pose novel environmental and land use issues.  These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate.  As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions.  Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions.  Only in this way can the environmental bar forge new solutions to emerging challenges.

The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore.  From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection.  As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions.  This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.

Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response.  With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide.  With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.

Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”)I commend that article to you.  It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come.  Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference.  In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015.  The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law.  I hope it may inspire ACOEL members and others to follow Henry’s lead.

These are just a few things I think the future holds for environmental lawyers.  What trends do you predict?  How should the environmental bar and ACOEL respond?  

Cat on a Hot Stove-Lid: What We Should Learn from the Gold King Mine Spill

Posted on December 22, 2015 by Zach C. Miller

Mark Twain once wisely warned:

We should be careful to get out of an experience only the wisdom that is in it -- and stop there; lest we be like the cat that sits on a hot stove‑lid.  She will never sit on a hot stove-lid again -- and that is well; but also she will never sit down on a cold one any more.

While trying to clear the collapsed entrance to the inactive Gold King Mine in Colorado, EPA contractors in August 2015 inadvertently released over 3 million gallons of metal-laden wastewater into a tributary of the Animas River.  Partly because of EPA’s involvement, and partly because high iron levels turned the Animas River orange for several days, the incident generated considerable controversy and attention.

Subsequent views about what we should learn and do as a result of this spill have been quite divergent and, in this writer’s view, off the mark. 

As might be expected during this election season, one response was protracted administration-bashing Congressional hearings, aimed at the heads of both EPA (criticizing the Agency for not better controlling its contractor at this remote mountain site) and the Department of the Interior (which has no responsibility for the site but issued a requested report on the spill).  Not surprisingly, these blame-and-shame hearings were not focused on, and did not produce, constructive information or plans for preventing such events in the future.  However, they did cause EPA remedial efforts and related U.S. transactions at inactive mine sites to be put on hold, which was counter-productive for dealing with this problem. 

At the other extreme, some environmental advocates have asserted that this wastewater release from an inactive mine supports their view that U.S. mining law should be fundamentally overhauled, including to provide for substantial royalty payments to the government and imposition of major financial assurance requirements on miners under CERCLA Section 108.  Those calls ignore the fact that this historic site pre-dates subsequently adopted mine reclamation and bonding requirements imposed on current mines under state and federal law.  They also represent a sea-change in mining law that goes far beyond this inactive mine issue, would occur at a difficult economic time for the mining industry, and is unlikely to gain traction in this polarized political climate. 

Congressional reactions reflect those widely disparate positions, with new proposed bills ranging from a narrow proposal for grants to mining colleges to study the problem (H.R. 3734) to a broad mining reform act that imposes substantial new fees and royalties (H.R. 963).  One other proposed bill would freeze DOI’s Abandoned Mine Lands (AML) Program at $17 million per year and institute a “Good Samaritan” program to encourage third-party volunteer clean-ups at AMLs (H.R. 3843), and another would create a foundation to accept donations for AML cleanups, with one-time matches from the federal government of up to $3 million per year (H.R. 3844). 

Many of these proposals are either political posturing or over-reaching, and others do not focus on or effectively address the problem of abandoned mines.  Moreover, they either are unlikely to go anywhere in Congress, or would accomplish little if they do.  

However, there are effective steps we should take if we learn the following key lessons provided by the Gold King spill:   

·         There are tens of thousands of abandoned mines like Gold King that are already discharging polluted wastewater to thousands of miles of streams.  If we do nothing, such discharges will continue and worsen, and occasional blow-out releases like Gold King are inevitable. 

·         The damage and economic impacts caused by these abandoned mine sites are real and will increase. 

·         These mine sites are very complex and expensive to fix. 

·         Some states and volunteer entities are willing to address these sites if existing liability disincentives can be removed.

Given these circumstances, we should focus on practical approaches that will achieve real, near-term, on-the-ground remedial actions.  Furthermore, the approaches must be backed by meaningful sources of funding, and be politically achievable in the current, polarized political climate. 

A good start would be adopting an effective “Good Samaritan” law addressing the existing disincentives for third parties to remediate abandoned and inactive mine sites, coupled with meaningful federal funding initiatives.  The Keystone Policy Center is currently working to achieve consensus on such an approach. 

A second practical approach would be to use CERCLA National Priority List (NPL) designation at select sites to provide funding where no viable mine operators remain.  The Gold King incident has served as a catalyst for removing past local opposition to NPL listing for the upper Animas River drainage.  That’s a good beginning. 

We should heed Twain’s advice and use the real lessons of Gold King to move beyond politics and take practical steps like those noted above to start fixing these old mine sites.  And we should stop getting mired in the same, currently dead-end debates that lead to doing nothing and can be put aside for another day – lest we be like the cat that will never sit on a cold stove-lid.

Presidential Directive Mandates Expansive and Likely Unlawful No Net Loss Compensatory Mitigation Requirement for Most Federal Development Permitting

Posted on November 12, 2015 by Jeffrey Lepo

 

On November 3, 2015, President Obama issued a Presidential Memorandum establishing policies that are a significant departure from existing practice regarding compensatory mitigation for effects to natural resources from most federally approved projects.  The Memorandum, entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment,” applies to all permits and authorizations issued by the Department of Defense (e.g., the U.S. Army Corps of Engineers), the Department of Agriculture (e.g., the Forest Service), the Department of Interior (e.g., BLM, USFWS, Bureau of Ocean Energy Management, etc.), EPA and National Oceanic and Atmospheric Administration  (e.g., National Marine Fisheries Service (NMFS) ), including actions taken by USFWS and NMFS pursuant to the Endangered Species Act.  Although it cannot be known today how the new policies will ultimately be implemented, the Memorandum is, at least as written, both anti-development and potentially draconian. 

 

The new Memorandum states that it is establishing certain policies premised upon “a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.”  In furtherance of this moral obligation, the President has established it to be the policy of the identified federal bodies (and all bureaus and agencies within them):

 

·         To avoid and to minimize harmful effects to land, water, wildlife and other ecological resources (natural resources), and to require compensatory mitigation for, the projects they approve.

 

·         To establish a net benefit goal or, at a minimum, a no net loss goal for mitigation of the natural resources each agency manages that are important, scarce or sensitive.

 

·         To give preference to advance compensation mechanisms in establishing compensatory mitigation.  “Advance compensation” is defined to mean a form of compensatory mitigation for which measurable environmental benefits (defined by performance standards) are achieved before a given project’s harmful impacts to natural resources occur.  This policy preference appears to somehow contemplate that compensatory mitigation will be achieved before the project is constructed and operated.

 

·         To use large-scale plans to identify areas where development is most appropriate, where natural resource values are irreplaceable and development policies should require avoidance, and where high natural resources values result in the best locations for protection and restoration.

 

The Memorandum also establishes certain deadlines for action, principally by the agencies of the Department of Interior (e.g., one year deadline for BLM to “finalize a mitigation policy that will bring consistency to the . . . application of avoidance, minimization and compensatory actions [f]or development activities and projects impacting public lands and resources.”; one year deadline for USFWS to finalize compensatory mitigation policy applicable to its Endangered Species Act responsibilities).

 

Some federal laws (e.g., Clean Water Act Section 404 permitting for filling of waters of the United States) already have well-developed compensatory mitigation programs; however, most federal permitting schemes have not been interpreted or implemented to authorize or require compensatory mitigation, let alone at no net loss or net benefit levels.  Accordingly, to the extent that the Memorandum is intended to require net benefit or no net loss compensatory mitigation through many/most federal permitting programs, such a directive would be a significant departure from existing practice, of untested legality, and arguably contrary to existing law.

 

Moreover, to demonstrate that compensation has occurred at a net benefit or no net loss, unless the adverse effects are offset through generation or preservation of in-kind resources (e.g., a duck for a duck), the “damage” to affected natural resources must first be valued.  Accordingly, if implemented so that compensatory mitigation is broadly required, the policy could lead to an extensive, time consuming and complicated valuation process.  One worst case scenario would be for this policy to result in some form of new natural resources damages assessment, the time and expense for which would be challenging to rationalize in the context of a development proposal where cost and time are relevant (i.e., for every development project).

 

Unless the Memorandum is rescinded or feebly implemented, or its implementation is held unlawful, it has significant strategic, permitting, legal and financial implications for many, if not most, major development projects.  Of course, it is likely to be difficult or impossible to challenge the new policies established in the Memorandum, except on a project-by-project permit-by-permit basis.  As such, the pressure for project proponents to navigate (rather than litigate) the new policies will be substantial. 

What? Another homage to Joe Sax?

Posted on October 22, 2014 by Jeffrey Haynes

Yes, and here’s why:  Joseph Sax’s writings remain as fresh today as when they were published. This blog — in noting his death earlier this year — described Sax’s revival of the public trust doctrine, for which he is justly famous. But some of Sax’s other studies stay relevant, and not only to the generation of environmental lawyers he taught at the University of Michigan Law School and at the University of California Berkeley School of Law.

Sax’s career focused not on the intricacies of pollution control statutes, but on the broader issues of allocation and management of scarce resources. The idea that public trust resources ought not to be diverted from public use, discussed in this blog, is the beginning. Citing Sax, the California Supreme Court in the Mono Lake decision injected public trust concepts into California prior appropriation doctrine.  As noted recently in this blog, California water allocation law continues to slouch toward the present. These issues show why Sax enjoyed teaching water law.

Sax delighted in challenging conventional views. In an early article, he exploded the myth, exemplified by supporters’ confidence in the National Environmental Policy Act, of “the redemptive quality of procedural reform.”  In 2002, he spoke at the University of Michigan about the Great Lakes. The assembled faithful expected him to reinforce their view that not one drop of water should leave the Great Lakes basin. Instead, to their dismay, he demonstrated why water allocation decisions should be based on an evaluation of alternatives, even if that meant water withdrawals from the Great Lakes. Some of the water allocation issues among riparian states that he explores in that speech were recently heard by the Supreme Court in Kansas v. Nebraska, concerning interpretation of an interstate water allocation formula, and will be considered in Mississippi v. Tennessee, which concerns pumping underground water across state borders.

One of the foundations of environmental law is the takings clause. Sax’s 1964 article, Takings and the Police Power, often cited by the Supreme Court, deserves re-reading for its lucid and compact analysis. Following the Lucas v. South Carolina Coastal Council decision, Sax imaginatively proposed an economy of nature underlying the market economy while criticizing the majority opinion in Lucas for being the outlier in takings law that we now know it to be. But Sax sympathized with the unfairness of takings law on property owners. Recently he noted that the Supreme Court has exhausted its efforts to develop a coherent takings theory. But, he said, that fact brings no solace to a late-in-the-game developer who, denied permits by a municipality that gave away the entire increment of infrastructure amenities to earlier-in-time developers, unfairly receives no compensation.

Management of public lands is a large part of environmental law. As we learned at the 2014 annual meeting, this College is embarking on a new initiative for East Africa community land use and natural resources rights. The underpinnings for such policies are found in Sax’s 1980 book Mountains Without Handrails, which proves the preservationist’s view of national park management. But management of private land adjacent to parks is equally important, as Sax explored in Helpless Giants: The National Parks and Regulation of Private Land. Sax was inspired to write this article when, after hard hiking through rhododendron “hells” in the Great Smoky Mountains National Park rising to the Appalachian Trail, he was surprised to see a luxury hotel — located on private land adjacent to the park — thrusting up beyond a forested ridge of the park.

Sax’s foray into the community values inhering in public and private art collections, Playing Darts with a Rembrandt, is echoed in the recent debate over whether the collection of the Detroit Institute of Arts should be sold to pay the city’s creditors. Although disclaiming an exact fit with the public trust doctrine, the Michigan Attorney General opined that the DIA held the art as a charitable trust for the public.

Sax received many awards and much praise. His extensive scholarship was reviewed by his peers in a 1998 Ecology Law Quarterly symposium introduced by ACOEL Fellow Richard Lazarus. He received the Asahi Blue Planet Prize in part for drafting the Michigan Environmental Protection Act, the citizen-suit statute discussed here. If these recognitions do not convince you, reading Sax in the original should persuade you of the continuing relevance of his scholarship.

Minefields (Still) Ahead: EPA’s Improved Good Samaritan Policy for Abandoned Mines Doesn’t Pan Out

Posted on April 7, 2014 by Zach C. Miller

For over forty years, the risk of incurring major liability under the Clean Water Act (CWA) has effectively discouraged “Good Samaritan” volunteers from cleaning up abandoned hardrock mine sites throughout the U.S. Past efforts to amend the CWA to remove this disincentive have been blocked, based in part on the assumption that EPA policies alone should be sufficient to remove the threat of CWA liability and effectively encourage such cleanups. 

In the words of the Gold Rush prospectors, that assumption and related agency policies have simply not panned out. A Good Samaritan Initiative adopted by EPA in 2007 and clarified and “improved” in 2012 has had virtually no effect on removing this threat of CWA liability or causing actual cleanups involving water impacts to occur. Meanwhile, willing Good Samaritans continue to be discouraged from conducting useful remedial actions, and these problem sites remain untouched.

During this same period, flexible state and federal “brownfield” and voluntary cleanup programs have cleaned up hundreds of former industrial sites and revitalized key urban areas, including in lower downtown Denver. But some members of Congress have rigidly refused to apply similar common-sense approaches to abandoned mine sites.

The time has come to recognize that informal agency policies encouraging these voluntary mine cleanups have not fixed and legally cannot solve this long-standing problem and to embrace the practical types of legislative approaches that have worked in the urban brownfield programs. The Good Samaritan CWA amendments introduced in 2013 by Senator Udall and others offer just such a practical solution. Past opponents of such legislation should acknowledge that agency efforts alone cannot remove the existing disincentive for cleaning up these sites and should support this modest, practical step to facilitate these mine cleanups.  

The Problem. According to the GAO, there are over 160,000 abandoned hardrock mines, mainly in the western U.S., that can leach heavy metals such as lead, mercury and arsenic into the environment. EPA’s estimate is over three times higher. EPA further estimates that historic mines have contaminated over 40 percent of the watersheds in the west and would cost more than $35 billion to clean up. These former mines are considered “orphan” sites, because their owners and operators are either dead, defunct or insolvent.

Remediating these sites has proven to be an intractable problem for several reasons. One is the technical difficulties and enormous costs of remediating such sites in full compliance with applicable environmental laws. Another is the risk of incurring substantial liabilities or obligations under those laws for a non-compliant or partial clean up.

The Disincentive. While CERCLA contains a “Good Samaritan” provision that shields qualified non-liable volunteers from incurring liability under that law when they conduct voluntary remedial actions, the Clean Water Act (CWA) currently contains no such exemption. Because the most serious of these abandoned mine sites involve impacts to water quality, this threat of CWA liability has severely inhibited both private Good Samaritans and state and local governments from conducting common-sense, voluntary cleanups that would significantly improve the affected watersheds.

Beginning in 1995 and continuing to the present, Senator Baucus and others have introduced various “Good Samaritan” amendments to the CWA aimed at removing this major legal disincentive. However, because the amendments would have allowed less than full compliance with otherwise applicable water quality standards and discharge permit requirements, certain NGOs and members of Congress to date have strongly opposed and defeated such efforts.

This well-intentioned opposition has been misguided and a classic instance of the perfect being the enemy of the good. By demanding that remediation of these orphan sites be fully compliant and permitted without exception, only a handful of minor abandoned mine cleanups involving water have occurred during the last four decades.

Ineffective EPA Initiative. To address this Congressional logjam and currently discouraged Good Samaritans, EPA has laudably attempted to address this disincentive by adopting in 2007 an administrative “Good Samaritan Initiative”. The Initiative consisted of an EPA statement of Interim Principles and a “Comfort Letter” and model settlement agreement offered to non-liable entities that volunteer to remediate abandoned hardrock mines. This initial guidance focused primarily on the fact that, under the CERCLA 121(e) “permit shield,” no permit would be required under the CWA or other laws while an on-site CERCLA “removal” action was occurring. However, that guidance did not address the fundamental question troubling Good Samaritans about what happens once the removal is completed but some discharge unavoidably continues. As a result, that Initiative did little to allay those concerns and had no appreciable effect on increasing efforts to remediate abandoned mines with water impacts.

In recognition of that ineffectiveness, EPA in December 2012 attempted to bolster its 2007 Initiative by issuing a guidance Memorandum describing two clarifications to the 2007 Guidance. The first was that a CERCLA removal action could be extended through periodic monitoring or other activities, which would lengthen the period when the CERCLA permit shield would apply. However, the prospect of being engaged in a very-long-term CERCLA action has neither enthused Good Samaritans nor addressed their root concern about CWA liability once the CERCLA action is done.

To address that key issue, EPA further clarified that, based on the application of five listed factors, a Good Samaritan cleaning up an abandoned mine “might” not be considered by EPA to be a liable “operator” required to obtain an NPDES discharge permit. All of those factors relate to whether the volunteer has the “power or responsibility” to access the site and control the ongoing discharge after its remedial action is finished.

While issued with much fanfare in 2012, this “improved” Good Samaritan Initiative has again had virtually no effect on addressing the concerns of potential volunteers or increasing cleanups of these sites, for several reasons. First, EPA has emphasized that this Initiative merely explains its current interpretation but is not binding on EPA, third party NGOs, or the courts and “may not be relied on to create a right or benefit … by any person.” Not exactly the assurance that Good Samaritans want and need. Second, EPA stresses that this guidance applies only to Good Samaritans at orphan mine sites, but the factors for determining whether an entity is a CWA-liable “operator” cannot be unique to those parties. As a result, potential Good Samaritans have rightly been skeptical whether they can make any potential CWA liability vanish simply by arranging that their right to access and conduct operations on the affected site terminates upon completion of some defined task. If a mining lessee or contractor attempted such an arrangement, EPA and the courts no doubt would reject any claim it was not a CWA-liable operator. There currently is no legal basis to treat volunteers any differently. This point also offers no comfort to a governmental volunteer, who likely will always have the power of access and thus trigger operator liability.

The 2012 memo also repeatedly indicates that, if a Good Samaritan is not deemed a responsible operator, then the site owner would be required to comply with NPDES permitting requirements. But EPA ignores the fact that, at these orphan sites, there simply is no owner (unless it is the U.S., which to date has largely ignored its own liability).

Over a year after issuance of this “improved” Good Samaritan Initiative, it is clear that this EPA policy has been ineffective in increasing mine cleanups or addressing the CWA legal disincentive for such actions. To the contrary, several groups dedicated to these voluntary efforts have made clear that these nonbinding agency guidance documents have had little to no impact, and the groups’ efforts continue to be stymied in the absence of effective legislative reform.

The Proposed Legislative Fix. To address this problem, Colorado Senators Udall and Bennett have introduced S. 1443, the Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2013. The bill creates a new Good Samaritan Permit under the CWA, to be issued by EPA or an approved State or Tribe, that would authorize a Good Samaritan volunteer to conduct a specified remedial action at an abandoned mine site. Those actions could include relocating waste rock, re-routing drainages, establishing wetlands, and similar measures that would greatly improve watershed conditions, but they would not need to result in complete compliance with otherwise applicable water quality standards or require a long-term discharge permit. Compliance with that special permit would then shield the volunteer from liability under the CWA and cure the current disincentive for volunteers willing to address these sites.

This huge, languishing problem of abandoned hardrock mine sites needs a solution. This bill isn’t perfect. But it’s a good start. Let’s get started.

Keystone XL, the Old Testament and Attorney Compensation

Posted on February 13, 2014 by Keith Hopson

A former federal district judge was fond of telling his law clerks that Fifth Circuit Court of Appeals opinions were like the Old Testament. “You can find something there to support about any proposition you want.” The January 31, 2014 release of the State Department’s Final Supplemental Environmental Impact Statement for the Keystone XL Pipeline Project brought Judge Roberts’ words to mind.

The Keystone XL Pipeline Project backers tout the report’s conclusion that because the Canadian tar sands oil will be developed with or without the construction of the pipeline, it will not “significantly exacerbate the effects of carbon pollution” (to use the President’s avowed standards for pipeline permit approval). On the other hand, pipeline opponents point to the fact the report does not specifically address the project’s greenhouse gas emissions. Both are valid points, but the gist of the report appears to be the project has finally cleared its environmental hurdle. 

That said, other hurdles remain. While this long-awaited environmental impact statement is an important step in the process, it is just that, a step. Ultimately, the final decision on the pipeline permit will involve something more akin to the common standard for law firm attorney compensation, the so-called “all factors considered” standard. In this instance, that decision will involve economic and national and international political concerns, as well as how the project affects U.S. and international climate policy.

With the issuance of the report, the 90-day interagency consultation period begins. Once EPA, and the Departments of Energy, Defense, Transportation, Justice, Interior, Commerce, and Homeland Security weigh in, the Secretary of State will at some point make to President Obama a permit recommendation. The President, of course, has the final say.

Stay tuned; the project appears to have cleared another hurdle, but the five year and counting race is far from over.