Talking Climate Change at the Vatican: A Personal Report

Posted on June 21, 2016 by Michael Gerrard

In January my Columbia University colleague Jeffrey Sachs told me that the Pontifical Academy of Social Sciences (with which he had worked for several years) was organizing a conference at the Vatican to be comprised of judges, prosecutors and legal scholars from around the world to discuss how the law could address the scourge of human trafficking, and that Pope Francis would attend.  He asked my help in identifying some individuals who should be invited, and I was happy to help.

I was not certain that I would be able to go until I received a letter in April from the Academy’s Chancellor, Monsignor Marcelo Sanchez Sorondo, which began, “Following Pope Francis’ wish, it is my pleasure to invite you” to this meeting on June 3-4. Though the dates conflicted with another commitment, this was an invitation I could not decline, so I found a substitute for that and booked a room in the Crowne Plaza St. Peter’s, as recommended by the Vatican.  I also found a web site with the protocol for addressing certain personages, including the Pope, the Queen of England, and various heads of state.  (The Pope should be addressed as Your Holiness. Catholics should kiss his ring if it is offered; non-Catholics like me should simply shake his hand.)

On the first morning of the conference, I joined other dark-suited men and women in their 50s and older in boarding a bus at the hotel.  After we passed through a side entrance to Vatican City, we traversed narrow tree-lined streets (passing numerous priests in long robes walking to work) and parked at Casina Pio IV, which was completed in 1562 as the summer residence of Pope Pius IV.  The dome of St. Peter’s Basilica loomed behind.  Inside was a conference hall with rows of benches and desks; each desk had a plaque with the name of the person assigned to sit there, a headset for simultaneous translations in several languages, and a microphone that was remotely switched on when it was time to speak. A bust of Pope John Paul II sat above the podium.  Throughout the building were original paintings and sculptures, and many of the ceilings had frescoes from the 16th century. Our meals were served on an outdoor elliptical courtyard.  The buffet featured, along with less surprising fare, many plates of matzo.

The program was opened by Monsignor Sorondo, and then chaired by Valeria Mazza, an Argentinian supermodel from the 1990s and 2000s who did an excellent job of keeping all the speakers to 15 minutes.  The speakers were judges and prosecutors from around the world (including several U.S. federal district court and court of appeals judges) and a few academics like Jeff Sachs and myself.  Many of the judges told stories of the horrific cases of human trafficking they had handled in their courtrooms. 

When my time came to speak, I discussed how increases in trafficking and smuggling often follow large-scale natural disasters; how climate change (such as drought, desertification and sea level rise) will likely cause a massive increase in the number of people displaced from their homes in the decades to come; and that therefore considerably more trafficking and smuggling will ensue, and the nations of the world should begin considering how to cope with these conditions. I quoted several passages in Pope Francis’s landmark Encyclical on Climate Change and Human Inequality, Laudato Si’, including its declarations there “there has been a tragic rise in the number of migrants seeking to flee from the growing poverty caused by environmental degradation,” and that “the establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable, otherwise the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice.”  (My paper is posted here.)

About two hours before the Pope’s scheduled arrival at the meeting, several large men appeared in and outside the room wearing wires going into their ears. About five minutes before schedule, I heard someone say “he’s here!” A door opened in front of the room, and Pope Francis walked in, wearing his white cassock and skull cap.  He took a seat at the head table. Everyone in the room stood and applauded, and many took out their phones and cameras and started taking pictures.

The Pope gave a talk in Spanish.  He thanked the participants and then discussed how important it is to halt the worldwide scourges of human trafficking and smuggling.  He urged judges “to carry out their vocation and their essential mission of establishing that justice without which there can be no order, or sustainable and integral development, or social peace.”  He spoke of a need to end “the globalization of indifference.” He also stated, “The Enlightenment slogan that the Church must not be involved in politics has no application here, for the Church must be involved in the great political issues of our day. For, as Pope Paul VI pointed out, ‘political life is one of the highest forms of charity.’”

Entering into another current debate, the Pope stated, “[t]here are those who believe that the [Pontifical] Academy would do better to be involved with pure science and theoretical considerations, which would certainly be consonant with an enlightenment vision of the nature of an academy. An academy must have roots, concrete roots; otherwise, it risks encouraging a free-flowing reflection which dissipates and amounts to nothing. The divorce between ideas and reality is clearly a bygone cultural phenomenon, an inheritance of the Enlightenment, but its effects are still felt today.”

After his talk, all were invited to join the Pope in front of the building for a joint photo. A swarm of photographers was waiting outside. After the photos, the Pope shook the hands of many of the participants, including myself, and gave each of us a friendly gaze and a warm smile.  He posed for several selfies. He was jostled around a fair amount by those seeking to say a few words with him, but he seemed to enjoy the scene; indeed his whole demeanor was one of a person who believes strongly that he is doing important work and takes joy in doing it.  Finally he climbed into a small sedan, sat in the front seat, and waved as he was driven away.

As we returned to the meeting hall, there was a collective glow for having spent time with someone who all present, regardless of faith, regard as a great man, and also a renewed commitment to use the law to address some of society’s greatest ills to the extent that our positions and abilities allow.

Legal Implications of the Paris Agreement for Fossil Fuels

Posted on January 7, 2016 by Michael Gerrard

           The Paris Agreement on climate change reached on December 12, 2015 has a heavily negotiated sentence that, when closely read, seems to call for the virtual end of fossil fuel use in this century unless there are major advances in carbon sequestration or air capture technology. That, in turn, has important legal implications.

           Article 4 Par. 1 says, “In order to achieve the long-term temperature goal … Parties aim to reach global peaking of greenhouse gas emissions as soon as possible … and to achieve rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.”

           In other words, what goes up should be taken back down: for every ton of greenhouse gases (GHGs) emitted from a smokestack, tailpipe or chopped tree, a ton should be removed.

The Numbers

           According to the Intergovernmental Panel on Climate Change’s Fifth Assessment Report (2014), fossil fuel use emits about 32 gigatons of carbon dioxide per year. Other sources, such as methane leakage, cement manufacture, and other industrial processes add another 5-7 gigatons carbon dioxide equivalent. Deforestation and other agriculture, forestry and other land use changes (but subtracting emissions sequestered by forest growth) add yet another 10-12 gigatons a year.  This all adds up to about 49 gigatons. However, global carbon sinks remove only about 18 gigatons per year (8.8 to the oceans, 9.2 to land, not including land use changes). 

           Thus the sinks take up about the equivalent of the non-fossil sources. In order to achieve a “balance” between emissions and sinks, we need to just about end the release of GHGs from fossil fuels, though a radical increase in sinks or reduction on non-fossil fuel emissions would provide some slack.

           Assuming that some kind of balance between emissions and sinks can be achieved, would we actually have until 2099 to decarbonize the economy, as these numbers imply is needed?  Not really. Kelly Levin, Jennifer Morgan and Jiawei Song at the World Resources Institute provide here an illuminating overview of what is required to achieve the long-term temperature goal in Article 2 of the Paris Agreement (“holding the increase in global average temperature to well below 2° C above pre-industrial levels and to pursue efforts to limit temperature increase to 1.5° C”). As the WRI post notes, a recent paper in Nature Climate Change suggests that carbon dioxide from electricity would have to be brought close to zero by 2050, and by then around 25 per cent of energy required for transportation would also need to come from electricity (up from less than one per cent now).

           There seem to be only three ways to continue to use fossil fuels for electricity in the second half of the century (and for transport by the end of the century) and still meet the temperature goal:

  1. Capture the carbon before it escapes into the air, and sequester it 
  2. Devise, and deploy on a massive scale, technologies to remove the carbon from the air, and sequester it
  3. Create new sinks, such as through the immediate halt to deforestation and a worldwide program of tree planting

           All three of these raise a question of how long the carbon will be stored; we do not know how long carbon will stay in reservoirs, and we do know that trees do not live forever, and when they burn or die they release their carbon. Moreover, the technologies of carbon capture and sequestration, and of removing carbon from the ambient air, are developing slowly and are nowhere near large scale deployment. (A price on carbon would create an economic incentive to develop and use these technologies, but politicians in most places are unwilling to impose such a price. A large-scale government-funded research effort, such as the ones that put human beings on the moon, could also produce the necessary innovation, but there has been little visible support for such an effort.) Most of the industrial carbon sequestration that now occurs goes toward “enhanced oil recovery” – squeezing oil out of depleted reservoirs – but extracting more oil is not compatible with stopping fossil fuel use.

           Finding the land for large scale tree planting would face its own challenges in a world where sea level rise, persistent drought, and extreme heat will be rendering much land unsuitable for growing food.

           So meeting the demands of society for energy means a combination of aggressive energy efficiency and conservation programs, the installation of renewable energy (and, perhaps, nuclear), and the substitution of electric or hydrogen vehicles for those using petroleum at an unprecedented pace. The Deep Decarbonization Pathways Project has set forth the colossal amount of new facility construction that would be required worldwide to achieve this.

           Legal Implications

           The Paris Agreement calls on all countries to strengthen their pledges to reduce GHG emissions, and to monitor their progress and report it to the world.  It also says that “all parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies.” (Article 4 Par. 19) That looks like strategies under which every country must show how it is controlling its fossil fuel use.

           These provisions are not legally enforceable. However, many domestic laws are, and they will become a powerful tool to force early planning, or at least disclosures. One key example is the securities disclosure requirements for publicly traded companies.  On January 27, 2010, the U.S. Securities and Exchange Commission issued guidance for the disclosure of climate-related risks. It specifically calls on companies to “consider, and disclose when material, the impact on their business of treaties or international accords relating to climate change.” The Paris Agreement is clearly such an accord, and (if it is vigorously implemented) it will have material impact on many companies in the business of extracting, processing and using fossil fuels, or making things that rely on fossil fuels (such as motor vehicles, ships and airplanes). The SEC’s guidance makes clear that management’s discussion and analysis should explore known trends and uncertainties concerning climate regulation.  This includes regulation outside the U.S. that can affect the operations abroad of U.S. companies. Therefore, disclosure can be expected of the effect of severe restrictions here or in other countries on fossil fuel use, including the possibility that most fossil fuel reserves will need to stay in the ground.

           Climate disclosures have received increased attention since it was reported in November that New York Attorney General Eric Schneiderman is investigating ExxonMobil under the New York securities law, the Martin Act, over its statements about climate change, and had reached a settlement with Peabody Energy.

           This is not necessarily limited to U.S.-registered companies. For example, in April 2015 the G20 finance ministers and central bank governors asked the U.K. Financial Stability Board for advice on the financial stability implications of climate change. In November 2015 this Board proposed the establishment of a disclosure task force to develop voluntary disclosures for several climate-related risks, including “the financial risks which could result from the process of adjustment towards a low-carbon economy.”

           Going forward, impact review of energy projects under the National Environmental Policy Act and its counterparts in many states and most other developed countries should consider the phase-out of fossil fuels that is inherent in the Paris Agreement.  For example, a proposal to build or finance a coal mine, a coal-fired power plant, or a coal port should consider whether the facility would need to be closed before the end of its otherwise useful life, and whether the project would be inconsistent with the Agreement. 

           Systematic analysis and disclosure of these risks will lead responsible boards of directors to undertake serious planning to effect an orderly transition to the low-carbon world that 188 countries agreed to in Paris. These disclosures will also help investors decide what companies will thrive in such a world (such as developers of technologies for renewable energy and efficiency), and what companies are failing to prepare for the transition and thus will themselves become fossils.

WHY, WHY DO I LOVE PARIS

Posted on January 5, 2016 by Richard Ottinger

The Paris Agreement resulting from the COP21 Climate Conference was extraordinary, far better than any of the pundit “experts” expected (indeed most were predicting gloom and doom until the very last minute).  That the conference organizers could get 190 countries that had been quarreling with each other through 20 prior unsuccessful conferences, and many of which have little mutual respect, to come together to unanimously support an agreement of substance on a subject as complex, huge, costly and politically difficult as tackling climate change, is nothing less than a miracle.

Christiana Figuerez and the French negotiating team were brilliant in asking only that countries submit voluntary Independently Nationally Determine Contributions (INDCs) rather than a repeat of conference mandated so-called “binding” carbon reductions as required in the unsuccessful Kyoto Protocol, binding only on developed countries that ratified (and even then signatory Canada simply withdrew).  Their pre-conference preparatory work and skillful conference conduct was critical to its success.

The momentum that was built up as virtually all the countries, large and small, rich and poor, made meaningful submissions was such that it would have been very difficult for any of one nation to spoil the broth.

Indeed, the momentum was so great that even previously very reluctant China, India, S. Africa and Brazil agreed to mandatory verification provisions, extremely important to the effectiveness of the Agreement.

That the INDCs were not sufficient to meet the IPCC scientists’ assessment of need to reduce global temperature increases to no more than below a 2.5 Celsius degrees above pre-industrial revolution levels was to be expected.  But that the parties agreed to meet every 5 years to make further contribution pledges, again despite powerful country reluctance, was a vital success.

One little touted success was a provision to have the Agreement recognize the climate mitigation contributions of non-national organizations, states, provinces, cities, businesses and NGOs, a provision on which I and a group from Yale dubbed The Yale Dialogue, worked very hard to get included. Their inclusion is very important since many of them have already achieved much more than their national governments have been able to pledge.  Perhaps most importantly, it is they that ordinarily are the key actors in establishing energy efficiency standards and often renewable energy incentives.  The Paris Agreement doesn’t call for ratification until 2020, and progress before then will fall largely on their shoulders.

While the task before all the countries of the world to achieve the goals sought through the Agreement is daunting, the Paris Agreement has gotten the world off to a wonderfully good start.

May The Force Be With Who?

Posted on December 30, 2015 by Steve McKinney

There’s been a disturbance in The Force.  On December 4, 2015, Environmental Jedi across the galaxy felt that subtle hitch in the harmonious heartbeat of the universe due to some cosmic, regulatory insult.  That sense of loss warned Jedi everywhere that Balance has been tipped, Light has been dimmed, and Nature has been nicked.

On that day, a former Senator, now Galactic Emperor, affixed his signature to a benign sounding decree from the Legislative Houses of the Republic known as the FAST Act (Fixing America’s Surface Transportation Act, see House Report 114-357).  Buried beneath 550 pages of directives and declarations about everything from intergalactic traffic lights to hyper-space railroad switchyards lay a seed of great detriment that wary but weary policy watchers had not noticed.  While the Jedi have been exposed to this loathsome idea before, their continual resistance to the Dark Side’s alluring arguments about “emergency” and “public need,” must have faded like dim memories of policy battles a long, long time ago in a galaxy far, far away.  For just a single page of text in a section numbered 61002 slipped through seemingly without notice and certainly without ignition of even a single lightsaber.

The Emperor’s executive agency—ominously known in previous days as the “Federal Power Commission”–—has long had authority to declare an “emergency” by reason of “a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes” and then to order electric utilities to take responsive action (16 U.S.C.A. § 824a(c)).  Now, with the authority of a fully-armed and operational FAST Act, electric utility actions or omissions in response to such orders that violate federal, state or local environmental laws or regulations shall not be considered violations, shall not subject the electric utility to civil or criminal penalties, and—for the love of Obi-Wan—shall not subject such a party to “a citizen suit under such environmental law or regulation.”  Electric utilities supplying emergency power to those in need will avoid any Imperial entanglements.  To coin a phrase, “These aren’t the violations we’re looking for. . . .You can go about your business. . . . Move along. . . . Move along.”

What the most destructive hurricanes and sea storms in recent interstellar history could not do, has now been done.  What a lack of power, potable water, sanitation, health care, police protection and basic transportation for entire cities did not justify, has been written into law now, apparently without a fight. Where were the Jedi?  What Imperial plot lies in back of this development? 

Under the previous Emperor, everyone knew such an exculpatory policy was completely unnecessary and would wreck the environment like the Death Star wrecked Alderan.  But now no outcry?  No rescue?  Is the Resistance powerless?  Where is Luke?  Has Leia lost her lightsaber?  Are the Jedi extinct or has their attention simply been frozen in carbon?  Perhaps this is just another reason to anticipate eagerly Episode VIII, where all ambiguities will be explained without need of Chevron Step One.  May The Force be with you in 2016!

Are Obama’s Climate Pledges Really That “Legally Durable”?

Posted on December 21, 2015 by Richard G. Stoll

In his December 16 ACOEL post Professor Robert Percival concludes that President Obama’s Paris GHG reduction pledges are most likely “legally durable.”  Two of his key points:  (1) EPA’s Clean Power Plan (CPP) – from which the bulk of the Obama pledges are comprised – will likely survive judicial review; and (2) any effort by a new President to undo the CPP would require a lengthy rulemaking process that could be rejected on judicial review.  

The CPP may ultimately survive judicial review, and any attempt by a new President to undermine the CPP may ultimately fail.  But with due respect to Professor Percival, I submit the GHG reduction pledges may be far less “legally durable” than he suggests.  

Judicial Review Prospects.

Professor Percival notes that the Supreme Court has “repeatedly upheld EPA’s authority to regulate GHG emissions.”  But EPA’s authority to regulate GHG emissions is not at issue in the challenges now pending in the D.C. Circuit.  (Consolidated under the lead case West Virginia v. EPA.) 

Rather, the issues relate to how far can EPA go with the words of the Clean Air Act (CAA) to regulate GHG emissions.  I think most would agree that EPA seeks to go pretty far with a few words in CAA 111.   One key issue is whether the words authorizing imposition of “best system” emission limits upon “stationary sources” confer authority to require owners of coal-fired stationary sources to replace their plants with solar and wind energy sources.

In my view, whether the CPP will survive in the D.C. Circuit may well depend upon the composition of the 3-judge panel selected by lot.  The 17 active and senior judges on that Court represent an amazingly wide spectrum of philosophies.  But the cases will probably then go to the Supreme Court – and there, I think EPA will have a pretty tough (but maybe not impossible) time.  Last year, the Court rejected parts of EPA’s GHG regulatory scheme in its UARG opinion.  The Court  expressed strong distaste for EPA regulations with questionable grounding in the CAA’s words  – particularly “where an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”

A New President’s Prospects.

Virtually every Republican Presidential candidate has vowed to undo most or all of the CPP (assuming it has not been rejected on judicial review).  I take no position on whether he or she should do this.   But I do believe it could be done fairly quickly and in a manner likely to survive judicial review.

I direct your attention to Nat'l Ass'n of Home Builders v. EPA.  Writing for a unanimous panel in an EPA case, Chief Judge Garland (an Obama appointee – joined by Judge Rodgers, a Clinton appointee) quoted extensively from recent Supreme Court opinions.  In Part II(A) of Judge Garland’s opinion (pages 1036-38) and Part IV (page 1043), the following points come through strong and clear:

a.  A new administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, even where there are no new facts or information, so long as the new administration adequately explains the basis for the reversal;

b.  There is no heightened standard of judicial review when an agency reverses course; and an agency need not convince the court that the reasons for the new policy are better than the reasons for the rejected one.

Thus the “lengthy rulemaking process” envisioned by Professor Percival need not be so lengthy.  A new administration would not need to develop a new factual record – it would merely have to carefully explain in its rulemaking the legal and policy reasons why it was undoing parts or all of the CPP.  There is no reason this could not be accomplished within a year or two, and reductions required under the CPP do not begin kicking in until 2022.

Promises, promises: how legally durable are Obama's climate pledges?

Posted on December 16, 2015 by Robert Percival

As part of a global agreement on climate change, the US has pledged, among other things, to reduce its greenhouse gas (GHG) emissions by 26%-28% compared to 2005 levels by the year 2025. But opponents of President Obama argue that he cannot keep his promises made at the Paris climate summit.

The Obama administration is confident that the US can meet its promise based on the regulatory actions already taken by the US Environmental Protection Agency (EPA) and other federal agencies to reduce GHG emissions, part of a broad Climate Action Plan announced by President Obama in June 2013.

In transportation, US fuel economy standards set by the EPA have been raised dramatically. And earlier this year the EPA issued regulations to control GHG emissions from power plants, which led to a final rule known as the Clean Power Plan.

The Clean Power Plan will require states to reduce GHG emissions from existing power plants by 32% by the year 2030. It is expected to accelerate the retirement of coal-fired power plants as electric utilities increasingly shift to natural gas and renewable sources of energy.

Yet even as US negotiators arrived in Paris for the climate summit, Obama's political foes were questioning his authority to sign an international agreement on climate change.

Senate Majority Leader Mitch McConnell argued that the US cannot meet its promises to the global community because the Clean Power Plan is "likely illegal" and will either will be struck down in court or be revoked by a new Republican president.

So how strong is the legal defense of Obama's signature climate initiatives?

Going to the Supreme Court?

Having the Clean Power Plan struck down in court seems unlikely for a number of reasons. These include the fact that the US Supreme Court repeatedly has upheld EPA's authority to regulate GHG emissions under the Clean Air Act, beginning in 2007 with its decision in Massachusetts v EPA.

On the other hand, a new president working with congressional opponents of climate action could undermine the US commitment. Let's consider the legal possibilities.

The Congressional Review Act provides special fast-track procedures that allow Congress to veto regulations issued by federal agencies within 60 legislative days of their issuance. But before such a joint resolution of disapproval can take effect, it requires either presidential approval or the override of a presidential veto by a two-thirds majority in each house of Congress.

The signature policy of Obama's climate strategy is the EPA Clean Power Plan to regulate CO2 from power plants. Opponents are already challenging it in court. haglundc/flickr, CC BY-NC

As a result, the only time this procedure has been used successfully was shortly after a change of administration. In March 2001 new President George W Bush signed a disapproval resolution blocking regulations issued at the end of the Clinton administration to protect workers from repetitive motion injuries.

Congress is trying to use the Congressional Review Act to disapprove EPA's greenhouse gas regulations, but such a vote is entirely symbolic because President Obama has promised to veto the disapproval resolution and the 60 legislative day period will end long before the 2016 election. Thus, as long as a president committed to climate action remains in office, the Congressional Review Act is not a promising option.

Dramatic versus piecemeal attacks

A new president opposed to climate action could direct EPA to repeal its regulations, but this would require the agency to undertake a lengthy rulemaking process to comply with the Administrative Procedure Act that governs how agencies adopt regulations. Any agency decision to revoke the regulations would be challenged in court and could be overturned.

The courts have played a role before in attempts to reverse regulations. When President Reagan's Department of Transportation rescinded its air bag regulations, the Supreme Court held that it had acted arbitrarily and capriciously because the decision was not supported by the factual record showing that air bags save lives.

 

There will be legal challenges to the EPA Clean Power Plan, but the Obama administration thinks it's on solid legal ground. vagueonthehow/flickr, CC BY

And when the Supreme Court in 2011 rejected state efforts to hold electric utilities liable for climate change under the federal common law of nuisance, it pointedly noted that any future EPA decision not to regulate GHG emissions would be subject to judicial review.

Working with a new president sympathetic to opponents of environmental regulation, Congress could repeal or amend the Clean Air Act, the legal foundation for EPA's regulations of GHG emissions. However, the Clean Air Act has been remarkably resistant to past legislative onslaughts. It is, after all, thanks to the Clean Air Act that the "airpocalypses" choking major cities in China and India right now do not happen in the US.

Another option for a future Congress would be to adopt targeted amendments to deprive EPA of authority to implement the Clean Power Plan and other GHG regulations if there are enough votes in the Senate to overcome a filibuster. Congress also could use the power of the purse to withhold funds for actions necessary to implement any Paris agreement, including US promises of financial aid to help poor countries adapt to climate change.

Post-Paris

The Paris climate conference is being conducted pursuant to the UN Framework Convention on Climate Change, a treaty signed by President George H W Bush in June 1992 and ratified unanimously by the US Senate on October 7 1992. President Obama believes he already has sufficient legal authority to implement any agreement made in Paris and thus he does need not to ask Congress for new approval.

There is precedent for this. In 2013 the US was able to accede to the Minimata Convention on Mercury without congressional approval because existing law already provides the president with sufficient legal authority to implement its requirements.

For decades, the principal argument by opponents of US climate action has been that the US should not act until developing countries agreed to control their GHG emissions. That argument was dramatically undermined in November 2014 when China agreed to control its emissions, in a joint announcement with the White House.

The claim that other countries will not control their emissions has now been laid to rest in Paris with a new global agreement requiring all countries to do so. Now that the entire world has recognized that all nations must act to combat climate change, it would be the height of folly for a new president and Congress to reverse course.

The Conversation

This article was originally published on The Conversation. Read the original article.

Mario Cuomo’s Environmental Legacy: How Green was the Governor?

Posted on February 12, 2015 by Gail Port

When one thinks of New York’s late Governor Mario Cuomo, some remember an eloquent and gifted orator, a complex man of integrity and vision, or the erudite son of Italian immigrants who ran a grocery store in South Jamaica, Queens, NY.  Others may remember him for his ideological “Tale of Two Cities” keynote address at the 1984 Democratic Convention, which highlighted his “progressive pragmatism” governing philosophy.  Yet others will recall his staunch opposition to the death penalty or his investments in public infrastructure, including convention centers, stadiums, industrial parks and his controversial prison building program.  Or perhaps he will be remembered for his aggressive and strategic skills on a basketball court. It was no secret that basketball was the Governor’s great passion and it was widely known that he was ferocious on the basketball court.    

But not too many think of Mario Cuomo for his environmental legacy.  Upon the Governor’s death on January 1, 2015, however, many memorials, tributes and articles poured in from Buffalo to the Adirondacks to the Hudson Valley to Long Island, from environmentalists and  environmental organizations such as the New York League of Conservation Voters, the Adirondack Council and Scenic Hudson,  all spotlighting a rather impressive environmental legacy.

Here are some notable examples of Mario Cuomo’s environmental accomplishments during his 12 years as Governor (1983-1994):

  • He pressed for the passage of the Hudson River Valley Greenway Act of 1991, which established the Greenway Conservancy for the Hudson River Valley and the beginnings of the Hudson River Greenway Trail System  and scenic byways which now exist as a necklace of parks, hiking trails and open space on both sides of the Hudson River running the length of the Hudson Valley.  The Greenway trails have expanded from Westchester to Albany.
  • He signed the Long Island Pine Barrens Protection Act in 1994, which protected over 100,000 acres of Long Island’s premier ecosystems in the pine barrens of Suffolk County.  Many believed that without the Act a large portion of these ecologically diverse pine barrens would have been sold off by the state for industrial or residential development.
  • He worked to gain passage of the 1986 Environmental Quality Bond Act, which funded a $1 billion hazardous waste clean-up program to address more than 1,000 sites throughout the State. It also enabled programs such as the Estuary Program to restore the Hudson River and provided $200 million for land acquisition and historic preservation.
  • In response to urging by Governor Mario Cuomo’s administration, the U.S. EPA reopened its “no action” determination against GE and commenced a lengthy CERCLA enforcement battle against GE that led to GE’s on-going remediation of the PCB-contaminated Hudson River.
  •  The Governor is also credited with the establishment of the Environmental Protection Fund (EPF), following a failed effort in 1990 for another bond act. The EPF has provided billions of dollars for farmland conservation, wastewater treatment plant upgrades, parks creation, waterfront revitalization, invasive species controls, development of recycling programs and the restoration of historic sites.  Since its 1993 enactment, the EPF has invested more than $2.7 billion to conserve some of the State’s most important scenic and ecological lands and been used to buy development rights on hundreds of thousands of acres of commercial timberland in the Adirondacks.  
  • Mario Cuomo also signed legislation establishing the Clean Water State Revolving Fund for water and wastewater infrastructure, which provides low interest loans for this critical infrastructure.

The current New York State Department of Environmental Conservation Commissioner, Joe Martens, (who was an environmental adviser to Governor Mario Cuomo in the early 1990s), recently observed that Mario Cuomo “was never comfortable” as a hiker or a canoeist.  “He was more comfortable in a suit or in sweat pants than he was in hiking clothes.” Nevertheless, Commissioner Martens noted, Mario Cuomo “regarded protection of the environment as almost a religious belief”, and “he talked about it in spiritual terms all the time.” Mario Cuomo will be missed, but his environmental legacy will live on.    

Choppy Water: An Update to the Turbulent Environment Between the EPA and Agricultural Opponents of the WOTUS Rule

Posted on August 11, 2014 by Stephen Bruckner

If you've been following the recent controversy surrounding the proposed rule regarding "waters of the United States" (referred to in some environmental and agricultural circles as "WOTUS"), you know the wave the EPA has created among opponents of the rule.  In April 2014, the EPA and the U.S. Army Corp of Engineers ("Corps") published a proposed rule defining the scope of waters protected by the Clean Water Act ("CWA"). Originally, the public comment period for the proposed rule ended July 21, 2014. That period was extended to October 20.

According to its opponents, a majority coming from agricultural interests in the nation's Heartland, the proposed rule is a stealthy way to expand the EPA's authority; a clear land grab epitomizing government overreach. According to the EPA, the purpose is to clarify the definition of navigable waters in light of U.S. Supreme Court decisions in U.S. v. Riverside Bayview Homes, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers

Although EPA explicitly stated that the proposed rule would not affect any exemptions to CWA Section 404 permitting requirements, which include normal farming and ranching activities, opponents think otherwise. Because of the expanded definition of navigable waters to include some waters that are merely connected to navigable waters, opponents worry landowners now will have new land covered by the CWA, forcing them to obtain permits under other provisions of the CWA for regular farming operations. Missouri farmer Andy Klay told Fox News he worries how long a permit might take. A day? A month? He and his wife created a parody video of the EPA to the tune of the popular song "Let it go" from Disney's Frozen -- "The EPA and the Corp. They will try, to justify! That's enough, that's enouuugh!"

Capturing the same sentiment, the American Farm Bureau Federation has launched a viral marketing campaign called "#DitchtheRule." The campaign supplies talking points and pre-written messages for supporters of #DitchtheRule to share on Twitter. For example, the campaign has a pre-written tweet "Ditches and puddles are not navigable. #DitchtheRule."  In an attempt to set the record straight, the EPA has responded with a campaign called "DitchtheMyth." The campaign responds directly to the #DitchtheRule allegations. EPA contends, for example, that the myth that the rule will regulate puddles is "not remotely true." But the criticisms, or misconceptions, depending on your perspective, surrounding the rule are very real in the Heartland.

It remains to be seen how things will shake out when balancing the cost of increased regulation with the benefit of additional clarity in the rule. However, there clearly is a gap in communication and deep mistrust between the EPA and agricultural interests. Though some of the fear may be based in myth, folks in the Heartland want the EPA to tread lightly and take seriously the unintended consequences of the rule for farmers and ranchers. Either way, the rule's polarizing effect has already caught the attention of lawmakers. According to The Hill, more than 260 members of Congress, spanning both parties, have opposed the rule. 

For more background, see: Weighing in on the Waters of the U.S. rule: an update 

The New York State Budget (FY 2014/2015): How Did the Environment Fare?

Posted on May 23, 2014 by Gail Port

Recently, Governor Cuomo and the NY State Legislative leaders struck a $140 billion budget deal for FY 2014-2015. Historically, the budget process in New York is messy (sometimes very messy), protracted (with the budget often being late, sometimes very late) and largely plays out behind-the-scenes among the “three men in the room” (Governor Cuomo, Speaker Silver and Senate Co-Leader Dean Skelos).  Nevertheless, the FY 2014/2015 budget was passed on time this year and without too much background noise.  

How did the environment fare you ask? That might depend on who you ask.  Parks advocates were declaring victory and applauding the infusion of $92.5 million in park capital funds, (which the State Senate initially had rejected) for repairs and restoration at New York’s state parks and historic sites.  This is the third year of robust capital funding for parks after several years of severe cuts in parks funding, although Park state officials had identified more than $1 billion of required park rehabilitation projects across the state.  On the environmental front, notwithstanding some modest successes in the budget process, the environmental community largely believes the new budget falls short when it comes to protecting the environment, making New York more sustainable and preparing New Yorkers for the challenges of climate change.  Moreover, many of the so-called advocacy successes were, in reality, merely successful efforts to beat down some pretty bad ideas.

Here are some of the highlights:

1. The Environmental Protection Fund (the “EPF”):  The EPF was established in 1993 to fund environmental projects that protect the NYS environment and enhance communities, including in the areas of open space (such as purchasing land for the NYS Forest Preserve), parks, recreation, historic preservation and restoration, habitat restoration, farmland conservation and solid waste management (including upgrading of municipal sewage treatment plants).  The EPF, which once stood at $255 million but suffered deep cuts during the recession when it was raided to support the State’s General Fund,  was increased in the FY 2014/2015 budget to $162 million, a $9 million increase over last year’s funding level, continuing the progress toward restoring the EPF. The environmental community had sought an increase to $200 million.

2. Brownfields Clean-up Program:  No consensus was reached among the Assembly, Senate and Governor during the budget process on the needed reforms to the Brownfield Clean-up Program (“BCP”) and extension of the BCP tax credits deadline.  Unless the Legislature and Governor can agree on a bill before the end of the legislative session in mid-June, the program will expire at the end of 2015.  Negotiations are continuing on a compromise bill and there are at least 4 competing proposals currently on the table.

3. Reauthorization of the State Superfund Program:  The budget agreement did not include new funding for the State’s Superfund program.  It is hoped that this issue will be taken up along with a BCP bill and funding.

4. Clean Energy:   Proposals from the Assembly and Senate to divert to the General Fund up to $218 million from the New York State Energy Research and Development Authority (“NYSERDA”) budget, which supports clean energy projects, energy-related job creation and greenhouse gas emissions reduction, were defeated.

5. Pesticides:  The Governor had proposed to significantly gut the Pesticide Sales and Use Reporting Law. The Senate refused to go along with the Governor’s proposals, whereas the Assembly proposed to modernize the law.  No consensus was reached so the law remains in effect.

6. Diesel Emissions Reduction Act (“DERA”):  The Governor and Assembly acquiesced to the Senate’s desire to delay the deadline for compliance with New York’s DERA by one year.  Accordingly, the State now has until the end of 2015 to bring the State’s fleet into compliance with the Act.

7. Mass Transit/the Metropolitan Transportation Authority:  The final budget diverts $30 million in funds dedicated for mass transit to pay State debt, a disappointing loss at a time of record mass transit ridership. 

Overall, one might characterize the final budget as being good for the environment mostly because of what it did not accomplish than for what ultimately was included in the FY 2014/2-15 budget.

Environmental Justice in Mississippi

Posted on March 30, 2011 by John Milner

On April 1, 2011, the American Bar Association Section of Environment, Energy and Resources will hold a national symposium on environmental justice and the law at the University of Mississippi School of Law in Oxford, MS. The Symposium will bring together representatives of academia, government, the private bar, nongovernmental organizations, and the corporate sector to discuss the evolution of efforts to more effectively address the conflicts that can arise around industrial facility operations and siting and community needs.

Conflicts regarding facility operations and environmental justice were recently highlighted at the Mississippi Legislature. On January 24, 2011, Rep. Gregory Holloway, Chair of the House Forestry Committee, chaired a hearing at the Mississippi Legislature on environmental justice for affected communities in Mississippi. Holloway called the hearing at the request of Sherri Jones, Coalition of Communities for Environmental Justice.

Jones said she believes Mississippi Department of Environmental Quality (MDEQ) failed in its prior assessment of a proposed site because pollutants are still present on the “old” agriculture site. After researching the work of MDEQ across the state, Jones claims that many sites are cleared by MDEQ when, in fact, the sites are still full of harmful pollutants. Tracy McGaugh, Professor of Touro Law Center in New York, explained that she came to Jackson, Mississippi at her own expense in order to help the people in contaminated communities receive the environmental justice they deserve.

Aware of the growing need for transparency and community input, MDEQ has created a new office at the agency, the Office of Community Engagement. The goal of the Office of Community Engagement is to build effective relationships and partnerships with internal and external stakeholders. For example, in 2010, the Office of Community Engagement hosted over 70 face-to-face meetings representing environmental justice communities. The Office of Community Engagement has implemented the “Gulf Coast Environmental Initiative” to ensure environmental justice is considered throughout the natural resource damage assessment process in the state following the Deepwater Horizon oil spill.

Upcoming Federal Trade Commission Revised "Green Guides"

Posted on February 14, 2011 by Joseph Manko

The Federal Trade Commission (FTC) Act prohibits “unfair and deceptive acts or practices.” 15 U.S.C. § 45. In 16 CFR § 260.2, unfair and deceptive acts or practices are defined as being a representation, omission or practice that (1) is likely to mislead consumers acting reasonably under the circumstances and (2) is material to a consumer’s decision. In essence, the FTC evaluates marketing from the consumers’ perspective and in the words of its Chairman Jon Leibowitz: “What companies think green claims mean and what consumers really understand are sometimes two different things.”

In the environmental area such claims can attach to a product, package or service in its labeling, advertising, promotional materials or other forms of marketing or sales paraphernalia, in any medium, expressed or implied, and including words, symbols, logos, depictions, brand names, etc. To avoid being deceptive, there has to be a reasonable basis to substantiate a claim which often requires competent, reliable scientific evidence, often based on tests, analyses, research or studies.

The original Green Guides were issued in 1992, and were amended in 1996 and 1998. The FTC began its current review of the Guides in 2007, proposed revisions in October 2010 and closed the public comment period on December 10, 2010.

Although the proposed Green Guides are voluminous and people should refer to the proposal in the October 15 Federal Register, suffice to say that they now intend to cover not only the products and services within a building, but the proposed Guides, if adopted in their current form, would be interpreted to apply to buildings themselves, which was contrary to the former belief that product liability did not attach to buildings. According, in addition to concern for environmental disclosures, regulated by the Securities Exchange Commission, the FTC would now constitute a second regulatory review agency.
 

Michigan Makes Sweeping Changes In Its Environmental Response Act

Posted on January 19, 2011 by Jack Shumate

When Michigan adopted the Environmental Response Act in 1995, codifying numerous statutes into a comprehensive code, people throughout the United States hailed Part 201 as the most business-friendly environmental remediation statute in the country. Part 201 of the new Michigan Environmental Response Act (MERA) largely did away with status liability and made it possible for a new owner or occupant, through the use of a vehicle called a Baseline Environmental Assessment (BEA) to take title or occupancy of contaminated property free of liability so long as it did not exacerbate the situation or expose occupants of the property to undue risk.

Almost from the moment that MERA was enacted, staff of the Michigan Environmental Regulatory Agency began to adopt and implement regulations making it increasingly difficult to obtain an approved BEA for industrial, and some commercial, properties. Regulations such as the Draconian ones regulating groundwater-surfacewater interface and vapor intrusion discouraged the re-use and redevelopment of contaminated corporate properties. Some of the district offices of the Michigan Department of Environmental Quality (MDEQ) even went so far as to flatly refuse to even consider review of a draft BEA seeking approval for a new use of contaminated property if the new owner or occupant was likely to generate any contamination identical to pre-existing contamination.
 

The debate between MDEQ staff and environmental groups on one side and business interests on the other raged until late 2010, when a lame duck Legislature approved, and lame duck Governor signed, an amendatory act making significant changes in Part 201. Now, the statute - and, hopefully, the regulations implementing the revised statute - will bring the Michigan procedure much more closely in line with the Federal All Appropriate Inquiry rules. It is believed that this will encourage Brownfields redevelopment and badly needed business expansion in the state.

Attached is a brief summary prepared by The Dragun Corporation, environmental consultants, highlighting some of the most significant changes - and also pointing out a few potential pitfalls.

For further information contact Jack Shumate at shumate@butzel.com or 248.258.1405.

California's New "Green Chemistry Initiative"

Posted on January 6, 2011 by Robert L. Falk

Manufacturers and retailers who import consumer products from overseas are facing a significant new challenge emerging from California. The State’s “Green Chemistry Initiative” has the goal of removing, reducing, or replacing potentially harmful chemicals in consumer products. Given that its market represents the world’s seventh largest economy, California’s Green Chemistry Initiative will likely have a significant impact upon the worldwide supply chains for these products.

 
California’s Green Chemistry Initiative was enacted on September 29, 2008, through two companion bills, Assembly Bill 1879 and Senate Bill 509. These statutes broadly describe a general structure for the law, with the details left to future regulations by the lead agency, the California Department of Toxic Substances Control (“DTSC”).DTSC released its most updated version of proposed implementing regulations on November 16, 2010. These consisted of requirements regarding:

  1. the prioritization of chemicals and products of high concern,
  2. requirements for an alternatives assessment process, and
  3. regulatory options for DTSC to exercise based on its review of such assessments, which may require a manufacture to reformulate a product or stop its sale in California.


Although the proposed regulations implementing the Green Chemistry Initiative were due to be finalized by January 1, 2011, given the impending swearing in of Jerry Brown as California’s new Governor, on December 23, 2010, the California Environmental Protection Agency stated that “substantive and valid concerns” had been raised by “industry, environmental groups, scientists, and legislative leaders,” such that the proposed regulations will be reviewed, and likely amended, by a “Green Ribbon Science Panel” before going into effect.


While the final shape of the regulations remains to be seen, the heart of DTSC’s draft scheme is likely to survive even if modified. Its key feature is an alternatives assessment requirement which mandates evaluation of the potential impacts of chemicals of concern in products and an identification of less toxic alternatives to reduce those impacts. This analysis must also consider how the product is manufactured and used; what happens to it after its useful life; and its other likely effects on health, the environment, and other resources throughout its life cycle. As drafted, the regulations ultimately would require the manufacturer to select and propose to DTSC the alternative it intends to implement and to provide DTSC with the rationale for the selection and a proposed timetable for implementation. The process by which DTSC reviews a manufacturer’s alternatives assessment and provides an approval is likely to be resource-intensive, requiring management of an enormous amount of detailed and potentially conflicting scientific information. At a time when California faces a large fiscal crisis, funding such a new and far reaching program may prove unrealistic; this funding gap may dictate a change in the proposed regulations. Notwithstanding the Green Ribbon Science Panel’s forthcoming review, all eyes will be on newly-inaugurated Governor Brown’s office to provide direction on the future of this program.


The California Legislature believed the Green Chemistry Initiative will lead to safer products, fewer exposures to potentially harmful chemicals, and a healthier environment. While these goals are laudable, as a practical matter, it remains to be seen whether the State’s plan for implementing this ambitious law will be successful or end up being crushed by its own weight.
 

Changes Coming In The Michigan Environmental Regulatory Authority

Posted on December 30, 2010 by Jack Shumate

Michigan’s Governor–elect Rick Snyder has announced that he intends to split the Michigan Department of Natural Resources (MDNR) into two departments – the MDNR and a Department of Environmental Quality (MDEQ) – after he takes office on January 2, 2011.

This will be the latest change in an oft – reorganized environmental enforcement structure in Michigan. The two functions were originally consolidated in the MDNR, but it was recognized that they were incompatible after the MDNR was forced to fine itself for dumping toxic substances into a river, resulting in a major sport fish kill. The current Governor, Jennifer Granholm, merged the two departments again in an effort to save money.

Details of how regulatory functions will be divided have not been announced but it may be anticipated that Governor-elect Snyder, a former corporate CEO, will favor a regulatory regime that seeks to encourage growth and development of business in the state.

For further information contact Jack D. Shumate at shumate@butzel.com.

Revisiting Rules: How Far Back Is Too Far Back?

Posted on December 29, 2009 by Andrea Field

Recently, while searching my bookshelves for a missing volume, I came upon a three-ringed binder of documents related to EPA’s 1980 PSD rules. Of particular interest to me were (1) my October 30, 1980 letter to then-EPA Administrator Douglas Costle asking that he clarify parts of those 1980 PSD rules, and (2) Administrator Costle’s letter responding to my inquiry. In his response, Administrator Costle assured me that the Agency would positively address my concerns in technical and conforming amendments that EPA was then preparing.

Any possible euphoria that I might have felt at the positive tone of Administrator Costle’s response was more than offset by the date of his letter: January 19, 1981, the day before Administrator Costle would be leaving EPA in advance of the inauguration of Ronald Reagan.   Even early in my legal career almost thirty years ago, I knew I could not put much faith in the well-intentioned assurances of an outgoing EPA Administrator. The incoming Administrator would look at all pending issues with fresh eyes and might – or might not – decide to continue down the path laid out by Administrator Costle.

In fact, the incoming Reagan Administration decided to re-examine many of the actions taken by the Carter Administration in its waning days.   Just as – 12 years later – the incoming Clinton Administration re-examined actions taken by the Bush (41) Administration as it left office; and 8 years after that, the new Bush (43) Administration re-thought actions of the departing Clinton Administration; and now -- 8 years later -- the Obama Administration is revisiting actions of the Bush Administration.         

I do not here bemoan the fact that new administrations want to revisit the end-of-term decisions made by their predecessors. I ask, though, how far back in time should new administrations reach in their “revisitings”? We have come to expect incoming regulators to review rules that are still in proposed form and to pull back from publication rules that were only recently signed but have not yet been published in the Federal Register. We have also come to expect incoming administrations to look at rules that were published by a previous administration and are the subject of ongoing litigation so that new regulators can determine if they wish to continue to defend their predecessors’ rules or, instead, to re-examine those rules.

What happens, though, when a new administration reaches back to reexamine rules that have been on the books for many months or even years and that are in the midst of being implemented by the states and the regulated community? And what happens if the new administration wants to keep in place portions of a rule but wishes to scrap the remainder of the rule? This is happening now as EPA reconsiders the ozone ambient standard rule that was adopted by the Bush EPA early in 2008 and that is now the subject of litigation in the D.C. Circuit. No one would have been surprised if the new administration had asked the D.C. Circuit to remand the 2008 ozone standard rule so that EPA engage in a sped-up rulemaking to develop new/replacement ozone standards while continuing to implement the 2008 rule. Instead of doing that, though, EPA is essentially asking the D.C. Circuit to divide its ozone rule into pieces, thus allowing EPA to implement parts of the ozone rule while essentially trying to stay implementation of other parts of the regulation.

A new administration’s going back farther in time to “undo” programs currently being implemented -- and trying to stay portions of those programs while continuing to press for implementation of other parts of the programs -- is disruptive for both regulators and the regulated community. I hope that the D.C. Circuit recognizes this in the ozone ambient standard litigation and decides to impose a rational framework for this – and any new -- administration to follow as it goes down the well-trod path of trying to change a rule of its predecessors.

Obama Administration Environmental Initiatives & Priorities

Posted on September 14, 2009 by Rachael Bunday

Audio Now Available:

 A Special ACOEL Event

Obama Administration Environmental Initiatives and Policies

 

DAVID J. HAYES

Deputy Secretary, U.S. Department of the Interior

 

Interviewed by David B. Farer, Farer Fersko

 

Audio of Mr. Farer's interview of Mr. Hayes at the Department of Interior on July 14, 2009, with discussion topics focusing on Interior's priorities concerning climate change, renewable energy and water.

 

Running time:  Approx. 45 min.

More than Indemnity?

Posted on September 8, 2009 by Brian Rosenthal

Is an indemnity for a third party’s liabilities just an indemnity and not a right of direct action? Yes, says the District Court for the Eastern District of Pennsylvania because the indemnitor avoided words like “assume,” “become liable for,” or “assume all of the liabilities and obligations.” 

 

Here, the United States argued the indemnitor had crossed the line of indemnity into the land of assumption. The federal government pointed to a settlement agreement where the indemnitor agreed to provide remediation required by “law, regulation, order, judgment, or settlement agreement.” Finding the question one of contractual intent, the court found the language to defend and hold harmless does not sound in assumption and is only triggered when an indemnitee suffers a claim or pays damages on a claim. Finding the agreement lacking in the standard words of assumption, the indemnitor prevailed by summary judgment. United States v. Sunoco, Inc. No. 05-633 (E.D. Pa. 2009).

EPA Clears the Way for Regulation of GHG

Posted on April 17, 2009 by Theodore Garrett

The Environmental Protection Agency has formally declared carbon dioxide and five other heat-trapping gases to be pollutants that threaten public health and welfare, setting in motion a process to regulate carbon dioxide and other gases associated with global warming. This announcement comes two years after the Supreme Court's decision in Massachusetts v. EPA. The Agency said the science supporting its so-called endangerment finding was "compelling and overwhelming." The ruling triggers a 60-day comment period before any proposed regulations governing emissions of greenhouse gases are published. Lisa P. Jackson, EPA's Administrator, said: "This finding confirms that greenhouse gas pollution is a serious problem now and for future generations.

Fortunately, it follows President Obama's call for a low-carbon economy and strong leadership in Congress on clean energy and climate legislation." EPA's announcement does not include specific targets for reducing greenhouse gases or new requirements for energy efficiency in vehicles, power plants or industry sources. Such new restrictions would be developed in subsequent rule-making or in legislation enacted by Congress. EPA's announcement stated that "[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy."

Pres. Obama's DOJ Takes Second Shot at Citizen Suit Dismissal

Posted on April 3, 2009 by Jarred O. Taylor, II

Citizen suits in the environmental world are those filed in federal court under the authority Congress gave to a citizen to seek enforcement of the environmental laws, typically when the citizen believes the regulatory authority (i.e. EPA or a state agency) is not doing its job or has missed a violation.  

 

Entire articles have been written about the efficacy of such suits, and their appropriateness in the face of an already-initiated governmental enforcement or cleanup action. Recent cases suggest the courts want to encourage, and not discourage, such filings, although one recent US Supreme Court decision found the citizens lacked standing because there was not an actual, live, dispute. Summers v. Earth Island Institute, __U.S.__(No. 07-463, March 3, 2009) (see ACOEL blog entry of March 4, 2009).

 

Some, therefore, found it surprising when, on March 6, 2009, President Obama’s Justice Department filed a motion seeking the dismissal of a citizen suit filed against the United States over alleged mining contamination in a national forest. What some found even more surprising was this was not the DOJ’s first shot at the citizen group, the DOJ having attempted to get the case dismissed one time before, under Pres. Bush’s DOJ.

 

In Washington Environmental Council v. Mount Baker-Snoqualmie National Forest (W.D. Wash, CV No. 06-1249), the United States had argued in 2007 that it was already taking action at the site under Superfund, and argued that the citizen suit was a barred challenge to the United States’ “removal or remedial action” under Section 113(h) of Superfund. The federal district court denied this first motion to dismiss on the basis that the US Forest Service was just at the inspection and investigation stage, and had not actually selected a remedy.

 

On March 6, 2009, with the citizen suit still pending, DOJ filed another motion to dismiss, arguing that the US Forest Service had advanced its Superfund work so that all of its inspections were complete and it was beginning to perform the engineering evaluation for remediation, and to calculate those costs. DOJ argued in its motion that such activity, even though before any cleanup had been actually conducted, does meet the Section 113(h) criteria barring such challenges, and that the citizen suit should be dismissed. The author is unaware of a court ruling on this recent motion.

 

One hopes the administration’s position in this case (whether right or wrong) would be the same if the subject of the citizen group’s complaint was a non government organization or other private company, and not the United States. Comments?

New Requirements for Siting and Permitting in Connecticut

Posted on March 13, 2009 by Earl Phillips

As of January 1, 2009, a party seeking to develop or expand certain facilities in Connecticut that require approval by the state Siting Council or the Department of Environmental Protection (DEP) must comply with significantly expanded public participation requirements before applying for or receiving approval from the Siting Council or DEP.

The new requirements arise from Public Act 08-94, An Act Concerning Environmental Justice Communities and the Storage of Asbestos-Containing Material (the "Act"), enacted in May 2008.  The Act applies to certain proposed new or expanded facilities — including but not limited to a "major source" of air pollution under the federal Clean Air Act, certain electric generating facilities with a capacity of more than 10 megawatts, a sewage treatment plant with a capacity of more than 50 million gallons/day, and certain types of waste management facilities — that are located in an "environmental justice community."  An "environmental justice community" is defined as either a U.S. census block group for which 30 percent or more of the population consists of low-income persons (income below 200 percent of the federal poverty level), or a Connecticut "distressed municipality," as defined by other state statutes relating to economic development.

 

In general, the Act requires a subject party to take three main steps:

  1. Before filing an application for a "new or expanded" permit with DEP or an application for a Certificate of Environmental Compatibility and Public Need with the Siting Council, the party must now file and receive approval of a "meaningful public participation plan" from DEP or the Siting Council.  "Meaningful public participation" means that community residents and other potentially affected persons are sought out and provided an opportunity to participate in and influence the regulatory agency's decision.  The "meaningful public participation plan" must include an informal public meeting to be held for community residents. The plan must also contain measures to facilitate public participation.  The Act specifies in great detail measures that may or must be taken, including sign posting, newspaper ads, Web page notices, and written notification to neighborhood and environmental groups and to local and state elected officials.
  2. The party must hold an informal public meeting and offer "clear, accurate and complete" information about the proposed facility or facility expansion and its potential environmental and health impacts.  The DEP or the Siting Council may not take any action on the party's permit, certificate, or approval earlier than 60 days after the informal public meeting.
  3. The party must also consult with the chief elected official(s) of the town(s) in which the facility is to be located to evaluate the need for a "community environmental benefits agreement," which is defined as a written agreement by which the property owner or developer commits to the municipality to provide "financial resources" to mitigate, in whole or in part, "impacts reasonably related to the facility, including, but not limited to, impacts on the environment, traffic, parking and noise."  The municipality must provide community residents an opportunity to be heard concerning the need for and terms of such an agreement.

Where a facility must comply with the Act for both Siting Council and DEP approvals, the Act allows DEP to waive the requirement for an additional informal public meeting if one has already been held for purposes of the Siting Council approval.

DEP estimates that some or all of about 69 municipalities in the state qualify as an "environmental justice community."  DEP is now working with the Department of Economics and Community Development (DECD) to identify these areas more specifically.  DEP has also drafted template and guidance documents and will discuss these at a public workshop on Tuesday, January 13, 2009, 10:00 to 12:00 noon at DEP offices in Hartford.

In summary, the Act has the potential to alter significantly the timing, cost, and outcome of DEP and Siting Council applications for affected facilities.

Robinson & Cole is currently advising a number of clients regarding the Act and its potential impacts on facility development in Connecticut.  We stand ready to apply our experience and insights to your operations and strategic planning.  If you would like to discuss these issues and how they may impact your business, or if you would like a copy of the draft DEP implementation documents, please contact any of the following attorneys in our Environmental and Utilities Practice Group:

Earl Phillips, (860) 275-8220, ephillips@rc.com  
Ken Baldwin, (860) 275-8345, kbaldwin@rc.com
Brian Freeman, (860) 275-8310, bfreeman@rc.com
Pamela Elkow, (203) 462-7548, pelkow@rc.com

Another RICE Crop: EPA Proposes Additional Rules for Stationary Reciprocating

Posted on March 13, 2009 by Earl Phillips

On February 25, 2009, EPA proposed a new set of rules and rule revisions applicable to a broad universe of existing stationary reciprocating internal combustion engines (RICE). These engines are typically used for a variety of purposes at commercial and industrial facilities, such as providing back-up electricity and powering fire pumps. The proposed rule for existing engines would supplement (and in certain instances, modify) the 2004 and 2008 rules for new engines. Collectively, these rules address "hazardous air pollutants" (HAPs) and are formally known as the RICE National Emission Standards for Hazardous Air Pollutants (NESHAPs).

 

Like the 2004 and 2008 rules, the proposed rules are dense and complex. They would apply to engines in three basic categories of stationary RICE: 

  • Existing smaller (<500 horsepower) engines at "major sources" of HAPs (i.e., facilities with potential emissions of at least 10 tons/year of an individual HAP or 25 tons/year of any combination of HAPs)
  • Certain new or reconstructed engines at "major sources"
  • Existing engines at "area sources" (i.e., non-major sources)

The definition of "existing" and "new or reconstructed" varies depending on such factors as the design type, power rating, fuel type, and usage of a particular engine. Similarly, such factors also would determine whether and how the engine would be subject to various proposed numeric emission limits or other requirements regarding fuels, emission controls, periodic emission testing, operating and maintenance practices, and associated recordkeeping and reporting.

Notably, EPA is proposing that RICE sources would not have the benefit of the "startup, shutdown, and malfunction" exemption that traditionally has been part of numerous NESHAP regulations, including the existing RICE NESHAP. (The legal status of this exemption is currently uncertain, following a December 2008 court ruling that struck it down.) However, EPA is also "co-proposing" an alternative limited exemption for certain engines that use catalytic controls: such engines would be subject to more relaxed emission limits during startup and malfunction, but not shutdown.

Public comments on this proposed rule must be received on or before the later of May 4, 2009, or 30 days after EPA holds a public hearing on the proposal.

The scope and complexity of the proposed rules present significant challenges in determining if and how the rules would apply to any individual engine. From our experience in counseling clients regarding the 2004 and 2008 rules, we stand ready to assist with the regulatory analysis, or with preparing public comments to EPA about the proposed rules and revisions. If you would like to discuss the proposed rules, please contact any of these attorneys in our Environmental and Utilities Practice Group:

Earl W. Phillips, Jr.
ephillips@rc.com
(860) 275-8220 

Christopher Foster
cfoster@rc.com
(617) 557-5908

Brian C. Freeman
bfreeman@rc.com
(860) 275-8310

Kirstin M. Etela
ketela@rc.com
(203) 462-7534

Priscilla Summers v. Earth Island Institute Supreme Court Decision

Posted on March 4, 2009 by Theodore Garrett

In a 5-4 decision, the Supreme Court held that environmentalists' lacked standing to challenge a Forest Service regulation limiting public involvement in timber sales decisions. Priscilla Summers v. Earth Island Institute, et al.,__U.S.__(No. 07-463, March 3, 2009). The decision found that respondents’ argument that they have standing because they suffered procedural injuryi.e., they have been denied the ability to file comments on some Forest Service actionsfails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. Justice Scalia, writing for the majority, stated "Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact."  The following is a link to the Court's opinion: http://www.supremecourtus.gov/opinions/08pdf/07-463.pdf

OBAMA AND THE ENVIRONMENT

Posted on February 24, 2009 by Elliot Laws

As Lisa Jackson completes her first month as President Obama’s environmental chief, she is just scratching the surface on some of the myriad issues that will likely have impacts far beyond typical environmental concerns, for decades to come. There has to be some mixture of excitement and fear facing this new administration, as the challenges before it dwarf all of those in memory. That mixture will be especially prevalent at EPA. Usually in times like these — war, recession, high unemployment –— environmental issues can be expected to fade from the front pages. An EPA administrator would receive the old admonition to be seen and not heard. However, unlike past crises environmental issues are in the forefront — primarily in the form of climate change and energy. It is notable that when the government is lending billions of dollars to Citibank and debating the very existence of the big three automakers, one of the first actions of the incoming Obama administration has been to review EPA’s previous decision to deny California’s petition for a Clean Air Act waiver to allow it to regulate greenhouse gases from mobile sources.

 

 

The expectations for success that many Obama supporters have are high. Those expectations are high in the environmental community — perhaps too high. The ongoing financial collapse in the United States and abroad has changed the landscape in ways that could not have been imagined as recently as August, when Obama accepted the Democratic nomination for president. With the federal government having committed nearly $1 trillion in an attempt to save financial institutions across the country; with Congress passing an economic stimulus package costing an additional $750 billion; with the United States still conducting wars in Afghanistan and Iraq, outside of the infusion of stimulus cash for “shovel-ready projects” the expectation that EPA’s budget will experience significant increases over the Bush years is hardly a reasoned view. It’s not just the mind boggling challenge facing us on the economy, it’s also the difficult decisions that must be made to address climate change; it’s the need to seriously address the nation’s nearly suicidal dependence on foreign oil; and it’s myriad other issues that will all require hard choices and sacrifice.

 

Those expectations are probably low in the business community — as they normally are when the country shifts from a Republican to a Democratic administration. And similarly, those expectations are perhaps too low. I believe if this president will be true to one of his campaign promises, it is to govern in a way that puts partisanship on the sidelines. He has already proved that commitment by sending a strong signal to Senate Democrats that he does not wish to see retaliation against Senator Joe Lieberman (I-Connecticut) for his support not only of John McCain, but also Republican senatorial candidates in Minnesota, Maine, and Oregon. What Obama signaled with that position is that he is not going to put partisanship ahead of his plans to help America, even if partisans refuse his offers to join him.. He is looking at new alliances and will work with people who were not shy in their opposition to his election as he works as president. The mantra of “no permanent friends; no permanent enemies” is likely to be the Obama approach to working in Washington, DC.

 

We as a nation are facing an uncertain future. The environment is likely going to play a larger role in the lives of average Americans than it has since its heyday in the 1970s. Lisa Jackson has the monumental task of rallying an agency suffering from low morale, with precious few additional resources, to make decisions in perhaps the most hotly debated and controversial area of environmental law and policy ever. She will make recommendations and decisions that will have implications not only on the very future of the United States, but likely for the world as well. To the NGO community, the challenge is not to be disappointed as this president makes decisions that balance multiple important considerations and who will often decide that another consideration must trump the environmental choice. To the business community, the challenge is to be more optimistic and to show the initiative and courage necessary to work with this new administration and its traditional allies to solve the monumental problems facing the world.

EPA's Roll-Back of Bush-Era Rules Appears to Begin in Earnest

Posted on February 13, 2009 by Seth Jaffe

While a lot of attention has been paid to whether EPA would reverse the Bush EPA decision denying California’s petition to regulate greenhouse gas emissions from mobile sources,  it is now clear even outside the climate change arena that life at EPA is going to be substantially different under the current administration.  As if evidence were really needed for that proposition, EPA announced this week that it was putting on hold the NSR aggregation rule that EPA had promulgated on January 15, 2009.

The rule, which had been long sought by industry, would have provided that nominally separate projects would only have to be combined – aggregated for NSR/PSD purposes – if  they are “substantially related.” It also would have created a rebuttable presumption that projects more than three years apart are not substantially related. Responding to a request from NRDC and the OMB memo asking agencies to look closely at rules promulgated before the transition but not yet effective, EPA concluded that the rule raises “substantial questions of law and policy.” Therefore, EPA postponed the effective date of the rule until May 18, 2009 and also announced that it was formally reconsidering the rule in response to the NRDC petition.

To those in industry, the aggregation rule was not a radical anti-environmental roll-back of environmental protection standards.  Rather, it was more of a common-sense approach towards making the NSR program simpler and clearer.  It is one of my pet peeves with the prior administration, however, that it gave regulatory reform a bad name.  

In any case, I feel as though I should open a pool regarding what will be the next Bush-era rule to be tossed overboard.  We surely won’t have to wait long for it to happen.

An Update on AIG Environmental and the Current Environmental Insurance Market

Posted on January 6, 2009 by David Farer

Significant management changes announced this week by AIG Environmental, and further news in the wake of that announcement, may further impact the changing environmental insurance market. 

 

Joe Boren, longtime Chairman and CEO of AIG Environmental, and John O'Brien, President of the Company, have both resigned. On January 5, AIG Commercial Insurance issued a statement that Russ Johnston has been named President and CEO of AIG Environmental, and that Kim Hanna is now Executive VP and COO of the Company.

 

Over the past ten years, environmental insurance products have been utilized as a key component in many brownfield redevelopment projects and real estate transactions, and have become a common risk-reduction tool in the real estate and manufacturing sectors.

 

Most recently, the leading players in the environmental insurance market have been AIG Environmental, XL Environmental and Ace, with AIG most active in writing cost-cap and pollution legal liability ("PLL") policies for real estate transactions and brownfields projects. Zurich has also played an important role in the market, although historically the company has been particularly risk-adverse. Chubb has been writing PLL policies, but not cost-cap policies.

 

In recent months, however, Zurich has been indicating an enhanced interest in considering the underwriting of projects and transactions that they might previously have declined. Chubb has also expressed an interest in growing its PLL portfolio.

 

Additionally, in the aftermath of AIG's statement on the management changes, the Bermuda-based insurer Ironshore, Inc. announced on January 6 that Joe Boren and John O'Brien have joined a newly established Environmental Insurance division of Ironshore in New York City, with Boren as CEO and O'Brien as President.

 

The impact of AIG’s recent and highly publicized financial woes, and the ensuing reductions in the ratings of AIG's insurance companies, have generated a good deal of speculation about the future of AIG Environmental and whether the Company would maintain its aggressive underwriting of brownfields projects and real estate deals.

 

It is yet to be seen whether the financial problems of the parent company and   management-level changes at AIG Environmental are leading to an overall change in approach, but with XL and Ace still in the market, Zurich and Chubb expressing a greater interest in underwriting, and Ironshore opening a new environmental division with experienced management, there may be more options available to those seeking such policies, and greater competition on policy terms and pricing.