The New Mexico Copper Mine Rule: Questions of Groundwater Jurisdiction with a Sprinkle of Political Wrangling

Posted on October 29, 2014 by Thomas Hnasko

The unfortunate fact about copper mining is that it just cannot be done without impacting groundwater.  This inevitable result occurs because of the massive excavations extending below groundwater elevations and the leaching of contaminants through the process of capturing copper.  Most western mining states, including Arizona, have recognized this inevitable consequence and have crafted a “point of compliance” system where groundwater quality standards must be achieved at some designated point beyond the active mining site.  Previously, the New Mexico Environment Department dealt with quality exceedances at active mining sites either by issuing variances from compliance requirements under the New Mexico Water Quality Act, or by simply ignoring the problem altogether.  The Copper Mine Rule has been promoted as a pragmatic response to the cumbersome administrative variance procedure.

Under the New Mexico Water Quality Act, groundwater compliance must be achieved at any “place of withdrawal for present or reasonably foreseeable future use.”  This jurisdictional threshold is markedly different than the jurisdictional standard for surface water discharges, which requires compliance precisely at the point of discharge into a body of surface water.  The Copper Mine Rule recognizes that groundwater directly beneath an active mine site would not be available for use during the period of active mining operations and thus would not qualify as a “place of withdrawal” where groundwater standards must be met.  Similar to the “point of compliance” approach taken by other states, the New Mexico Copper Mine Rule requires that groundwater standards must be achieved at monitoring well locations placed as close as practicable around the perimeter of the active mine site. 

The Copper Mine Rule has been appealed by various NGOs and by the New Mexico Attorney General.  The Attorney General contends on appeal that any determination of a “place of withdrawal” must be made on a case-by-case basis, rather than through a rule-making procedure.  Interestingly, the Attorney General originally represented the New Mexico Water Quality Control Commission (“WQCC”) when it adopted the Copper Mine Rule, but abruptly reversed course and has lodged an appeal against the Rule for which it provided representation to the WQCC.  As part of the response to the Attorney General’s appeal, the WQCC has filed a motion seeking to disqualify the Attorney General, based on a conflict of interest, from taking positions adverse to its former client.  The matter is presently pending before the New Mexico Court of Appeals.

Big Party for the Chesapeake TMDL Appeal

Posted on October 28, 2014 by Ridgway Hall

Many Clean Water Act practitioners will have their eyes on the Third Circuit on November 18 when oral argument has been set on an appeal from a decision upholding EPA’s issuance of a multi-state Total Maximum Daily Load (TMDL) for the Chesapeake Bay and its tributaries.  The Chesapeake Bay TMDL, issued in December, 2010, is the biggest EPA has ever set, covering parts of 6 states and the District of Columbia. As I reported in a blog article a year ago on September 13, 2013, in a 99 page decision the Middle District of Pennsylvania upheld the TMDL against numerous challenges by the American Farm Bureau Federation, other agricultural trade associations and the American Home Builders Association. Those organizations appealed, and a flurry of intervenor and amicus briefs have been filed on both sides.

The issues raised by the appellants are whether EPA exceeded its statutory authority when (1) it set pollutant allocations for nitrogen, phosphorus and sediment on a watershed-wide basis, and then, by agreement with the states, subdivided them by state and by major river basin; and (2) it insisted that states provide “reasonable assurance” that they would implement measures reasonably calculated to achieve compliance with the TMDL within agreed-upon timetables.

As described in the district court decision, the Chesapeake Bay TMDL has a long history, including more than 25 years of cooperative but unsuccessful efforts by the Bay states, working together and with EPA, to design and implement programs to reduce the large amounts of nutrients and sediment flowing annually into the Bay.  This pollution has contributed to the decimation of oysters, blue crabs and other fish, destruction of hundreds of acres of bay grasses, and significant economic, recreational and cultural losses throughout the watershed.  Because of the inherently interstate nature of the pollution, and the inability of one state to stem pollution in another state, the states in 2007 asked EPA to set a multistate TMDL, which EPA did. At the heart of the legal dispute are issues of “cooperative federalism” – the proper roles for the states and EPA and the limits of EPA authority under Clean Water Act Section 303, which gives only minimal guidance on TMDL implementation. The district court decision addressed several issues of first impression and, in upholding EPA’s actions, provided a thoughtful analysis and helpful guidance.

The precedential significance of this case has not escaped states, cities and other interested parties elsewhere in the country. Briefs have been filed by intervening environmental groups, wastewater treatment agencies and municipal authorities in support of EPA. In addition at least 10 amicus briefs have been filed on behalf of over 100 other entities. A group of 21 attorneys general, mostly from western and Mississippi Valley states, filed a brief in support of the appellants. They were joined by a group of counties, and much later by a group of 39 Congressmen.  Amicus briefs were filed in support of EPA by the states of Virginia, Maryland, Delaware and the District of Columbia (all in the Chesapeake Watershed).  Also supporting EPA are a brief by the cities of New York, Baltimore, Philadelphia, Los Angeles, Chicago and San Francisco, and a separate brief for the City of Annapolis, plus two amicus briefs by groups of environmental organizations and a brief by 19 environmental law professors from around the country.

One of the interesting features of this case is that none of the EPA actions challenged by the appellants were forced by the agency on unwilling states. The “reasonable assurance” features are contained in “watershed implementation plans” drafted by each state. The deadlines are not inflexible, cannot be enforced by EPA, and were agreed to by the states.  In fact on June 16, 2014, all 6 Bay states, the District of Columbia and EPA signed a new Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and the implementation measures. So stay tuned! The courtroom will likely be SRO, and I’ll be back to you after a decision.

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.

WHO IN 1975 WOULD HAVE THOUGHT WE WOULD HAVE AN OIL GLUT TODAY?

Posted on October 20, 2014 by Michael Hardy

In the mid-1970’s, the nation faced long gas lines,  the rationing of heating oil supplies, 55 miles per hour speed limits on the highway, the curtailment of holiday lighting, and the uncertainty of sufficient supplies of petrochemical feed stocks for industry.  Pundits routinely predicted dire forecasts of shivering residences, financial dislocations, and geo-political struggles between the United States and the OPEC suppliers.  Against this backdrop Congress banned most crude oil exports under the Energy Policy and Conservation Act of 1975.

With the emergence of unconventional drilling techniques, colloquially described by the shorthand term ”fracking”,  the nation recently began to see growing  supplies of natural gas and oil.  Last year’s Annual Meeting of the American College of Environmental Laws featured a timely panel discussion on the environmental and economic issues associated with (1) the conversion of underutilized LNG import  terminals into LNG export terminals, (2) the development of massive port terminals in Washington, Oregon, and Louisiana for coal exports to Asia, (3) the increased emission of the potent GHG methane from the higher level of drilling activity, (4) the downstream effects on rural communities that have become the homes of these “shale plays,” (5) the construction of massive mid-stream facilities and transmission lines ( like the Keystone XL pipeline in areas thought to be sensitive because of their habitat for endangered species and their location near valuable water supplies), and (6) the safety risks of the increased use of rail transport for crude oil.  An executive with one of the major oil companies reports that oil production in the United States has jumped 50% since early 2011.  The Energy Information Administration recently stated that United States oil production is expected to reach its highest level since 1970; this increase is occurring at a time when domestic oil consumption is declining.

Major oil companies, the U.S. Chamber of Commerce, the American Petroleum Institute and others have called for an end to the 40-year old ban on oil exports.  Those calls have coincided with increased congressional interest from both House and Senate members in lifting the ban.

With the “sea change” in the domestic oil production picture, the administration of President Obama has begun to look at possible repeal of the 40 year- old - ban on crude oil exports.  Energy Secretary Ernest Moniz recently addressed the Council on Foreign Relations on the current efforts to assess the “very different” oil market when the ban went into effect.  A link to his 50 minute presentation on You Tube is found below.  (The Secretary’s presentation touches on a wide range of topics, but his discussion of crude oil exports begins approximately 20 minutes into the address).  Secretary Moniz did not give a time frame for a decision, noting that the nation remains a significant importer at this time.  He said the final decision may turn on the market impacts.  As of the date this blog piece is written, the price for oil has reached a very low point, in part due to the glut of new domestic supplies, to a level that calls into question the economics of new well completions with unconventional drilling techniques.  The 50 minute speech also touches on other subjects, including the progress made in reducing methane emissions from leaking infrastructure, greater water recycling,  more effective well completion requirements, as well as the improvements in the solar energy as a way to meet the nation’s goal of a low-carbon economy, and the plans for the U.S. to announce its climate change pledge in the first quarter of 2015. 

Video: Energy Secretary Ernest Moniz on U.S. Energy Policy 

Product Stewardship – Coming to a state or locality near you

Posted on October 15, 2014 by Kenneth Gray

Product Stewardship.  It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing:  arranging for collection and recycling or disposal of unused or waste products.  Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide,  the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.

We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad:  from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint.  Pharmaceuticals may be in the offing.  A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.  

Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs.  According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products.   (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)

 Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products.  And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications. 

Some of these programs are after-market recycling operations.  Others are closer to product “take-back” requirements.  The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options.  “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.

If you believe the literature, everyone is a winner:  municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created.   Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay). 

More than a few manufacturers and industries are on board.  Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs.  ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.

In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs.  By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC.    At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG),  intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase.  The goal?  Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal.  While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach.   The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs.  The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.

Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around.  What products will be next in your state?  Or in your county?  And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.

California Groundwater Regulation Enters the 20th Century!

Posted on October 8, 2014 by Rick Glick

On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for use of groundwater: Assembly Bill 1739 and Senate Bills 1168 and 1319. California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers until such time as the aquifer is adjudicated, a process that takes decades to complete.

California historically had asserted regulatory authority only over surface streams and defined underground channels.  But the most prevalent, and unregulated use, was of percolating groundwater.  Overlying landowners were deemed to have “correlative” rights to the use of groundwater under their lands; that is, rights proportionate to the amount of owned land.

This laissez faire approach has led to widespread overdrafting of groundwater resources, subsidence, and ruined groundwater quality.  Further, as stream flows decline—whether because of drought or climate change—more users turn to groundwater pumping, lowering the water table and driving up the cost of energy to lift the water.

All the other Western states exerted authority over groundwater in the previous century.  For example, Oregon’s groundwater appropriation law was enacted in 1955.  California finally joined the 20th Century with enactment of these bills as a response to unprecedented drought conditions and the fear that climate change will make matters worse.

In a nod to intense water politics, the bills take a local planning and management approach.  Other states direct their water agencies to establish basin plans to manage their groundwater resources.  In that sense, California has shown leadership in adopting a more decentralized approach to a water-scarce 21st Century.  Under the new legislation, local entities are to develop management plans for their groundwater basin for state review.  The state would intervene only if it deems the management plans inadequate or not enforced.  This local approach has not prevented certain water users from denouncing the bills as a state power grab.

My first job as a lawyer was as staff counsel to the California State Water Resources Control Board.  In response to what was then the worst drought on record, Jerry Brown, in his first iteration as Governor, convened a blue ribbon commission to review California water rights law.  The group was staffed by U. C. Davis law professor Hap Dunning and a team of young water lawyers, including myself.  We reviewed every aspect of California water law in a series of white papers, and made several sweeping and not so sweeping recommendations for reform. 

None of the recommendations passed out of legislative committees.  I suspect the current legislation would not have passed either but for the historic and severe drought conditions now facing the state.  California will need to do whatever it can to stretch its limited and declining water resources to support its powerful agricultural economy and growing cities.  Let’s hope that the new groundwater legislation will be a solution for this century.

40 Years Ago In History

Posted on October 3, 2014 by Andrea Field

The Blog Calendar Gods directed me to post something on September 16, 2014, which just happens to be the 40th anniversary of the date that I first started to practice law.  Not wanting that coincidence to go to waste, I decided to look back 40 years, to a time when the practice of environmental law was far less complex – or, at least, the things that EPA then published in the Federal Register were a lot shorter. 

On September 16, 1974, EPA’s rules and notices took up less than four pages in the Federal Register and consisted of a notice of receipt of applications for pesticide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); a correction to one line of a previously-published notice of proposed rulemaking under the Clean Water Act; and the approval of a compliance schedule under the State of Kansas’ state implementation plan.   The entire Federal Register on that date was only 104 pages long.   

Fast forward 40 years.  EPA’s fairly typical Federal Register postings on September 16, 2014, include – as was the case 40 years ago – rulemaking proposals and notices under the Clean Air Act, Clean Water Act, and FIFRA; however, the September 16, 2014 proposals and notices from EPA take up more than 125 pages of the Federal Register, and a typical edition of the Federal Register these days is well over 300 pages long.  I could complain that EPA did not celebrate my anniversary with the publication of a splashy huge new rule in the Federal Register – but I think many of my clients would consider that to be a good thing.       

Perhaps the most significant change over the past 40 years, though, is to the overall length and complexity of the rules that are now appear in volume 40 of the Code of Federal Regulations.  (There is that number “40” again.)  In 1974, 40 C.F.R. – the volume of the code containing most of EPA’s regulations – was about 2000 pages long.  In the decades following that time, 40 C.F.R. has steadily increased in size (and complexity).  In 1984, it was approximately 5,800 pages long; by 1993, it topped 11,000 pages; and in 2012, there were over 25,000 pages of regulations in 40 C.F.R.          

For those of you wondering what else was going on 40 years ago (outside of the practice of environmental law), let me share the following tidbits from September 16, 1974.  The big news that day was President Ford’s announcement of his “Program for the Return of Vietnam Era Draft Evaders and Military Deserters.”  In addition, on that day, BART began operations in the Bay area, Bob Dylan recorded Blood on the Tracks, the Royal Canadian Mounted Police swore-in their first female recruits, and Joe Namath was on the cover of Sports Illustrated (he was shown rehabbing his battered knees, hoping to play one more season in his $250,000-per-year contract with the New York Jets).  Also, if I had stopped cutting my hair 40 years ago today, my golden locks would be more than six yards longer than they are today.

I will be thinking about all of this as I lift my glass this evening and toast all of you and begin year 41.

The Investors' Climate March: Divestment & Reinvestment

Posted on September 25, 2014 by David B. Farer

Momentum continues to build as investors and fund managers develop and  implement policies and investment guidelines favoring sustainability and clean energy, and disfavoring -- and in certain cases shedding --  investments in companies that are major producers of carbon emissions and greenhouse gases.

While legislators and regulators continue to grapple with the means to establish and enforce mandates to fight climate change, sectors of the investment community are weighing in by redeploying capital.

Two recent developments illustrate different approaches to investor action on climate change.

In the first, Yale University’s Chief Investment Officer, David Swensen, reportedly issued a letter to Yale’s outside investment managers requesting that they take into account climate change impacts and greenhouse gas emissions in evaluating investment options.  Yale’s Investment Office is reputed to oversee the second largest endowment in the U.S., valued last year at close to $21 billion.

The Rockefeller Brothers Fund (RBF), a philanthropy valued at $860 million this year,  announced that it is working to divest itself from fossil fuel investments.  RBF, which in 2010  had already committed ten percent of the endowment to investments consistent with the goals of its Sustainable Development program, will focus initially on coal and tar sand investments, with the goal of reducing those exposures to less than one percent of the portfolio by the end of the year, while analyzing exposure to remaining fossil fuel investments in order to implement  a strategy for additional divestments in the coming years. 

The Yale approach stops short of requiring divestment from existing portfolio holdings, and, as reported by the Yale Daily News,  Mr. Swensen’s letter came after the Yale Corporation Committee on Investor Responsibility voted against divesting the endowment’s holdings in fossil fuel companies.  Still, the Yale paper quoted the letter as stating:  “Yale asks its [investment managers] to avoid companies that refuse to acknowledge the social and financial costs of climate change and that fail to take economically sensible steps to reduce greenhouse gas emissions.”

The RBF announcement follows the growing number of individuals and  institutions that have determined to sell off their fossil fuel holdings in the last few years.  The announcement came a day after more than 300,000 participants gathered in New York City for The Peoples’ Climate March, and a day before commencement of the U.N. climate change summit in New York. 

The New York Times cites a report from Arabella Advisors that investors ranging from wealthy individual  to pension funds, and from philanthropic and religious organizations to local governments, have committed to divesting over $50 billion in fossil fuel investments and to turning to investments in cleaner energy.

Socially responsible investment strategies are nothing novel; funds dedicated to such benchmarks have been around for years.  But as the Times article pointed out, it is notable that the latest reported entrant in the fossil fuel divestment trend is a fund established by a family whose wealth was substantially derived from the oil industry. 

More Chinks in the Permit Shield Armor

Posted on September 24, 2014 by Eric Fjelstad

The history of the Clean Water Act (CWA) permit shield provision was recently addressed in a blog post by David Buente on July 31, 2014.  This post covers an update on one of the referenced cases that was pending before the Ninth Circuit Court of Appeals.  The case Alaska Community Action on Toxics v. Aurora Energy Services, LLC (“ACAT”) involved a facility in Seward, Alaska that conveyed coal onto ships where it was exported into international markets.  The facility had been covered under the Multi-Sector General Permit (“MSGP”) since the mid-1980s.  The MSGP authorized the discharge of stormwater and also identified eleven categories of non-stormwater discharges which were authorized under the MSGP.  None of these categories covered discharges of coal.

The plaintiffs filed a CWA citizens suit in early 2010 alleging that coal was discharged from a conveyor into the ocean during ship loading operations and that these discharges were not covered under the MSGP.  The alleged discharges involved small chunks of coal falling from the underside of the conveyor belt on the “return” trip and incidental dust or chunks unintentionally released during the loading of ships.  The district court granted summary judgment in favor of the facility, applying the principles in  Piney Run Pres. Ass’n v. City Comm’rs, 268 F.3d 255 (4th Cir. 2001).

On appeal, the Ninth Circuit reversed, holding that the MSGP did not cover discharges of coal.  The court found that all non-stormwater discharges were prohibited except those identified in the list of eleven permissible non-stormwater discharges.  The Ninth Circuit’s decision is most striking for what it does not say.  First, there is no discussion in the opinion of the fact that the permittee had, in fact, disclosed its coal discharges during the permitting process.  Second, the court places no weight - indeed, did not even mention - the fact that EPA and its state counterpart actively oversaw the facility, including its discharges of coal.  In contrast, the district court specifically found that all the relevant parties - EPA, the Alaska Department of Environmental Conservation (“ADEC”), and the permittee - viewed the MSGP as extending to discharges of coal.  As the district court found, “the discharges were not only ‘reasonably contemplated’ by EPA, but were actively regulated by the agencies under the General Permit.”

The Ninth Circuit’s decision in ACAT should make any MSGP permittee shudder since it suggests that many facilities may not be properly permitted.  Specifically, if a non-stormwater discharge is not identified on the list of permissible non-stormwater sources, ACAT suggests that discharge is not covered by the MSGP.  The case also reaffirms the point that reliance on agency communications and “course-of-dealing” with agencies can be a perilous exercise.

Time will tell whether the ACAT court’s analysis will be applied outside of the MSGP context to IPs and other GPs.  In the meantime, when considering permit shield issues, permittees and their counsel would be wise to carefully focus on the language of permits and what a permit purports to cover (and not cover).

CERCLA Financial Responsibility- The Continuing Efforts to Breathe Life into Section 108(b)

Posted on September 23, 2014 by Charles Efflandt

Financial responsibility is a familiar environmental law concept. Many of us have negotiated financial assurance provisions in site consent agreements. RCRA’s closure and post-closure financial responsibility requirements at treatment, storage and disposal (TSD) facilities are well-established. Financial responsibility obligations are also a component of many other federal and state environmental programs.

I suspect, however, that few practitioners are aware of a CERCLA financial responsibility provision that has been in existence since the Act’s inception. CERCLA Section 108(b) mandates that the President identify classes of facilities that will be required to demonstrate a financial ability to cleanup releases of hazardous substances.  These facilities will be obligated to provide evidence of financial responsibility that is consistent with the degree and duration of the risks associated with their production, handling, treatment, storage and disposal of hazardous substances. The requirements of Section 108(b) are intended to assure availability of funds should the businesses go bankrupt or otherwise become financially unable to conduct future environmental response actions.

Section 108(b) generally imposes two regulatory tasks on EPA: Identify the classes of facilities for which financial responsibility requirements will be developed and promulgate regulations establishing those requirements. For twenty-eight years, EPA deferred breathing regulatory life into Section 108(b). EPA’s inattention to Section 108(b) ceased to be an option in 2008. Litigation commenced by the Sierra Club and others resulted in a federal court order requiring EPA to identify industries that would be first in line for Section 108(b) rulemaking. EPA determined in 2009 that the hard rock mining industry would be its first priority. In early 2010, EPA published advance notice of its intent to regulate additional classes of Section 108(b) facilities: chemical manufacturing, petroleum and coal products manufacturing and the electric power generation, transmission and distribution industry.

Although deadlines have come and gone, to date no financial responsibility rules have been proposed. Nevertheless, the lifeless form of Section 108(b) has finally begun to stir. EPA advised Senate lawmakers in June of this year that financial responsibility requirements for the hard rock mining industry would be issued by 2016. In the meantime, the NGOs remain ever vigilant. Armed with data indicating that, particularly during the recent recession, taxpayers and disadvantaged communities suffered the adverse consequences of EPA’s inaction, environmental advocacy groups filed a Petition for Writ of Mandamus demanding that the agency promptly comply with Section 108(b)’s rulemaking requirements. In contrast, many industry groups contended that the Section 108(b) rulemaking being developed is based on a flawed analysis of potential risk and ignores the impact of existing state and federal financial responsibility laws and regulations that have achieved most of the objectives of Section 108(b). Legislation introduced in the House of Representatives in 2013, generally supported by the affected industries, included significant amendments to CERCLA Sections 108(b) and 114(d). 

Whether you believe that Section 108(b) is outdated and unnecessary, or that immediate and comprehensive implementation of its mandates is of paramount importance, I would submit that EPA’s seemingly cautious approach to Section 108(b) rulemaking is justifiable.  Considering the financial consequences, the identification of target industries must be based on a careful and comprehensive evaluation of the actual risks associated with a particular industry’s handling of hazardous substances and the historic “track-record” of that industry’s ability to financially respond to releases. The extent to which existing federal and state financial assurance programs address the identified risks must also be carefully scrutinized to avoid unnecessary cost and duplication. EPA’s selection of acceptable financial assurance mechanisms is also of critical importance. Elimination of the so-called “financial test” method, for example, may impact the capacity of financial and credit markets to provide the necessary financial assurance and adversely affect global competitiveness.

Future rulemaking that is based on a thorough and defensible analysis of actual risk and is limited to filling in any gaps in existing financial assurance programs will best serve the public, the environment and the regulated community.

WATERS OF THE U. S. PAPER RELEASED BY ECOS

Posted on September 17, 2014 by Blogmaster

On Monday, the Environmental Council of the States (ECOS)  publicly announced a memorandum prepared by ACOEL members concerning  a controversial rule proposed by EPA and the Army Corps of Engineers to clarify jurisdiction over “waters of the United States.” In May 2013, ACOEL entered into a Memorandum of Understanding with ECOS to facilitate a relationship pursuant to which members of ACOEL will provide assistance on issues of interest to ECOS. 

Since the Supreme Court decision in Rapanos v. United States, there has been significant discussion regarding the scope of Clean Water Act jurisdiction.  In order to facilitate its members’ ability to comment on the proposed rule, ECOS requested that ACOEL members provide an objective analysis of how Rapanos has been interpreted to date and how the proposed rule might modify existing understanding of the term, if at all.  A diverse group of ACOEL members from academia, private law firms, and public interest groups volunteered and produced the attached comprehensive memorandum, which was made publicly available today by ECOS. 

In announcing the memorandum, Dick Pedersen, the President of ECOS and Director of the Oregon Department of Environmental Quality, thanked the members of ACOEL for their significant time and effort in preparing the “very informative” memorandum, and added that ECOS looks forward to working with ACOEL in the future.  ACOEL hopes that this memorandum will serve as a valuable resource in connection with EPA’s anticipated rulemaking efforts in this area. 

This is the second white paper produced by ACOEL members to aid ECOS members in assessing important federal environmental policy initiatives.  The first concerned implementation of section 111(d) of the Clean Air Act.

Observations on China’s New Environmental Protection Law

Posted on September 12, 2014 by Robert Falk

On January 1, 2015, China will formally begin implementing an updated Environmental Protection Law. The updated Law imposes significantly stricter environmental controls and greater responsibilities on corporations and local government officials while also giving China’s environmental regulators, prosecutors, and non-governmental organizations (“NGOs”) more “teeth” to demand accountability and obtain compliance.  

Key Aspects of China’s New Law   

1. Increased accountability of polluters

Any violations may be made public and could damage a company’s reputation domestically and abroad.  Individuals who were directly in charge of a polluting activity and/or other personnel who failed to abide by the updated Law’s more stringent environmental requirements will not be able to hide behind corporate walls.  Fines will accrue on a daily basis and responsible officials will be subject to jail sentences.  Companies will be required to publicly disclose their environmental impact assessment (EIA) documents and solicit public opinion on new projects to a much greater extent than previously required.

2. Increased accountability of government bodies /officials

While enterprises that did not comply with environmental regulations were previously subject to penalties, these were often overlooked, reduced, or waived due to local corruption.  To deter lax enforcement, government officials will now be subject to more serious consequences (such as demotions, dismissals, and criminal prosecution) for committing unlawful acts, including improperly granting permits and approving EIA documents, covering up violations, and failing to issue orders to suspend operations for polluters.  (Whereas opportunities to advance in the governmental hierarchy used to depend on meeting economic targets, performance evaluations will soon also take achieving environmental protection targets into account.)

3. Increased public disclosure

The new Law requires public disclosure of information regarding environmental monitoring, environmental quality, and the collection and use of pollutant discharge fees.  Designated types of heavy polluters will also be required to disclose the names, concentrations, and quantity of emissions of the main pollutants discharged, and information on the construction and operation of their pollution prevention and control facilities.  

4. Public interest lawsuits

The new Law allows NGOs to file lawsuits against polluters as long as the NGO is: 1) registered with the civil affairs department at or above municipal level, and 2) focused on environment-related public interest activities for five consecutive years or more.  It has been estimated that there are currently 300 NGOs in China that could meet these requirements.  

5. Protection for whistleblowers

The updated Law will protect any citizen or organization that reports:  (1) environmental pollution or ecological damage caused by any company, or (2) any failure by an environmental regulatory body to perform its legal duties.  Any such report and the identity of the whistleblower must be kept confidential. 

Implications

The fundamental message the updated Law sends to corporations and regulatory bodies is clear – China is now serious about improving environmental quality and will measure its success in curtailing pollution in tandem with its success in fostering economic development.  Keeping companies in key industries accountable for meeting higher environmental standards is, in fact, no longer just official verbiage, but an important strategic component of China’s overall economic strategy. 

In addition to prioritizing compliance, local companies and multinationals can align themselves with the Chinese government’s message by investing in the growing environmental technology sector in China and by promoting corporate environmental awareness and accomplishments to the Chinese public and international audiences via websites and CSR reports.  (In fact, multinationals are expected to lead the way in establishing transparency as a norm in China given their know-how and experience when operating in stricter jurisdictions.)

The updated Law constitutes a meaningful and strategic step toward improving China’s environment. While we cannot be sure how successful any particular aspect of the new Law’s implementation will be, companies are advised not to just take a “wait and see” approach.  A passive strategy risks making the company the target of enforcement actions and potentially significant penalties, and, perhaps most significantly in the longer term, damaging the reputation of the company both in and outside of China.  Instead, the economically and socially sound decision is to adjust corporate strategy in the nearer term to match that of the national Chinese government, and, perhaps, to aim to not only meet, but exceed, the environmental standards and requirements being put into place.  If companies seize the window of opportunity to distinguish themselves from other firms in China in the near term, the potential positive payoffs are likely to be significant in the longer run.

 

*Jasmine Wee a law student at the University of Hong Kong assisted Mr. Falk with a longer article on China’s new Environmental Protection Law from which these observations were derived.

Task Force Recommends Stronger ABA Leadership on Sustainability

Posted on September 2, 2014 by John Dernbach

Will the ABA make leadership on issues of sustainability a permanent part of the organization's infrastructure and policy?  That is the key recommendation of the American Bar Association’s Task force on Sustainable Development.  The July 31, 2014 Task Force report recommends that the ABA strengthen its ability to provide leadership on sustainability by creating a sustainability entity within ABA that is directly responsible to the ABA president.  “First and foremost,” the report said, "[the ABA] should establish a permanent infrastructure for integrating sustainability within the ABA over the long term.” 

As recommended by the Task Force, the sustainability entity  would engage "the entire organization and membership, and convey the ABA’s ethic for economic, social and environmental responsibility" under a “leadership team that reports directly to the ABA President.” 

The sustainability leadership entity would be guided by a short “written statement of ABA’s vision and values on sustainability relevant to the legal profession.”   It would be responsible for issuing an “annual report on ABA’s progress toward achieving sustainability” and on “law-related developments” on sustainability.  In addition, it would run an “ABA-wide program of annual awards for exemplary sustainability efforts by lawyers, law organizations, and others.”   Finally, it would be responsible for “[m]aintaining and enhancing the Resource Center” by, among other things, “making it prominently accessible from the ABA homepage.” 

The Task Force recommendation follows from then-ABA President James R. Silkenat’s 2013 charge to the Task Force to “focus on ways that the ABA can provide leadership on a national and international basis on sustainable development issues.”  (See my earlier blog, “ABA Task Force to Help Mainstream Sustainability in Law Practice.”)

The report also described the Task Force’s achievements in its first year.  Chief among these is the creation of an online Resource Center "that is dedicated to provide, on an ongoing basis, sustainable development tools, links, and other information for lawyers and law organizations.” 

The Task Force, which has twenty members (including me) representing the private sector, government, nongovernmental and intergovernmental organizations, and academia, is chaired by Lee A. DeHihns, a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia and a former chair of the ABA Section on Environment, Energy, and Resources.  Although the Task Force was originally established for one year, the ABA Board of Governors has approved the Task Force for a second year.  In its second year, the Task force plans to address three additional areas where greater effort is needed to foster sustainable development: legal education, the role of lawyers, and government. 

On legal education, the task force will consider, among others, a recommendation to “identify specific areas of knowledge and practice skills that current lawyers and law organizations should possess in order to assure the basic understanding of sustainability needed for the competent practice of law in the 21st century.”   It will also consider a recommendation for the development or endorsement of “sustainability education and certification programs (via law schools or [continuing legal education] providers) that would enable lawyers who have taken a specific number of hours of sustainability-related courses to obtain a certificate.” 

On law practice, the task force will consider, among others, a recommendation that the ABA encourage all lawyers to consider ways of incorporating sustainable development into their law practice.   On government, the Task Force will consider specific ways of supporting the U.S. Environmental Protection Agency in fostering sustainability, as provided by EPA’s new strategic plan. 

The report notes that lawyers tend to lag behind their clients: “Clients, including business and industry clients, as well as nongovernmental and governmental clients, have become increasingly engaged in sustainability, with growing sophistication and more intensive commitment….[Yet] the legal community has been noticeably absent from meaningful participation in many sustainability ‘communities of practice.’  The Task Force is working to change that dynamic.” 

Of course, the recommendations  in this report are just that: recommendations.  The ABA will decide how to respond to them by following its normal policymaking processes.  However, the establishment of the Resource Center makes it easier for lawyers to obtain relevant information about sustainability.  Keeping the Task Force active for a second year provides an opportunity for continued dialogue. 

Texas Railroad Commission on track to address quakes

Posted on August 28, 2014 by Jeff Civins

Over 30 earthquakes jolted the area in and around the City of Azle, Texas —20 miles north of Fort Worth—last November through January.  In response to citizen concerns, the Texas House Committee on Energy Resources created a Subcommittee on Seismic Activity, to investigate whether there was a link between earthquakes and increased oil and gas production and disposal wells.  In addition, the Railroad Commission of Texas—the agency with jurisdiction over oil and gas activities in Texas--hired a state seismologist and, on August 12, approved a draft of proposed rules that would require companies to do a seismic survey before obtaining permits for new oil and gas disposal wells—so-called Class II injection wells.  Representatives of both the Texas oil and gas industry and environmental groups are supportive of this proposal.

Texas, in particular, has been part of the tremendous increase in oil and gas exploration and production activity nationwide through hydraulic fracturing and horizontal drilling.  Although “fracking” per se does not appear to result in quakes, there is a concern that related disposal well injection might.  The Railroad Commission proposal is intended to address this concern.  Some have suggested the Texas proposal could be a model for other states.

The proposal would require applicants for oil and gas injection wells used for disposal to provide additional information, including logs, geologic cross-sections, and structure maps for injection well in an area where conditions exist that may increase the risk that fluids will not be confined to the injection interval.  Those conditions include, among other things, complex geology, proximity of the base rock to the injection interval, transmissive faults, and a history of seismic events in the area as demonstrated by information available from the USGS.  The proposal also would clarify that the Commission may modify, suspend, or terminate a permit if fluids are not confined to the injection interval, that is, if it poses a risk of seismic activity.  Presumably, the effect of the proposal, if promulgated, will be not only to regulate oil and gas disposal activities to address potential seismic effects, but also to generate data that may be useful in determining whether and to what extent further regulation is needed.

Do Air Emissions Constitute Disposal of Solid Waste? The 9th Circuit's Answer is "No".

Posted on August 27, 2014 by Karen Crawford

On August 20, 2014 the 9th Circuit Court of Appeals issued its opinion in Center For Community Action and Environmental Justice; East Yard Communities For Environmental Justice; Natural Resources Defense Council, Inc. v. BNSF Railway Company; Union Pacific Railroad Company, No. 12-56086, D.C. No. 2:11-cv-08608-SJO-SS, determining that emissions of diesel particulate matter does not constitute "disposal" of solid waste under the Resource Conservation and Recovery Act (RCRA).  As a result, plaintiffs could not state a plausible claim for relief under RCRA’s Citizens’ Suit provision, 42 U.S.C. §6972(a)(1)(B). 

A number of environmental organizations had sought to enjoin the emission from defendants' rail yards of particulate matter found in diesel exhaust from locomotive, truck, and other heavy-duty vehicle engines operated on or near 16 rail yards in California.  Plaintiffs cited studies by both EPA and the state agency, which identified diesel particulate matter as a toxic air contaminant with the potential or likelihood "to cause cancer and other adverse health problems, including respiratory illnesses and increased risk of heart disease."  Plaintiffs contended that, while the particulate emissions were initially emitted into the air, they ultimately were deposited on land and water.  They argued that people inhale the exhaust while it is airborne and after deposition (because the particulates are "re-entrained" into the air by wind, air currents, and passing vehicles).  Defendants moved to dismiss arguing that RCRA only applies to air emissions from burning fuel which itself consists of or contains "solid" or hazardous" waste, i.e. a "discarded material."  Otherwise, emissions fall within the scope of the Clean Air Act, which, they argued, was inapplicable. 

The district court concluded that (1) any gap that might exist between the two regulatory schemes as they apply (or don't apply) to mobile sources of air pollution "was created through a series of reasoned and calculated decisions by Congress and EPA," and, independently, (2) plaintiffs failed to state a claim under RCRA because, even if RCRA does apply, diesel exhaust is not a "solid or hazardous waste." 

In affirming, the appeals court cited (and distinguished) prior case law, but for the most part relied on the plain language of the statutes and pertinent legislative history of Congressional actions (or intentional inaction) related to regulation of mobile sources of diesel exhausts and rail yards.  Relying on the principle of expressio unius est exclusio alterius (when Congress expresses meaning through a list, a court may assume that what is not listed is excluded), the court of appeals noted that "emitting" is excluded from the definition in RCRA of "disposal."  Citing §6903(3), the court of appeals added that the specific statutory text further limits the definition of "disposal" to "placement" of solid waste "into or on any land or water" and concluded that emitting the exhaust into the air does not equate to placing the exhaust into or on any land or water. The 9th Circuit concluded that to decide otherwise would be rearranging the wording of the statute which courts cannot do.  Specifically, the court of appeals held, "Reading §6903(3) as Congress has drafted it, ‘disposal’ does not extend to emissions of solid waste directly into the air." 

The 9th Circuit might have stopped there, but it did not  The Court of Appeals further supported its decision by (1) recognizing that the term "emitting" was used elsewhere in the statute and, therefore, was intentionally excluded from the definition of "disposal," and (2) reviewing the legislative history and determining that Congress had opted not to address diesel emissions from locomotives, heavy-duty trucks, and buses at various points in the history of the Clean Air Act amendments adopted in 1970. It also noted that a railroad emissions study required during the planning of a 1977 Clean Air Act overhaul (only one year after enactment of RCRA) omitted rail yards and mobile sources and resulted in a prohibition of federal regulation of "indirect sources" that included corridors attracting mobile sources, like roads or highways, leaving regulation of those sources entirely to the states. The opinion also discussed later amendments to the Clean Air Act, finding that in the 1990 Amendments to the Clean Air Act, Congress finally required EPA to promulgate regulations setting forth standards applicable to emissions from new locomotives and new engines used in locomotives and prohibited states from doing the same, but left the regulation of indirect sources including rail yards, exclusively to the states, noting that, once again, in 1990, RCRA applied to neither. 

The court  of appeals was not persuaded by plaintiffs' argument that the two statutes should be "harmonized" to fill any gaps, or that there was irreconcilable conflict between the two statutes, observing that in actuality no conflict existed because neither statute applied to rail yards' diesel exhausts.  But to put an exclamation point on its holding, the 9th Circuit added: “[H]owever, to the extent that its text is ambiguous, RCRA's statutory and legislative histories resolve that ambiguity.”

The 9th Circuit's straightforward analysis of the plain language of the statutes and the  statutory history of Congressional action in this opinion is a refreshing contrast to recent opinions in which courts have struggled to find justification for EPA's attempts to regulate in areas where Congress has clearly failed to take action. 

The Affair of the Vicious Vegetable Seeds

Posted on August 26, 2014 by Susan Cooke

 

As August gives way to harvest time, I decided to take this blog down to earth and talk about vegetable seeds.  In particular, the news of a recent crackdown by the Pennsylvania Department of Agriculture on a local seed library.  

In honor of Earth Day, the Simpson Library in Mechanicsburg, Pennsylvania decided to start a seed lending library.  Seed exchanges are of course not a new concept.  For countless generations, seeds have been collected and saved for later planting and have been swapped as well, whether among neighbors or at such venues as county fairs.  In recent years, seed libraries have “sprung” up across the United States to preserve the genetic diversity of locally grown crops and encourage local gardening.

The Simpson Library, after consulting the county extension service, got its initiative off to a promising start, with sixty people signing up.   Program participants could “borrow” seeds before the growing season and “donate” seeds back to the library at the end of the season.  However, the Library was in for a big surprise.  On June 12 the Pennsylvania Department of Agriculture informed the Library of several requirements under the Pennsylvania Seed Act, including the need for a license to distribute or supply the seed, and the necessity of having its name appear on each seed packet.  In addition, each packet would have to be tested for purity and germination rate in accordance with rigorous requirements, with the same procedure to be followed for seeds donated back to the seed library at the end of the growing season.  The Department explained that noncompliance could result in mislabeling of seed, propagation of potentially invasive plant species, cross pollination of varietals, and introduction of out-of-state poisonous plants.

The Department’s concerns may seem like overkill, and it is open to question whether all of the Act’s requirements are in fact applicable to a library that isn’t selling seeds.  Nevertheless, such requirements are not unique.  In fact, there are similar state laws and regulations across this country and at the federal level, some even more stringent than those in Pennsylvania.  Many of the laws were adopted in the early 1900s when commercial seed companies became more prevalent, but they have seldom been applied to seed libraries.  Now several of those libraries are waiting to see if the authorities in other states will follow Pennsylvania’s lead.

At least for the Simpson Library, there seems to be a happy ending with some qualifications.  After further discussions with the Pennsylvania Department of Agriculture, the Library agreed to remove all commercially labeled seeds with expired use-by dates, and to purchase and accept only commercially prepared and labeled seeds for the current year or future growing seasons.  In addition, since the Library does not have the testing capacity or proper storage for loose seeds, it will not accept or store harvested seeds from seed library participants.  However, it can – and will - host seed swap events where individuals swap or trade their own seeds.  The Library’s website contains several of the relevant documents.

My takeaway?  Depending on your point of view, no good deed goes unpunished, or exercise caution when a stranger – or even your best friend – offers you heirloom tomato seeds, since you never know what dangerous properties may lurk within.  And for all concerned, support your local library!  

You Can’t Estop the Government — Even When It Wants to Be Estopped

Posted on August 25, 2014 by Seth Jaffe

On August 12th, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.

In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal, California. Although section 165(c) of the Clean Air Act requires EPA to act on such applications within one year, EPA failed to do so.

Subsequently, and before EPA ever did issue a permit, EPA revised the National Ambient Air Quality Standard for NOx. Avenal Power apparently could demonstrate that emissions from the new plant would comply with the old NAAQS, but could not demonstrate that it would not cause an exceedance of the new NAAQS. After some waffling, EPA took the position that it could grandfather the permit application and review it under the prior NAAQS. Citizen groups appealed and the Court of Appeals held that EPA had no authority to grandfather the application.

To the Court, this was a simple application of Step 1 of Chevron. The Court concluded that sections 165(a)(3) and (4) and 110(j) of the CAA unambiguously require EPA to apply the NAAQS in effect at the time a permit is issued. Thus, EPA has no discretion to grandfather permit applications, even though EPA was required by law to issue a permit decision at a time when more lenient requirements were in effect.

I think that the Court’s decision is clearly right on the law. The statutory language seems unambiguous.  But what did the Court have to say to those who feel that the result is inequitable, because Avenal was legally entitled to a decision in one year, and would have obtained its permit if EPA had acted timely? Pretty much, tough luck:

Finally, EPA relies heavily on the argument that the equities weigh in favor of Avenal Power. In short, we agree. Avenal Power filed its application over six years ago, and endeavored to work with EPA for years, even after filing suit, to obtain a final decision. But however regrettable EPA’s treatment of Avenal Power has been, we simply cannot disregard the plain language of the Clean Air Act, or overlook the reason why an applicant must comply with revised and newly stringent standards —that is, “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Honoring the statute’s plain language and overriding purpose, we must send EPA and Avenal Power back to the drawing board. (Emphasis added.)

In other words, EPA screwed up, and Avenal Power got screwed. Imagine having to explain that to your client.

 

law is an ass

EPA Gets the Last Word—For Now

Posted on August 22, 2014 by Charles Nestrud

At the request of El Dorado Chemical Company (EDCC), the Arkansas Commission on Pollution Control and Ecology (Commission) twice approved site specific revisions to its water quality standards for dissolved minerals, finding that the new standards were protective of downstream uses.  Twice, EPA rejected the rulemaking.  In a court battle over a state’s right to set water quality standards, EPA won. El Dorado Chemical Company v. EPA, et al, Case No. 13-1936 (8th Cir. August 15, 2013).

Arkansas has the most restrictive water quality criteria for dissolved minerals (chlorides, sulfates and total dissolved solids) in the nation, having set the criteria years ago based on naturally occurring levels in undisturbed streams. Few receiving streams with industrial discharges can meet these “pristine stream” mineral standards, creating permitting problems, 303(d) listings of impaired waters, and the need for TMDLs.  To address this issue, Arkansas developed a procedure to revise the standards on a site-specific basis to accommodate permitting historical discharges that were not impacting water quality.

EDCC received an NPDES permit from the Arkansas Department of Environmental Quality (ADEQ) with unachievable mineral limits, and a 3-year compliance schedule to provide time to pursue a criteria change.  Following ADEQ procedures, EDCC demonstrated the absence of water quality impacts, and the Commission approved the new criteria, paving the way for an NPDES permit modification with achievable mineral limits.  That was derailed by EPA Region 6, which rejected the criteria change, stating that potential toxic impacts to downstream waters had not been adequately evaluated.  At the same time EPA was threatening enforcement against EDCC for permit violations that were then occurring because the NPDES permit compliance schedule had expired while EPA was holding up approval of the new criteria.  EDCC did the additional work requested by EPA, which demonstrated that the water quality immediately downstream of EDCC’s discharge was not impacted, but a stream reach further downstream failed a simulated toxicity test for sub-lethality (reproduction) of the water flea.  Since EDCC’s effluent mineral concentration was less than the background mineral concentration downstream, any downstream mineral toxicity was beyond EDCC’s control—likely the lingering effects of historical oilfield practices dating back to the early 1900’s.  EDCC decided to forego any criteria change for the downstream reach.   The Commission agreed and rescinded the criteria change for that downstream reach.  The revised rulemaking was submitted to EPA for approval and EPA again rejected it, based on the sub-lethality failure downstream.  In the meantime EDCC was participating in a project to construct a joint municipal/industrial pipeline that would by-pass these downstream waters and avoid the mineral criteria issue altogether, but appeals of the pipeline permit delayed that project as well.  With no clear alternative, EDCC appealed.

EDCC relied upon the primary authority granted to states in the Clean Water Act to establish water quality standards, including the evaluation of potential downstream effects on water quality, and argued that EPA overstepped its bounds.  Relying on EPA administrative appeals court decisions, EDCC argued that EPA must present "compelling evidence, based on strong science" before rejecting Arkansas’s proposed water quality standards.  EDCC urged that more deference should be given to the state decision.  EDCC also argued that EPA had relied upon a single, sub-lethal test result, in the face of overwhelming evidence relied upon by Arkansas, that downstream uses were not impacted.  The district court and Eighth Circuit agreed with EPA that Arkansas had failed to demonstrate that the proposed water quality standards are protective of downstream water quality.  The Court of Appeals said that EPA’s reading of its responsibilities under the CWA was not plainly erroneous, adopting the traditional APA standard of review, and found EPA’s decision to be consistent with the CWA’s broad purpose to "restore and maintain the chemical, physical, and biological integrity of the Nation’s waters."  With respect to the evidence of downstream impacts, the Eighth Circuit upheld EPA’s reliance upon the sub-lethal data, stating that EPA’s decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  During oral argument the Eighth Circuit panel seemed interested in EDCC’s argument that since the revised mineral criteria for the problematic downstream reach had been rescinded, EPA should deal with potential impacts from EDCC’s discharge to those stream reaches further downstream in the NPDES permit review.  However, the opinion rejected that argument, stating that assessment of downstream impacts was part of EPA’s responsibility when evaluating proposed water quality standards—how far downstream this assessment can go is not discussed.

While the appeal was pending, the pipeline appeals were successfully resolved, and the pipeline has been operating since August 2013.  Hence, EDCC has a compliance option in place.  The Court of Appeal’s awareness that this compliance option had been implemented (and Arkansas’s failure to participate in the appeal to defend its rulemaking decision), may have influenced the Court’s decision.

ADEQ is currently working with EPA to pursue a long term study of Arkansas’ dissolved mineral standards, with a goal of developing a “simplified” procedure to deal with Arkansas’ overly restrictive mineral standards. If these discussions are successful, others should be saved from the ordeal EDCC had to endure.

Invasion of the Drones

Posted on August 12, 2014 by Leslie Carothers

            Late last year, Amazon CEO Jeff Bezos announced on 60 Minutes plans to launch drones to deliver products purchased by Amazon customers. Fleets of flying arachnoid contraptions will deposit discount books and kitchen gadgets on customers’ doorsteps within minutes of their online orders.  Is this an exciting  innovation or a really bad idea?

            The growing infatuation with what the Federal Aviation Administration (FAA) defines as Unmanned Aircraft Systems (UAS) for commercial, scientific, or recreational purposes presents the FAA with an extremely complex task of integrating these machines into the national system for regulation of airspace.  In addition to serious airspace safety and national security concerns, the wider use of drones raises privacy issues as well as environmental concerns such as noise, emissions, injury and disturbance of wildlife, especially birds, impaired visibility, and aesthetic impacts to our landscapes and our skies.  

            In 2012, Congress passed the FAA Modernization and Reform Act to recognize and regulate commercial drones. The law  requires  the FAA  to prepare and publish a five-year roadmap to guide aviation stakeholders on the tasks involved in integrating UAS into the National Airspace System of regulated aircraft equipment, procedures, operator training, and certification of compliance.  The road map issued November 7, 2013, states that proposed civil and commercial uses of UAS include security awareness, disaster response, communications, cargo transport, infrastructure monitoring, commercial photography, aerial mapping and charting, and advertising.  The agency has announced plans to propose rules to regulate small drones—those weighing less than 55 pounds and flown under 400 feet in altitude—this year to ease the restriction on machines presenting little or no risk to commercial aviation.  But even this category of equipment presents significant regulatory concerns and complexities.

            The FAA currently handles approvals for use of UAS by issuing certificates of waiver or authorization to public operators and special experimental certificates to civil applicants.  Researchers from private universities have complained about being excluded from the approval process.   FAA’s recent assertion of broad authority over “any contrivance invented, used, or designed to navigate in the air” has also come under criticism from this quarter on the ground that tight limits “stunt scientific advancement.” 

            The FAA knows how to set standards and certification requirements for aviation equipment and operators.  Major differences with drones are the absence of an on-board operator to help avert collisions, the potentially much greater variety and quality of equipment, and the much larger number of operators to be regulated and subjected to liability for unsafe operation.   Cheerleaders for faster approval of drones are apparently untroubled by the already significant level of accidents involving both military and commercial drone operations. (Craig Whitlock, FAA will miss deadline to integrate drones in U.S. skies, report says, WASHINGTON POST 2 (June 30, 2014.))

            Advocates for opening the airspace to wider use of UAS are entitled to tout the benefits to be gained and money to be made from a new industry.  However the first priority of government regulators must be to protect a system that has delivered a high degree of safety in the aviation sector.  Beyond the challenge of assuring aviation safety is the equally daunting question of homeland security.  Our huge investment in airport and airline security have so far succeeded in preventing further successful terrorist attacks on air transportation in the United States.  The proliferation of commercial drones potentially armed and operated by thousands more people across the country presents new risks to our safety from criminal or terrorist activity that must be addressed by the FAA and the Department of Homeland Security

            Cheap commercial drones carrying high-powered cameras, a favorite new application, can conduct surveillance threatening privacy interests.  They will be stealthy surrogates for gum-shoe investigators trailing debtors, straying spouses, or people falsely claiming disabilities.   At a time when the public has expressed worry, if not outrage, over governmental and commercial surveillance of their lives, magnifying this risk by the expansion of camera-toting drones will not be welcome.  It is small wonder that polling by the Pew Research Center shows that 63% of Americans think it would be a change for the worse if personal and commercial drones are permitted to fly through most U. S. airspace. 

            The FAA’s five-year plan refers without elaboration to the National Environmental Policy Act.  Actions to expand use of drones will require an assessment of environmental impacts, whether or not the FAA itself has the authority to address them.  Environmental impacts are likely to be a function of the number of drones in use, where they are used and for what purpose, and how any limitations can be effectively administered and enforced. The risk-benefit calculation for the use of drones in Alaska or other wide open spaces, like farm fields or many border regions, will of course be different from their use in urban and suburban areas of the country.

            The FAA, however, may not have the last word on commercial drone use.  Restrictions on both launch sites and areas of operation are likely to be derived from land use regulation generally imposed by city and county governments. While the FAA can theoretically regulate noise and pollution from UAS at least by broad type, the FAA is not equipped to adopt the kinds of restrictions needed to protect neighborhoods and resources like wildlife from UAS intrusions adversely affecting local environmental health and amenities.  State and local governments, therefore, may become the city-by-city battleground and city and county commissions may have the final say on whether they want Mr. Bezos’s drones to be the product-delivery system of the future or whether the speedy dispatch of non-critical consumer goods is not worth the price to be paid in community safety, privacy, and peace. 

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 

Adjusting for Wind: USFW Extends Term for Eagle Take Permits

Posted on August 7, 2014 by LeAnne Burnett

Developing wind energy is a good thing, right?  Protecting eagles is too, isn’t it?  Both may not  be true given recent developments that highlight the tension between wind projects and the Bald and Golden Eagle Protection Act. 

First, it is official.  The U.S. Fish and Wildlife Service (“FWS”) issued a final rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) from five to thirty years.  [50 C.F.R. § 22.26.The rule took effect on January 8, 2014.  

With the removal in 2007 of the bald eagle from the list of species protected under the Endangered Species Act, the FWS issued new regulations to authorize the limited take of bald eagles and golden eagles under the Eagle Act.  In 2009 the FWS provided for eagle take permits for a maximum of five years.  [50 C.F.R. 22.26 and 22.27.]  The rule change to allow a 30-year permit is designed to facilitate development of renewable energy projects planned to operate for decades.  Generally the life of a project will coincide with the life of a 30-year permit, satisfying risk-averse financiers that their collateral is protected, at least with regard to eagle takes. 

The FWS committed to 5-year reviews of the 30-year permit, hoping to satisfy those concerned with eagle conservation. In addition, a permit applicant must implement measures to avoid, minimize, and mitigate threats to eagles over the life of the project. Compensatory mitigation that offsets eagle mortality may also be required. Under programmatic eagle take permits, permittees are required to implement advanced conservation practices -- scientifically supportable measures that represent the best available techniques to reduce eagle disturbance and ongoing mortalities. 

There is no legal requirement for project developers or operators to obtain a programmatic eagle take permit under the Eagle Act.  However, the risk of proceeding without such a permit can be significant given the civil and criminal penalties that include fines and incarceration for an unpermitted take.  [16 U.S.C. § 668(a).] 

Second, it is official.  The American Bird Conservancy made good on its threat [April 30, 2014 Letter] to litigate the issue of the 30-year rule with the FWS [June 19, 2014 Complaint].  The claims are procedural -- that the FWS deemed the rule to be excluded from any National Environmental Policy Act review, and that the FWS privileged the interests of wind developers over protection of eagles, thereby violating the Eagle Act.  The FWS has strong defenses, including its conclusion in 2009 that the eagle take permitting rule as a whole would not have any impact on endangered species.  That conclusion will likely be approved under the deferential standard of review applicable in this type of lawsuit.

Third, it is official.  The FWS issued its first golden eagle take permit to a wind developer, EDF Renewable Energy for the 102.5MW Shiloh 4 wind farm in Montezuma Hills Wind Resource Area within Solano County, California. The EDF eagle take permit is the first of its kind, allows for the take of up to five golden eagles over five years, and requires the company to implement conservation measures to reduce impacts to eagles.  EDF’s application process for its eagle take permit began in 2011, when the five-year permit was the only available option.  The application included an Eagle Conservation Plan, as well as a Bird and Bat Conservation Strategy, both of which describe current and proposed future actions to avoid, minimize, and mitigate adverse effects on eagles, birds, and bats.  The wind farm repowered at the end of 2012, and was able to incorporate some of those strategies, including compensatory retrofitting of 133 power poles in southern Monterey County formerly considered high risk to both bald and golden eagles. 

The first-issued five-year permit notwithstanding, a longer permit timeframe for wind developers may be important to long-term success, providing certainty as to regulations and permit requirements.  And take permits that call for affirmative conservation practices allow the FWS to ensure adequate species protection over the lifetime of the permit.  It’s a good thing, right?  

Litigating the “butterfly effect”: Proximate Cause, Imminent Harm and Endangered Whooping Cranes

Posted on August 6, 2014 by Molly Cagle

A recent ruling from the Fifth Circuit involving the endangered whooping crane clarifies the level of proof require to show to establish  proximate cause of  “take” under the federal Endangered Species Act (“ESA”). The case also sets important precedent on the level of imminent harm required to obtain injunctive relief in ESA litigation.

The case, The Arkansas Project v. Shaw, involves the last remaining wild flock of whooping cranes in the world. According to plaintiff, The Aransas Project (“TAP”), the Texas Commission on Environmental Quality (“TCEQ”) water permitting program in 2008-09 caused the deaths of twenty-three endangered cranes (of the approximately 300 remaining in the wild) via the following seven-link chain of causation:

1. TCEQ grants water-rights permits.

2. Water-rights holders divert water

3. Low inflows of water into bays increase bay salinities.

4. Increased salinities diminish available foods for cranes.

5. Diminished food supplies cause cranes to search upland for food.

6. Upland movement of cranes causes them stress.

7. Stress weakens flock and causes crane deaths.

Defendant TCEQ and intervenors, including the Guadalupe-Blanco River Authority and Texas Chemical Council, challenged each causation step during a week-long trial in 2011. In March 2013, the federal district court judge issued a 125-page opinion agreeing with TAP’s theory and adopted TAP’s fact findings verbatim. The district court also ordered the TCEQ to immediately apply for an incidental take permit and submit a habitat conservation plan (as if it were that easy). Additionally, the Court enjoined TCEQ from issuing any new water permits in the Guadalupe and San Antonio River Basins, interjecting itself as the watermaster for all new and modified permits in the basins.  TCEQ and intervenors appealed the order to the Fifth Circuit and successfully stayed the district court injunction. After an expedited briefing schedule, oral argument before the Fifth Circuit took place in the summer of 2013.

On June 30, 2014, the Fifth Circuit per curiam reversed the district court.  The court of appeals held that TAP failed to prove TCEQ proximately caused takes of cranes. The Fifth Circuit is one of the first court of appeals to closely examine the issue of proximate cause and ESA liability since Justice O’Connor penned her concurrence on the subject in the 1995 U.S. Supreme Court opinion Babbit v. Sweet Home. Evoking the famous 1920s Palsgraf v. Long Island Railroad case, the Fifth Circuit compared TAP’s claims to the “butterfly effect” (i.e. the idea that a butterfly flapping its wings in China can affect storm systems in New York).

Importantly, the appeals court called into question the district court’s “simplistic” conclusion that a government entity can cause take simply by authorizing an activity that ultimately affects a species. The court noted that prior instances of governmental regulatory liability for take involved actions that “directly killed or injured species or eliminated their habitat.”

Ultimately, the court examined every link of TAP’s chain of causation and concluded that the district court and TAP simply failed to account for the number of contingencies, e.g. drought, affecting each link.  As the court summed up, “only a fortuitous confluence of adverse factors caused the unexpected 2008–2009 die-off found by the district court. This is the essence of unforeseeability.”

For future ESA litigation, the court’s analysis of the standard required to obtain injunctive relief is as important as its detailed treatment of proximate causation. In particular, the court noted that the district court focused almost exclusively on the injury that occurred in 2008-2009 and could not explain how a steadily increasing flock showed that there was a reasonably certain threat of imminent harm to the cranes. The court held: “Injunctive relief for the indefinite future cannot be predicated on the unique events of one year without proof of their likely, imminent replication.” This is important precedent for future district courts examining injunctive relief even when past take liability can be proven.

TAP petitioned the Fifth Circuit for a rehearing en banc on July 28, 2014 questioning whether an appeals court can rule on proximate cause as a matter of law. So this case may not be over. But if the court’s ruling stands, it will provide fruitful discussion to examine for future ESA litigation. 

Full disclosure: ACOEL Fellow Molly Cagle represented lead intervenor Guadalupe-Blanco River Authority in the Fifth Circuit appeal. She does not attest to any lack of bias in this case and is proud of the fact that the cranes are still doing well, despite unprecedented drought in Texas. 

The Wilderness Act at 50: The Golden Anniversaries Begin

Posted on August 5, 2014 by Stephen R. Brown

On September 3, the Wilderness Act turns 50 years old.  This milestone marks the beginning of the golden anniversaries for the golden age of environmental statutes.  During the next dozen years we will celebrate the 50th anniversary of the National Environmental Policy Act (1970), the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), the Resource Conservation and Recovery Act (1976), the National Forest Management Act (1976), the Federal Lands Policy and Management Act (1976), and soon after, the Superfund statute (1980).  These 50th anniversaries are a time to reflect on the success and failures of each statute, as well as their capabilities to adapt to environmental issues that were hardly contemplated a half century ago.  Although the Wilderness Act does not receive the air time as its media-specific cousins, it still is a useful model to evaluate an environmental statute as it reaches this vintage.  

Today it seems almost incomprehensible that any federal statute of significance could pass a house of Congress with only one dissenting vote.  Yet that’s what occurred when the House passed the bill in 1964 after eight years of debate and countless revisions.  The Act probably never would have reached its current form were it not for the tireless work of Howard Zahniser and the decades of support dating back to legendary figures such as Bob Marshall and Aldo Leopold and others.  With this legacy, it's not surprising that Act’s language defining “wilderness” borders on prose:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and community of life are untrammeled by man, where man himself is a visitor who does not remain.

The Wilderness Act is elegant in its simplicity, yet enormous in geographic scope.  On the day of its enactment, the Act immediately designated 9.1 million acres, mostly in National Forests that already were managed as primitive areas.  Since 1964, formal wilderness designation has grown to nearly 110 million acres in more than 750 different named areas.

Structurally the Act sets criteria for wilderness, reserves to Congress the authority to designate wilderness, and sets guidelines for management.  The guidelines take the form of rigid categories of what can and cannot occur in a wilderness area.  Generally that means no roads, few structures and no forms of mechanical transportation.  The Act’s guidelines do not contain numeric standards, detailed permitting, or stringent enforcement regimes.  This is not surprising because, unlike the media specific statutes like the Clean Air Act and Clean Water Act, the Wilderness Act was not intended to correct problems of the past, but instead is designed to preserve for the future a resource that was perceived to be vanishing. 

*Click here to read full article*

Or You’ll Sink Like a Stone—Changing Times Call For Revival of the Public Trust Doctrine

Posted on August 4, 2014 by Jeff Thaler

For those who may be interested in the interplay of renewable energy, climate change and the public trust doctrine, I have a new article out in the Ocean and Coastal Law Journal on how federal and state public trust doctrines can be more central in the work and advocacy of environmental lawyers. The article (co-written with one of my students, Patrick Lyons), “THE SEAS ARE CHANGING:  IT’S TIME TO USE OCEAN-BASED RENEWABLE ENERGY, THE PUBLIC TRUST DOCTRINE, AND A GREEN THUMB TO PROTECT SEAS FROM OUR CHANGING CLIMATE”, demonstrates how the public trust doctrine (PTD) can play a role in protecting ocean and coastal resources from climate change.  

More specifically, the Article proposes that both federal and state PTDs can help protect traditional trust values of commerce, navigation and fishing—in addition to modern trust values of protecting tidal wetlands, estuaries, and wildlife—through establishing ocean-based renewable energy (ORE) as a public trust value.  In addition to elevating ORE to equal footing with traditional trust values, we call for placing a “green thumb” on the scales of balancing competing trust values to explicitly guide courts and agencies alike to operate under a rebuttable presumption favoring ORE over other PTD values because of its ability to help reduce carbon and other greenhouse gas (GHG) emissions. This way, ocean based renewable energy would benefit public trust resources that are now being damaged by use of non-renewable energy sources—for example,  the National Research Council (NRC), using 2005 dollars,  that U.S. fossil fuel energy production caused $120 billion in damage, primarily through damages to human health from air pollution, and another $120 billion in damages from climate change, such as harm to ecosystems and infrastructure, insurance costs, negative effects of air pollutants, and national security risks.

The article first provides a brief overview of the history of the PTD in the United States, including its adoption from English common law and its evolution to its present status among the various states, and an introduction to the current legal framework governing federal ocean resources and sets up the argument for recognizing a federal PTD.   It then focuses on climate change, how it is currently impacting the earth’s ecosystems, and the potential detrimental effects to our planet if carbon emissions are left unabated.  We further document how climate change is affecting public trust resources and highlights the degradation and alteration these resources have already experienced, calling on all levels of government to fulfill their fiduciary obligation to protect ocean and coastal resources from the impacts of climate change.  

With that as the foundation, we move to a discussion of offshore wind, tidal and wave energy, and the variety of public trust-like language found throughout the federal legislation that has authority over the permitting and compliance of ORE projects.  We then bring PTD, climate change, and ORE together, in order to establish the basis for a federal PTD and legitimize its inception through common law, legislation, and executive order.  The Article concludes by providing examples of how ORE can be incorporated into both federal and state PTDs, providing courts and governmental agencies with a doctrine that encourages and requires the utilization of ocean and coastal resources for harnessing clean, renewable energy in an effort to mitigate the impacts of climate change.

I hope you find it useful in your law and non-law work. Ironically, it was exactly fifty years ago that one of the leading songwriters wrote and sang these words: 

Come gather around people, wherever you roam / And admit that the waters around you have grown / And accept it that soon you'll be drenched to the bone / If your time to you is worth savin’ / Then you better start swimmin’ or you'll sink like a stone / For the times they are a-changin’. 

Isn’t it well past time to heed that warning and combat the rising levels of greenhouse gases, temperatures, seas, health care costs and storm damages by making maximum use of the clean, renewable energy available and waiting off our shores?

ACOEL’s China Project

Posted on August 1, 2014 by James Bruen

The China Project continues to provide opportunities for Fellows of the College to work on pro bono environmental law projects sponsored by non-governmental organizations and law faculties in China. Attorneys who have participated in the projects have described them as "peak experiences" and "once-in-a-career" opportunities. In the near term, the China Project has advisory and teaching projects underway. Moreover, the Project will likely offer the opportunity for one or more Fellows to train Chinese environmental lawyers in Beijing in September. Further projects are on the drawing board. Where Fellows travel to China, airfare, hotel, meals, transportation and visa expenses customarily have been reimbursed by the Chinese sponsor. Please email jbruen@fbm.com now if you would like further details of the September opportunity.

The China Project has already had a substantial impact on Chinese environmental lawyers and Chinese environmental law. Some activities have involved, or will involve, travel to Beijing, Shanghai or other destinations in China. Others can be completed from a Fellow’s home or office in the United States. During the first half of this year, as participants in the China Project:

ACOEL Fellows have consulted in person with representatives of the National People’s Congress, China’s Ministry of Environmental Protection, and the NRDC Beijing office about improving the enforcement of the country’s basic environmental laws. China’s participants in these consultations reported that they were “very productive” and that they came at a “critical moment” in the development of the National People Congress’s deliberations. The consultations were considered as among the important factors which led to amendments of the laws to enhance Chinese enforcement provisions. The amendments were later reported in the United States on National Public Radio. 

ACOEL Fellows are now preparing a comprehensive memorandum for training Chinese lawyers and scholars about the United States’ environmental impact assessment system.  

ACOEL Fellows are scheduled to train Chinese lawyers on various aspects of a broad range of United States’ environmental laws.

All of the consultations, training and analyses undertaken by Fellows during the China Project will be delivered in, or translated from, English. There is no foreign language requirement and no additional training required. The only special requirement arises where the Fellow will be traveling to China. He or she will need a Chinese visa – which should be easily obtained (even on very short notice in an emergency) by any Fellow in the College. If you need assistance on how to obtain a visa to visit China, contact me.

The China Project is a function of the College’s Policy Committee. For the future, the Committee is working on developing additional pro bono opportunities for sponsors in Central and South America, Africa, and India. Progress reports will be offered in future blogs and in reports at the Policy Committee meetings and presentations during the College’s annual conference (this year in Austin, Texas). For further information at any time – email jbruen@fbm.com or call Jim Bruen at 415.954.4430.