EPA’s Game Plan on Federalism -- Block-by-Block

Posted on December 13, 2019 by Gregory Bibler

I commend Vicki Arroyo’s recent elegy on the Dissolution of Cooperative Federalism in the Trump Era. both for its eloquence and its restraint.  To paraphrase, the Trump Administration’s lawsuit against California’s climate change policies “is just the latest salvo in a sustained, direct assault by EPA and the Administration on the bedrock principles of states’ rights and ‘cooperative federalism.’”

The Trump Administration’s EPA, at least as envisioned by the President and EPA’s Administrator, is not like any this country has seen before.  Administrator Wheeler represented in the written statement he submitted at his confirmation hearing that EPA is “advancing the President’s regulatory reform agenda.”  The  Administrator’s favorite measure of EPA’s success, in fact, is the number of “major deregulatory actions” it has implemented.  As of January 2019, he reported, EPA had finalized 33 such actions.  The Administrator has updated that metric regularly in his public remarks.  In his recent address to Detroit’s Economic Club, he announced EPA has taken 46 major deregulatory actions, and that another 45 are in the pipeline.  The Administrator also lauded EPA’s preeminence in complying with the President’s executive order requiring agencies to eliminate two regulations for every new one finalized.  As of October 2019, EPA has cut 26 regulations while creating four new ones, he stated.

The Trump Administration’s attitude toward “states’ rights” and “cooperative federalism” only make sense when viewed through this policy lens.  EPA’s current focus and mission is deregulation, not environmental protection.  If allowing states to create their own standards for emissions from coal-fired power plants will ease regulations inimical to coal-producing states, then EPA favors states’ rights.  When states employ authority given to them under Section 401 of the Clean Water Act to impose conditions or limitations on fossil fuel infrastructure projects, or California reaches agreement with automobile manufacturers on more ambitious auto emission standards, however, then EPA insists on exercising preemptive federal authority.

This sometimes-federalism frequently is derided as “Fickle Federalism.”  One commenter has coined a term that is more apt:  “Jenga Federalism.” Jenga is a game in which the goal is to destabilize a stack of blocks piece-by-piece rather than knocking it down in one blow.  As the EPA Administrator’s deregulatory metrics show, that is precisely the game EPA now is playing.

It was not enough, however, for the Trump Administration’s EPA to take direct legal action against California standards that conflicted with EPA’s deregulatory agenda.  EPA retaliated by threatening to withhold federal highway funds, demanding that the state submit a plan to control water pollution tied to its “homelessness crisis,” and referring auto manufacturers who agreed to meet California efficiency and emission standards to the Department of Justice for potential anti-trust prosecutions.

Using enforcement authority against a state as a political weapon – particularly a “Blue State” viewed by the White House as a political enemy – is an unprecedented EPA tactic.  Sadly, it is not without precedent in this Administration.  It is a form of quid pro quo.

To be clear, I have lodged my full share of challenges to EPA’s and states’ decisions, interpretations, guidance and regulations.  I expect and intend to continue to do that, as and when appropriate, based on the science, the law, and common sense.  There is an institutional process for that.  It is called the rule of law.  It is the process, in fact, currently underway across the country in dozens of administrative and judicial proceedings challenging deregulatory actions taken or proposed by EPA and other federal agencies.

What troubles me most is that, by engaging in political score settling against California, EPA has diverged from our institutional norms.  It is one thing for the President, personally, to engage in such tactics.  It is quite another when the Administration, as a whole, does so at the President’s bidding.  It reflects a Hobbesian philosophy of government, in which the Executive wields centralized and undivided power, and the private interest of the Executive is perceived to be the same as that of the public.  That is not a vision that the Constitution will support.  And, surely, it is not a vision that our judicial system or our democratic institutions will endorse.

Cutting Carbon While Feeding People: The Role of Food Rescue in Slowing Climate Change

Posted on December 11, 2019 by Adam Kahn

The Natural Resources Defense Council reports that up to 40% of all food in the United States is wasted, even as 40 million Americans lack consistent access to adequate and nutritious food. Donation of useable food has palpable and obvious social benefits.  Recovering (or rescuing) edible food from restaurants, groceries and institutions that would otherwise go to waste can help “bridg[e] the gap between abundance and need.”  Reduction in food waste (through food rescue or otherwise) will also yield big reductions in carbon emissions.

From an environmental regulatory perspective, managing food that has been deemed unsalable has traditionally been considered a solid waste problem.  Four northeastern states (Connecticut, Massachusetts, Rhode Island, Vermont) and California limit the disposal of “food waste” or other organics in conventional waste streams that go to landfills or waste to energy facilities.  Getting usable food out of the waste stream, for the most part, satisfies most existing regulatory schemes, regardless of how it is done.  However, these rules do not create a clear preference or incentive for “rescuing” food so that it can be eaten by people. 

This is not to suggest that regulators are ignoring benefits of food waste reduction in setting solid waste policy.  The USDA and US EPA have presented inverse pyramids of priorities for preventing or diverting wasted food; food rescue is number two, right after prevention of food waste at the production level.   These efforts and similar efforts may be having some effect:  In my home state of Massachusetts, the current draft Solid Waste Master Plan appropriately highlights the 60% increase in rescue of fresh and perishable food between 2010 and 2018.  The non-profit ReFED has developed an impressive Food Waste Policy Finder that compiles ways in which food wastage can be reduced, and an equally impressive Roadmap to identify cost-effective regulatory, policy, and business solutions to reduce food waste.  Outside of solid waste rules, food waste can be reduced by improving “sell by” or “use by” date labeling requirements, food handling practices and regulations, usage and waste tracking information, packaging and portion sizes, consumer and business education, and donation-related tax incentives.  

Food rescue and other forms of food waste reduction can also reduce greenhouse gas emissions.  The Intergovernmental Panel on Climate Change (IPCC) has concluded that 8-10% of total anthropogenic carbon dioxide equivalent (CO2e) emissions result from food loss and waste.  In 2011, the Food and Agriculture Organization of the United Nations (FAO) similarly found that food wastage accounted for 3.6 billion tons of CO2e, or as FAO put it “if food wastage was a country, it would be the third largest emitting country in the world” (right after China and the US and right before India and Russia).  Of that figure, about 35% comes in the distribution and consumption phases of the food supply chain, which are the stages where food rescue comes into play.  Similar statistics abound in other reputable publications.

So, what role can environmental law serve to help realize the climate benefits of food rescue, apart from continued improvements in solid waste policy?

Jurisdictions that regulate carbon emissions, or have carbon emission caps or reduction targets, should consider providing tradable credits for rescue of food or other beneficial reuse.  This will be complicated, particularly in the absence of economy-wide regulation of carbon emissions.  Nonetheless, an administrable system would create a new avenue to enable would-be producers of food waste to monetize their good deeds through tradable carbon-avoidance credits.  As a first step to any of this, we should agree on a transparent and understandable standard for measuring the carbon impact from food rescue.  The Food Loss and Waste Accounting and Reporting Standard is one potential example.  Once a methodology is accepted, the carbon benefits of food waste reduction can be quantified and then rewarded. 

Even in the absence of tradable credits, requiring carbon offsets in the form of food waste reduction could form part of a jurisdiction’s larger carbon reduction plan.  For example, state and local regulatory authorities with mandates to minimize environmental impacts could require development projects (particularly those involving the food industry) to offset incremental greenhouse gas emissions through food waste reduction.  Similarly, environmental regulators that retain the ability to consider supplemental environmental projects could consider food waste reduction as part of resolution of environmental enforcement actions.

These ideas will take time and collective will to put in place.  But individual action does not need to wait: reducing food waste today will have carbon benefits today even if no one is measuring, regulating, or rewarding it. 

Supremes Let Hoopa Stand, Leave Door Open for EPA to Reshape CWA 401

Posted on December 10, 2019 by Rick Glick

On December 9, the Supreme Court denied certiorari to review the D. C. Circuit Court of Appeals ruling in Hoopa Valley Tribe v. FERC.  As reported in this space, in January the D.C. Circuit roundly rejected the common practice of withdrawing and then refiling applications for state water quality certification to avoid the one-year limit for state action under Section 401 of the Clean Water Act. 

Under Section 401, applicants for federal authorizations that could result in a discharge to navigable waters must first obtain certification from the state that applicable water quality standards would be met.  States must act on Section 401 applications within one year, or they are deemed to have waived their authority.  State authority under Section 401 is broad and presents an opportunity to superimpose state policy on federal licenses or permits, an opportunity many states are eager to exercise.

Section 401 is often invoked in the context of licensing and relicensing of hydroelectric power facilities before the Federal Energy Regulatory Commission.  Such facilities and their impacts are complex, and states struggle to complete their analysis within one year.  This has led to states offering applicants the choice of either withdrawing and refiling the application to reset the clock, or having their certification denied.

In the Hoopa case, PacifiCorp entered into a settlement agreement with the states of Oregon and California, and other stakeholders, concerning removal of four dams on the Klamath River.  As part of the settlement, PacifiCorp would annually submit a letter to withdraw its pending Section 401 applications before both states and simultaneously refile the application with no changes.  The D. C. Circuit found this practice a subversion of the plain statutory language limiting state action to one year.

So, with the Supreme Court’s denial of certiorari, the withdrawal/refile stratagem seems less viable.  Where do we go from here?  One answer is that when states need more time they will simply deny Section 401 applications without prejudice, meaning the applicant can reapply.  But that approach could also be seen by the courts as an evasion of the one-year limitation.

Another answer lies with EPA, which recently proposed new rules to constrain state authority under Section 401.  As part of the reform of Section 401 policy, the new rules would adopt time limitations “consistent” with the Hoopa decision:  “The certifying authority is not authorized to request the project proponent to withdraw a certification request or to take any other action for the purpose of modifying or restarting the established reasonable [i.e. no more than one year] period of time.”

Under the new rules, then, one year means one year.  However, the new rules, once adopted, will certainly be challenged.  Two related issues are whether EPA has authority to direct state implementation of Section 401 and, if it does, whether EPA’s interpretation is entitled to Chevron deference.

While all of this plays out, however, the D. C. Circuit’s decision in Hoopa stands, but many questions remain to be answered.  Did Hoopa effectively kill the withdraw/refile workaround?  Or should Hoopa be read narrowly and limited to the unique facts underlying the case?  And how will all this ultimately affect the timing and content of federal permits for major projects?  Stay tuned.

Should Someone be Reading The SEP Policy its Last Rights?

Posted on December 5, 2019 by Heidi Friedman

Chances are if you have been on either side of a settlement for an environmental violation over the past 20 years, you have discussed and/or negotiated a supplemental environmental project (SEP) as part of the overall resolution of a matter.  SEPs are projects that go beyond what is required by law, although the projects do have to have a “nexus” to the violation being addressed.  Settling parties can receive a credit toward mitigation of the civil penalty for a portion of the value of funds spent on implementing SEPs, and SEPs are the favorite child of many since a quality SEP can close the gap on a contentious penalty negotiation – visualize a bridge that pops up bringing two sides together.  Instead of building these bridges, the Asst. Attorney General’s August 21, 2019 Memorandum analogizes SEPs to elephants explaining that “Congress does not ‘hide elephants in mouseholes’ (citing Gonzales v. Oregon, 546 U.S. 243, 267 (2006)) and if Congress had intended the use of such a “controversial miscellaneous-receipt-circumvention device[], it would not have done so without mentioning SEPs by name.”  And while the elephant/mousehole analysis relates specifically to an interpretation of the 2018 Clean Water Act Amendments, it still seems challenging to think of such a long-accepted settlement tool as now being the elephant in the room. 

The August 2019 memorandum all but eliminates SEPs for civil consent decrees and settlement agreements with state and local governments, which at first read may be seem a narrow focus.  Yet, the grounds set forth in that memo and related analysis provide a clear path for this Administration to fully exterminate this elephant or at least put it to rest for now.  One recent example is in July 2017, when DOJ modified a finalized settlement with Harley Davidson in a Clean Air Act case by removing the SEP.  This left the American Lung Association without its project to retrofit or change out wood-burning fireplaces and left Harley Davidson paying a larger penalty.  From the defense side of things, many companies favor SEPs since a SEP can allow the company to support an innovative project that can truly benefit a community’s local environment.  And to be transparent, there can also be potential tax advantages while penalties are not tax deductible. Keep in mind that the SEP does not replace the payment of a penalty, it supplements and somewhat mitigates the potential penalty payment that might have been sought and obtained.

Yet, what we are seeing is a clear signal that money is the only path to resolution.  The crux of Clark’s analysis and any debate over SEPs is that SEPs are seen as “…mechanisms for sidestepping the power of the purse.”  (citing to H.R. Rep. 115-72, at 5-6) or said in another way, “…implicating Congress’ constitutional power over appropriations.”  The Clark view is that Congress should be able to spend its penalty funds as it pleases whether its defense spending or the opioid crisis, without any nexus to the alleged violation, and thus, allowing a SEP to direct funds in a manner that serves narrower statutory purposes interferes with this autonomy.  Don’t get me wrong, we need government intervention in the opioid crisis, but do we further the purpose of our environmental laws when we are just collecting as much penalty money as possible?  Using environmental penalty policies to fund another defense tank for example seems counter intuitive to the intent of the Clean Water Act or the Clean Air Act in the first place.  While I am certainly not a constitutional scholar, I do know that we have the judiciary reviewing and approving SEPs as part of the Consent Decree process providing a further check on the scope and direction of this often favored alternative. 

For you elephant lovers out there, EPA does seem to be keeping the policy alive and well at the moment as the memo is not even posted to the SEP page on its website.  According to the EPA 2018 enforcement statistics, the value of SEPs in settlements jumped from 17.75M in 2017 to 28.93M in 2018.   Further, in FY2018, EPA enforcement cases included 100 SEPS.   Looking at the last 10 years (2008 to 2018), the total value of 1,418 SEPS was $577M. This is not peanuts no matter how you look at it, but here’s hoping we are able to keep the elephant alive and well.

12 Legal Tools to Push Climate Preparedness

Posted on December 4, 2019 by Michael Gerrard

We know that, mostly as a result of climate change, extreme weather events are becoming more frequent and severe.  Reducing greenhouse gas emissions should be the highest priority, but that won’t be enough to prevent severe impacts, some of which are already occurring. Here are twelve ways the law can help society cope with these impacts.

1. Flood maps – The Federal Emergency Management Agency should update its flood maps and make them reflect anticipated future climate conditions, not just past experience.

2. Disclose flood risks – Prospective buyers of property should be given information about any flood risks faced by the property.

3. Environmental impact assessments – Environmental reviews under the National Environmental Policy Act and its state counterparts should consider the climate conditions expected at the end of a project’s useful life, not just at the start, to help ensure the project can withstand those conditions.

4. Public utility regulation – Other states should follow the lead of the New York Public Service Commission in requiring major utilities (in this case, Con Edison) to study expected future climate conditions going out decades, and prepare plans to cope with those conditions in order to maintain reliability.

5. Permit conditions – Several statutes require permit holders to have and implement plans to prepare for extreme events – e.g., Clean Air Act; Clean Water Act; Oil Pollution Act; Resource Conservation and Recovery Act. The Conservation Law Foundation is pushing these requirements in lawsuits in Massachusetts and Rhode Island.

6. Securities disclosure – As required (but not enforced) by the Securities and Exchange Commission, and as advanced by the Task Force on Climate-Related Financial Disclosures, public companies should disclose the physical risk to their facilities and operations from climate change.

7. Heat – To cope with the dangerous heat conditions to come, cities should require landlords, including of public housing, to provide air conditioning or otherwise keep apartments cool enough to not endanger health.  They should also require suitably-shaped roofs to be white, green, or topped with solar panels; and they should require large-scale tree planting.

8. Building codes – Codes should require buildings to be designed and built so as to withstand anticipated flooding, wildfires, and other risks.

9. Inspections – Flooding-vulnerable infrastructure such as levees and dams should be inspected frequently and repaired when needed.

10. Toxic sites – The remediation of contaminated sites under the Comprehensive Environmental Response, Compensation and Liability Act and other programs should reflect future flood risk.

11. Architects’ training – The states’ architects licensing boards should require architects to take continuing education courses on climate risks.

12. Managed retreat – Though politically toxic almost everyone, cities that are vulnerable to future extreme flooding should begin planning to retreat from shorelines and riverbanks that will become uninhabitable, and to relocate uses to safe areas.

No Right Way to Do the Wrong Thing

Posted on December 3, 2019 by Krista McIntyre

“If we lose all wild species we’re gonna lose ourselves,” Patagonia CEO, Yvon Chouinard, says at the close of the movie Artifishal: The Fight to Save Wild Salmon, produced by Patagonia Films. The film grabbed my attention for three reasons. First, Patagonia makes movies? Second, I live in Idaho and I eat a lot of salmon. And third, the film made me very mad.

Artifishal explores the extinction threat to wild salmon posed by fish hatcheries and fish farms. The unintended consequences to ecosystems of mixing fish hatchery populations with wild species populations extend far beyond the fish. Killer whales are threatened by declining wild salmon population and human communities are impacted by scarcity. It’s all connected and it’s all a big mess.

“The road to extinction is paved with good intentions,” reads the trailer for Artifishal. The good intentions to farm and restock hatchery fish among wild populations represent a twentieth century solution for a twenty-first century reality. This is the part that makes me mad. Although the data reveals that hatchery fish are devastating to wild populations and the data reveals that if left alone wild populations recover on their own, humans can’t get out of the way.

On the contrary, Artifishal reveals that we trust the controlled, engineered solutions conceived in modern times by humans more than we trust the repeated, demonstrated success of millions of years of natural evolution. Artifishal makes the case persuasively for scrapping taxpayer supported hatchery projects in favor of reestablishing natural conditions conducive to wild evolution. Chouinard effectively punctuates this theme of the film: “There’s no right way to do the wrong thing.”

Artifishal exposes deeper conflicts facing humans since the very beginning. Nature diversifies, humans simplify. Nature nourishes, humans consume. Nature evolves, humans engineer. Wild salmon populations cannot keep up with human population demands. And so far our solution to the problem we created are only creating new threats. So, what can we do to help?

Buy more Patagonia gear. Support the projects and organizations Patagonia supports. Years ago, the privately held company committed to support grassroots environmental organizations and the planet as the company grows. The company distributes one percent of annual sales to local organizations, it’s called the “earth tax.” Chouinard’s environmental values are woven into the company’s DNA. Artifishal is not a movie made to sell product, it was made to expand our thinking. Check it out on YouTube, iTunes, and Amazon Prime.

ORSANCO ADDS FLEXIBILITY TO OHIO RIVER WATER QUALITY PROGRAM

Posted on November 26, 2019 by David Flannery

In an earlier blog, I raised the question of “When Should A Regulatory Program Be Eliminated”. After a four-year effort, three public comment periods, four hearings and six webinars, the Ohio River Valley Water Sanitation Commission (ORSANCO – the interstate compact that regulates the water quality of the Ohio River) acted in June 2019 to answer this question. ORSANCO did so by revising its Pollution Control Standards to make it clear that while its Ohio River numerical water quality criteria would remain in place, the designated use for the Ohio River established by the ORSANCO Compact would be the primary mechanism by which ORSANCO would protect the quality of the Ohio River. 

In explaining the significance of its decision to leave its numerical water quality criteria on-the-books, ORSANCO offered the following sentence making it clear that its standards were to be considered by member states but were not mandatory:

The standards were adopted by the Commission for use or consideration by signatory States as they develop and implement their programs to assure that those designated uses and other goals regarding pollution control and prevention set forth in the Compact will be achieved. Emphasis added.

At its meeting in October 2019, ORSANCO adopted the process by which it would assess the consistency of the state-issued NPDES permits with its revised Pollution Control Standards.  Under that review process, ORSANCO’s staff will review the conditions on permits issued by member states and will compare those permit conditions to what they would have been had the ORSANCO numerical water quality criteria been applied.  If the state-issued permit contains any less stringent conditions, the state will be given the opportunity to explain how the terms of its permit would protect the designated uses of the Ohio River established by its Compact.

In short, while the ORSANCO numerical water quality criteria will continue to be available for “consideration” by States, the only mandatory duty imposed on the member states is the issuance of permits that are protective of the designated uses that the ORSANCO Compact has assigned to the Ohio River. 

Confidentiality of “Voluntary” Submittals to EPA

Posted on November 25, 2019 by Stephen Gidiere

When is the confidentiality of sensitive information provided at EPA’s request protected?  In Food Marketing Institute v. Argus Leader Media (“FMI”), the Supreme Court addressed the question, but uncertainty remains.

It happens at least once in every television crime drama.  The police bring in for questioning the prime suspect.  After an initial back and forth, it becomes apparent they have no warrant or enough evidence to hold the suspect, who then asks:  “Am I under arrest?”  “No,” the police respond.  “You are free to leave.”  But of course, they never do.  In reality—warrant or not—the suspect is stuck there.

For years, the same drama repeated itself countless times for companies and individuals facing requests from EPA for confidential business information and, understandably, concerned about the further dissemination of sensitive data submitted to EPA via the Freedom of Information Act (“FOIA”).  While FOIA Exemption 4 provides that “trade secrets and commercial or financial information obtained from a person and privileged or confidential” are exempt from further disclosure, determining whether certain information is protected is no simple task, thanks mostly to a web of court decisions interpreting Exemption 4.

For decades, the inquiry began by asking whether the information was submitted to EPA “voluntarily.”  That’s the test the D.C. Circuit established in its 1992 Critical Mass decision.  If the information was submitted voluntarily, then the submitter could protect the information by simply showing it was not the kind of information that it normally releases to the public.  If the information was compelled or required, then the submitter would have to meet a more stringent “competitive harm” test.

And so debates raged over what exactly it meant to provide the information “voluntarily.”  If the submitter objected to EPA’s statutory authority to issue the request, but submitted the information anyway, was that “voluntarily?”  Did EPA have to issue and enforce a subpoena to defeat such a claim?  Or was it enough that EPA possessed authority to do so, even if not exercised?  In reality, like the suspect, the submitted was never really free to leave, right?

But thanks to the Supreme Court’s recent decision FMI, submitters of information to EPA have been liberated from their imaginary chains!  In FMI, the Supreme Court held that the “competitive harm” test is “inconsistent with the terms of statute” and rejected the D.C. Circuit’s “casual disregard of the rules of statutory interpretation” in formulating that test.  In addition, the Court found “no persuasive reason” to distinguish between “voluntary” and “required” submissions.  Instead, the Court held that all submissions should be evaluated for Exemption 4 coverage based on whether the information is “customarily and actually treated as private by its owner.”

So, now submitters are in control, right?  Not so fast.  The Court also found that Exemption 4 may not apply unless the information was “provided to the government under an assurance of privacy,” arguably putting EPA and other agencies back in control.  Should submitters insist on such an assurance before submitting their information and data?  Sounds likes it is time to lawyer up.

Dan Esty’s Challenge to ACOEL: Let’s Do It

Posted on November 21, 2019 by Ridgway Hall

At ACOEL’s meeting in Williamsburg last month Dan Esty challenged us to undertake a multi-year project to transform the legal framework for environmental protection. He argued persuasively that our country has outgrown its tolerance for command and control regulation, and that advances in emissions modeling and risk assessment plus the ready availability of abundant and low cost data now make possible a shift to a market-driven system. This would allow a price to be put on pollution, or “harm”, and eliminate externalities: that is, everyone must either eliminate or pay for his or her pollution.

This system would be science-based, flexible, transparent, and more efficient than command and control. It would also be more politically appealing by allowing the market to determine our choices instead of regulatory hammers. Dan’s proposal is described at length in his thoughtful article Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability.

The need for such an overhaul is great because our current system is not working well. Unless we can develop a legal framework that is more efficient and politically acceptable, environmental protection faces an uncertain future at a time when the need for responsible stewardship has never been greater. The magnitude of the challenge is enormous. Yet who is better equipped to tackle this than ACOEL? No one. We should do it. My purpose in this article is not to debate that. Rather, as an initial step, it is to point out that about 25 years ago, when EPA was 25 years old and we had already seen the last major piece of federal environmental legislation, the Clean Air Act Amendments of 1990, there was a widespread recognition even then that we needed major reforms in our legal framework. The call was for greater flexibility, market incentives, and more holistic approaches. During the 2 year period 1996-98 at least six major reports were published based on thoughtful analyses by a wide range of stakeholders committed to finding better ways to protect our environment and human health. They provide a useful foundation for any new effort. They include: 

- The Aspen Institute, The Alternative Path: A Cleaner, Cheaper Way to Protect and Enhance the Environment (1996)

- Enterprise for the Environment, The Environmental Protection System in Transition: Toward a More Desirable Future (William Ruckelshaus, Chair; Center for Strategic and International Studies, National Academy of Public Administration and The Keystone Center, 1998)

- The President’s Council on Sustainable Development, Sustainable America: A New Consensus for Prosperity, Opportunity and a Healthy Environment for the Future (1996)

- National Environmental Policy Institute, Integrating Environmental Policy: A Blue- Print for 21st Century Environmentalism (1996)

- National Academy of Public Administration, Resolving the Paradox of Environmental Protection: An Agenda for Congress, EPA and the States (1997)

- Marian R. Chertow and Daniel C. Esty, eds., Thinking Ecologically: The Next Generation of Environmental Policy (a collection of papers produced by the “Next Generation Project” of the Yale Center for Environmental Law and Policy, 1997).

A consensus ran through all these reports that while command and control regulation focusing on end of pipe controls was right to deal with the serious environmental problems of the 1970s, something more flexible and cost-effective was needed for the future. The proposals included a focus on the multi-media footprint of an entire plant, consideration of regional and ecosystem-wide approaches, incentives for innovative management and market-driven solutions, and sector-based strategies. They also included greater use of corporate environmental, health and safety management systems coupled with robust compliance auditing; greater incentives for innovative technology; product life cycle management; “alternative tracks” under which a facility would be given broad performance or protection goals with flexibility on how to get there; and the use of tax incentives, marketable pollution rights, and other financial mechanisms.

While some considered replacing our media-specific statutes with a single holistic environmental statute, there was broad recognition that even by the mid-‘90s the mood in Congress was sufficiently divisive that that was not possible, and any effort to do that could produce something much worse. Robert Sussman proposed a more promising alternative, “An Integrating Statute” (Environmental Forum, March/April 1996) which would allow broad-gauge, multi-media strategies though integrated application of existing statutes.

What was the result of this extraordinary outpouring of creative thinking from the brightest, most experienced and diverse brainstormers available? No new legislation, some minor efforts to streamline regulations, a few more flexible policies at EPA, and little else. There is a lot in these reports that will provide helpful background for any effort that ACOEL or anyone else might launch to achieve the new legal framework that Dan envisions, but getting there will be a huge task.  It will almost certainly require new legislation that can attract bipartisan support.

Just this past April, in recognition of EPA’s 50th anniversary, the American University Center for Environmental Policy and the EPA Alumni Association hosted a 2 day conference on “EPA and the Future of Environmental Protection”, featuring a wide range of highly qualified speakers, including four past EPA Administrators. Many of the same issues were discussed, but some fresh perspectives and ideas seemed to emerge. A report is due to be released within the next few weeks, and I will discuss its principal recommendations in a future blog post.

Will NEPA’s Golden Anniversary be Tarnished by the Trump Administration’s efforts to overhaul the long-established regulations?

Posted on November 18, 2019 by Brenda Mallory

As the 50th Anniversary of the National Environmental Policy Act approaches, we may be on the verge of one of the most significant regulatory revisions in the statute’s history. NEPA advocates—and all those who believe it is important for the federal government to have a robust tool to assess the impacts of its actions before commencing them—watch and wait with trepidation for the release of proposed rules substantially modifying the Council on Environmental Quality’s longstanding regulations governing NEPA practice.

What is the cause for concern? On October 11, 2019, CEQ submitted proposed regulations to the Office of Information and Regulatory Affairs within the Office of Management and Budget, to begin the inter-agency review process governed by Executive Order 12866.  CEQ’s proposal is highly anticipated because, in the name of “streamlining” and reducing “burdens” on industry, NEPA has been a target for reform since the beginning of the Trump Administration. The Administration’s emphasis on instituting shortcuts has far exceeded any focus on ensuring sufficient environmental review or public engagement. Through a series of Executive Orders, President Trump has directed all agencies, but particularly CEQ and OMB, to take steps to remove obstacles to infrastructure and energy development, among other priorities.

In January 2017, Executive Order 13766 focused on expediting environmental reviews and approvals for “High Priority” infrastructure projects. In March, Executive Order 13783 proclaimed a national interest in promoting the development of the nation’s energy resources while avoiding regulatory burdens that “unnecessarily” encumber energy production. In August 2017, Executive Order 13807 directed CEQ and OMB to take actions to promote streamlining and greater accountability in the environmental review process. Then, in June 2018, CEQ issued an advanced notice of proposed rulemaking soliciting comments on revising broad aspects of its NEPA regulations, from details on page limits to the definition of core, NEPA terms such as “significantly,” “reasonably foreseeable,” and “alternatives.” It was clear that every aspect of the regulations was open for discussion. CEQ received approximately 12,500 comments.

Since then, CEQ issued proposed Guidance on addressing GHG impacts, encouraging a narrow focus for review and offering a litany of reasons why only minimal qualitative analysis might be necessary (i.e., emissions are not “substantial,” it’s not “practicable,” or “the complexity of identifying emissions would make quantification overly speculative”). In addition, a number of agencies and departments have issued revisions to their internal rules and guidance that reflect these themes of reducing burdens and greater efficiency, with seemingly little concern about the impact on environmental analysis or public participation. For example, the Forest Service has proposed revisions to its regulations that, among other things, dramatically expand categorical exclusions and discourage site-specific analysis. BLM has issued a number of guidance documents on oil and gas development, oil and gas leasing reforms, and the NEPA document clearing process that shorten time-frames for analysis and eliminate public input. Finally, the Department of Homeland Security, in the name of border security, has issued waivers of many environmental review requirements.

What changes could be harmful from an environmental and public participation perspective?

The changes that have been implemented by the agencies referenced above as well as others are instructive on the type of revisions we can expect to see in CEQ’s upcoming proposal, although the revisions are likely to go farther and have the effect of imbedding these themes in foundational terms. The public should be on the alert for revisions that have the following impacts on the NEPA process:  

  • Eliminating the need for NEPA documentation and avoiding public process: These may include
    • Expansion of categorical exclusions, changing the administrative processes so exclusions can be established without CEQ oversight, and the removal of limitations on when categorical exclusions can be used;
    • Allowing multiple categorical exclusions to be used on one project;
    • CEQ adoption of a practice created by BLM known as the Determination of NEPA Adequacy (DNA), which would allow agencies to determine that existing NEPA documentation on tangentially-related actions eliminates the need for further environmental review or public process; and
    • Elimination or reduction of time-periods for scoping and public comment, making it difficult if not impossible for the public to engage.
  • Narrowing the scope of review associated with specific federal actions so that neither the agency nor the public can assess or understand the full impact of the action: Revisions that have this effect include
    • Discouragement of site-specific analysis and site visits;
    • Redefining what is considered a foreseeable effect of an action requiring analysis; and
    • Reframing what is within the agency’s discretion or authority.
  • Reducing the number of alternatives that need to be evaluated; and
  • Truncating consideration of appropriate mitigation measures.

As of this writing, it is not clear when the proposal will be issued or how much time will be allowed for comments, but unconfirmed rumors suggest it will be soon.

I encourage those interested in protecting this important tool for environmental assessment and public engagement to let their voices be heard. While striving for greater efficiency can be a laudable goal, NEPA was not intended to be a process for rubber-stamping government decisions. We should not allow NEPA’s ultimate goals to be subverted by false claims for good government.

The author is an ACOEL fellow and is the former General Counsel of CEQ.

What’s Up with Gundy?

Posted on November 14, 2019 by Allan Gates

Last summer the Supreme Court announced its decision in Gundy v. United States.  Conservative advocates had eagerly followed the case, hoping it would restore the nondelegation doctrine to the glory days of 1935, the year Schechter Poultry and Panama Refining Co. v. Ryan used the nondelegation doctrine to cut down a broad swath of New Deal programs.

The decision in Gundy disappointed conservative hopes, but only by the slimmest possible margin.  A plurality of four justices — Justice Kagan joined by Justices Ginsburg, Breyer, and Sotomayor — voted to uphold the statute in question, following the very tolerant nondelegation analysis the Court has used consistently for decades.  Three justices — Justice Gorsuch joined by the Chief Justice and Justice Thomas — voted to invalidate the statute using a new and much more robust nondelegation analysis.  Justice Alito concurred in the judgment reached by the plurality, but only because a short-handed Court did not have a majority of Justices willing to establish a new (or resurrect a very old) nondelegation standard.  His opinion openly invited a new nondelegation challenge once the Court has a full complement of nine justices.  Justice Kavanaugh did not participate in Gundy because he was not on the Court when it heard oral argument.

College fellow Lisa Heinzerling wrote a very perceptive blog post about Gundy last May, three weeks before the decision was announced, noting that the Court was lingering over Gundy longer than any other case that Term.  In retrospect, the timeline is even more interesting than Lisa could have known.  Gundy was argued on the first day of the Term, October 2, 2018.  It was decided at the very end of the Term, June 20, 2019.  Justice Kavanaugh joined the Court on October 6, 2019.  Presumably, Justice Kavanaugh was in the room at every conference in which the Court struggled over how to resolve its 4-4 split over nondelegation in Gundy.  When one considers this timeline, Justice Alito’s open invitation for another nondelegation challenge packs special punch.

The significance of the unusual timeline was not lost on Gundy’s counsel, a New York public defender who had taken Gundy’s case farther than anyone could have expected.  She promptly filed a petition for rehearing.  Rehearing in the Supreme Court is extremely rare, but Gundy’s public defender aptly noted that her request presented one of the few circumstances that has prompted the Court to grant rehearing in the past, namely a short-handed Court that divided 4-4 with a new justice in place who could resolve the split if rehearing were granted.

The timeline of the Court’s consideration of Gundy’s petition for rehearing is also interesting.  The petition was filed on July 11 and scheduled for consideration at the Court’s October 1, 2019 conference.  Following that conference, the Court relisted the petition for consideration at the October 11, 2019 conference.  Since then it has been relisted four more times.  Most recently the petition has been scheduled for consideration at the November 15 conference. 

As the Justices ponder Gundy’s petition for rehearing, it seems likely they know if rehearing were granted, the result would be different the second time around.  Among other things, the Court is probably considering how the general public would react to seeing the Court flip on a do-over of a high profile constitutional case solely because a new Justice joined the Court, particularly when that Justice was confirmed by a bare partisan majority after a bruising confirmation hearing.

It is worth noting that there are petitions for certiorari pending in Paul v. United States and Caldwell v. United States, cases identical to Gundy, that were being held pending the decision in Gundy.  The Court might mitigate the public appearance of a highly political flip by taking one of those cases as the vehicle for addressing nondelegation.

IMO 2020 – A Strikeout for Sulfur, but Black Carbon Is Still on Base

Posted on November 7, 2019 by Susan Cooke

Greenhouse gas (GHG) emissions from international shipping supposedly represent 2% to 3% of the world total, about on par with those emitted by Germany.  However, there are no GHG emission restrictions covering ships on the high seas.  Moreover, even the current limits on sulfur and NOx are far less stringent than those imposed in many developed countries, although things are about to change on the SO2 front.

That is about to change.  The International Maritime Organization (IMO), which is part of the United Nations, recently announced a new and more stringent standard, set forth in Annex VI  of the International Convention on the Prevention of Pollution from Ships (MARPOL).  On January 1, 2020, marine vessels must meet a 0.5% (by weight) sulfur-in-fuel standard or install scrubbers to meet that standard.  In addition, starting March 1, 2020, such vessels without scrubbers may no longer carry heavy fuel oil on board.  Even more stringent standards are already in place within so-called Emission Control Areas.  For example, there is a 0.1% sulfur-in-fuel limit for vessels operating within the territorial waters of Canada, the continental U.S., Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. 

Annex VI also contains provisions for lowering NOx emissions.  Marine diesel engines above 130 kW installed on a ship constructed on or after January 1, 2011 must meet so-called Tier II standards, and such diesel engines installed on vessels constructed on or after January 1, 2016 and operating in the U.S. and Canadian waters described above must meet the more stringent Tier III standards. 

It is expected that most vessels will utilize lower sulfur fuel rather than employ scrubbers.  This move away from residual fuel oil (known as heavy fuel oil or HFO) toward low sulfur blended intermediate fuels and lighter, more refined grades will have another salutary effect – a reduction in the emission of black carbon, the sooty material resulting from incomplete combustion of fossil fuel, which comprises a significant portion of particulate matter, an air pollutant.  And while black carbon has a lifetime of only days to weeks after its release into the atmosphere, its warming impact on climate, per unit of mass, is 460-1,500 times stronger than CO2.

In 2018 the IMO adopted an initial climate strategy targeting a 50% reduction in GHG emissions by 2050 from 2008 levels through a mix of proposed measures ranging from efficiency improvements to existing vessels, speed reductions, use of lower carbon fuels, methane and VOC emission controls, national action plans, and GHG reduction initiatives implemented at ports.  While black carbon is estimated to account for 7%-21% of the overall climate impact of international shipping, this initial strategy does not include any specific measures for reducing black carbon emissions.  However, an IMO subcommittee is now considering what action might be undertaken to address this pollutant beyond the ancillary effect of the new sulfur standard. 

One particular concern is the increased shipping anticipated in Arctic waters as ice recedes, and the deleterious impact of black carbon emissions from an increased number of vessels plying those waters.  Indeed, the impact of black carbon emissions is specifically noted in Par. 70, ANNEX 2, of the IMO Note regarding adoption of its Initial Strategy.   

A new ball game – or at least the warm-up for that game – is about to commence where various measures to control black carbon emissions will be tossed out for consideration.  While the winning strategy is expected to be several years in the making, one proposal garnering interest is the mandated use of distillate fuel in lieu of HFO, which can be paired with mandated use of diesel particulate filters to remove most of the black carbon.  But this strategy will be costly and may not make it to first base.  Consequently, in the inimitable words of Yogi Berra: “It’s tough to make predictions, especially about the future”.

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

Posted on October 31, 2019 by Seth Jaffe

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

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

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

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

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

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

I have previously speculated, in connection with matters ranging from BLM standards for methane emissions on federal lands to the EPA/DOT decision on CAFE standards, that, if this administration consistently flouts the scientific consensus on appropriate regulatory standards, then, at some point, courts will stop deferring to agency “scientific” conclusions.  I now wonder whether the PM2.5 rule will be the breaking point.

It’s still more likely that a court would simply rule within the confines of existing jurisprudence that a decision by EPA to retain the current PM2.5 standard would be arbitrary and capricious, even given traditional deference.  However, I wouldn’t rule out the possibility that a court will at some point conclude that the administration has forfeited the deference it would otherwise have gotten.

When agencies just make up the science, Chevron seems almost beside the point.

Someone Left the Cake Out in the Rain: The Dissolution of Cooperative Federalism in the Trump Era

Posted on October 30, 2019 by Vicki Arroyo

The Trump Administration’s recent lawsuit against California’s climate change policies has cast a spotlight on a stark and troubling reality.  U.S. v. California is just the latest salvo in a sustained, direct assault by EPA and the Administration on the bedrock principles of states’ rights and “cooperative federalism.” An assumption that states will work together with the federal government to solve our most pressing problems is a crucial element in many of our environmental laws, including the Clean Air Act and the Clean Water Act. 

Cooperative federalism has been described as a “marble cake,” blending the rights and responsibilities of government entities at all levels. Together, those at different levels of government can accomplish more than any one level could do alone to advance public policy goals and protect the public, while enabling states and local communities to tailor the particulars to meet the needs of their constituents.

Since its founding in 1970, in both Republican and Democratic administrations, EPA faithfully followed this powerful approach to address threats like hazardous air pollution. Even during the turbulent Reagan era, when I was a career official in the EPA Office of Air and Radiation and federal action on air toxics was painfully slow, we not only allowed states to regulate beyond federal minimums, we actively    encouraged their actions. States were closer to those affected by pollution and helped make up for slow federal progress on air toxics standards.   

In fact, frustrated by the lack of progress, I left D.C. to help draft and enact legislation in my home state of Louisiana that cut air toxics emissions by half in just four years. My former colleagues back at EPA continued their work on the 1990 Clean Air Act Amendments signed into law by President George H.W. Bush, and were able to implement regulations requiring the use of advanced technologies to reduce air toxics and apply a “residual risk” assessment. Together, state and federal action delivered major cuts in pollution that causes cancer, miscarriages, and other serious health problems.

Now we face an even greater planetary threat—climate change—and state action has been one of the few bright spots in an overall grim U.S. policy picture. Thirty years ago, when I represented Louisiana Governor Buddy Roemer on a bipartisan National Governors’ Association (NGA) task force on climate change, we recognized the importance of national and global action. We also saw major roles for states in areas like electric power and transportation, where they hold significant authority over planning, investment, and regulation. 

Where the federal government has largely dropped the ball on climate law and policy, states and cities from across the U.S. have stepped up to the plate. They sued EPA (successfully) to force regulation of carbon dioxide using Clean Air Act authority in Massachusetts v. EPA, and (unsuccessfully) to hold major polluters responsible for damage to their jurisdictions in Connecticut v. AEP. Meanwhile they moved forward in their own jurisdictions to promote clean energy, cut greenhouse gas emissions, and to respond to the impacts of climate change.   

State action has been impressive and bipartisan, exemplifying Supreme Court Justice Lewis Brandeis’s description of states as the “laboratories of democracy.” The Regional Greenhouse Initiative, embraced by nine states in the Northeast, many with Republican governors, has successfully cut emissions from power plants and strengthened the clean energy economy. In California, Republican Governor Arnold Schwarzenegger and the legislature created a cap-and-trade program to limit carbon emissions that has been extended and strengthened over time.  Most U.S. states have mandated utilities to integrate clean renewable power into their resource mix, and many have taken on increasingly ambitious targets, through robust and enduring policies that have been widely supported.

Meanwhile the federal government has utterly failed to do its part. Three decades ago when I first learned about global warming through that NGA task force, I never would have predicted that the lack of a strong national and international response would allow carbon dioxide levels to soar to 410 ppm from the preindustrial level of 280 ppm, bringing rapid and devastating consequences in a generation. Even harder to imagine would be an Administration like the current one taking a wrecking ball to crucial progress at the federal level—in particular, the Clean Power Plan and the national clean car standards.   

But now it gets even worse. The Trump Administration, not content to undermine U.S. leadership and the Paris Agreement, is hell bent on attacking any state that does not share its climate-denying, pro-fossil fuel agenda. The federal attacks on the California-led greenhouse-gas emissions standards for autos (embraced by 15 states representing nearly half the U.S. economy), and now on California’s cap- and-trade program are assaults on all of us, and make a mockery of the GOP’s espoused fealties to states’ rights and cooperative federalism.

The Administration claims that California is unlawfully acting like a national government by working with Quebec on a linked trading system that crosses state and national boundaries. But the program is designed so that each jurisdiction operates independently yet recognizes the others’ allowances through the “Western Climate Initiative” as broader trading systems yield greater opportunities for cost savings.  Subnational governments across the U.S. and beyond routinely collaborate and cooperate across areas of policy, trade, and commerce without harassment by our federal government:  think of the ubiquitous trade missions by governors and their counterparts from around the world.  Consider as well cross-border collaboration on important sectors like transportation – e.g., through joint efforts on electric vehicle charging networks and other infrastructure, including bridges and related tolling arrangements.

I can only explain the Administration’s motivation to attack this arrangement that has been around since 2013 as a spiteful desire to quash any successful effort to address climate change in the “marble cake” of government.  This Administration’s actions bring to mind the lyrics to the song, MacArthur Park: “I don’t think that I can take it, ‘cause it took so long to bake it, and I’ll never have that recipe again, oh no!”  Oh no, indeed.

COAL

Posted on October 8, 2019 by Donald Stever

My blog posts have, in the past, largely focused on this or that regulation or some legal development or other dealing with chemical regulation or environmental statutes or rules in general. This one is different.

I grew up in Pennsylvania coal country. Well, actually on the border between the coal mines on the Piedmont Plateau (CO2 precursors) and the big dairy farm (methane emitters) region in the wide valleys that stretched along the Allegheny Mountains. My father was a veterinarian. As a kid I was his unpaid assistant. One vivid childhood memory I have is of going down into a deep shaft coal mine with my father; I lay on my back in an electric rail car, traveling nearly a mile into the earth where my father was called to treat an injured mule. You see, mules pulled the coal cars from the active extraction shafts to the main mine shaft. Oh, and the mules were blind. They were blinded intentionally because (a) there was no light anyway and (b) they learned to know the labyrinth by senses other than sight. Then there was the coughing. The mules coughed. The miners coughed. All were covered with coal dust. My father returned to the mine from time to time. I demurred.

Which brings me to my point. When I retired from my full-time litigation-heavy law practice I started to read books, a pastime that I had largely been denied for lack of time during the fifty-odd years of environmental law practice. Not pulp novels. Mostly not “best sellers.” Nope. I read science-based books, many of which address the environment. Two of these dealt in part with the subject of coal.  Peter Brannen, in The Ends of the World: Volcanic Apocalypses, Lethal Oceans, and Our Quest to Understand Earth's Past Mass Extinctions, neatly explains the primary cause of the last five extinctions of nearly all life on Earth, discernable from analyses of geologic strata. The culprit? Carbon dioxide emitted by the combustion of coal (fossil vegetable matter accumulated over eons of time) caused by massive flows of volcanic magma which ignited enormous coal deposits, which in turn heated up the atmosphere, which in turn heated up and acidified the oceans. So, burning coal pushes carbon dioxide into the atmosphere, which traps solar heat, heats up the earth and oceans and every complex living thing (or almost every living thing) dies.

Sound familiar? In his most recent book, Falter, Bill McKibben points to irrefutable scientific analyses concluding that human combustion of coal and its cousin oil, abetted by human agricultural emissions of methane, is on track to raise carbon dioxide levels in the  atmosphere to a concentration that is higher than the carbon dioxide levels that triggered all of the prior mass extinctions.

I have to ask: are the Trumps and the Wheelers and the McConnells and their counterparts in Asia and South America who simply deny the obvious consequences of their refusal to deal with the issue of runaway combustion of fossil carbon unable to read? Obviously, they can read, but I dare say that inability to read would at least give them an excuse for denying my three-year-old granddaughter a habitable planet on which to live.

Singer-songwriter and distinguished member of the New Hampshire Bar John Perrault perhaps says it best in his song, Carbon the Garden:

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

Oh, the oceans in the kitchen and the desert’s at the garden gate.

Song lyrics by John Perrault © 2013 John Perrault

SCOTUS Remands: Miles to Go Before I Sleep?

Posted on October 8, 2019 by Ed Tormey

As attorneys we are fascinated by U.S. Supreme Court cases, the ultimate jurisprudence in our country.  These decisions are analyzed, discussed and debated by legal scholars and practitioners alike.  What is often overlooked is the statement at the end of many of these cases: “we remand the case for further proceedings.”  While we have what we want from the case – Supreme Court precedent – the parties to the case still have a tough row to hoe working back through the federal court system.  It is worth asking what ultimately happened in those cases.  Who won?  After all isn’t the purpose of litigation to pick winners and losers? 

For curiosity’s sake I picked four Supreme Court cases where property owners and the federal government battled over WOTUS wetland jurisdiction issues under the Clean Water Act: Hawkes Co. v. U.S. Army Corps of Engineers, 136 S.Ct. 1807 (2016); Sackett v. Environmental Protection Agency, 566 U.S. 120 (2012); and Rapanos v. United States / Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006).  In each of these cases, the property owner was successful in having the federal government’s position remanded back to a lower court for further proceedings.  But did they ultimately win?  

The Hawkes case was brought by three peat mining companies who were seeking approval to discharge material onto wetlands located on property that the miners owned and hoped to mine.  The Supreme Court held that the Army Corps of Engineers’ jurisdictional determination was final agency action judicially reviewable under the federal Administrative Procedure Act.  After the Supreme Court decision, the case was sent back to federal district court for consideration of the Army Corps’ jurisdiction over the wetlands.  The district court held that the Clean Water Act was not applicable to the wetlands in question, and granted summary judgment in favor of the miners.  2017 WL 359170 (D. Minn.). The court went further and enjoined the Army Corps from ever exercising jurisdiction over the land.  So here we have a clear win for the property owners. 

In Sackett, the property owners discharged material into what the EPA claimed to be wetlands.  The EPA issued an administrative order requiring the Sacketts to restore and provide access to the site.  The Sacketts asked the EPA for a hearing, but that request was denied.  The Supreme Court remanded the case back after holding that EPA’s administrative order was effectively a “final agency action” and thus reviewable under the Administrative Procedure Act.  After a significant time gap, the district court granted EPA’s motion for summary judgment finding that the property in question was a WOTUS.  The Sacketts have appealed this decision to the Ninth Circuit Court of Appeals.  For now, we have a clear win for the government. 

The holding of Rapanos/Carabell is well-known for its lack of lack of clarity.  I will not attempt to add any more confusion.  What is pertinent here is that the case was remanded back for further proceedings to determine if two sets of Michigan property developers had WOTUS issues related to their planned development.  The first developer, John Rapanos, had backfilled three wetland areas without a permit.  EPA and Rapanos ultimately entered into a consent decree whereby Rapanos did not confirm or deny any violation of law but nevertheless agreed to pay a fine of $150,000.  In addition, Rapanos agreed to construct 100 acres of wetlands to mitigate the 54 acres he had backfilled.  Finally, Rapanos agreed to designate 134.60 acres of land as conservation areas protected under conservation easements.  As a settlement, neither side walked away with everything they wanted.  But I would imagine that the government is chalking this up as a win.

June and Keith Carabell were also litigants against the federal government after the Army Corps denied their request for a permit to develop a wetland adjacent to a drainage ditch.  After remand by the Supreme Court, it appears that the Carabells have not had any further conflict with the Army Corps and the court has closed the case.  But it does appear that the property owners may still want to develop the land.

There you have it.  Four cases with only one clear cut victory for property owners, despite promising holdings from the Supreme Court.  And in most of these cases, the Supreme Court’s involvement in the matter was far from the end of the litigation.  For example, in Carabell the matter is still outstanding thirteen years later.  In Sackett, it’s been seven years since the Supreme Court decision and the parties are still litigating this matter. In Rapanos, it took three years for the parties to settle the matter after the decision. 

So while we enjoy reading a SCOTUS opinion, we should remember that the parties’ involvement in that case is often far from over and far from a clear victory or defeat. 

The ACOEL Foundation - An Exciting ACOEL Relationship

Posted on October 4, 2019 by John Cruden

Co-authored by Jim Bruen

As you likely know, ACOEL has created a related but separate entity known as the ACOEL Foundation. This charitable, non-profit, tax-exempt foundation was inspired by ACOEL Fellows who saw a need for a non-political foundation to advance environmental and natural resource goals and objectives consistent with the mission and vision of the College.  Through the work of many, the Foundation has gone through the laborious but important transformation from inspiration to creation, to legal authorizations and finally, to implementation.  The Foundation was first incorporated in Delaware and by-laws were approved. Then, just last year the Internal Revenue Service approved our status as a 501c (3) organization. Because the home of the Foundation is the District of Columbia, we next had to gain the District’s approval to locate there and achieve tax exempt status.  Approval came this Summer. 

Once the Foundation attained the status of an approved charitable, non-profit ,tax-exempt organization, it proceeded to apply for written permissions from each of the thirty-eight states which require such approval before allowing charitable solicitations within their borders. Much of this year has been doing the laborious process of gaining such permissions.  Multiple forms had to be submitted, responses notarized, and explanations given.  As the current President,  John is pleased to report that we have the required permissions from all but one state (Virginia), and anticipate its approval in the near future.  We are therefore ready to proceed with the Foundation’s work. We will now be able to receive and utilize volunteer labor, such as law students, support overseas environment and wildlife programs, partner with other organizations to improve the environment, or fund studies of use to the profession.

The ACOEL Foundation is, of course, linked to the College.  The only member of the Foundation is the College, and they share most of the same leadership.  The President, however, is the immediate past president of the College.  John became the President at the annual conference in the Grand Tetons last October, and Allan Gates will become the President at the Williamsburg conference this October.  And, our first President, Jim Bruen, who set all of this in motion, remains an important part of the life of the Foundation.

Thus far the Foundation operates through grants from the College and a few significant donations by past and current Foundation leadership.  That money was vital to get us to where we are now, but we will clearly need more help in the future. We will soon be initiating a limited donor campaign, to obtain the resources necessary to give the Foundation the financial support so that it can operate effectively.

Our vision is that the Foundation will be initiating, supporting, encouraging, or partnering on environmentally significant projects in the future.  We will be able to do so independently, or in partnership with others.  While there are limitations on what we can do, either by the IRS, state laws or by our own desire to avoid any significant administrative overhead, we strongly believe that there is a great array of projects that we can do which will benefit the environment and natural resources.  The projects will be proposed by ACOEL Fellows,  will be reviewed in detail, and then submitted for approval to the Foundation leadership. At the annual conference John Cruden and Jim Bruen will provide a comprehensive update of the Foundation’s status and preview the type of projects that can be considered in the future.   We fully expect they will make a real-world difference.

If You Need the Money I’ve Got the Fine

Posted on October 3, 2019 by Kevin Finto

With apologies to Lefty Frizell, that is a terrible suggestion on how to fund environmental programs.  But, we need to figure something out.  As environmental lawyers, we spend a lot of effort discussing the substantive and procedure aspects of the statues and regulations that protect the environment, but little time on the appropriations bills that make them work.  We are all familiar with environmental regulations that have wide-scope, strict requirements, but inadequate funding for their implementation.  This deficiency results in the unintended consequences of providing a false sense of protection to the public and frustration to the regulated community. 

The problem is becoming more acute as political-based belt-tightening on environmental issues continues at the Federal level and directly affects budgets of the state environmental agencies, where most of the implementation occurs.  The Environmental Council of the States (“ECOS”) reported in 2017 that federal funding of state government programs declined by 2.5 percent between 2013 and 2015.  While some states were able to meet the short fall, many states, faced with ever-increasing demands for education, security and social welfare are not keeping up with environmental funding as their economies grow out of the great recession.  For FY 2020, EPA proposed a budget decrease of 31 percent.  Where this ends up is yet to be seen.  On September 26, ECOS sent a letter to EPA Administrator Wheeler, which did not expressly identify budget issues, but demanded a meeting to discuss “serious[] concern[s] about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.”

So what do we do?  I think three steps might be helpful.  First, there needs to be greater focus and participation on the budgetary process to evaluate the need, priority and allocation of available resources rather than simply updating a prior year’s budget.  I am suggesting reevaluation from the bottom up of many agency budgets by the regulators, lawmakers, the regulated community and environmental non-governmental organizations.  Of  particular concern is how agencies can meet basic long-existing requirements such as monitoring environmental quality and training of personnel while dealing with expenses of new requirements related to communicating through social media, data storage and cyber security.  The second is to evaluate the efficiency with which the agencies operate and to share best practices.  As documented by ECOS, in many instances, state agencies, in particular, have become increasingly efficient as they have had their budgets repeatedly slashed and cuts have been necessary in order to provide the essential services.  Third, there needs to be advocacy in Congress and our state legislatures, from relevant stakeholders –government agencies, the regulated community, and environmental non-governmental organizations. 

In some states, the latter has already occurred.  A good example is VIRGINIAforever, a unique, diverse coalition of businesses, environmental organizations, and outdoor enthusiasts that advocates for increased government funding for water quality improvements, land conservation and improved agency performance and funding across the Commonwealth.  It is the only statewide organization that has a primary focus on increasing funding for natural resources protection.  This has taken the form of collaborative and very active lobbying for adequate funds in the Virginia General Assembly to promote land conservation and water quality.

VIRGINIAforever representatives meet regularly with agency heads to discuss budgets.  It promotes activities to educate lawmakers on the importance of environmental protection and it lobbies for adequate funding.  It is in the process of releasing its latest five-year plan to obtain those resources.  The group also recognizes those who promote its goals.  For example, each year it holds a Bridge Builder dinner honoring those who work with both environmental groups, government agencies and the business community to promote land conservation and water quality.  By design, VIRGINIAforever also provides a forum for fostering relationships among those with diverse perspectives on environmental issues. In sum, if we want to promote sound and efficient environmental programs, we need to think not only about the substance and the procedure, but also identify and advocate for the sources of adequate funding.

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

Posted on October 2, 2019 by Kevin Poloncarz

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

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

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

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

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

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

Extending Fundamental Rights to Lake Erie?

Posted on October 1, 2019 by Steve Miano

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

Backdrop:

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

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

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

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

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

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

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

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

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

Good Sam: A Base Hit Not a Grand Slam

Posted on September 30, 2019 by Kevin Murray

Depending on your source, abandoned mine lands across the United States number over 100,000 sites. Some, but not all, pose a threat to human health and the environment. The magnitude of the issue engulfs the resources of federal and state agencies. Moreover, responsible parties are most often dead and buried companies, leaving the need for options outside of routine scenarios and traditional regulatory programs relying on viable responsible parties.

The need for otherwise non-liable parties to voluntarily agree to study and remediate troubled sites seems the most likely path to success. Industry and public interest groups alike are needed if the issue of abandoned mine lands is to be addressed. The Good Samaritan program was intended to encourage private voluntary action. While there are some successes to date, the program has not received a robust welcome but has struck-out for several reasons—most significantly the lack of statutory authority to legalize the program and the inability of current agreements to protect well-meaning Good Samaritans from increased environmental liability.

Recently legislation was proposed that attempts to address deficiencies in the program, starting from shoring up statutory authority under CERCLA and the CWA and continuing with the proposal of some new structural elements. In short, the new Act would create a Good Samaritan permitting structure. Good intentioned citizens, groups, and companies would apply for and obtain a Good Samaritan permit. The permit would outline the activities to take place with certain protections written into the permit. While the effort is not a home run, the Act goes a long way toward improving the program; however, many are fearful that several issues may still impede successful implementation of a robust program. To encourage Good Samaritans to step up and address abandoned mines without fear of uncertain liability, the Act would benefit from the following revisions:

  • To address liability concerns, a Good Samaritan willing to undertake remedial activities under a permit is pronounced via the permit to be in compliance with all requirements under CERCLA and the CWA. This is probably not enough. The Act will need to state that a party will not be considered a Potentially Responsible Party (PRP) under CERCLA nor will the party be subject to long term obligations under the CWA.
  • The mechanism for discontinuing operations in the event circumstances or facts are discovered that reduces the feasibility of the project or significantly increases costs is a positive development; however, it is unclear whether the permit will contain language similar to the current EPA Good Samaritan model Administrative Order on Consent (AOC) that empowers the EPA to expand or modify the scope of work. The historic AOC provision has been a significant impediment for industry participation. Simply put, many will remain unwilling to accept a permit that allows EPA to expand the permit scope of work. Certainty with regard to the nature of the work and a defined end point are critical.
  • The Act contemplates judicial challenge prior to permit approval. While this sounds like a good idea, it will serve to chill many from engaging in the process. The prospect by a Good Sam of investing significant administrative expenses that may then be met (or have the potential to be met) with significant legal and administrative costs and delays will discourage parties from engaging in the first instance.
  • The Act still contemplates long-term involvement through operation, maintenance and sampling.  While this might work on select parties, for most the perpetual involvement will signal the inning is over.

The success of the effort will depend on the language of the permit. If the permit borrows from or is based on the current Good Samaritan model AOC, the program will languish. The permit must offer clear and unambiguous liability protection, a thoroughly and accurately defined scope of work, and an exit point for a robust program. The private sector requires certainty of entry and exit, and the assurance that by engaging in a Good Samaritan activity, they will not be drug into decades of CERCLA actions.

Reflections on Becoming an Environmental Lawyer

Posted on September 27, 2019 by Robert Falk

Thirty years ago, I began practicing law and landed in the environmental field mostly by happenstance.  I had previously served as a manager with the federal government in the area of commerce and economic development.  I knew that my ability to tolerate a potential life in the law depended on finding a niche with a lot of interaction between government and businesses. 

Many environmental lawyers chose the profession because they were called to “the cause.”  I have found this to be true even if they ultimately practiced on the business/defense side.  Not so with me.  My field of choice within the law originally had nothing to do with the substance; it was all about the process and, more specifically, the intersections between law and policy, politics and economics, and legislation and adjudication. 

After finding my summer associate experience in traditional litigation and transactional work boring, I searched for a position in a “land use” practice.  I found a firm that had recently put its small land use practice together with a federal and state environmental law practice that it acquired from a local competitor.  I got an interview, tried to impress the attorneys with whom I met, got lucky, and received a job offer.

As I knew literally nothing about environmental law and, out of fear of starting my position with no relevant background, I enrolled in the only potentially relevant course offered in my then final semester at law school.  It was a seminar focused exclusively on the federal Clean Water Act.  It was there, largely at the hand of the late Joe Sax, with whom I argued incessantly about policy and politics while being taught how to read and understand the totality of an environmental statute, that I was first bitten. 

My appetite for this field only increased when I started working with two of the firm’s environmental law partners, Michele Corash and Barry Sandals.  I quickly came to appreciate their skill sets, reputations and prior experience at U.S. EPA and the Environment and Natural Resources Division of the Department of Justice. 

Michele and Barry took this unshaped lawyer mound of clay and began to mold me and fill the vessel.  While Sandals schooled me in the worlds of CERCLA and the litigation process, Corash took charge of the more general environmental education mission and opened multiple doors of opportunity.  (Brad Marten came into the mix a few years later as an officially-assigned mentor and proceeded to ply me with food and drink while indoctrinating me in his unique take on the world.)

One of the opportunities Michele gave me in 1991 was to assist her in organizing a conference focused on Asia for the ABA Standing Committee on Environmental Law.  Citing my pre-law experience in putting together such events for the federal government, Michele anointed me the “general manager” of the effort working with the ABA staff.  Environmental law thought leaders from a dozen Asian countries and a healthy gaggle of U.S. environmental lawyers came together for a few delightful days in then British-held Hong Kong where they started a dialogue about the importance of environmental law and enforcement in those emerging economies. 

At this conference, the parties recognized as a matter of stipulation that the United States was the primary inventor of the field of environmental law and its unparalleled leader and innovator.  The American environmental lawyers in attendance acknowledged their collective responsibility to continue to lead in the field.  And so we did, or attempted to do, if not for the love of our profession or country, for the love of our neighbors, our children and our planet.

I eventually became a “real” environmental lawyer thanks to the encouragement of leaders in the profession who taught me that through our work we could improve the planet.  Given how my journey started, I am saddened to see the United States retreat from its leadership position in the field.  But this trend can be reversed.  I look to the next generation of environmental lawyers to lead the way, and I ask my ACOEL fellows to join me in inspiring and mentoring these young lawyers.

A Green New York State of Mind

Posted on September 26, 2019 by Gail Port

In what has been heralded as a banner year in New York State for environmental legislation, the icing on the cake was the recent passage of the most groundbreaking climate action plan in the nation to date.  On July 22, 2019, Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA) into law.  The CLCPA sets an admirable, albeit aggressive, statewide framework to reduce net greenhouse gas emissions to zero by 2050. Notably, while setting ambitious goals to reduce greenhouse gas emissions from all anthropogenic sources, the Act also recognized that improvements to the State’s resiliency—that is, adaptation, to address those impacts and risks of climate change that cannot be avoided ( e.g., infrastructure hardening to withstand climate induced disasters) was also necessary.

In enacting the CLCPA, the State legislature touted New York as a leader, and the CLCPA as a legislative model, in the climate change arena:  “Actions undertaken by New York to reduce greenhouse emissions will have an impact on global greenhouse gas emissions and the rate of climate change.  In addition, such action will encourage other jurisdictions to implement complementary greenhouse gas reduction strategies and provide an example of how such strategies can be implemented.”  The CLCPA’s legislative findings proclaim that “[b]y exercising a global leadership role on greenhouse gas mitigation and adaptation, New York will position its economy, technology centers, financial institutions and businesses to benefit from national and international efforts to address climate change.”  Clearly, the CLCPA is viewed as a potential economic development engine that can “advance the development of green technologies and sustainable practices within the private sector, which can have far-reaching impacts such as a reduction in the cost of renewable energy components, and the creation of jobs and tax revenues in New York.”      

Recognizing that climate change “especially heightens the vulnerability of disadvantaged communities”, the legislature made environmental justice a cornerstone of the CLCPA by providing that State actions to reduce greenhouse gas emissions “should prioritize the safety and health of disadvantaged communities, control potential regressive impacts of future climate change mitigation and adaptation policies on these communities and prioritize the allocation of public investments” in those areas.  The CLCPA calls for the formation of a twenty-two member state panel, the New York State Climate Action Council, to guide the State in meeting its progressive goals.  The Commissioner of the New York State Department of Conservation and the President of the New York State Energy Research and Development Authority (NYSERDA) are to be the Co-Chairs of the Council, and the remaining members will be the heads of certain state agencies and appointees from the Governor (two “non-agency” expert members), and the leaders of the State legislature (a total of 8 members).

In essence, the details for putting in place the plan and to propose regulations and other actions required to implement the new law will be left to the Council. Once the Council is formed, it will have three years to come up with a final scoping plan--a specific proposal to recommend mandates, regulations, incentives, and other measures to ensure New York meets the lofty carbon neutral goals outlined in the CLCPA. To fulfill its legislative mandates, the Council will receive input from to be-created subject-specific Advisory Panels, comprised of experts on transportation, energy intensive and trade-exposed industries, local government, energy efficiency and housing, power generation, and agriculture and forestry, a Climate Justice Working Group, with representatives from communities bearing disproportionate pollution and climate change burdens and a Just Transition Working Group (chaired by the State Labor Commissioner and the President of NYSERDA) giving business leaders a seat at the table to advise on workforce development and training issues and business impacts arising from New York’s “new energy economy.” Time will tell whether this structure will result in “too many cooks in the kitchen” or will function as a “well-oiled machine”.

Here are some of the highlights of the CLCPA benchmarks:

·      By 2030, 70% of New York’s electric generation has to come from renewable sources such as wind, solar or hydropower and must reach 100% by 2040. (According to the New York State Department of Environmental Conservation, 23% of New York’s electric power currently comes from renewable sources—chiefly hydroelectric).  The CLCPA incorporates Governor Cuomo’s renewable energy goals for offshore wind, distributed solar, storage and energy efficiency.

·       New York will have to cut its total green-house gas emissions—from 1990 levels—by 40% by 2030 and 85% by 2050. The remaining 15% will have to be offset by reforestation, restoring wetlands, carbon capture or certain other green projects which will make the state carbon neutral by 2050.

·       The State’s load serving entities will have to procure at least 6 gigawatts of photovoltaic solar energy by 2025 and 9 gigawatts of offshore wind energy by 2035, and to support 3 gigawatts of statewide energy storage capacity by 2030.

·     To the extent practicable, disadvantaged communities are to receive 40% of the overall benefits of State spending on clean energy and energy efficiency programs, projects and investments in the areas of housing, workforce development, pollution reduction, low income energy assistance, transportation and economic development, with a floor of receiving at least 35% of those benefits. (The CLCPA defines disadvantaged communities as “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”)

In recognition of the fact that climate change presents an existential crisis that must be addressed without delay, the CLCPA sets an implementation timeline that also is very aggressive.

The most significant challenge to achieving the CLCPA’s bold directives is figuring out how it will be accomplished in practice. By establishing the Council, the State, prudently, will be engaging a wide-pool of talent tasked to come up with novel and practical approaches. Nonetheless, there are significant questions that, at least as of now, are unanswered. Investments in renewables, energy storage and power generation will be necessary and costly, especially considering the projected retirements of the New York nuclear fleet.  Where will those funds come from?  Powerful incentives will be required to push the private sector towards electrifying the transportation, residential, and commercial sectors—what will those incentives look like? Is the establishment of a State-wide carbon marketplace necessary and, if so, how will it affect the pocket book of New Yorkers?  And how will New York ensure that greening its economy will be good for its business community and not scare them off? Does the statute inadvertently inject too much uncertainty into the State’s economy?

With the Trump administration on a mad dash to roll back a number of regulations designed to address and mitigate climate change, New York has embarked on a praiseworthy plan to achieve aggressive goals to address the existential crisis of climate change. Sure, there are innumerable obstacles that need to be overcome and, yes, the specific action plans have not yet been conceived, but setting these goals—and ultimately making them enforceable—is certainly a giant leap in the right direction.  Kermit the Frog once said, “it’s not easy being green” —but sometimes doing what is hard is what is necessary.

NSR Regulatory Reform—the saga continues

Posted on September 18, 2019 by William Brownell

In 2002, EPA promulgated a Clean Air Act new source review (NSR) “reform rule” to clarify the confusion created by inconsistent guidance and judicial decisions on NSR applicability.  That clarification effort had only limited success, as inconsistent interpretations of the NSR applicability rules continued to emerge as those rules were applied by state regulators and courts.  In perhaps the most extreme example of regulatory confusion, a three judge panel of the Sixth Circuit issued five opinions with three different interpretation of the same regulatory language.  DTE I, http://www.opn.ca6.uscourts.gov/opinions.pdf/13a0080p-06.pdf.  DTE II, http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0006p-06.pdf.

The Trump Administration has embarked on a new clarification effort.  In what EPA’s Office of Air and Radiation dubbed a “singles and doubles” approach, EPA issued guidance and undertook rulemaking on key applicability issues, including emissions projections, emissions accounting, and project aggregation.  In conjunction with the Affordable Clean Energy rule, EPA then proposed a more fundamental change to the NSR applicability rules under which a project would trigger NSR only if it resulted in both an hourly and annual emissions increase.

That EPA is still struggling with clarification of its NSR rules two decades after it began a series of significant NSR enforcement initiatives illustrates how controversial this program has been and continues to be.  From an environmental standpoint, however, the NSR program has become less significant. Industrial sources are largely well-controlled for a variety of reasons other than NSR.  And in the electric utility sector, the steep drop in the price of natural gas has resulted in current or planned retirement of many coal-fired generating units.  As a result, there is little to be gained from injunctive relief even in a successful NSR enforcement action.

All of this says that there should be wide-spread support for EPA completing its NSR clarification efforts.  Regulated entities have every incentive to comply with NSR.  From the regulators standpoint, the limitations the Supreme Court put on regulatory re-interpretation in Kisor v. Wilkie, should create its own incentives for regulatory clarity.

Environmental Protection Is an Afterthought at the Environmental Protection Agency

Posted on September 17, 2019 by Seth Jaffe

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

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

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