Michèle Ma Belle

Posted on July 19, 2018 by Robert Falk

Michèle B. Corash, one of our giants of environmental law and my dear friend, mentor, and partner retired from active practice earlier this year.  She, her unique persona, and her achievements are well known to many, while Michèle’s other, quieter accomplishments, deeds, and attributes are likely known to only a few.  Because “these are words that go together well,” I will discuss just a small handful of her better and lesser knowns below.

As almost all of you may know, Michèle proudly served as general counsel of the U.S. Environmental Protection Agency from 1979 to 1982.  Prior to that she served as deputy general counsel for the U.S. Department of Energy, and, previously, was a special assistant to the chairman of the Federal Trade Commission.  (Since we shared a common initial job description in our federal government careers, in working together for almost three decades, one of Michèle favorite things to say to keep me on my toes was “once a special assistant, always a special assistant.”) 

As general counsel, Michèle, among other things, helped EPA give birth to CERCLA, as well as regulations implementing key provisions of RCRA and many of our other fundamental environmental statutes.  While her participation in the reach of our environmental laws is likely her more significant accomplishment, on the other side of the equation, she also served on then-Vice President George H.W. Bush’s Regulatory Reform Task Force, where she helped steer its recommendations to avoid the type of unconscionable approaches that we unfortunately witness all too often being undertaken by the current Administration. 

In her subsequent career in private practice, Michèle was widely recognized as a leader and innovator in environmental law.  She received the highest rating for environmental lawyers from Chambers USA virtually every year, and Legal 500 USA repeatedly ranked Michèle as a Leading Lawyer in Environmental Litigation.   On a wider stage, Michèle was listed in the Expert Guides to the World’s Leading Lawyers – The Best of the Best, and here on the “left” coast, California Lawyer also cited Michèle as one of the “Best of the West.”  (Perhaps of more significance to her personally, is that Michèle’s work was also recognized by The Los Angeles and San Francisco Daily Journal as having the “widest impact and is changing an industry or the law or the society as a whole.”)   

As many of you know, beyond her accomplishments in practice, Michèle was a founding member of the American College of Environmental Law and served as its President in 2008-2009 (culminating in a fabulous and still-remarked upon party in her penthouse condominium with its 360° view of San Francisco).  Prior to that, Michèle served on the ABA’s Standing Committee on Environmental Law and (after assigning me as a junior associate to be her special assistant for organizing it), chaired its International Conference on Environmental Law in Pacific Rim Nations in Hong Kong in 1991. 

Somewhat lesser-knowns about Michèle include her tireless promotion of women and diversity in the legal profession, in the business world more generally, and particularly within our firm.  (In addition to parties for ACOEL and many others, Michèle hosted current and former women attorneys and summer associates at a very well attended annual dinner at her home.)  Michèle also serves as a fabulous mentor to her nieces (who she regularly brought to work on Take Your Daughter to Work Day) and as a godmother to several close friends’ children.  As added evidence of her boundless energy, she has also been a longtime patron of the opera and remains an active member of the Board of the San Francisco Symphony. 

Although I could go on (and on) and tell you, many other things about what a wonderful mentor and friend Michèle has been over the years, instead, I prefer to conclude this serenade with Mr. McCartney’s lyrics:

Michèle, ma belle
These are words that go together well
My Michèle

Michèle, ma belle
Sont les mots qui vont très bien ensemble
Très bien ensemble

I love you, I love you, I love you . . . .

Fear of Forward Looking Statements: Climate Reporting and the TCFD

Posted on July 18, 2018 by Christopher Davis

Risks relating to climate change are becoming increasingly material to companies in a broad range of sectors, to investors who own their shares, to banks that lend to them, to insurers that insure them, to communities where they operate, and to regional and global economies. Climate-related factors including energy transition from fossil fuels to renewables, extreme weather events and water scarcity are having increasing impacts. As a result, climate-related disclosure has become a hot topic, or should be, as companies are required by the Securities and Exchange Commission (SEC) and other regulators to disclose their material climate-related risks.

In the wake of the 2015 Paris climate agreement, the Task Force on Climate-Related Financial Disclosures (TCFD) was created by the G20’s Financial Stability Board in 2016 to develop consistent, voluntary standards for companies, investors and insurers to report climate-related financial risks and opportunities. The task force was chaired by Michael Bloomberg, and comprised of 32 members from major global corporations, financial institutions, corporations, accounting firms, credit rating agencies and other organizations. The TCFD issued a final report presenting its Recommendations [insert link] for such disclosures in June 2017. The Recommendations have been endorsed by more than 250 companies, banks, institutional investors, insurers and other organizations.

The TCFD Recommendations focus on two kinds of financially material climate-related risks: transition (legal/policy, technology, market, reputation) and physical risks. They call for disclosures in four areas: (1) Governance of climate-related risks and opportunities, (2) Strategy for identifying and addressing climate-related impacts, (3)  Risk Management measures to assess and manage relevant risks, and (4) Metrics and Targets including reporting Scope 1, 2 and 3 greenhouse gas emissions and metrics and targets to measure and manage them.

While the TCFD Recommendations have garnered considerable attention and support, notably from institutional investors, relatively few companies have so far committed to report in accordance with the Recommendations. There are various reasons for this, including inertia, cost and advice from inside and outside counsel about the purported liability and competitive risks associated with the kinds of forward-looking statements called for by the Recommendations. Indeed, disclosures consistent with what the TCFD recommends would be much more substantive, revealing and useful than the generic boilerplate disclosures of climate and other environmental risks that commonly appear in SEC filings.

Corporate counsel often provide conservative advice on disclosures in SEC and other mandatory corporate financial reporting. Federal securities laws provide corporate issuers with safe harbors for forward looking statements (typically focused on projections of future financial results) where accompanied by meaningful cautionary statements. Also relevant here is the SEC’s 2010 “Guidance Regarding Disclosure Related to Climate Change,” which highlights mandatory reporting requirements under SEC Regulation S-K for financially material climate-related risks, including the impact of legislation or regulation, international accords, indirect consequences of regulation or business trends, and physical impacts.

While caution and risk aversion are hallmarks of typical legal advice, I would argue that good, thoughtful disclosures consistent with the TCFD Recommendations are likely to have a range of benefits to the disclosing companies, and limited risks. Doing the internal work across disparate corporate functions necessary to address the TCFD Recommendations will improve a company’s understanding and management of evolving climate-related risks and opportunities. Good, meaningful disclosures require homework that underpins good corporate governance, risk management and strategic planning. What gets measured gets managed, and the TCFD Recommendations call on companies to assess and manage climate risks and opportunities, and to report to stakeholders on how they are approaching these issues.

Companies responding in a timely and effective way to the accelerating economic and physical changes brought by climate change can be expected to have a competitive advantage over their peers that fail to do so. Likewise, companies that meaningfully and credibly disclose how they are responding to material climate risks and opportunities, as called for by the TCFD, should enjoy a competitive advantage over their competitors who do not. A range of stakeholders (including current and prospective customers and employees) are likely to respond more favorably to companies that make a good faith effort to comply with evolving best practice disclosure standards. The likelihood of being sued for securities fraud based on such well-grounded climate disclosure seems low. By contrast, the risks of successful claims of non-disclosure and misleading disclosure for companies that fail to meaningfully disclose climate-related risks affecting their business seem quite real, as suggested by the investigations of ExxonMobil’s climate-related disclosures. The market generally rewards leaders that, to paraphrase hockey great Wayne Gretsky, are skating to where the puck is going rather than where it has been, and are early responders to global megatrends like climate change.

ENVIRONMENTAL RIGHTS IN PENNSYLVANIA

Posted on July 13, 2018 by John Dernbach

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

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

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

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

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

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

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

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

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

CAFO Odors and the Ghost of William Aldred

Posted on July 10, 2018 by Susan Cooke

The number and size of concentrated animal feeding operations (CAFOs) have increased in recent years.  These operations keep large numbers of animals in a confined space and provide them with feed from offsite sources prior to their slaughter.  While generally viewed as cost efficient, CAFOs raise concerns about animal welfare and about their environmental impacts and effect on the health and quality of life for those living or working nearby.  Such concerns include the foul odors associated with the substantial quantities of animal waste that are generated, especially where such waste is discharged into pits and then flushed into open air lagoons.  The sludge in those lagoons sinks to the bottom and is periodically removed for land application and the liquid waste remaining at the top is sprayed as fertilizer onto adjacent fields.

The anaerobic reaction that occurs during pit and lagoon storage of the waste over an extended time period is the primary generator of such odor, the primary constituents being ammonia and hydrogen sulfide.  Anaerobic digesters and other technologies can be employed to reduce odor generation, with some also producing gases for fuel.  However, the costs of installing and operating such equipment can be substantial, and there are no specific requirements at the federal level mandating odor control or limiting ammonia or hydrogen sulfide emissions from CAFO operations.  Indeed, even the reporting of animal waste air emissions under the federal Superfund law and under EPCRA (as interpreted by EPA) is precluded under the Fair Agricultural Reporting Method (FARM) Act signed into law by Congress in March 2018

While there is little regulation at the federal level, some states have imposed limits on hydrogen sulfide.  For example, California has a one hour average standard and Minnesota has a 30 minute standard for H2S.  In addition, a few states have instituted odor standards covering some CAFOs, including Colorado’s odor standard, which is based on an odor dilution factor, for swine CAFOs above a certain size (i.e., the odor must be eliminated by a specified amount of dilution).  While most local ordinances covering odors enjoin nuisances in general, some have adopted a dilution factor standard that is generally applicable, such as the ordinance adopted in Denver, Colorado and that adopted in South St. Paul, Minnesota.

Even where CAFOs are singled out for specific regulation by state, the dilution factor standard is not often used, probably because it is in essence subjective in nature and thus quite different from most environmental emission standards.  Instead, states have generally adopted a management plan approach coupled with registration and periodic inspections.  For example, the environmental regulations covering odor control at CAFOs in North Carolina, which has a number of swine CAFOs in the southeastern portion of the state, do not include a specific standard covering odor.  Instead, those regulations impose setback requirements and provide for state agency inspections, and they empower that agency to require preparation and modification of a best management plan if it determines that odor control is necessary.

Given the absence of a specific standard for judging CAFO emissions, some neighbors of CAFO operations have brought tort suits for nuisance to address odor concerns.  In one case decided this past April, a jury awarded $50 million in compensatory and punitive damages to 10 neighbors of a North Carolina hog farm.  The plaintiffs claimed that the truck noise associated with farm operations and the odor associated with lagoon storage of waste from its 4700 hogs and the spraying of lagoon liquid onto nearby fields created a nuisance.

Although the federal court reduced recovery to $3.25 million under punitive damage limits imposed under the North Carolina Right to Farm Law, agribusiness interests raised strong concerns about the damage award and within weeks the North Carolina legislature had passed amendments to the state Right to Farm Law to further restrict tort recovery for alleged nuisances from agricultural and forestry operations.  Although those amendments (in Senate Bill 711) were vetoed by Governor Roy Cooper on June 25, the veto was overridden by both houses before their month-end adjournment.

The amendments, which are similar to statutory language already enacted in Missouri for facilities engaged in crop and animal production, would limit compensation to property located within one half mile of the alleged source of a nuisance at an agricultural or forestry operation.  In addition, the suit would have to be filed within one year of the operation’s establishment or of a fundamental change (which wouldn’t include, among other things, a change in ownership or size) to that operation, with compensatory damages limited to a reduction in fair market value of the plaintiff’s property for a permanent nuisance and to diminution in fair rental value for a temporary nuisance.  While punitive damages are already capped at a specified multiple of compensatory damages, the amendments would limit them to instances where, during the previous three years, the operation had been the subject of a criminal conviction or civil enforcement action or of regulatory action taken by the state or federal government pursuant to a notice of violation.

Such limits on monetary recovery for nuisance may encourage plaintiffs to seek injunctive relief to abate odors from CAFO operations.  And tort suits for nuisance animal odors have a long history, as evidenced by William Aldred’s Case dating back to 1610 where the Court of King’s Bench held that Mr. Aldred, whose house was situated within 30 feet of a later constructed hog sty, had a right to obtain abatement of the foul odor emanating from that hog sty.

In recent years the injunction remedy in a nuisance action has sometimes been disfavored, as illustrated in the Boomer v. Atlantic Cement decision where monetary damages were awarded rather than injunctive relief for operation of a cement plant.  There the court weighed the (lower) cost of compensatory damages versus the (significantly higher) cost associated with installing abatement equipment or requiring plant shutdown.  However, it now appears that determining “entitlements” under an economic efficiency analysis, such as that described in the oft-cited Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, is undergoing more critical academic scrutiny.

Moreover, animal welfare advocates, as well as those concerned about environmental justice or greenhouse gas emissions, and perhaps even property rights advocates, may add their own voices in support of the injunctive remedy option for stopping or curtailing CAFO operations.  If so, then the right of a landowner to quiet (and unscented) enjoyment of his or her property through an injunction, as enunciated by the King’s Bench more than 400 years ago, may prove to be the most effective remedy for those seeking to curtail CAFO odor emissions.

From Nairobi to Havana - the Initiatives of the International Pro Bono Committee

Posted on July 9, 2018 by James Bruen

A real world impact of the ACOEL comes, in part, from its international pro bono initiatives. The International Pro Bono Committee reports here on the status of these initiatives. They are generally driven by the 28 members of this committee. Geographically-oriented initiatives are managed by Committee vice chair David Farer (Cuba), Tracy Hester (India) and Jim Bruen (Africa).

Africa 

ACOEL has executed a Memorandum of Understanding (MOU) with the African Wildlife Foundation (AWF) to provide legal support to a series of wildlife and other natural resource protection initiatives. By mutual agreement, we have begun our collaboration with work in three of the eight areas of AWF-proposed collaboration. 

Through our standard staffing process (described in the “Reminder…” at the end of this blog), ACOEL Fellows Virginia Robbins and James Bruen have entered into individual pro bono engagement agreements with the AWF. To date, these engagement agreements provide for us (a) to participate in practical “on-the-job” training in Nairobi for prosecutors selected from Kenya, Tanzania, Uganda, Zimbabwe, Mozambique and South Africa; and (b) to assist AWF in setting up a new cooperative mutual-assistance association between these Prosecutors. Tracy Hester may also participate in a third task of providing advice and training on a new canine wildlife crime detection program.  Ginny Robbins and Jim Bruen may travel to Nairobi for the on-the-job training program as early as the end of July or early August 2018.  This schedule may slip further as it has done repeatedly in the past because of election unrest and scheduling issues controlled by the Kenyan government, but AWF seems ready to go. 

Cuba 

After 2016 and 2017 trips to Cuba, involving meetings with Cuban environmental and other officials involving Eileen Millett, David Farer, Mary Ellen Ternes and me, as well as speeches by David Farer and Mary Ellen Ternes at the prestigious annual scientific and technical forum, ACOEL and the University of Havana are now in the process of executing the College’s standard MOU to open opportunities for Fellows to teach US environmental law and related topics at the law faculty of the University of Havana.  ACOEL is also revising a proposed MOU to open opportunities for collaboration (to be negotiated) between individual Fellows and the Institute of Ecology, a part of CITMA, the Cuban equivalent of the US EPA. 

India

Through the efforts of Tracy Hester, he and I – on behalf of ACOEL -- have begun discussions with retired India Supreme Court Justice (and retired India Green Tribunal Chairperson) Swatanter Kumar to open pro bono opportunities for Fellows to work in India and, eventually, perhaps Pakistan, Bangladesh and Bhutan. The ACOEL Executive Committee has approved our selection of, and proposing MOUs with, qualified and underserved Indian environmental clients.  These discussions are ongoing.

Haiti

Through the efforts of Jimmy May, Tracy Hester and others, ACOEL has traveled to Haiti and completed discussions with Aristide University to allow interested Fellows to provide lectures on US environmental law to university law students.  The committee has not yet finalized arrangements for these lectures or posted these opportunities for review by the Fellows, because continuing civil unrest may compromise the safety of our participating Fellows and because governmental instability has fostered conditions which make the vitality of the rule of law uncertain. 

China

Through the contacts of Robert Percival (and after I joined Bob and his students on a great trip to China), ACOEL entered into a MOU with NRDC/Beijing. With a good number of  Fellows participating, we thereafter implemented a very effective pro bono program in China during 2014 and 2015. In 2016, China established a new law discouraging organizations like ours from conducting pro bono or other NGO work in China. Conditions may have improved just a bit since then. We are in communication with Bob and with Fellow Scott Fulton (who is also President of the Environmental Law Institute), to ascertain whether now is the time to attempt a renewal of our China pro bono work.

Peru

The National Judicial College contacted John Cruden and me last month to ask whether our Fellows would be interested in joining the faculty of a summer 2018 program in Peru to speak about “lessons learned” in the US about the practical enforcement of environmental laws. We reported this inquiry to the our committee and to the College’s Executive Committee and received enthusiastic interest. However, our follow-up communications to the Peruvians, through the National Judicial College, revealed that the judiciary there had run low on funding for the time being. But the Peruvians and the National Judicial College promised to come back to us on this when the initiative revives in the future.

A Reminder of How the We Open Opportunities for Fellows

Our committee actively (a) pursues and identifies qualified international pro bono clients, (b) negotiates standard form Memoranda of Understanding with them, (c) obtains a list of desired pro bono projects from each client, (d) advertises those projects to the ACOEL membership, (e) obtains the curricula vitae of interested Fellows, (f) sends those CVs to the prospective international pro bono client and (g) allows that client to select the Fellow(s) with whom it wants to work. The client and the individual Fellow then enter into individual pro bono engagement agreements. The ACOEL is NOT a party to any of those engagements. The ACOEL is solely a clearinghouse to match underserved clients with interested ACOEL Fellows.  The ACOEL does not practice law or provide legal advice to the international clients. The ACOEL does not contribute funds or provide loans or any other form of financial assistance to international clients. The ACOEL does not monitor the work of its Fellows in undertaking the work agreed to in their individual engagements with the international clients. But the ACOEL is delighted to receive reports of Fellows who have raved about the fun they have had, and the satisfaction they have received, in participating in these “give back” efforts.

Still No Judicial Remedy For Climate Change — Don’t Expect Advocates To Stop Trying

Posted on July 3, 2018 by Seth Jaffe

On June 25th, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change.  The more complicated answer?  Because AEP v. Connecticut held that the Clean Air Act displaces federal common law claims for greenhouse gas emissions in the United States and because claims with respect to sales by the defendants outside of the United States could not be addressed by a U.S. court without violating the presumption against giving extraterritorial effect to U.S. laws.

Here, plaintiffs seek to impose liability on five companies for their production and sale of fossil fuels worldwide. These claims — through which plaintiffs request billions of dollars to abate the localized effects of an inherently global phenomenon — undoubtedly implicate the interests of countless governments, both foreign and domestic. The challenged conduct is, as far as the complaints allege, lawful in every nation. And, as the United States aptly notes, many foreign governments actively support the very activities targeted by plaintiffs’ claims. Nevertheless, plaintiffs would have a single judge or jury in California impose an abatement fund as a result of such overseas behavior. Because this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil, we must exercise great caution.

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.  Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.

I couldn’t have said it better myself.  I’ve always thought that these types of suits are not the way to address climate change.  I’ve recently acknowledged that, if the current administration continues to rely on fake news to formulate its position on climate change, courts at some point might conclude that the exigencies of the situation require them to act.  For now, we haven’t reached that point, and I hope we never do.

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

As a follow-up to my earlier post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. 

The Dutch case is more similar to the Oregon children’s suit than Oakland litigation, because the Oregon case, like the Dutch case, is against the government, seeking further regulation, rather than against private parties, seeking damages.  All of these cases, though, present some of the same concerns regarding whether courts are the right place to make climate policy, as noted by the Dutch government spokesman, quoted in ClimateWire:

We also believe that renewable energy should be increased and CO2 emissions should be reduced, so this is really about something else: It’s about how the judge has intervened in something that’s [called] democracy, and actually democracy has been sidelined.

It would be nice if democracy could show a greater capacity for addressing climate change, but I still agree that sidelining democracy is rarely a good thing.  Of course, there are good scientific reasons why democracies don’t do so well at dealing with climate change.  Appeals to the courts may be unavoidable.

Florida Gets A “Do-Over”

Posted on July 2, 2018 by Karen Crawford

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“To Count or Not to Count, That is the Question”

Posted on June 28, 2018 by Jeff Civins

“To count or not to count”--greenhouse gas (“GHG”) emissions--was a question facing both the Bureau of Land Management (“BLM”) and the US Forest Service (“USFS”), in deciding whether to lease 13 parcels of federal mineral estate in Santa Fe National Forest in New Mexico for oil and gas production, and the federal district court in New Mexico, on an appeal of those agencies’ joint determination to lease those parcels.  The appeal, filed by plaintiff citizen groups, in San Juan Citizens Alliance v. United States Bureau of Land Management, No. 16-cv-376-MCA-JHR, D. NM (June 14, 2018), asserted a number of violations of the National Environmental Policy Act (“NEPA”) based on, among other things, the agencies’ alleged failure to take a hard look at direct, indirect, and cumulative impacts of oil and gas leasing.  The GHG emissions in question related to those that would result not from the production of oil and gas from the leases, but rather from the consumption of that production--and the resulting climate change impacts of those emissions.  The court answered yes to the question of whether to count those emissions, but its determination raised another question--what difference would or should counting those GHG emissions make.

Operating under a memorandum of understanding, the USFS and BLM jointly manage oil and gas leasing on federal forest land, with the USFS regulating the surface and the BLM, the subsurface.  The USFS identifies specific lands to be offered for lease; the BLM provides a reasonably foreseeable development scenario.  If the UFS consents to leasing, it may include conditions; BLM may then issue competitive leases.  The leases here were issued after protracted administrative proceedings, which included the USFS’s preparation of an environmental impact statement and supplement that supported the permitting of oil and gas leasing and which culminated in the BLM’s issuance of a Decision Record and Environmental Assessment approving the parcels for lease, which “tiered to” the USFS environmental studies.

Plaintiffs argued that the agencies “failed to take a hard look at direct, indirect, and cumulative impacts of oil and gas leasing” before making an irretrievable commitment of resources.  Regulations of the Council on Environmental Quality, at 40 CFR Part 1500, define the pertinent terms.

Direct effects” are “caused by the action and occur at the same time and place” while “indirect effects” are effects that “are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” A “cumulative impact,” on the other hand, is an “impact on the environment [that] results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency … or person undertakes such other actions.” “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 

BLM’s Decision Record explained that the agency was evaluating only GHG emissions associated with exploration and production of oil and gas (estimated to be 0.0018% of the US’s total GHG emissions), because the environmental impacts of GHG emissions from consumption of that oil and gas, e.g., refining and consumer-vehicle combustion, were not direct effects and neither were they indirect effects because production was not a proximate cause of GHG emissions resulting from consumption.  BLM argued, however, that emissions from consumption were accounted for in the cumulative effects analysis. 

The Decision Record explained:

The very small increase in [GHG] emissions that could result from approval of the action alternatives would not produce climate change impacts that differ from the No Action Alternative. This is because climate change is a global process that is impacted by the sum total of [GHG] emissions in the Earth’s atmosphere. The incremental contribution to global [GHG] from the proposed action cannot be translated into effects on climate change globally or in the area of this site-specific action. It is currently not feasible to predict with certainty the net impacts from the proposed action on global or regional climate.

The Air Resources Technical Report discusses the relationship of past, present and future predicted emissions to climate change and the limitations in predicting local and regional impacts related to emissions. It is currently not feasible to know with certainty the net impacts from particular emissions associated with activities on public lands.

The Air Resources Technical Report noted that the BLM did not have the ability to associate an action’s contribution in a localized area to impacts on global climate change,” but may do so in the future when “climate models improve in their sensitivity and predictive capacity.” 

In its review of the agencies’ record, the court noted “neither the Record Decision nor its tiered or incorporated documents estimate the potential greenhouse gas emissions from consumption of the oil and gas produced by wells developed on the leases, nor do they discuss the potential impacts of such emissions. “  The court concluded that the failure to estimate the amount of GHG emissions resulting from consumption of the oil and gas produced as a result of development of wells on the leased areas was arbitrary and required that BLM reanalyze the potential impact of such greenhouse gases on climate change in light of the recalculated amount of emissions in order to comply with NEPA.

For that reason, the court remanded the case to the BLM to address this error and to consider whether, based on that reanalysis, its mitigation analysis needed to be revised as well.  The court reasoned that GHG emissions from the consumption of oil and gas were an indirect effect that BLM should have considered, citing Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1374 (D.C. Cir. 2017), and found that BLM also did not adequately consider the cumulative effects of those emissions, together with other emissions.

The question raised by this case, and Sierra Club v. FERC, which the court cites, is how helpful the analysis of indirect and cumulative effects will be to the agency in its decision-making and could or should that analysis result in the selection of a different alternative or in requirements to mitigate. As a practical matter, given the global nature of the concern posed by GHG emissions and the relatively small contribution of the activity under review, is there an expectation that an agency will make meaningful changes in its decision-making as a result of any required reanalysis? So perhaps the question should be not whether to count or not to count, but rather, “What difference would or should counting make?”And, perhaps an even more salient question is, as a policy matter, should concerns posed by GHG emissions be better addressed through legislation and rulemaking rather than by imposing constraints on an ad hoc basis?

AND NOW FOR SOME GOOD NEWS

Posted on June 27, 2018 by Leslie Carothers

ACOEL blog readers sorry to see the U.S. retreat from international leadership on the environment may be encouraged to learn that, on the other side of the world, the government of China is determined to copy some signature U.S. strategies to accelerate pollution control in their country.  Specifically, the National People’s Congress enacted comprehensive revisions to its Environmental Protection Law in 2015, including provisions to increase public reporting of pollution releases to accompany many existing regulatory laws. The revisions, along with other recent legislation, also empowered public interest plaintiffs from non-governmental organizations (NGOs) registered with the government, as well as prosecutors to engage in aggressive public interest litigation, to enforce anti-pollution and clean up requirements.

Many countries have strong environmental laws, but most struggle to build and maintain effective programs to implement and enforce them.  For many years, China has stressed the overriding importance of economic and employment growth.  Provincial governments with major responsibility for enforcement have been measured on economic indicators and not by success in abating pollution.  But the growing level of public protest over worsening pollution and waste disposal practices has compelled the national government to add environmental performance to the priorities of provincial and local governments and to experiment with new legal tools to improve it.

The Environmental Law Institute is playing an important role with a Chinese partner, the China Environmental Protection Foundation (CEPF), in providing training to environmental lawyers and others from NGOs, as well as prosecutors and judges, to help educate them on the new Chinese laws and to share the U.S. experience with public interest litigation and statutory citizen suit provisions in environmental cases.  The impact of NGO and other citizen plaintiffs on implementing U.S. environmental law has been immense.  During the 1970s and 1980s, suits against companies where government had not acted against permit violations and suits against government for failure to meet statutory deadlines for other requirements channeled strong public pressure and achieved significant results. The most notable recent example is the petition by environmental NGOs, renewable energy firms, and states to require the U.S. EPA to make a finding that motor vehicle emissions of greenhouse gases could be “reasonably anticipated to endanger public health and welfare” under Title II of the Clean Air Act.   This lawsuit produced the Supreme Court decision in Massachusetts v. EPA, Massachusetts v. EPA, 549 U.S. 497 (2007), requiring EPA to make a finding whether or not an endangerment was presented.  The evidence, most people would agree, supported only one answer. The endangerment finding was made, upheld by the D.C. Circuit, Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (D.C. Cir. 2012), and left standing by the Supreme Court, which declined to review the finding.

The five workshops on public interest lawsuits organized by Tianjin University Law School, CEPF, and ELI have each assembled around 50 NGO staff, prosecutors, judges and other lawyers for three days of teaching on Chinese law by Chinese experts and officials and one day by ELI lawyers, including volunteers like me, and ELI’s Chinese- and U.S.-trained lawyer, Zhuoshi Liu, who also coordinates the planning.  Language challenges notwithstanding, I can attest that the Chinese participants show keen interest in the presentations and ask many thoughtful questions of the speakers.  It is too soon to know whether this new initiative to take more problems to court will succeed. Certainly, the Chinese plaintiffs do not yet have the body of public reports disclosing violations that made U.S. cases easier to develop, and they and China’s well-educated judges need greater access to scientific and technical support to find violations and order appropriate relief.  The NGOs could also use the help of private law firm lawyers in China willing to undertake cases pro bono as some do in the U.S.  In any case, it is exciting and encouraging to be able to work with dedicated Chinese lawyers and other professionals in the early stages of a serious drive in China to rank environmental protection much higher on the nation’s agenda and to gain clearer skies and cleaner land and water for its people.

DAVID AND GOLIATH AT THE CONOWINGO DAM

Posted on June 26, 2018 by Ridgway Hall

Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of its operating license from FERC under the Federal Power Act for 50 years. Section 401 of the Clean Water Act requires that any applicant for a federal license that may result in a discharge submit a certification by the state where the discharge will occur that the discharge “will comply with the applicable provisions” of the CWA, including water quality standards. The certification may include conditions and requirements, including monitoring and reporting, deemed necessary to ensure compliance. The certification becomes part of the federal license, and the licensing agency may not change it.

The facts in this case are unusual, and the outcome will likely be precedential. For decades, sediment has flowed down the 450 miles of the Susquehanna River from New York and Pennsylvania and accumulated in the reservoir behind the dam, trapping nitrogen, phosphorus, metals, PCBs and other pollutants along with the sediment,  Now the trapping capacity has been reached. Several times in recent decades severe storms have scoured out tons of this sediment and carried it over the dam and into the Chesapeake Bay 10 miles downstream, causing not just violation of water quality standards, but severe damage to oysters, bay grasses and benthic organisms.  In addition, the dam has blocked historic fish passage. Measures such as fish ladders and transportation have produced only modest relief. Since 2010 the entire Chesapeake Bay and its tributary system has been subject to a multi-state total maximum daily load (TMDL) for nitrogen, phosphorus and sediment, but at the time that was set, it was not anticipated that the Conowingo trapping capacity would be exhausted this soon.

On April 27, 2018, the Maryland Department of the Environment issued a CWA certification in which it determined that numerous conditions must be complied with by Exelon in order to reasonably ensure compliance with water quality standards. It requires, among other things, measures to ensure compliance with standards for dissolved oxygen (DO), chlorophyll-A (an indicator of algae), turbidity, temperature, pH and bacteriological criteria in the reservoir and downstream waters including the Bay, plus compliance with plans to protect various fish species, waterfowl and habitat. It also requires shoreline protection, removal of trash from the reservoir and a variety of monitoring programs.

Notably, to satisfy the DO standards, which are adversely affected by nutrients and are critical to aquatic life, MDE requires that starting in 2025 Exelon must annually reduce the amount of nitrogen in its discharges by 6 million pounds, and phosphorus by 260,000 pounds. Exelon can also satisfy this requirement by installing best management practices elsewhere upstream or paying $17 per pound of nitrogen and $270 per pound of phosphorus for any amounts not removed.

Exelon promptly filed a request for reconsideration and administrative appeal with MDE. It also filed a complaint in Maryland state court seeking a declaration that the certification could not be considered “final action” until proceedings before MDE were concluded, including Exelon’s right to an evidentiary hearing; an injunction against any consideration of the certification by FERC, and, alternatively, for judicial review. Exelon also filed suit in the U.S District Court in Washington, D.C., claiming that MDE’s certification exceeded its CWA authority and constituted an unconstitutional taking of its property, and seeking declaratory and injunctive relief.  See Exelon’s filings at here.

Among Exelon’s complaints is the fact that the certification would require it to spend vast sums to remove pollutants that did not come from its operations, but from upstream polluters. The fee equivalent of the nitrogen and phosphorus removals would amount to $172 million per year – far more than Exelon earns from the operation of Conowingo. An environmental impact statement had concluded that efforts to remove the sediment from behind the dam “would be cost-prohibitive and ineffective.” Releases from the dam, Exelon contends, are not “discharges” but “pass-through.” Exelon also argues that fish passage damage was caused decades ago and it would be unfair to make Exelon bear the full cost of restoring it.

Some environmental groups have joined the administrative appeal process.  Stewards of the Lower Susquehanna and Waterkeepers Chesapeake (a group of 18 Waterkeeper organizations in the Chesapeake Bay watershed) appealed to MDE asking that protection against scouring by big storms be strengthened and that likely effects from climate change be considered, but otherwise supporting the certification. The Nature Conservancy and the Chesapeake Bay Foundation, both with longstanding interests in water quality and restoration of the fisheries and fish passage, have also been actively involved.

The stakes are high. MDE, “David” in my title, has taken some bold measures to address some enormous problems, and Exelon is fighting back hard. However it comes out, the resolution will have precedential value for other CWA 401 cases across the country, and particularly for hydroelectric projects.

HOW WILL WE COPE WHEN DAY ZERO ARRIVES IN A U.S. CITY?

Posted on June 21, 2018 by Eileen Millett

While those of us here in the northeast have been wringing out soggy clothing, using umbrellas as an essential feature of our wardrobes, praying for sun, and genuinely wondering if the long hot days of summer will ever truly be with us, residents of Cape Town, South Africa are experiencing the opposite dilemma.  Although recently the situation began to improve, Cape Town is suffering through one of the longest and driest spells in its history, and could be the first major city to run out of water.   They could come face to face with Day Zero when no water comes from the taps.

Cape Town, named one of the world’s best places to visit by the New York Times and Britain’s Daily Telegraph, is Africa’s third main economic hub, and until the gold rush development of Johannesburg, was the largest city in South Africa. It is alive with multi-million dollar beach front homes, art museums and two of the world’s top 50 restaurants.  The city could now have another distinction.  Despite reducing its water use to half, announcing three new desalination plants, and residents taking 90-second showers, it will take years to normalize  the extended drought its residents have suffered through.   Cape Town is suffering from a three-year drought the likes of which haven’t been seen in a century, as the city has become warmer and drier.

We take water’s existence for granted.  When we turn on the tap, it better be there, and it better be drinkable.  Water quality and less water quantity have been front and center in deliberations about water management.   Flint, Michigan brought us to the battle zone at the mouth of the Flint River, and demonstrated the ramifications head-on of high levels of lead in drinking water.  Lack of proper treatment, exposure and yes, environmental justice issues were at the fore.  Obviously, we care about what is in our drinking water, but we don’t give much thought to whether or how much water is readily available.  Little has prepared us for the day when the amount of water flowing from our faucets will be limited to a few hours a day, if even we have access to water at all. 

Not so the case in Cape Town, South Africa, a coastal paradise, responsible for 10% of Africa’s GDP, where residents have been living with the ramifications of severely limited supplies of water, and where this thriving metropolis of 4 million is poised to become the first major city in the world to completely run dry.   They have little choice but to prepare and to live with the crisis.  Can we afford to dismiss Cape Town as an outlier or should we be preparing for a Day Zero closer to home?

Population growth and urbanization, combined with drought, a natural climate phenomenon or a feature of climate change, depending on your point of view, has pushed Cape Town to a 2019 Day Zero countdown clock, but has not resulted in its being able to avoid Day Zero entirely — a day when the doomsday scenario occurs and the taps run dry.  Earlier this year, Day Zero had been predicted to fall on May 11, 2018, the day when taps in all homes and businesses would be turned off, and when Cape Town’s 4 million residents would have had to line up for water rations.  Cape Town residents are now forced to subsist on 13 gallons of water a day.  Exceeding the daily water limit results in fines.  Residents and tourists alike are implored to recognize the water crisis and to conserve.  This means taking extreme measures on a daily basis, like taking 90-second showers, drinking a half gallon of water, utilizing only one sinkful to hand wash dishes or laundry, having water for one cooked meal, two hand washings, two teeth brushings and one toilet flush.   The 13-gallon limit is less than the minimum U.N. daily recommendation for domestic needs.

Tragically, Cape Town’s looming problem might have been avoided if only there had been better planning, better crisis management and no drought.  To be fair, Cape Town did undertake a program to fix old and leaky pipes, to install meters and to adjust tariffs.  The city did not, however, look for new water sources.  Cape Town depends on water from six dams that are rainfall dependent, and now stand at just over 25% of capacity.  Depending on these dams as a limited source has been exacerbated by the city’s population growth swelling by upwards of 30% in the last decade, with most of that growth in the city’s poorer areas that actually consume less water.  And therein lies one of the realities of South Africa’s sad apartheid legacy — extraordinary inequality and concentrated wealth and privilege.  Folks in the more affluent area of the city can access privately maintained water tanks and pools for their water needs.  Pools provide a built in bathing option and an emergency water supply.

With only about half of the residents reaching the 13 gallon a day target, most consider a shut-off inevitable.  It is not a question of if, but how the city will make water accessible and prevent anarchy.  In poorer parts of the city, people share communal taps and carry water buckets to their homes.  With the clock ticking, Capetonians are sharing water-saving tips — don’t boil food, bake it or grill it; use paper plates; order pizza and eat it from the box; use water collected from showing to wash clothes, use grey water to flush toilets, and more.

Recent rainfall in Cape Town will help to normalize the situation, but the city has not averted the crisis.  Closer to home the condition of the Rio Grande in New Mexico reflects a broader trend in the west, where greenhouse gas emissions have made wet years less wet and dry years even drier.   So although conservancy districts store water in reservoirs, once that water is drained, if there are no summer rains, farmers will face an uncertain future.  Despite the northeast’s rainy spring and general good fortune with water reserves, there are lessons to be learned from our neighbors to the west, and very far south on a different continent.

Places

Posted on June 20, 2018 by Jonathan Z. Cannon

On vacation on Sanibel Island, FL, three hour’s drive from the central Florida town I grew up in, I’m thinking about place.  When I vacationed here as a child, Sanibel was a sleepy island, with primitive bungalows for tourists, insatiable hordes of mosquitoes, mephitic drinking water, and glorious shell beaches, refreshed daily by the tides. Like most of Florida’s West Coast, Sanibel has undergone a sea change since then, transformed into a high-end resort community with luxury accommodations and expensive homes – and, yes, points of public access to the beach. There’re fewer good shells, because so many more people are hunting them.

A visitor from the early days might say the island had been spoiled, but in fact people who cared about Sanibel and its sister island, Captiva, worked to protect it even as it morphed under intense development pressure. The local land trust, the Sanibel-Captiva Conservation Foundation (SCCF), begun in 1967 with the first flush of the modern environmental movement, is the largest private landowner on the islands and manages over 1200 acres of conservation lands on Sanibel and another 600 on Captiva. That’s in addition to the conservation lands managed by the State of Florida and the U.S. Fish and Wildlife Service, which include the 6400-acre J. Ding Darling Wildlife Refuge. Established in 1945, through the efforts of J.N. “Ding” Darling, a Pulitzer-prize winning political cartoonist and conservationist who kept a winter home on Captiva, the refuge protects a part of “the largest undeveloped mangrove ecosystem in the United States” and “spectacular migratory bird populations.”

We all live in places, vacation in places; we care about them –their people and their nature. There are over 1300 active land trusts in the United States, most of them local or regional. These organizations protect and manage over 56 million conservation acres largely though private donations.  Local governments protect additional land through easement acquisition programs, open space zoning, and protections for ecologically sensitive areas. These actions go on largely under the radar of the divisive politics that infects national environmental and natural resource policy. There are still conservatives and liberals, Republicans and Democrats in these local settings, but they are joined by a common interest in their place – the qualities that make that place worth living in for everyone.  This common commitment is more elusive at larger geographic scales, where red and blue segregate along lines of rural/urban, coast and heartland.

The power of place to mobilize action to protect and defend is no panacea for environmental ills. Rootedness in place can cause people to overlook the larger consequences of their actions, as in NIMBY cases. It also may fail to be an effective motivator for addressing issues at larger scales, such as climate change. But there’s evidence that politically diverse communities that are seeing the effects of global change, such as cities and counties in Southern Florida, are moving toward meaningful climate change policies – with both adaptation and mitigation components. A common threat to “home” might help lift even climate change into the realm of common commitment.

Big Tribal Victory in Culvert Case, Big Implications for Taxpayers

Posted on June 13, 2018 by Rick Glick

On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.

The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.

The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.

A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?

The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."

Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.

The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Ending Secret Science or Censoring Science?

Posted on June 7, 2018 by Chester Babst

On April 30, 2018, EPA issued a Notice of Proposed Rulemaking entitled “Strengthening Transparency in Regulatory Science.” Although EPA’s stated intent is to increase transparency and public confidence in the Agency’s regulations, a number of its critics have described the proposed rule as “exquisitely opaque,” “vague,” and “lacking data transparency.” Even supporters of the proposed rule seem to recognize that it may need some work before it is issued in final form.

Critics of the proposed rulemaking argue that some scientific studies cannot be released publicly because they may include personal health information and identifiers or they may involve trade secrets.  Proponents of the proposed rulemaking note that the proposed rule allows EPA to make studies available in a manner that protects privacy and confidential business information. However, it does not provide how this would be accomplished. If personal identifiers could be redacted from studies examining health effects, who would perform this data removal and who would pay for the costs associated with this removal? Proponents also note that the proposed rulemaking would give the Administrator the power to grant exemptions to these disclosure requirements if the Administrator deems it impractical or not feasible to release the research in a manner that protects privacy and other private interests, but critics are concerned that the proposed rule does not provide what factors would govern this type of discretionary exemption.

Although the concept that environmental regulations should rely on data, information and methods that are publicly available and sufficiently transparent to meet a “standard of reproducibility” is laudable, the initial reactions to the proposed rule suggest that finding a path to that end will not be easy.

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate? 

From Graduation to Earth Day

Posted on May 31, 2018 by Charles F. Becker

“Ben, I just want to say one word to you. Just one word.”

                        “Yes, sir.”

“Are you listening?”

                        “Yes, I am.”

“Plastics.”

                        [Pause] “Exactly how do you mean?”

“There’s a great future in plastics. Think about it. Will you think about it?”

                        “Yes, I will.”

“Enough said. That’s a deal.”

The Graduate - 1967

Mr. McGuire’s sage advice to young Ben Braddock advanced an era of plastics that continues to this day. Once considered to be a miracle product, it is not possible to avoid it in everyday life—it is everywhere, in one form or another. Yet, as we now know, plastic presents certain environmental problems – it won’t go away and there is a lot of it:

The focus of Earth Day 2018 (April 22nd) was on plastic — educating everyone on the environmental impact of plastic disposal.  Education is always worthwhile, but it isn’t as though we don’t know the dangers.  Moreover, this is a world-wide problem, with China being the major contributor and the U.S. a distant 12th.  So what is the solution?

One possibility is to use less plastic.  That could be by governmental mandate, business choice or societal shaming.  But if history is a teacher, “just say no” will not work. Plastic production has increased steadily at a compound average growth rate of 8.4% per year since 1950.  As of 2017, we have created 6.3 billion metric tons of plastic waste; by 2050, that figure is expected to be 26 billion.  

Perhaps we could use a biodegradable form of plastic—something that will break down in the environment. Regrettably, business hasn’t shown much interest.  Capacity for such production is less than 0.2 percent of petrochemical-based plastic.

Recycling is perhaps the most commonly suggested solution. But with decades promoting the recycling of plastics, it is still the case that at least 85% of all plastics are not recycled.  Further, a recent study on recycling plastic into clothing indicates we may actually be making the situation worse by causing the shedding of micro-fibers of plastic that get to waterways.

So is all lost? Scientific ingenuity—and some luck—tells us no.

Like the discovery of penicillin, x-rays, and plastic itself, it may be that the solution has been stumbled upon by accident. In 2016, a Japanese team identified a plastic-eating bacteria as a possible natural solution to plastic pollution. In 2018, while trying to reproduce the results, a team from the University of Portsmouth accidentally created a more potent form of the released enzyme.  The enzyme breaks down the plastic to its original building blocks. It may even be possible to spray it on huge floating plastic ocean islands to break up the material. 

Is this the silver bullet we need?  It appears promising, but research is ongoing.  We can only hope it turns out to be the solution because the alternatives seem to be the equivalent of stopping a freight train with a pillow.

As a postscript, I should give time to another view – let nature take its course.  George Carlin figured it out when he said:

The planet will be here for a long, long, LONG time after we’re gone, and it will heal itself, it will cleanse itself, ’cause that’s what it does. It’s a self-correcting system. The air and the water will recover, the earth will be renewed. And if it’s true that plastic is not degradable, well, the planet will simply incorporate plastic into a new paradigm: the earth plus plastic. The earth doesn’t share our prejudice toward plastic. Plastic came out of the earth. The earth probably sees plastic as just another one of its children. Could be the only reason the earth allowed us to be spawned from it in the first place. It wanted plastic for itself. Didn’t know how to make it. Needed us. Could be the answer to our age-old egocentric philosophical question, “Why are we here?” 

Plastic… a**hole.

I’m rooting for the enzyme.

Paving a Legal and Regulatory Path to America’s Clean Energy Economy

Posted on May 30, 2018 by Kenneth Berlin

A clean energy revolution is underway in this country, buoyed by market forces making renewable energy sources increasingly cost-competitive with fossil fuels. Wind and solar are now cheaper than coal and natural gas in much of the country, and their costs will continue to drop. This stunning decrease in the price of wind and solar generation has created a new paradigm in the energy industry.

Similarly, the cost of energy storage is falling fast, and batteries will soon eliminate – at fully competitive prices – the intermittency issues around wind and solar. Meanwhile, electric vehicles are projected to become both cheaper to purchase and cheaper to run than gasoline cars by 2025.

Despite these extremely favorable economic trends, legal and regulatory barriers that protect fossil fuels continue to slow the transition to a clean energy economy. Removing these obstacles is a critical step toward securing a clean, safe and prosperous future.

At the outset, new clean energy projects face potential challenges around siting and transmission, including permitting restrictions, utilities’ unwillingness to enter into the necessary contracts, and a lack of support from public officials.

Once a project has cleared those hurdles, additional legal, regulatory and policy barriers may remain. Some of the primary impediments include:

o   Non-existing, limited, or even preventative legal frameworks for independent power producers – like homeowners – to sell energy to utilities or third parties. These power purchase agreements are currently allowed in only 26 states, the District of Columbia and Puerto Rico.

o   Utility interconnection, or connection of home or commercial renewable energy systems to the regional grid, that may be limited or severely restricted by regulation or laws.

o   Lack of or insufficiently priced net metering policies that make renewable investments much less attractive. In 2016, for example, Nevada’s Public Utilities Commission (PUC) sought to triple fees for solar customers while at the same time reducing credit for net excess generation by approximately three-quarters. After pushback from solar manufacturers and installers, as well as the prospect of hundreds of solar jobs leaving the state, the PUC approved new rules, partially restoring the net metering rate.

o   Tariffs on components of renewable energy systems like those recently announced by the Trump Administration on solar panel imports.

These obstacles don’t even touch on the fact that fossil fuel companies are not held financially responsible for the global warming pollution they dump into our shared atmosphere, leaving everyday Americans to foot the bill for these extraordinary health and economic costs. They also don’t factor in the uneven playing field that well-funded lobbyists tilt in favor of the fossil fuel industry, including enormous government subsidies.

The good news is that many individuals and organizations are working to build the political support needed to remove these barriers, including my organization, The Climate Reality Project, and our Founder and Chairman, former US Vice President Al Gore.

With enough voices working together across many sectors, we can eliminate these challenges and allow market forces and popular support to usher in a new clean energy economy.

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Posted on May 29, 2018 by Seth Jaffe

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.  EPA said that they were.  However, the petitioners pointed to cross-sections in the record that showed a confining layer existed between the bedrock and overburden aquifers.  More importantly, the record showed that EPA did not even attempt to explain why the cross-sections did not undermine its determination.  That’s a no-no.  As the Court noted:

It was arbitrary and capricious for EPA to rely on portions of studies in the record that support its position, while ignoring cross sections in those studies that do not. … Although EPA ‘is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’

Counsel from DOJ tried to repair the damage in the litigation, to which the Court replied that:

These arguments come too late. We may only uphold a rule “on the basis articulated by the agency” in the rule making record.

Lesson for EPA?  Don’t ignore comments in the record – and don’t count on your lawyers to fill in the gaps.

Lesson for potential petitioners?  Make sure that the record looks as good as possible – and focus like a laser beam on EPA failures to respond to your evidence.

And who knew that there was a band called The Substantial Evidence?

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

If, as held by the Fourth Circuit in the recent decision in Upstate Forever v. Kinder Morgan,

  • A release from a point source to groundwater that reaches jurisdictional surface waters in measurable quantities is an unpermitted discharge in violation of the Clean Water Act, and
  • The unpermitted discharge is deemed to be “continuing” so long as the seepage through groundwater continues to add pollutants to jurisdictional waters, even though the discharge to groundwater has ceased

then, indeed, the potential for citizen suit liability has been vastly increased and, most troubling, the requirement for an “ongoing violation” has been significantly eroded.

The recent decision of Upstate Forever v. Kinder Morgan, L.P. (4th Cir. April 12, 2018), addressed a citizen suit arising out of a spill of gasoline from an underground pipeline. The pipeline operator repaired the pipeline shortly after the spill, implemented remediation and recovery measures required by state regulators, and recovered much of the gasoline from the spill site. NGOs brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the CWA. The district court dismissed the suit, finding that (1) the CWA does not regulate the movement of pollutants through groundwater, and (2) the alleged violation was not ongoing because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters.

The Fourth Circuit reversed on both points and allowed the citizen suit to move forward. The decision has two key holdings:

  • First, while acknowledging that the CWA does not generally regulate releases to groundwater, the Fourth Circuit panel held that discharges to groundwater with a “direct hydrological connection” to surface waters may be regulated by the CWA, so long as the  discharge results in pollutants reaching jurisdictional waters in “measureable quantities.”
  • Second, the Court found that the repair of the pipeline breach was not sufficient to render the alleged CWA violations “wholly past,” because the continuing seepage of gasoline was continuing to add pollutants to jurisdictional waters.

Assuming the majority opinion stands, the implications are very troubling.

The first holding makes even an accidental release to groundwater an unpermitted discharge under the CWA, if the pollutant makes its way to jurisdictional waters. This “groundwater as a conduit” theory, also adopted in County of Maui v. Hawaii Wildlife Fund, 2018 WL 1569313 (9th Cir. Feb. 2018), is the subject of much debate in the courts, in Congress and at EPA, which has solicited comment on the issue. 

The second holding is at least as problematic. Even assuming that the accidental discharge to groundwater was an unpermitted discharge to jurisdictional waters in violation of the CWA,    one must wonder how the party responsible could ever cut off liability. According to the decision in Upstate Forever, stopping the point source release and even remediation to state standards does not make the violation “wholly past.” Depending on the amount released, the amount remaining after remediation, the distance to jurisdictional waters, the soil characteristics, the speed of groundwater movement, and other factors, it is possible that the risk of citizen suit liability could continue for years—long after the incident has been corrected, repaired and remediated.

There is a strong, well-reasoned dissent that concludes that there is no ongoing discharge of pollutants from a point source because “the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Slip Opinion at 40. The defendant pipeline operator has filed a petition for rehearing and rehearing en banc, arguing that the panel decision is erroneous on both issues and emphasizing the inconsistency with Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

If it stands, however, the Upstate Forever decision could indeed create the risk of citizen suit liability almost “forever.”

TSCA Implementation: A Catalyst for Litigation

Posted on May 22, 2018 by Lynn L. Bergeson

Extensive revisions to the Toxic Substances Control Act (TSCA) were signed into law almost two years ago and the U.S. Environmental Protection Agency (EPA) has been extraordinarily busy implementing the many Congressional mandates set out under the law that amended it, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The new law was one of the last acts of Congressional bipartisanship and, given the rancor that is now rooted in our hyper-partisan Congress, agreement on environmental legislation this sweeping is not expected again anytime soon.

Unsurprisingly, the three core rules outlining critically important aspects of the revised law, referred to as the TSCA “framework rules,” have all been judicially challenged.  In August 2017, Safer Chemicals, Healthy Families and 11 other organizations sued EPA in the U.S. Court of Appeals for the Ninth Circuit challenging the Risk Prioritization and the Risk Evaluation final rules.  Other organizations similarly filed suit over the same rules in the Second Circuit (Environmental Defense Fund (EDF) in New York) and in the Fourth Circuit (Alliance of Nurses for Healthy Environments in Virginia).  The challenges to the Risk Prioritization rule were consolidated in the Ninth Circuit on November 27, 2017 (Safer Chemicals, Healthy Families v. EPA, Nos. 17-72260, et al.) and the challenges to the Risk Evaluation rule were consolidated in the Ninth Circuit on December 11, 2017 (Alliance of Nurses for Healthy Environments v. EPA, Nos. 17-73290, et al.).  Industry trade association and other chemical interests motioned to intervene in these challenges, which the Ninth Circuit granted.  The remaining framework rule, the Inventory Notification rule, was judicially challenged by EDF last September in the U.S. Court of Appeals for the D.C. Circuit (EDF v. EPA, No. 17-1201).  Industry trade groups and others have been granted leave to intervene in the case.

Of particular note is another challenge filed on January 5, 2018, by the Natural Resources Defense Council (NRDC) in the U.S. Court of Appeals for the Second Circuit (Second Circuit) of what it characterized as an EPA “final rule” that was released on November 7, 2017, titled “New Chemicals Decision-Making Framework:  Working Approach to Making Determinations under Section 5 of TSCA.”  The draft Framework Document, as it has come to be called, is the final rule at issue and was posted in EPA’s docket opened for comments related to its two TSCA public meetings that took place last December.  It is reasonable to assume that the Framework Document is decidedly not referred to by EPA as a final rule and was not published in the Federal Register as a final rule because EPA believes it is a document that outlines a “conceptual approach” to how EPA may go about making decisions on new chemicals.  The document appears in the “supporting & related material” section of the meeting notice.  EPA specifically states that the document, referred to as a “draft” in the Federal Register notice that announced the two public meetings, “outlines EPA’s approach to making decisions on new chemical notices submitted to EPA under TSCA section 5, as amended,” and includes EPA’s “general decision framework for new chemicals” and a breakdown of how EPA “intends to approach each of the five types of new-chemical determinations required under the statute.”

NRDC’s opening brief was submitted on May 1, 2018.  It is an excellent read on the topic of why NRDC believes the draft Framework Document is actually a final rule in disguise that EPA implemented without the requisite process required under the Administrative Procedure Act.

The law suit raises novel and interesting procedural issues.  Is the draft Framework Document a final, reviewable rule amenable to judicial appeal as final agency action?  If the Court chooses to address the substantive TSCA issues, a key one relates to how EPA interprets “not likely to present an unreasonable risk” in reviewing TSCA Section 5 new chemical notifications, and what exactly Congress meant by “the circumstances … under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  Is EPA misapplying the new language in Section 5 that NRDC claims is mandatory, or is EPA properly exercising its authority under Section 5 in identifying conditions of use as outlined in the Framework Document in conducting its Section 5 reviews?

These are hard questions and much depends on their outcome.  For TSCA new chemical aficionados, understanding “conditions of use” is the Holy Grail, and any judicial gloss a reviewing court offers is expected to have a profound impact on how EPA reviews new chemicals and, thus, how and when new chemicals will be commercialized in the U.S.

NOT VERY NEIGHBORLY

Posted on May 17, 2018 by Linda Benfield

Southeast Wisconsin’s continued relief from nonattainment rules is not assured yet. And did we mention we are about to build a large new factory just over the Illinois border?

Southeast Wisconsin labored under some form of ozone nonattainment status for 20 years – but in July 2012 the area was declared to be in compliance with the then-applicable 8 hour ozone standard. The region has enjoyed five years of relief from the enhanced permitting, emission offsets, and other restrictions on expansion that come with Nonattainment New Source Review.

That glorious period appeared to be coming to a close when, on December 20, 2017, EPA informed Governor Walker that the proposed nonattainment areas for the more restrictive 2015 ozone standard would include all of five southeastern Wisconsin counties, and parts of four other counties bordering Lake Michigan. The Walker administration and the business community were not pleased.  

In public comments filed with EPA, the State of Wisconsin and every major business group for the state and affected counties pushed back on EPA’s policy decision, with arguments based heavily on the scientific data collected during the past 20 years. Commenters emphasized that the air quality and meteorological data does not support including the entire geographic boundaries of all of the counties, there is a seasonal component to the nonattainment data, and as the state has emphasized for years in nearly every context involving air emissions, most of the ozone impacting southeast Wisconsin is transported from outside Wisconsin, including from our neighbor to the south – Illinois.

EPA listened, and on May 1, 2018, released a substantially pared down final list of counties designated as nonattainment for ozone –the list only includes the lakeshore areas of six counties. Notably, because of gaps in the certified data, Racine County, which will be home to a new $10 billion development by Foxconn Technology Group, will not be included in the nonattainment area. Foxconn and its affiliated vendors will manufacture liquid crystal display screens at the Racine location, which was chosen over other contenders, including sites in Illinois.

Stirring up trouble in our Midwest neighborhood, on Friday, May 4, 2018, Illinois Attorney General Lisa Madigan announced that she will file suit in the D.C. Circuit challenging the ozone designations. Her announcement ties the designations to the Foxconn development and  complains that EPA’s action puts “a company’s profit ahead of our natural resources and the public’s health.”   

The new designations have not yet been published in the Federal Register, but this neighborhood dispute may be headed to court. Responding to Ms. Madigan’s press release, Governor Walker said “The State of Wisconsin will push back.” If Illinois wants to pick a fight, Wisconsin could consider a counter claim, or its own suit against Illinois under Section 126 of the Clean Air Act, which allows downwind states to pursue out of state upwind emission sources. Ozone monitors in southeastern Kenosha County have shown for years that emissions from Illinois are the primary source of nonattainment on the Wisconsin side of the border.

Hoping All Your Consequences Are Happy Ones

Posted on May 3, 2018 by Kenneth Warren

Those of us who remember Bob Barker’s years as host of the game show Truth or Consequences recognize the title of this blog as his customary closing line.  His desire to limit the ramifications of bad decisions has a corollary in Pennsylvania law.  As the Pennsylvania Supreme Court recently held, statutory provisions may be construed narrowly “substantially in consideration of the consequences of a particular interpretation.” 

In EQT Production Co. v. Pa. Dep’t. of Envtl. Prot., an energy company operated an impoundment to contain hydraulic fracturing wastewater.  Wastewater leaked through holes in the impoundment’s liner into the underlying base layers, soils and “waters of the Commonwealth” which include “underground waters, or parts thereof.”    

The release from the impoundment into groundwater clearly violated the prohibition in the Pennsylvania Clean Streams Law on discharging or permitting the discharge of industrial wastes into the waters of the Commonwealth.  Anticipating that the Pennsylvania Department of Environmental Protection (PADEP) would seek a penalty for each day that contaminants remained present in the environment, EQT sought a judicial declaration that civil penalties may be imposed only for days that pollutants were actually discharged from the impoundment.   

As the declaratory judgment action progressed, PADEP acknowledged that the mere presence of contaminants in groundwater would not alone support the imposition of penalties.  But it contended that a violation occurred on each day that the contaminants initially released from the impoundment passively migrated from soil to groundwater (the “soil-to-groundwater” theory) or moved from one part of the waters of the Commonwealth to another (the “water-to-water” theory).   

The Pennsylvania Supreme Court concluded that the language of the Clean Streams Law, which prohibits any discharge of an industrial waste “into” a water of the Commonwealth, is ambiguous.  The language could be interpreted to cover only movement of a pollutant from outside the waters of the Commonwealth into these waters, but could also be read to include movement of a previously released contaminant from one part of the Commonwealth’s waters into another part.   

In resolving the ambiguity, the Court noted that even after remediation occurs, a small quantity of contaminants may remain present in groundwater and continue to migrate.  If each day constitutes a violation, massive civil penalties would result.  Principally because it believed this consequence to be unreasonable, the Court rejected the water-to-water theory.  By excluding water-to-water mitigation from the ambit of the Clean Streams Law’s prohibitions, the Court created Pennsylvania’s version of the “unified waters” approach.  At least in this context, it makes good sense.    

But EQT still suffered serious liabilities.  It was required to remediate the contamination that it caused.  And the soil-to-groundwater theory remains in play; the Court chose not to rule on its validity because EQT’s pleadings and application for summary relief did not raise that challenge.  Penalties in excess of $1 million were assessed against EQT and will be reviewed on appeal.  In a fictional game show world, all consequences are happy ones.  In real life, even a solicitous state Supreme Court will not guarantee an entirely happy ending for a party who has violated environmental laws.

A 2-Fer Update

Posted on May 1, 2018 by Mark Walker

Seth Jaffe and I have both previously blogged about Public Citizen v. Trump. It is the lawsuit challenging Trump’s Executive Order 13771 which, with some exceptions, mandates two existing federal regulations be eliminated for every new regulation. Several public interest groups challenged the EO asserting that it will block or repeal regulations needed to protect the environment, health and safety and that it directs federal agencies to engage in decision making that is arbitrary, capricious and contrary to other existing laws.

Since its filing, no substantive issues have been addressed. Instead, the case has been mired in addressing the issue of standing. Standing requires that the plaintiffs demonstrate a personal stake in the outcome of the controversy. In order to demonstrate Article III jurisdiction, the plaintiff associations must either show “associational standing” or “organizational standing”. Associational standing requires that the plaintiffs demonstrate that the EO will substantially increase the risk that at least one of their members will either be harmed or face a substantial probability of harm once such increased risk is taken into account. Organizational standing requires that the plaintiffs demonstrate that they have standing to sue in their own right which requires that they show the EO will have a chilling effect on their missions.

On February 26, 2018, Judge Moss ruled that the plaintiffs had failed to demonstrate standing and that, therefore, the court did not have jurisdiction to entertain their lawsuit. In a lengthy decision, the judge held that the plaintiffs had not identified a specific member who had yet suffered an injury as a result of the EO. The plaintiffs brought this action before any specific regulatory actions had been taken pursuant to the EO. Therefore, they could not identify any specific regulations that had been repealed or were likely to be repealed as a result of the EO. The court held that plaintiffs’ allegation that it was “likely” that the EPA and other agencies would stop seeking new regulations in order to protect existing ones was overly speculative.

Most of plaintiffs’ arguments in support of associational standing related to their claims that the EO had already delayed the issuance of new regulations. For example, the plaintiffs alleged that the EO had already delayed an unspecified regulation on greenhouse gas emissions. One of the NRDC’s members asserted that global warming and the resulting rise in sea level would deprive him of water supply and the use of his home. However, as Judge Moss noted, the plaintiffs had not identified any proposed rule or putative regulatory action that addressed this concern or that had been delayed by the EO.

As to organizational standing, the plaintiffs claimed that the EO would cause them harm by chilling their advocacy activities. The advanced basis for this claim was that the plaintiffs would now have to “think twice” about advocating new regulations with the knowledge that a new regulation could result in the elimination of two regulations which plaintiffs believe are necessary protections, thus imperiling their ability to advocate thereby chilling their First Amendment right. However, the plaintiffs could not point to any specific regulation which had yet presented this alleged Catch 22. Instead, they merely claimed they were now forced to consider the issue. Judge Moss held that this “think twice” argument did not establish an injury in fact.

This case is a text book example of the difficulties public advocacy groups face in demonstrating standing, particularly where the new proposed regulation has not yet been adopted or implemented. Although the plaintiffs amended their claims once before to address standing, Judge Moss has allowed them to amend again to try to establish standing. Of course, if subsequent agency actions pursuant to the EO demonstrate standing, the plaintiffs will then be allowed to pursue a lawsuit. It is noted that the Trump Administration is now proposing a 3-for-1 plan for 2018.