Is Tier 3 Coming to a High Quality Waterbody in Your State?

Posted on August 16, 2017 by Eric Fjelstad

The Alaska Department of Environmental Conservation (ADEC) has taken on the task of defining a process to designate so-called Outstanding National Resource Waters.  These are often called “Tier 3” waters.  A quick recap of the Clean Water Act’s antidegradation regulations.  Under relevant EPA regulations, waters which do not meet water quality standards are classified as Tier 1 waters.  Waters which meet or exceed water quality standards are classified as Tier 2 waterbodies.  The best waters - Tier 3 waters - are defined by EPA in 40 CFR 131.12(a)(3) as follows:

Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

The regime has proven controversial in Alaska because it would apparently impose a “no degradation” prohibition on new and expanded discharges.  The term “degradation” is not defined in EPA’s regulations which leave open the question whether Tier 3 allows for any detectable pollutants. 

The State of Alaska is blessed with an abundance of high quality waters.  It also is a resource development state, and many projects occur in areas with high quality waters.  Conservation groups argue that Alaska’s water resources should be protected before they are compromised through development.  Development interests believe Tier 3 is just another regulatory initiative to stop projects.  ADEC has struggled to implement a Tier 3 regime, finding few friends in industry and conservation corners as it works to develop a program.  Amongst the questions ADEC has grappled with. 

· What criteria should be employed to screen potential Tier 3 candidates?  Alaska has many high quality waters and the debate has centered on whether the waterbody should be truly exceptional or unique by Alaska standards versus exceptional or unique compared to the Lower 48. 

· How much information should be in the proposal?  Conservation groups generally favor a streamlined proposal process.  For example, a few paragraphs on why a waterbody merits Tier 3 status, along with information on the basic social and economic implications of the designation.  Industry stakeholders argue that a Tier 3 designation effectively imposes a “no discharge” regime on an entire watershed and should be rigorously evaluated in a study akin to an environmental impact statement with the costs to be borne by the proponent. 

· Who should make the designation?  Conservation groups argue a Tier 3 decision should be made by ADEC or by an administrative commission and be reviewable in the courts.  Industrial stakeholders believe a Tier 3 designation is fundamentally a political decision, comparable to establishing a state park or wildlife refuge, and should be made by elected officials in the legislative process. 

· How would the “no degradation” standards work in practice?  ADEC has indicated that temporary discharges with minor impacts would be permissible under Tier 3.  However, ongoing discharges would be prohibited, even if the discharge complied with water quality standards at the “end of the pipe.”  There are unresolved questions how Tier 3 would apply, if at all, to nonpoint sources of pollution.

· Can a Tier 3 designation be changed?  There has been no clear statement from EPA on whether a Tier 3 designation could be changed.  The regulatory grapevine has yielded mixed signals with some suggesting a Tier 3 designation would be permanent.

EPA’s one sentence regulation leaves much to the imagination, and stakeholders would benefit from greater clarity from EPA in its regulations.  Given the open questions and the potentially significant restrictions a Tier 3 designation places on waterbodies, it is not a surprise that Alaska is struggling to define a rational Tier 3 process.  

A Nod to the Summer of Love

Posted on August 10, 2017 by Robert Falk

Fueled by a preceding series of so-called (and then legal) “acid tests,” what came to be known as the “Summer of Love” arose spontaneously in San Francisco fifty years ago.  In 1967, motivated in part by Scott McKenzie’s original rendition of the song “San Francisco (Be Sure to Wear Flowers in Your Hair),” young people from around the country descended on the Haight Asbury neighborhood and Golden Gate Park to “turn on, tune in, and drop out.”  The counter-culture, which included an embrace of respect for the natural environment by some of the flower children, was officially born and began to spread more broadly throughout the country. 

Few would go as far to claim that the majority of hippies who took up residence in San Francisco that summer were environmentalists.  Their quickly growing population and associated care-free and litter-filled lifestyles soon overwhelmed local public service capacities such that the entire “scene” became unsustainable within a matter of months.  The adverse impacts on “the Haight” became so overwhelming that long-time local residents, even including the Grateful Dead band members who then-lived at 710 Asbury Street, decided to move out and relocate to the literally greener pastures that lie to the north of the Golden Gate Bridge. 

But given its sandwiching between Rachel Carson’s Silent Spring in 1962 and the first Earth Day in 1970, the argument can be made that the Summer of Love and Flower Power were very much key catalysts in propelling the counter-culture to reach beyond the demands for civil rights and opposing the Viet Nam war so as to give political voice to the need for more modern and meaningful environmental protections in the United States. 

Indeed, the siren song’s lyrics, which were written by John Philipps of the Mamas and the Papas, may have been prescient in this respect:

If you're going to San Francisco

Be sure to wear some flowers in your hair

If you're going to San Francisco

You're gonna meet some gentle people there

 

For those who come to San Francisco

Summertime will be a love-in there

In the streets of San Francisco

Gentle people with flowers in their hair

 

All across the nation

Such a strange vibration

People in motion

There's a whole generation

With a new explanation

People in motion

People in motion

 

For those who come to San Francisco

Be sure to wear some flowers in your hair

If you come to San Francisco

Summertime will be a love-in there.

Whether these lyrics were actually prescient or not need not be further debated.  On the other hand, one probably needs to look no further than to U.S. EPA’s own official logo to see that the Summer of Love and Flower Power had real and indelible influence on the modern environmental movement.

WOTUS Washington Two-Step

Posted on August 8, 2017 by Rick Glick

The Trump Administration has begun rulemaking to undo the controversial rule defining “waters of the United States” or WOTUS.  In the July 27 Federal Register, EPA and the Army Corps of Engineers jointly announced that it is proposing a two-step process.  The first would be to rescind the 2015 WOTUS rule, and the second would replace it with something aligned with the Administration’s thinking.  As reported here, on February 28, 2017, President Trump issued an executive order directing the agencies to change direction. 

The Clean Water Act confers federal jurisdiction over “navigable” waters, which are defined as “waters of the United States.”  The agencies, courts and property owners have since struggled to elucidate that vague definition, particularly in the context of wetlands.  A divided Supreme Court, in Rapanos v. U. S., offered competing definitions.  Justice Scalia, writing for a plurality of the Court, would require running water, whereas Justice Kennedy in a concurring opinion, looked to whether a “significant nexus” exists between the waters or wetlands at issue and a navigable waterway.

The Obama Administration’s WOTUS rule attempted to bring clarity to the scope of federal jurisdiction, with an emphasis on the Kennedy approach.  Under President Trump’s executive order, the new rule is to follow Justice Scalia’s view of WOTUS.

During the interim between step one (rescission) and step two (replace), we will have to muddle along as before.  The Federal Register notice states:

The agencies would apply the definition of “waters of the United States” as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.

Simply stated, that means continuing uncertainty.  It will probably take some years before a new replacement rule can be developed under the deliberate process required by the Administrative Procedures Act.  If the reaction to the Obama WOTUS rule is any guide, the replacement rule will face many legal challenges, which could also take years to resolve, probably at the Supreme Court.  Thus, it is unlikely that there will be binding policy change during the first term of the Trump Administration.

In the meantime, it is useful to remember that the states are free to adopt their own definitions of jurisdictional wetlands, which many have done or in the process of doing.  States with strong environmental protection traditions—such as Oregon, California and Washington State—can be expected to assert jurisdiction, perhaps where the federal government does not.

REFLECTIONS ON SMCRA AT 40

Posted on August 4, 2017 by Robert Uram

Through the persistent efforts of Representative Mo Udall and many other advocates for federal regulation of surface mining, on August 3, 1977, after a decade of legislative debate and two vetoes by President Ford, President Carter signed the Surface Mining Control and Reclamation Act. SMCRA established comprehensive national reclamation standards designed to ensure that all surface coal mines would be reclaimed and required coal companies to pay a fee on each ton of coal they mined to fund a program to eliminate environmental and safety hazards from abandoned coal mines. SMCRA created the Office of Surface Mining Control Reclamation and Enforcement to administer the law and provided the OSMRE with extensive oversight authority over state and federal reclamation programs. SMCRA is an important milestone in the environmental movement in our country.

SMCRA created stringent new reclamation standards that raised the baseline for mining reclamation and provided needed federal funding and oversight. Coal mining reclamation regulation has come a long way since the days when two States sued to have SMCRA declared unconstitutional on grounds that it violated the Fifth and Tenth Amendments and the Interstate Commerce Clause and armed United States Marshalls were needed to accompany OSMRE inspectors to coal mines to ensure their safety. Over the past 40 years, despite their many differences and the active resistance of some States to enactment of SMCRA, the OSMRE and States and Indian tribes have accomplished much in making the coal fields a better place for people to live and work. More than 2 million acres of mined land have been reclaimed. Efforts to improve the quality of reclamation, through programs like the Appalachian Regional Reforestation Initiative, are ongoing. Offsite impacts from mining operations are closely monitored and have been greatly reduced in number and severity better protecting the environment and the people living in the vicinity of mines. Cemeteries and homes are protected. Coal field residents are entitled to participate in oversight and the oversight process is open and transparent.

The Abandoned Mine Land Reclamation Program, while chronically underfunded, is a model for effective federal/state/Indian tribe cooperation. The AML program has improved the environment and public safety by closing more than 40,000 abandoned mine shafts, eliminating nearly 1,000 miles of high walls, addressing hazards at 3,700 dangerous water bodies, cleaning up 129,000 acres of dangerous spoils and embankments, restoring 35,000 acres of streams and land and replacing infrastructure for over 53,000 polluted water supplies. Mining reclamation contributes to the local economies and provides good jobs.

While the program has had its difficulties, and many serious concerns need to be addressed, including the significant effects of mountain top removal mining, had the Congress never passed SMCRA, life for people who live and work in the coalfields would be far worse today. Earl Bandy, a long-time OSMRE employee whose father and grandfather were coal miners in Harlan County, testified before Congress on the 30th anniversary of SMCRA that:

I cannot imagine what our nation's land and water resources would be today if it were not for SMCRA. Congress' enactment of such a forward-thinking law was an awakening and recognition of the potentially dangerous and harmful cumulative effects of coal mining on the land and water.

His words ring true today. While implementation of SMCRA could have and should have been better and more effective, the success of SMCRA still needs to be recognized and appreciated. Many people are responsible for these successes. OSMRE’s dedicated employees have labored long and hard, many times without any internal or external support. Many of those employees are genuine environmental heroes for their dedication and contributions. The many thousands of State program employees are critical to the SMCRA’s success. They have become increasingly aligned with the goals of SMCRA and have developed a shared commitment to making SMCRA work. Some coal companies still question the need for stringent environmental protection laws; many companies have developed a good environmental ethic and take pride in their reclamation. The really bad actors and wildcat miners who simply flouted the law have been driven out of the industry.

A great deal of credit also goes to the citizen groups, like the Kentucky Resources Council. The citizen groups have been insistent that SMCRA be fully implemented and have filed dozens of lawsuits to force state and federal regulators to do their jobs. Without their efforts, the program would have lagged even further behind. The country is also indebted to watershed groups like the Friends of the Cheat River in West Virginia, which are devoted to making their communities better by helping to clean up of streams long polluted by acid mine drainage. Through their efforts and the assistance of their federal and state partners, thousands of miles of orange acid mine drainage-polluted streams have been restored to productive use.

Forty years is the blink of an eye. Good environmental regulation is a task that never ends and that will always be needed. Much has been accomplished; much needs to be done. The Congress should ensure that OSMRE and its State counterparts are well funded to carry out their regulatory responsibilities and the Congress should fully fund the abandoned mine reclamation program. As we recognize SMCRA’s 40th anniversary, the country should rededicate itself to the task of ensuring that every acre of mined land is restored to productive use and that the legacy of environmental harm and public hazards from abandoned mines is wiped out. 

ALCHEMY 2.0

Posted on August 3, 2017 by Stephen Herrmann

Alchemy 1.0 hoped to turn coal into diamonds.  Alchemy 2.0 plans to turn coal-fired power plant effluent into useable products -- and thus keep millions of tons of CO2 from polluting the atmosphere.

Capturing CO2 from sources such as coal-fired power plants has been studied for a number of years.  But the plan has always previously been to store the CO2.  The “Global CO2 Initiative” (Global) was launched in 2016 during the meeting of the World Economic Forum as a non-profit corporation to stimulate innovative research in carbon capture and utilization (“CCU”).  An independent market analysis of the climate benefits and market potential of carbon capture and utilization funded by Global Initiative showed that there was a potential to remove 10 percent of annual global CO2 emissions from the atmosphere by 2030, while creating an estimated $1 trillion yearly market for at least 25 CO2-based products.  The products would include concrete, fuel, industrial gas/fluid, plastics, asphalt, agricultural products, construction fills and new materials.  The assessment catalog of CO2-based products was done by McKinsey & Company based on rigorous projections of the potential revenues and carbon capture. 

Unlike coal to diamonds, coal-fired power plant effluent to useable products has firm footing in science.  Also in 2016, UCLA researchers, led by Gaurav Sant, Associate Professor in Civil and Environmental Engineering; Richard Kaner, Distinguished Professor in Chemistry and Biochemistry; Laurent Pilon, Professor in Mechanical and Aerospace Engineering and Bioengineering; and Mattheiu Bauchy, Assistant Professor in Civil and Environmental Engineering, have developed a closed-loop process:  capturing carbon from power plant smoke stacks and using it to create a new building material -- CO2NCRETE - that is fabricated using 3D printers.  Thus far, the new construction material has been produced only at a lab scale.  However, this type of innovative research hopefully will drive not only corporations seeking commercial products, but also governments to fund other Alchemy research as a strong additional pillar of limiting greenhouse gas usage worldwide.

A second example of products from CO2 has been put forward by Stuart Licht, a Professor of Chemistry at George Washington University.  Licht says his group has demonstrated technology which both captures the CO2 from the air and employs an electro-chemical process to convert it to carbon nanofibers and oxygen.  The conversion process is much more efficient and potentially a lot cheaper than existing methods.  But, it has this additional salutary benefit.  In recent demonstrations his group used a unique concentrated solar power system, which makes use of effluent sun light to generate the large amount of heat needed to run the desired reaction to produce nanofibers.

For further information, on the work of global CO2 initiative, check in at GlobalCO2Initiative.org.

Pop Enviro Quiz and EPA’s New “Happy Tooth” Standards

Posted on August 2, 2017 by Susan Cooke

EPA’s new “Happy Tooth” standards should make you feel just a little bit better about that trip to the dentist.  But before you learn the details, you first need to take this pop quiz and get the backgrounder.

Question #1:  What earth element is linked to gold mining, volcanic eruptions, and dental amalgams? 

Answer:         Mercury.

Question #2:  What is the environmental angle?

Answer:         All three result in mercury releases that can eventually reach the aquatic environment where bacterial action produces toxic methylmercury. 

According to the United Nations 2013 Global Mercury Assessment Report which is based on 2010 data, anthropogenic (human) activities are responsible for about 1960 metric tons, or 30%, of annual mercury emissions to the air.  Artisanal and small-scale gold mining and coal burning represent the two largest sources of that 30% share, at 37% and 24% respectively.  Another 10%, or about 653 metric tons, reportedly comes from natural geological sources.  The remaining 60%, or about 3920 metric tons, comes from re-emission of previously released mercury that has built up in surface soils and oceans, with most of that originally coming from anthropogenic sources.   

For the first time, the UN report includes an estimate of anthropogenic releases of mercury to water.  That estimate is at least 1000 metric tons per year.  The sources considered in making that estimate were:  mercury releases to land and water from artisanal and small-scale gold mining (800 metric tons); mercury releases to lakes and rivers from deforestation (260 metric tons); and mercury releases from contaminated sites such as old mines, landfills, and waste disposal locations (8-33 metric tons).

Once again, artisanal and small-scale gold mining operations, which are often illegal and hard to measure precisely, constituted the “leader of the pack”.  Indeed, gold rush activities from 1850 to 1884 appear as orange peaks on a graph included in the UN report, the graph showing mercury levels found in two Wyoming ice core samples.  The graph also shows that major volcanic eruptions, denoted as natural events in green, have been an important contributor, as evidenced by spikes attributable to the Mt. St. Helens, Krakatoa, and Tambora eruptions:

The third member of my mercury triumvirate is dental amalgam waste.  Mercury is mixed with some other metals to make dental amalgam because it is soft enough to create the mixture and the amalgam hardens quickly after it is pressed into a tooth.  Until recent years, waste dental amalgam was often discharged in a dental office’s wastewater.  However, some state and local governments have started to regulate those discharges.  EPA has now joined that effort

EPA’s standards cover dental office mercury discharges to Publicly Owned Treatment Works or POTWs and are set forth at 40 C.F.R. §§ 441.10-441.50.  Those standards, which are applicable regardless of state and local government requirements, were published in the June 14, 2017 Federal Register and became effective on July 14, 2017.  The regulatory preamble notes that dental offices have been the main source of mercury reaching POTWs which remove about 90% of such mercury prior to surface water discharge.  The preamble also estimates that the new standards will reduce the POTW discharge of dental mercury from 1003 to 11 pounds per year, a very significant reduction.    

Under the final rule, existing dental offices discharging wastewater containing dental amalgam to a POTW must use a device to capture and remove at least 95% of the amalgam mass by July 14, 2020, and must implement two best management practices by the same date.  Dental offices that commence such a discharge after July 14, 2017 (so-called “new sources”) must utilize an amalgam separator and institute those two best management practices when the discharge begins.  

One of the two best management practices prohibits the discharge to a POTW of waste or scrap dental amalgam, such as flushing it from traps or filters.  The other best management practice prohibits the use of so-called line cleaners, such as bleach or chlorine containing cleaners, which could dissolve solid mercury when cleaning chair-side traps and vacuum lines whose discharge goes to the POTW. 

Certain types of activities are exempted from the rule’s coverage.  They include dental practices that are not engaged in replacing or making new fillings containing mercury, dental offices that collect all dental amalgam and do not discharge it to a POTW, mobile dental units, and dental practices that discharge dental amalgam only in limited circumstances such as an emergency situation.   

I call these new provisions the “Happy Tooth” standards for two reasons besides their obvious connection to the treatment of tooth decay.  First, they will reduce POTW discharges of mercury by two orders of magnitude.  Second, the standards will not be delayed by appeals since EPA worked cooperatively with the American Dental Association (ADA) to develop them.  Indeed, the ADA president has stated that the rule represents a “fair and reasonable approach to the management of dental amalgam waste”, and that such a federal standard “is preferable to a patchwork of rules and regulations across various states and localities”

It is important to note that the new regulations do not cover direct discharges to waterways under an NPDES permit or its state equivalent.  In addition, they do not cover the management of mercury in POTW sludge, such sludge being subject to EPA standards set forth at 40 C.F.R. §§ 503.1-503.48 that include mercury limits. 

Preempted, Preempted Not

Posted on July 27, 2017 by Karen Crawford

First Circuit Rules that Puerto Rico Municipal Ordinances on Coal Ash Preempted

In mid-May, the First Circuit addressed whether a municipality may prohibit the beneficial use and disposal of coal ash at landfills within their borders when the state agency has authorized such activities.  In AES Puerto Rico, L.P. v. Trujillo-Panisse, No. 16-2052 (1st Cir. May 15, 2017), a coal fired power plant owner, AES-PR, challenged two municipal ordinances attempting such a prohibition as preempted by federal and Commonwealth law and were in violation of the United States and Puerto Rico constitutions.  Utility Solid Waste Activities Group and American Coal Ash Association participated on brief as amici curiae brief.  The district court granted summary judgment for the municipalities on AES’s federal claims and declined to exercise jurisdiction over the Commonwealth claims.

The First Circuit determined the ordinances could not be enforced to the extent they directly conflicted with Commonwealth law as promulgated by the Puerto Rico Environmental Quality Board, but reversed summary judgment in favor of the municipalities and remanded for the district court to enter judgment for AES-PR based on its claim of Commonwealth preemption.  The court reviewed the RCRA program and its intent to precipitate cooperation between the federal, state, and local governments.  After a serious discussion of the delegation of authority to states and the fact that Puerto Rico’s Environmental Quality Board was given authority to manage solid waste (including coal ash) by the Commonwealth, unlike the district court, the court determined the EQB resolutions (and permits) carry the force of law and its permits allowing disposal in a sanitary landfill supersede a local ordinance prohibiting that disposal.  Succinctly, the court pointed out that the Commonwealth’s public policy to give municipalities as much autonomy as possible is limited by a higher power and that “a municipality cannot ‘promote and further its own public policy’ if that policy conflicts with Commonwealth law.” 

NJ Appeals Court Finds Consumer Fraud Cases Against VW Not Preempted by CAA

This week, however, a three-judge panel of Superior Court of New Jersey, Appellate Division affirmed trial court rulings in two cases denying Volkswagen Group of America Inc.’s (VW) motions to dismiss the complaints, finding the CAA does not preempt such state court actions.  David. L. Felix, et al. v. Volkswagen Group of America Inc. and Eduardo Deang v. Volkswagen Group of America In. et al., No. A-0585-16T3 and A-086-16T3, July17, 2017, Sup. Ct. NJ – App. Div.  The motions argued the complaints were expressly or impliedly preempted by provisions of the CAA, citing language in 42 U.S.C.A. 7543(a), “… No state or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.”  Both plaintiffs alleged misrepresentation and violations of New Jersey’s Consumer Fraud Act, among other claims.  The decision included interesting arguments on interpretation and attempted distinguishing of prior tobacco, product defect and airline deregulation cases.

With respect to express preemption, the court disagreed with VW’s argument that plaintiffs’ complaints are in reality attempts to enforce EPA’s emissions standards because plaintiffs would have to prove those standards were exceeded to prevail.  Instead, the court determined that the plaintiffs were not seeking to enforce an EPA emission standard or force the manufacturer to adopt a different emissions standard, but rather the claims were centered “on VW’s alleged deceitful, fraudulent practices and its alleged breach of a duty not to mislead consumers.” 

The court also determined that the CAA did not impliedly preempt plaintiffs’ claims because the savings clause explicitly contemplates continued state involvement in regulation of motor vehicles, and that because plaintiffs’ claims do not hinge on compliance with EPA standards, there is no direct conflict with the federal regulatory scheme.

THE CALIFORNIA AUTO EMISSIONS WAIVER – THE NEXT BIG CLEAN AIR ACT BATTLE?

Posted on July 26, 2017 by Charles S. Warren

The California Waiver is a unique provision of the Clean Air Act that lets California set its own auto emissions standards, which can then be adopted by other states as their emission standards.  Section 209 of the Clean Air Act basically provides that no state or other political subdivision can adopt or enforce any auto emission standards different from the federal auto emission standards.  The exemption in Section 209 allows for a waiver whereby California can adopt its own standards unless the EPA Administrator finds (1) the determination of the State is arbitrary and capricious, (2) such State does not need such State standards to meet compelling and extraordinary conditions, or (3) such State standards and enforcement procedures are not consistent with the federal standards in Section 202 of the Clean Air Act.

Section 177 of the Clean Air Act allows other states to adopt and enforce other auto emission standards if they are identical to the California standards for which a waiver has been granted.  This provision has allowed many other states to adopt the California standards which have had a profound effect on the auto industry and air pollution efforts.  At this point, 16 states have either adopted or are moving to adopt the California standards, including New York, New Jersey, Pennsylvania, Florida, Washington and Oregon.  This adds up to at least 135 million people or about 40 percent of the country.  In addition, car dealerships in states bordering states that have adopted the California standards are legally allowed to sell California compliant cars.  This means that there are many more people who will be buying cars that meet the California standard.  The result of all this activity is that cleaner cars are being sold in a great many areas of the country.

Since 1970, EPA has granted California 50 waivers and has only once denied a waiver.  That denial came from the George W. Bush EPA and dealt with a waiver covering greenhouse gas emissions in 2007.  California sued to challenge the denial of the waiver but the case was mooted by the subsequent granting of the waiver in 2009 by the Obama administration EPA.  The current waiver applies to model years 2022-2025 and was granted in 2012.

Earlier this year, the Trump administration was indicating that it might seek to revoke the California waiver.  There is no statutory provision for revoking a waiver and there has never been an attempt to revoke a waiver.  Any such attempt would provoke a titanic battle and many lawsuits.  The revocation effort seems to have lost some steam at this point and it appears the real battle will come when California requests a waiver for the model years 2025-2030.  Any action by the EPA to deny the next California waiver would likely be based on the contention that the waiver as it is applicable to greenhouse gas emissions is not needed by California to meet compelling and extraordinary conditions, since that provision was referring to conditions that affect California directly and locally.  The argument would be that pollutants dealing with climate change affect the whole world and are not unique to California.  This position would be strongly contested and it would be up to the courts to decide how it turns out, although the pro-environment side will likely prevail.

There is a great deal riding on this decision since the California standards have played a huge role in reducing pollution from mobile sources and are closely tied to increased fuel economy standards, which are an important part of the battle against climate change.

Trumping Trump on Climate Change

Posted on July 25, 2017 by Dan Esty

President Donald Trump’s decision to back away from the Obama Administration’s Clean Power Plan and other policies to reduce U.S. greenhouse gas (GHG) emissions in fulfillment of America’s commitment to the 2015 Paris Climate Change Agreement might be seen as bad news for the global environment.  And it is.  But the news is not quite as bad as many fear.  Even if the President’s actions slow progress toward the U.S. “nationally determined contribution” to the emissions reduction goals of the Paris Agreement – a cut of 26-28 percent by 2030 – that will not stop the overall downward trend in GHG emissions for several important reasons. 

First, American Presidents have limited executive authority, meaning that a number of the climate change policies put in place by President Obama cannot be reversed with a stroke of President Trump’s pen.  Second, the shift away from coal as America’s electricity generation fuel of choice will continue – driven by prior regulatory requirements and the economics of the energy marketplace.  Third, many critical decisions that shape the carbon footprint of a society are made not by presidents and prime ministers but by mayors, governors (or other sub-national elected officials), and corporate leaders.

President Trump’s March 28 Executive Order directs his EPA Administrator to “review” the prior administration’s Clean Power Plan and “as soon as practicable, suspend, revise, or rescind” it.  But this is not a simple process.  The Clean Power Plan represents a regulatory strategy for implementing a Clean Air Act obligation to control emissions from any air pollutant found to “endanger public health and public welfare.”  The Supreme Court confirmed in Massachusetts v. EPA (2007) that this obligation is not discretionary with regard to greenhouse gas emissions. 

Thus, the Trump EPA can change the strategy for responding to greenhouse gases but cannot walk away from its obligation to control them unless it reverses the “endangerment” finding issued by former EPA Administrator Lisa Jackson in 2009.  To undo this prior conclusion, current EPA Administrator Scott Pruitt would need to establish a new scientific foundation that would justify a different policy conclusion.  Given the overwhelming scientific consensus that the build-up of greenhouse gas emissions in the atmosphere threatens to produce various harmful effects – including sea level rise, increased frequency and intensity of hurricanes and other windstorms, changed rainfall patterns, as well as more frequent droughts, floods, and forest fires – such an effort would be quickly challenged in any number of courts and almost certainly overturned.  Indeed, in the face of overwhelming scientific evidence that the build-up of GHG emissions in the atmosphere is a problem, a “non-endangerment” conclusion would be an almost paradigmatic example of an “arbitrary and capricious” regulatory action.  EPA will, therefore, almost certainly choose to revise the Clean Power Plan rather than dump it altogether. 

In introducing his climate change executive order, President Trump promised that his actions would bring back American coal production and power generation.  No such thing will happen.  Hundreds of U.S. coal-fired power plants have been shut down in the past decade – most in response to the Obama Administration’s Mercury and Air Toxics Standards.  These plants will not be reopening.

Not only have coal-burning power plants been the target of numerous regulatory restrictions, they also now face stiff competition from cleaner-burning and cheaper natural gas power generation as well as rapidly expanding renewable power production.  Nothing President Trump has done will reverse these trends.  Indeed, given the momentum toward a clean energy future and the prospects that a future president will redirect the Trump climate change policies and restore the U.S. commitment to lower greenhouse gas emissions, no utility is going to invest in new coal-fired power plants, and many power generators will proceed with planned retirements of existing coal units.  Simply put, the President’s shifting of gears on climate change policy does not over-ride the broader economic logic for movement toward cleaner and cheaper energy options.

In the face of the President’s disinterest in the Paris Agreement in particular and his hostility toward environmental regulation more broadly, leadership and political support for climate change action in the United States has shifted out of Washington.  Of particular note, more than 200 mayors, 10 governors, and nearly 1700 business leaders have formed a coalition called America’s Pledge that aims to ensure that the U.S. emissions reduction commitment is fulfilled.  Led by California Governor Jerry Brown and former New York Mayor Michael Bloomberg, the participants in America’s Pledge are pushing forward with climate action plans at the city, state, and corporate scales. 

Some of these leaders, moreover, have expressed interest in formally “signing” the 2015 Paris Agreement if the United States ends up withdrawing.  While there are constitutional limits to what sub-national jurisdictions can do in the international realm, legal work is underway to find a mechanism that would allow these mayors, governors, and CEOs to make a commitment to the goals of the Paris Agreement “to the full extent of their authority.”

The breadth and depth of these non-federal-government climate change initiatives means that American greenhouse gas emissions will continue to decrease regardless of what energy policies the Trump Administration puts forward.  In fact, one of the critical features of the climate change strategy that the world community agreed upon in Paris in 2015 was a shift from a top-down approach that relied upon national government actions to a bottom-up game plan for emissions reductions that called upon a much wider array of actors to join the effort to promote energy efficiency and a shift toward renewable power.

As it turns out, presidents and prime ministers don’t have that much say over the day-to-day decisions that determine the carbon footprints of their societies.  Mayors, governors, and CEOs are really the ones who make the critical choices about transportation options, housing and development patterns, product and production strategies, technology and infrastructure investments, and other decisions that determine the trajectory of greenhouse gas emissions.

Thus, while President Trump can take the United States out of a leadership role in the global effort to combat climate change, he will not be able to reverse the domestic momentum for action on climate change.  His policies may slow the pace of U.S. emissions reductions, but movement toward a decarbonized energy future will continue.

Reports of the Death of the SEP Have Not Been Greatly Exaggerated

Posted on July 21, 2017 by Seth Jaffe

Last month, Attorney General Sessions barred DOJ from entering into settlements that provide for payments to non-governmental persons not a party to the dispute.  At the time, I peered into my crystal ball and proclaimed that the practice of incorporating supplemental environmental projects into environmental settlements was “hanging by a thread.” For once, my speculation was accurate.

Yesterday, DOJ notified the District Court for the District of Columbia that the United States and Harley-Davidson had jointly agreed to modify a consent decree that had already been lodged with the Court.  The original decree provided for a $3 million SEP, to replace old woodstoves.  Notwithstanding that SEPs have traditionally been used to mitigate penalty amounts, the modified decree did not increase the penalty to Harley-Davidson; it merely eliminated the SEP.  Well done, Harley-Davidson lawyers!

In modifying the decree, DOJ explicitly cited to the Sessions memorandum, noting simply that:

Questions exist as to whether this mitigation project is consistent with the new policy.

Ya’ think?

The only question remaining at this point is whether other defendants will be able, like Harley-Davidson, simply to pay smaller penalties or whether, going forward, penalties will increase where SEPs are unavailable as mitigation.  I know where this administration’s proclivities lie, but I’m going to stop speculating while I’m ahead of the game.

HOW DOES A DEMOCRACY DECIDE SCIENTIFIC FACTS? SCOTT PRUITT’S RED TEAM/BLUE TEAM CLIMATE REALITY SHOW

Posted on July 19, 2017 by Karl Coplan

Reuters reports that EPA Administrator Scott Pruitt, responding to a suggestion in a Wall Street Journal editorial, is planning to set up a “red team/blue team” war-game style debate to resolve the question in his mind about the validity of scientific predictions of catastrophic anthropogenic global warming. According to Administrator Pruitt, this “debate” would be televised. Pruitt said that this debate was “not necessarily” meant to undermine EPA’s 2009 Endangerment Finding that triggers Clean Air Act regulation of greenhouse gases, and added that he would prefer that Congress weigh in on the matter.

The prospect of a reality television show style competition designed to resolve for the United States a matter of scientific consensus reached by just about every other nation in the world should concern anyone hoping that EPA’s initial moves to regulate greenhouse gases might survive the Trump administration. But this prospect also illustrates tensions between the administrative state that allows a coherent system of environmental regulation to exist, and the American polity’s identity as a self-governing democracy where political truth is determined by trial in the “marketplace of ideas” guaranteed by First Amendment freedom of expression.

This “marketplace of ideas” metaphor, of course, was first voiced by Justice Oliver Wendell Holmes in his eloquent dissent in Abrams v. United States :

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In a later dissent, in Gitlow v. United States, Holmes expressed that his commitment to the results of this free competition in ideas was so strong that should the arguments in favor of a proletarian dictatorship gain majority approval, he must accept that result.

The foundations of the administrative state are in tension with this notion of popular resolution of scientific and economic truths. Administrative agencies are given authority to resolve scientific and technical issues while carrying out broad Congressional mandates, such as the Clean Air Act mandate to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” The basic theory behind this delegation of authority is threefold – 1) that agencies will be staffed by experts better able to resolve technical and scientific issues than Congress; 2) that Congress lacks the resources and attention to engage in the details of regulatory decisionmaking; and 3) that some policy decisions must be at least partially insulated from the political process.

But this delegation of scientific and economic factfinding is always conditional – Congress always retains the power to withdraw the delegation or overrule agency determinations through affirmative legislation.

Is the urgency of climate change a political truth on the order of the choice between socialism and capitalism? Is our commitment to the verdict of the marketplace of ideas in a democracy stronger than our commitment to urgent action to address climate change?

On the other hand a television reality show format may not be what Justice Holmes had in mind when he posited his marketplace of ideas. Further thoughts on this topic appear in an article I wrote a few years back, “Climate Change, Political Truth, and the Marketplace of Ideas.”

When the “Why” is Wordless

Posted on July 17, 2017 by Janet Coit

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

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

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

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

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

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

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

“Move Not Away from Struggle, But from Stillness”

Posted on July 13, 2017 by Renee Cipriano

Out of struggle and challenges comes a brighter future.  For environmental practitioners, the time is now to engage in struggle. 

I witnessed firsthand the creation and evolution of the Environmental Council of the States (ECOS).  Back in 1994, ECOS was the brainchild of several state environmental commissioners, including Mary Gade, the then Director of the Illinois Environmental Protection Agency.  In ECOS’s early years, the federal-state relationship was evolving, and state regulatory sophistication could not be denied.  The path to create a strong state organization with meaning was not easy and the young organization was forced to deal many struggles coming into its own.  As Ms. Gade explained in a 1996 American Bar Association article published in Natural Resources & the Environment, Winter 1996, “[t]he states were coming of age.  The formation of ECOS is a quantum leap forward in the ongoing shift in the balance of responsibility for protecting the nation’s environment.” She continued, “ECOS may not seem at all exceptional, yet more than any other environmental organization, it embodies the rising environmental leadership of states and the long overdue transfer of power in the federal–state relationship.”

Challenges and struggles have characterized the federal-state partnership upon which the nation’s regulatory system was built. The formation of ECOS helped the states collaborate and deal with the struggles together head on.  Today, no question exists that states are primarily responsible for the administration of environmental laws in this country, assuming more than 96% of the delegable authorities under federal law.  The states are on the frontline of enforcement, permitting, innovation and streamlining efforts.  The public looks to them first for answers.  Industry relies on the states to be effective partners, balancing the needs of industry and the public while allowing industry to run operations efficiently and in compliance.

Over the life of ECOS, state environmental regulators have been delegated more responsibility for environmental protection, education and enforcement but the resources provided them have measurably decreased.  Federal monies dedicated to financially support state programs have declined and are jeopardized further by proposed budget cuts.  At the same time, state elected officials face their own budget crises.  In response, state environmental protection agencies are being challenged to operate with little to no state funding and instead rely on federal funding and increased fees imposed on regulated entities.

With funding issues looming larger today than ever, there is a need to revisit both our national approach to environmental protection and, whether we are effectively enlisting the federal-state partnership to avoid staff duplication, regulatory confusion and resource waste.  For example, states and stakeholders should be able to rely on the state’s implementation of federally approved state programs without facing contrary interpretations from U.S. EPA.  Some state decisions are scrutinized repeatedly, with no meaningful purpose or resulting benefit; sometimes years after decisions are made. Stakeholders should be able to expect that if U.S. EPA identifies a deficiency in the state administration of a delegated program, U.S EPA will act swiftly under the authority granted to it by Congress to demand a fix to deficiency and approve the state’s modification just as timely.  And states should be able to rely on U.S. EPA to ensure that state delegated programs it approves set a level playing field across the nation to avoid disadvantaging economic growth in one state simply because another state’s approved program does not quite meet U.S. EPA’s interpretation of federal standards.

This brings us to the current Administration’s work around regulatory reform.  See President Trump, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017); President Trump, E.O. 13777, “Enforcing the Regulatory Reform Agenda” (Feb. 24, 2017); EPA, Evaluation of Existing Regulations (Apr. 13, 2017).  Although many see “regulatory reform” under a Pruitt U.S. EPA as the end of environmental protection, I prefer to see it as an opportunity to examine holistically our current environmental regulatory framework and identify innovative ways to build on our environmental successes.  Even more importantly, I also see it as an opportunity to reinvigorate the national conversation around the federal-state relationship and embrace more fully the unparalleled state leadership we have in our country.  There is a rightful place for both U.S. EPA and the states as we move towards addressing our future environmental challenges but we can no longer support or afford duplication and burden without purpose.

In June, 2017, ECOS issued a document entitled COOPERATIVE FEDERALISM 2.0: Achieving and maintaining a Clean Environmental and Protecting Public Health.  Under the leadership of Executive Director and General Counsel Alexandra Dunn, and through a consensus based process among members of ECOS, this blueprint for the future presents both the principles that should guide the federal-state relationship and lists the important “policy neutral issues” where application of cooperative federalism could be focused.  This document is not only insightful but timely and provides the opportunity for positive reforms that will allow the nation to continue its great work of environmental protection into the future.  It is a must read.

My yoga teacher always tells the class to “move away from struggle” when she is challenging us with new and different yoga moves. I find though, that unless I struggle, my moves will never improve.   Engaging in the process of change can be a struggle—from start to finish.  But we cannot do better if we don’t.  The national conversation is now, and we are only wasting our opportunity for an even better environmental regulatory system for the future if we decide to move away from struggle and move to stillness.

NGOs 1, Trump EPA 0: The First Skirmish in the Great Environmental Rollback War Goes to the Greens

Posted on July 11, 2017 by Seth Jaffe

Last week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017.  The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.

Notwithstanding Judge Brown’s dissent, EPA’s position on the merits seemed barely credible.  I understand the argument that the stay was not final agency action and thus not judiciable.  It just doesn’t seem compelling to me.  If EPA had amended to rule to extend the compliance deadlines, that clearly would have been subject to judicial review.  Why should the answer be different because EPA styles its action as a stay, rather than a revision to the regulations?  The impact is exactly the same.

As to EPA’s position that the four issues which it was reconsidering could not have been addressed during the original rulemaking by the industry groups now seeking reconsideration, EPA’s position was almost embarrassing.  As the Court repeatedly demonstrated, not only could the industry groups have addressed the issues during the original rulemaking, but they actually did so.  Moreover, EPA did consider those comments and, at least in parts, adopted them in the final rule.  My favorite example is the court’s discussion regarding the criteria for exemption for well-site pneumatic pumps.  As the Court noted:

[The American Petroleum Institute] … proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal.

The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption.

The real question at this point is whether this decision is any kind of harbinger.  Practitioners know that the record of the Bush EPA in rolling back Clinton rules was shockingly poor, given Chevron deference.  Are we going to see the same again?  The Court threw EPA what could prove to be a rather large fig leaf by noting that the decision does not prevent EPA from reconsidering the methane rule.  The Court also quoted FCC v. Fox Television Stations – the same case on which EPA is relying in its rollback of the WOTUS rule:

[EPA] is free to [reconsider the rule] as long as “the new policy is permissible under the statute.., there are good reasons for it, and … the agency believes it to be better.”

This is where the battles are going to be fought over the next several years.

Comprehensive Study of Impacts of Shale Development Released

Posted on June 28, 2017 by Kinnan Golemon

A report, Environmental and Community Impacts of Shale Development in Texas was released by The Academy of Medicine, Engineering and Science of Texas (TAMEST) to the public on June 19, 2017 (1). TAMEST is a nonprofit and brain trust for Texas composed of Texas-based members of the National Academics of Sciences, Engineering and Medicines and the state’s Nobel Laureates.  This entity was the original idea of my law school classmate and friend, Honorable Senator Kay Bailey Hutchinson, in 2004. The recently released report is the product of the TAMEST Board decision in 2015 to organize a task force charged with writing a report to “collect the best science available and summarize what we do and do not know” about environmental and community impacts that are posed by new technologies for the extraction of hydrocarbons from shale and other tight rock formations.

Texas, although oil had already been produced at various locations within its boundaries, became a dominant entity in oil and gas production on January 10, 1901, when the Lucas Gusher at the Spindletop salt dome in Jefferson County, roared to the surface: soon producing 100,000 barrels of oil per day, more than all U.S. wells combined (2). Oil and Gas production for the next 100 years was driven by “conventional” vertical well technology seeking resources from porous formations. However, commencing in the late 1980s and through the 1990s, a company founded by an affable, brilliant, tenacious and innovative son of immigrant Greek parents, George Mitchell, undertook an extended effort to access organic resources trapped in shale and very tight rock formations. After many years of limited or no success, Mitchell Energy, by century end, had demonstrated that certain hydraulic fracturing strategies [i.e. well completion techniques similar to those used since the late 1940s] (3) could be deployed in organic rich formations to produce natural gas economically.

Mitchell Energy’s acquisition by Devon Energy in 2002 resulted in another known technology, horizontal well drilling, being deployed along with hydraulic fracturing to produce the basic technological template that is utilized for shale development of oil and gas throughout the U.S., and currently being deployed elsewhere in the world today (4). The production from shale has also resulted in the largest transformation of the U.S. petrochemical industry in a generation, with $185 billion in new U.S. petrochemical projects either under construction or in planning (5).

Those interested in current and future energy policy, as well as the economic, social and environmental impacts associated with modern-day fossil fuel extraction and production, will find this authoritative, comprehensive and well-written report, see http://www.tamest.org, to be far more enlightening than one gains from other current information sources.

Interestingly, a portion of the funding for the report was provided by the Cynthia and George Mitchell Foundation, a mission-driven grantmaking foundation that seeks innovative sustainable solutions for human and environmental problems that was established prior to his death (6).

 

  1. The Academy of Medicine, Engineering and Science of Texas, 2017, Environmental and Community Impacts of Shale Development in Texas. Austin, TX: The Academy of Medicine, Engineering and Science of Texas. Doi: 10.25238/TAMEST stf.6.2017
  2. www.history.com/topics/spindletop
  3. Society of Professional Engineers (SPE) CD ROM https://www.store.com/spe.org/Legend of-Hydraulic Fracturing-P.433.aspx
  4. https://assets.kpmg.com/content/dam/kpmg/pdf/2014/03/shale-development-global-update-v2.pdf
  5. Christopher M. Mathews. “Shale Boom’s Impact in One Word: Plastics”. Wall Street Journal, June 26, 2017, A1.
  6. http://cgmf.org/p/founders.html

The Takings Line is Bent

Posted on June 26, 2017 by Brian Rosenthal

In an expansive review of regulatory takings, the Supreme Court reiterates governments must pay when overly impinging individual property rights by regulatory means, resulting in compensable takings.  The Court announces a flexible approach to analyze the private party’s parcel deemed taken by regulatory action (past or present).  Particularly, but not exclusively, when more than one parcel is involved as was the case before the Court, a new test emerges to define the taken parcel. The test includes consideration of the landowner’s expectations.  

The dissenters believe the Court for the first time strays away from its precedential findings on the whole parcel in issue as defined under state law, and predict the new multi-factor parcel review test will “tip the scales in favor of the government” for uncompensated takings by allowing the government to frame the taking as reasonable as it relates to the defined parcel and burden.

The majority is equally passionate, noting its test mitigates against the government’s unchecked usurpation and sometimes over-eager use of private property rights in the guise of the greater good.  The Court suggests “[p]roperty rights are necessary to preserve freedom” and supports its test as best suited for that protection.

The case involved a state’s restricting the development of lots on a protected river to those of a certain size, and resulted from unique circumstances where the property owners had come into possession of adjacent lots, each individually failing the development requirement.  Analyzing the facts under a multi-step review, the Court found the lots retained their economic value as a whole and supported a “no compensable taking” finding by looking at the following factors:

  1. No complete loss of economic value [might be non-compensable even if a complete loss where state property and nuisance laws would be deemed legitimately and commonly understood as a fair counterbalance to the regulatory taking (perhaps like wetlands restrictions)];

  2. Land treatment under governing state and local real estate law (how and where bounded);

  3. Physical characteristics (including topography and both its human and ecological features, such as if it were a coastal property or, as  here, a scenic river);

  4. Value (including any opportunities the burden may create, such as preserving a vista or greenspace or relationship of the lots); and

  5. Reasonable expectations of the landowners.

This case has been closely watched by both land use practitioners and regulating governments and municipalities.  Its implications reach squarely to environmental laws and regulations such as water regulations and use and development restrictions.

Is It a Dividend? Is It a Tax? Could President Trump Care Less?

Posted on June 26, 2017 by Seth Jaffe

In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan.  In essence, it’s a gradually increasing carbon tax.  The plan would be revenue neutral, with the proceeds being returned to taxpayers.  Thus, the name.  I loved the idea and I still love it.  I particularly love that the tax starts at $40/ton – that’s a serious number.

However, as I noted in February, the founders of the CLC are a who’s who of the old-line GOP establishment – precisely those whom President Trump would generally refer to as “losers”, unless he could spare the time to come up with something more derogatory.

The CLC has now brought on a number of corporate heavyweights, including GM and four of the world’s largest oil and gas companies (BP, ExxonMobil, Shell, and Total), among others.  They published their support in a Wall Street Journal ad.  In a cheerful bit of optimism, the program is now called “The Consensus Climate Solution.”  The ad describes the plan as “Pro-Environment, Pro-Growth, Pro-Jobs, Pro-Competitiveness, Pro-Business and Pro-National Security.”  Who could be against it?  Here’s a hint.  I think that the tag line would work better if phrased as follows:

Pro-Environment, Pro-Trump, Pro-Growth, Pro-Trump, Pro-Jobs, Pro-Trump, Pro-Competitiveness, Pro-Trump, Pro-Business, Pro-Trump, and Pro-National Security (and Pro-Trump)

Seriously, this is no time for cynicism.  This is a great plan.  A tax starting at $40/ton would have real impact.  (The most recent RGGI auction price?  $2.53/ton.)  As I noted earlier this week, we need smart people of good will and of all political stripes advocating solutions if we’re going to get anywhere.

Trump may call you losers, but, men and woman of the CLC, I salute you!

The Annual Texas Environmental Superconference—Austin in August?

Posted on June 26, 2017 by Jeff Civins

The Texas Environmental Superconference is one of a kind. Held each year in Austin in sweltering early August, this conference consistently sells out, attracting over 500 participants from the public and private sectors.Indeed, now in its 29th year, it was the winner of the first American Bar Association Section of Environment, Energy & Resources (ABA SEER) award for Best State or Local Bar Environment, Energy and Resources Program of the Year.

The key to the conference’s popularity is its unabashed willingness to integrate humor into content--with annual themes, skits, quizzes, prizes, and, for the past several years, even a conference song.Past themes have included Yogi Berra quotes (“It’s like déjà vu all over again”); Clichés (“The best thing since sliced bread”); Shakespeare (“Much Ado About Pollution”); “Star Wars (“May the farce be with you”); and Willie Nelson songs (“On the Road Again”).Dwarfing all other past conferences, though, was the Disney movie-themed conference, which featured the song “SuperconferenceAustinTexasExpialidocious” and is the subject of 2 You Tube videos. (introductory remarks and conference song).

Speakers generally weave the conference themes into their presentations and, on occasion, even appear in costume.For example, an EPA chief of enforcement appeared as Harry Truman in the politically-themed conference, “Join the Party,” and as Darth Vader, in the Star Wars-themed program. And an EPA General Counsel appeared as a tiara-wearing Wonder Woman in the super hero-themed program.A former EPA Regional Administrator and TCEQ Chairman appeared variously as the Beatles, the Odd Couple, Game Show contestants, and Yoda and Luke Skywalker.

This year’s conference – to be held on Thursday-Friday, August 4-5, 2017 – has as its theme board games and is entitled “Let the Games Begin.”The Wednesday evening session on enforcement is entitled “Trouble.”Registration is at Environmental Superconference-2017.

Participants look forward to attending each year for the chance not only to experience a fun and informative program, but also to network and to informally discuss issues of concern with other environmental professionals representing diverse perspectives, e.g., private and public sectors; regulators, regulated community, and environmental organizations; legal and technical professionals; and local, state, and federal governments.

The conference is organized by the Environmental and Natural Resources Law Section of the State Bar of Texas, in conjunction with other environmental professional organizations, including ABA SEER, the Air & Waste Management Association—Southwest Section, the Water Environment Association of Texas, the Texas Association of Environmental Professionals, and the Environmental Health and Safety Audit Center.Proceeds from the conference are used to fund environmental internships, student writing awards, and section outreach programs.

Thanks to a generous contribution from Supporter, EARTHx (formerly Earth Day Texas), the Superconference this year is offering –and last year offered--scholarships for employees of non-profit organizations with environmental matters as a significant focus.

The Annual Texas Environmental Superconference is the answer to the question, why come to Austin in early August?

Coal and Climate Change: An Opportunity for U.S. Technology Leadership

Posted on June 19, 2017 by William Brownell

It’s been a rough decade for coal in the United States. The advent of hydraulic fracturing in shale formations made natural gas plentiful and cheap. Concern over climate change fueled scores of new policies intended to accelerate growth in renewables and push aging coal units off the grid. U.S. coal consumption peaked in 2007, declining approximately 30 percent by 2015. A year later, five of the largest coal companies in the United States declared bankruptcy.

But it was a pretty good decade for coal in the rest of the world. Coal consumption grew by nearly 50 percent in China, which in 2013 was consuming nearly as much coal as the rest of the world combined. India similarly saw its coal use nearly double over the past ten years. This demonstrated a broader trend around the world: the top 20 coal-using nations were burning 23 percent more coal by 2015 than in 2005. 

If there’s been a war on coal, from a global perspective, coal is winning – and it hasn’t been close. As Charles Mann wrote in Wired in 2014: “In fact, a lump of coal is a thoroughly ubiquitous 21st-century artifact, as much an emblem of our time as the iPhone.”

Any discussion about coal, of course, is inextricably tied to questions about climate policy, with its most ardent proponents looking not just to reduce emissions of carbon dioxide and other greenhouse gases, but to eliminate fossil fuels altogether. And indeed, by the end of 2015, it looked as though climate policies, and a combination of other factors, would bend the curve of global coal consumption downward, with natural gas generating more electricity than coal for the first time in history.  That year global coal consumption fell 1.8 percent – the largest decline, in absolute terms, since the International Energy Agency (IEA) began keeping records in 1971. Reductions in the United States (-12.7 percent) and China     (-1.5 percent) were offset by modest increases in India (+4.8 percent) and Indonesia (+15 percent). Coal’s share of global primary energy consumption was at 29.2 percent – its lowest level since 2005.

But this did not stop the U.S. Energy Information Agency (EIA), in its 2016 Outlook Reference Case, from  projecting that coal would remain “the second-largest energy source worldwide – behind petroleum and other liquids – until 2030.” From 2030 through 2040, the EIA projected coal to remain the third-largest energy source, behind both liquid fuels and natural gas. Heralding coal’s demise seems premature. 

Against this background, I argued in 2014 with my colleague Scott Stone in a paper published by the Atlantic Council, that the United States has the potential to demonstrate meaningful leadership in the further development and broader deployment of advanced fossil energy technologies.  Clearly, industry has risen to the technology challenge when it comes to conventional air pollutants:  since 1970, coal use in the United States increased by more than 173 percent while emissions of sulfur dioxide, particulate matter, and other air pollutants declined by approximately 90 percent.  The same could prove true for carbon dioxide, but only if we move away from policy approaches that are disconnected from the financial and regulatory landscapes needed to build clean coal technologies at meaningful scales.

For starters, the disparity between the financial resources invested in “clean tech” and in CO2 capture technologies could not be greater. The International Energy Agency (IEA) has reported that between 2004 and 2012, around $20 billion was invested in CO2 capture, against $1.6 trillion for all other “clean” energy technologies. This clean tech investment is important and should continue.  Nevertheless, it is worthwhile noting that, over this time, global GHG emissions only continued to increase – a trend expected to continue for the foreseeable future.

Technologies are developing to ensure coal can be utilized in a manner consistent with stringent environmental standards, including for CO2. And indeed, the United States harbors legions of highly trained engineers who know more about building and operating state-of-the-art coal plants than virtually anywhere else on the planet.

This is important for the security and the reliability of the U.S. energy system. But it is equally important for the rest of the world. Outside the United States, there are many regions where natural gas is not cheap, nuclear is not available, and renewables are insufficient. These regions will look to coal to alleviate energy poverty and grow their economies, just as the United States did over the past century and China and India have done over the past half-century.  The question is not whether these regions will build new coal plants. They will. The question is whether they will build them with the technologies of yesterday or the technologies of tomorrow.

Here is where the United States can lead – on coal, technology, and climate.   

The Yanomami Model for Superfund

Posted on June 16, 2017 by Rick Glick

In a recent editorial, the Wall Street Journal celebrates the new priorities being set by Scott Pruitt’s EPA.  Mr. Pruitt, in the Journal’s opinion, is properly elevating the “more immediate” problem of Superfund sites over the “religion” of climate change.  Sadly, it seems, the misguided and naïve Obama Administration preferred “symbolic” climate measures over the more prosaic but urgent cleanup of Superfund sites. 

This of course is a false choice, since the country—and planet—must confront a wide array of pressing environmental problems.  Implementation of the Clean Power Plan doesn’t have much bearing on Superfund administration; both climate change and environmental cleanups need attention.  But aside from the Journal’s gratuitous trolling of climate policy, they are correct that Superfund is a program in need of reform.

One of the examples cited in the editorial is the Portland Harbor Superfund site, comprised of about 10 miles of contaminated river sediment.  Prior to listing, Oregon DEQ’s approach was to control potential ongoing contributions from upland sites, coordinate with the Army Corps of Engineers to remove the most serious pockets of contamination in the course of routine maintenance dredging, and then let natural riverine processes bury the rest.  There is a lot of science to support the notion that this approach would be plenty protective of human health and the environment.

Alas, EPA Region 10 added Portland Harbor to the National Priority List in 2000.  Seventeen years and over $100 million later, Region 10 issued its Record of Decision, but then hit the pause button because much of the data supporting the ROD had become stale.  A new round of sampling is soon to begin.  In the meantime, scores of PRPs are locked into the process with no way out until costs are fixed.  EPA currently pegs the cost at $1.05 billion, a figure no one but Region 10 believes to be close to the actual cost.

EPA’s selected remedy relies much more heavily on contaminant removal and capping, and less on natural processes, than the remedy proposed by the PRPs.  Unfortunately, EPA’s remedy does not reflect the enormous body of data that indicate such an aggressive approach is not necessary to protect people or the environment.  A prime driver for EPA is that it assumes a much higher rate of resident fish consumption by humans than do the PRPs’ scientists.  The region’s iconic salmon species migrate through the Portland Harbor without bioaccumulating toxins in the sediments.  Never has so much money been deployed to produce so little environmental benefit.

In his book In Trouble Again, the English gonzo explorer Redmond O’Hanlon describes his adventures trekking the Amazon rainforest and his encounter with the Yanomami people.  O’Hanlon witnessed the Yanomami blowing a hallucinogen called yoppo up each other’s noses and decided to give it a try.  What could possibly go wrong?  It turned out that the drug induced excruciating pain and that the only high he realized was relief when the effects wore off. 

As administered, Superfund is much like taking yoppo.  The process is so time consuming, expensive and uncertain that its chief benefit is to induce PRPs to enter state voluntary cleanup programs to avoid a federal Superfund listing.  Many more sites have been remediated, and I would bet at much lower cost, through such state programs than ever will through the formal Superfund process.

Does the Clean Water Act Cover Discharges To Or Through Groundwater, Part II?

Posted on June 15, 2017 by David Buente

One year ago, I published a blog post for the American College of Environmental Lawyers discussing a recent topic of interest in Clean Water Act (“CWA”) jurisprudence—whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  I observed that recent district court opinions had come out on either side of this issue, and argued that the line of cases rejecting jurisdiction over discharges to hydrologically connected groundwater correctly interpreted the CWA. 

Today, this issue is still very much a developing area of CWA doctrine.  First, additional district courts have issued decisions both in favor of and against CWA jurisdiction over discharges to hydrologically connected groundwater.  For example, in March 2017, in Sierra Club v. Virginia Electric and Power Co., a CWA citizen suit over alleged discharges from coal ash basins, the Eastern District of Virginia held that “[t]he CWA regulates the discharge of arsenic into navigable surface waters through hydrologically connected groundwater.”   However, a few weeks later, in April 2017, the District of South Carolina came to the opposite conclusion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., a CWA citizen suit regarding alleged discharges resulting from an oil pipeline spill, holding, “[T]he CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.”

These two cases should result in another circuit court weighing in on this important jurisdictional issue.  As noted in my previous post, only the Fifth and Seventh Circuits have issued opinions on this topic, both determining that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  The plaintiffs have already appealed the Upstate Forever decision to the Fourth Circuit, and the Virginia Electric and Power Co. decision has likewise been appealed, although a decision is pending on whether the latter district court decision is yet ripe for appeal.  The Fourth Circuit’s stance will be especially enlightening given that the Ninth Circuit’s Hawai’i Wildlife Fund v. County of Maui case has not advanced in any substantial manner since briefing took place last Summer.

Another important development on this front since my last post is the January 2017 transition from the Obama Administration to the Trump Administration.  On February 28, 2017, President Trump issued an executive order requiring the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers to review the agencies’ definition of “navigable waters” in their 2015 rule and to “consider interpreting the term” to reflect Justice Antonin Scalia’s narrower definition in his plurality opinion in Rapanos v. United States.  As noted in my last post, the 2015 rule already expressly excluded isolated groundwater as a water of the United States.  80 Fed. Reg. at 37073.  Any revised rule would almost certainly keep that exclusion, and could even expand upon it to explicitly exclude hydrologically connected groundwater from the definition of waters of the United States. 

On the other hand, it is worth noting that the Town of Marion, Massachusetts, recently filed a petition for review with the EPA’s Environmental Appeals Board of a National Pollutant Discharge Elimination System permit EPA Region 1 issued to Marion for its wastewater treatment plant in April 2017.  EAB Docket No. MA0100030.  That permit, issued by the EPA since President Trump’s inauguration, regulates groundwater contamination from sewage sludge lagoons and arguably adopts the broader view of Clean Water Act jurisdiction over hydrologically connected groundwater, so the Trump Administration’s position on this crucial jurisdictional issue is not yet clear.         

The issue of whether the Clean Water Act regulates discharges to groundwater which is hydrologically connected to a water of the United States continues to be an important, developing area of the law.  Hopefully, with cases pending before the Fourth and Ninth Circuits, some more clarity on this topic will emerge in the not-too-distant future.

THE PRESIDENT’S CRUSADE AGAINST BIRTH CONTROL HARMS WOMEN AND THE ENVIRONMENT

Posted on June 14, 2017 by Leslie Carothers

Environmentalists have long debated the need to address links between population growth and environmental harm.   Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.  

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution.  (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception).  None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception.  Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception.   Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures.  But many developing countries in sub-Saharan Africa remain at near 5.  If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.    

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected.  More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S.  The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability.  The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds.  This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids.  That is because the old rule applied directly only to family planning programs of about $600 million.   Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone.  The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly.   The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs.  The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption.  While further litigation and negotiations continue, the Trump Administration is preparing  regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them.  This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more.  The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them.  In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families.  Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.  

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control.  Whatever their motivations, this is an issue environmental advocates should not ignore.  Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights.    But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.  

Categories:  Sustainability, Climate Change

Tags:  Population, Environment

 


TSCA Implementation: What’s in Pruitt’s Playbook?

Posted on June 9, 2017 by Lynn L. Bergeson

Candidate Trump’s views on chemical management were not well articulated, if they were articulated at all, in sharp contrast to his views on climate change.  Whether the silence signaled support for the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg), which extensively amended the Toxic Substances Control Act (TSCA) upon its enactment last June, or something else was an open question before now.  Several developments suggest U.S. Environmental Protection Agency (EPA) Administrator Pruitt is firmly behind implementing the new law on schedule.  What is less clear is how key policy issues will be decided.

TSCA is the federal law that authorizes EPA to regulate imported, manufactured, and processed industrial chemical substances.  Lautenberg extensively amended TSCA, adding significant new definitions, expanding testing authority, regulating new and existing chemicals, expanding information reporting, narrowing confidential business information protection, and modifying preemption opportunities, among other changes.  Further information is available on our TSCA Reform website:  http://www.lawbc.com/knowledge-resources/tsca-reform-news-info.

The unexpected election results inspired considerable concern in some quarters regarding whether Lautenberg’s implementation would succumb to the anti-regulation rhetoric emanating from the Trump White House, torpedoing the hard fought gains reflected in the new law’s passage.  These fears were exacerbated with news of President Trump’s 2018 budget, which proposes a jaw-dropping 31 percent reduction in EPA funding (from $8.05 billion in 2017 to $5.65 billion in 2018).  Under this plan, 3,200 EPA employees would lose their jobs, and some 50 EPA programs would be scrapped.

To date, there has been no public change in the Office of Chemical Safety and Pollution Prevention’s (OCSPP) course of conduct regarding TSCA implementation.  Acting Toxics Assistant Administrator Wendy Cleland-Hamnett is an experienced, able leader, well respected by staff and diverse stakeholders alike. Nancy B. Beck, Ph.D., DABT, was brought on May 1 as the principal Deputy Assistant Administrator for OCSPP.  Dr. Beck holds a doctorate in environmental health and for the past five years has served as the senior director for Regulatory Science Policy at the American Chemistry Council.

The Pruitt Administration can be expected to drive EPA regulatory and science policies.  Mr. Trump is an outspoken critic in other contexts, such as with regard to climate change and Clean Water Act issues, of what he described as the Obama EPA’s “manipulated” (fake?) science to support a political outcome and, of course, vowed to “fix” this.  Under Lautenberg, EPA is required to promulgate the TSCA “framework” rules, TSCA Inventory notification, procedures for prioritizing chemicals for risk evaluation, and procedures for chemical risk evaluation,  by mid- June 2017.  It is difficult to predict how exactly the new Administration can be expected to influence the many critically important policy issues at play in these proposals.  Dr. Beck’s recent arrival at EPA, however, significantly enhances the front office’s bandwidth in science policy issues, and may suggest a policy bent decidedly more business-friendly than the proposed rules crafted under the Obama EPA.

That the Administration will seek to influence chemical regulatory policy is clear as the stakes are high and the consequences for the domestic chemical industry too great to be ignored.  How, for example, will “weight of evidence” be defined; must all “conditions of use” be included in the scope of every Section 6(b) risk evaluation; how should the “reasonably foreseen” provision in the definition of “conditions of use” be applied; will the composition of the Science Advisory Committee on Chemicals change and when?  These are just a few of the many consequential decisions that this Administration will decide concerning Lautenberg’s implementation, some of which will almost certainly be litigated.  In that the three framework rules and the scope of the risk evaluations for the ten chemical substances identified on December 19, 2016, will be out soon, we should have a much clearer sense of the chemical policies the Pruitt Administration supports.

Interesting questions also arise from application of the Executive Orders (EO) President Trump has issued with respect to their impact on TSCA implementation.  EO 13,777, Enforcing the Regulatory Reform Agenda, issued on February 24, 2017, and EO 13,771, which directs the head of every agency to designate an officer to “oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms,” could significantly impact TSCA implementation.  Of particular relevance is EO 13,771, requiring that agencies identify two rules for repeal for every new regulation the agency proposes.  The imperatives of the EOs must be viewed in the context of the cold, hard fact that an expectedly unfriendly Trump Office of Management and Budget will be in charge of regulatory reviews of each regulation, and significant EPA policies.  Application of the EO to the TSCA implementation could burden the Office of Pollution Prevention and Toxics’ already strained resources to an unsustainable degree, hamper its ability to devote its limited resources to implementing the new law, and seriously disrupt the chemical manufacturing community by holding hostage urgently needed new chemicals.  EPA is urged to stay focused and on target as failure to implement the new law timely and credibly will invite an erosion of the trust the public was beginning to place in the federal government’s ability to manage chemical risks since Lautenberg’s bipartisan enactment.

The Millennial Environmental Voice: We Can’t Hear You Now

Posted on June 8, 2017 by Linda Benfield

The United States’ environmental agenda shifted abruptly with the election. Instead of implementing greenhouse gas initiatives, bolstering incentives for renewable energy projects, and fine-tuning various air, water and waste standards, we are suddenly discussing the future of the Endangered Species Act, debating withdrawal from the Paris Accord, filing away the Clean Power Plan, and considering the limits of science in regulatory decision-making.

Through all the discord, angst and celebration of the changed focus of environmental regulation, the Millennials have yet to assert their generational voice. Born between 1981 and 1996, these citizens are 21-36 years old. In 2015, they became the largest share of the American workforce at 33%, and there are estimates that Millennials will make up 50% of the American workforce by 2020. With those numbers, and their age, they have the potential to significantly impact elections for the next 35 years.

But who are they, and how will they impact the environmental agenda?  Only 50% of Millennials voted in the 2016 election – the worst turnout of any voting-age generation, and a decrease in their voting participation from the 2012 election. The tropes for this generation peg them as “socially conscious,” and willing to deeply engage in causes they believe in. However, empirical “time-lapse” research comparing responses from different generations at the same point in the responders’ lives, actually indicates that Millennials are no more altruistic than previous generations, and no more determined to seek meaning in their work and lives or do work that is worthwhile to society. This generation also faces different economic and social challenges than their parents did, and it is not clear how that perspective will translate to addressing environmental challenges.  

In the last 50 years, we have fundamentally changed the environmental “baseline.” Millennials never experienced burning rivers, and they didn’t grow up underneath the Denver “Brown Cloud.” The Clean Air Act, the Clean Water Act, and 40 C.F.R. are their baseline - and that is a different perspective than their Baby Boomer parents had when they were fighting against tangible environmental degradation. The Millennials can fundamentally impact our election results – if they vote. And until they vote, we won’t know what the environmental voice of this powerful generation sounds like. 

It’s the Infrastructure, Stupid

Posted on June 7, 2017 by Gregory Bibler

On May 23, 2017, President Trump issued his Fiscal 2018 budget proposal.  EPA’s press release, issued the same day, declared:  “EPA Budget Returns Focus to Core Statutory Mission.” https://www.epa.gov/newsreleases/epa-budget-returns-focus-core-statutory-mission  EPA made clear that “returning” to the “mission” means reducing the size of the agency.  EPA’s budget would be cut by 31 percent, compared to the Fiscal 2017 enacted budget, and its current workforce would be cut by 25 percent.  The President proposes to cut 600 more positions than indicated in his March 16 budget proposal (which was abandoned with surprisingly little fanfare when the President signed the Fiscal 2017 enacted budget on May 5). 

But there is at least one bright spot in the President’s new budget proposal.  Funding is to be preserved for programs “supporting the President’s focus on the nation’s infrastructure.”  “Infrastructure,” according to EPA, includes improvements to drinking water systems.  Toward that end, the budget includes $2.3 billion for State Revolving Funds and $20 million in additional appropriations for the Water Infrastructure Finance and Innovation Act program.

The President is sticking by his campaign promise to help communities like Flint, Michigan finance improvements needed to reduce lead in drinking water, particularly in homes and schools.  Providing funding for these particular programs stands in contrast to the overall tenor of the budget, and the campaign’s promise to eliminate “wasteful” EPA grants. 

Revelations in Flint triggered widespread and, as it turns out, legitimate concerns about the effectiveness of existing regulatory programs to protect against lead contamination in drinking water. http://www.goodwinlaw.com/-/media/files/publications/attorney-articles/2017/eba-winter-journal-2017flint-inspires-renewed-vigi.pdf It has been more than 30 years since Congress enacted the Safe Drinking Water Act, and more than 25 years since EPA adopted the Lead and Copper Rule (“LCR”).  After Flint, increased lead testing in schools, and greater scrutiny of data already being collected by public water systems, revealed that elevated lead levels continue to be a pervasive problem in U.S. cities and school buildings (including more than half of the 300 public school buildings tested in 2016 in Massachusetts).

In October 2016, in the waning days of the Obama administration, EPA issued a white paper that announced that the LCR and its implementation are in urgent need of overhaul.  The LCR is a protocol for testing and treatment, not a set of numerical standards.  EPA stated that more prescriptive requirements that are more effective and readily enforceable need to be adopted.  Notwithstanding the Trump administration’s current war on environmental regulation, EPA has stated that it intends to formulate more stringent and clear requirements.  Meanwhile, in December 2016, Congress actually succeeded in amending the Safe Drinking Water Act to replace the moribund school drinking water provision, which was declared unconstitutional in 1996, with a new provision that, among other things, established a voluntary school lead testing grant program.

It is apparent that, on the issue of safe drinking water at least, the Trump administration has accurately measured the political mood.  Despite draconian cuts proposed to almost all of EPA’s budget and staffing, the administration has recognized that improving the regulation, testing and treatment of drinking water in schools and public water systems is politically expedient, and may do more good than harm.  It is good policy and good politics.