Task Force Recommends Stronger ABA Leadership on Sustainability

Posted on September 2, 2014 by John Dernbach

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

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

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

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

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

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

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

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

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

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

Texas Railroad Commission on track to address quakes

Posted on August 28, 2014 by Jeff Civins

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

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

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

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

Posted on August 27, 2014 by Karen Crawford

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

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

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

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

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

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

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

The Affair of the Vicious Vegetable Seeds

Posted on August 26, 2014 by Susan Cooke

 

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

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

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

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

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

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

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

Posted on August 25, 2014 by Seth Jaffe

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

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

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

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

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

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

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

 

law is an ass

EPA Gets the Last Word—For Now

Posted on August 22, 2014 by Charles Nestrud

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

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

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

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

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

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

Invasion of the Drones

Posted on August 12, 2014 by Leslie Carothers

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

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

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

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

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

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

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

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

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

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

Posted on August 11, 2014 by Stephen Bruckner

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

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

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

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

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

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

Adjusting for Wind: USFW Extends Term for Eagle Take Permits

Posted on August 7, 2014 by LeAnne Burnett

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

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

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

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

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

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

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

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

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

Posted on August 6, 2014 by Molly Cagle

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

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

1. TCEQ grants water-rights permits.

2. Water-rights holders divert water

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

4. Increased salinities diminish available foods for cranes.

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

6. Upland movement of cranes causes them stress.

7. Stress weakens flock and causes crane deaths.

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

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

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

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

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

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

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

The Wilderness Act at 50: The Golden Anniversaries Begin

Posted on August 5, 2014 by Stephen R. Brown

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

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

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

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

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

*Click here to read full article*

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

Posted on August 4, 2014 by Jeff Thaler

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

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

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

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

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

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

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

ACOEL’s China Project

Posted on August 1, 2014 by James Bruen

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

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

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

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

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

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

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

The Uprising or Downfall of the Clean Water Act’s Permit Shield

Posted on July 31, 2014 by David Buente

            Section 402(k) of the Clean Water Act (CWA) is commonly known as the “permit shield.”  It has been part of the CWA since 1972.  Even seasoned environmental lawyers would not likely need even one hand to count the number of permit shield cases that mattered to one’s practice.  If you fall into this category, it is time to listen up! 

Background.  Section 402(k) states that compliance with a National Pollutant Discharge Elimination System (NPDES) Permit “shall be deemed compliance, for purposes of,” among others, various government enforcement actions and citizens’ suits.  EPA’s regulations make clear that where a party has been issued a permit, if the permit holder complies with the express limits of the permit, the permittee has “the security of knowing that . . . it will not be enforced against for violating some requirements of the [CWA] which was not a requirement of the permit. 45 Fed. Reg. 33,290, 33,311 (May 19, 1980). Federal Register.

            Almost 40 years ago, the Supreme Court in E.I. Du Pont De Nemours & Co. v. Train, confirmed that the purpose of the permit shield is to “insulate permit holders from changes in various regulations during the period of a permit and to relieve them of having to litigate in an enforcement action the question of whether their permits are sufficiently strict.  In short, Section 402(k) serves the purpose of giving permits finality.”

            Train, however, was not the last word on the permit shield.  In 1994, EPA issued a Guidance Memorandum providing its interpretations of the scope of the permit shield.  EPA’s 1994 Guidance explains that:

A permit provides authorization and therefore a shield for the following pollutants             resulting from facility processes, wastestreams and operations that have been clearly identified in the permit application process . . .: (1) Pollutants specifically limited in the   permit or pollutants which the permit, fact sheet, or administrative record explicitly          identify as controlled through indicator parameters.; (2) Pollutants for which the permit authority has not established            limits or other  permit conditions, but which are specifically identified as present in facility discharges during the permit application process; and (3) Pollutants not identified as present [in the facility discharges] but which are constituents of wastestreams, operations, or processes that were clearly identified during the permit application process.

Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits at 2-3 (July 1, 1994) quoted in In re Ketchikan Pulp Co., CWA Appeal No. 96-7, p. 624 (May 15, 1998).

Shortly thereafter, in 1995, EPA re-issued the July 1994 memorandum entitled Revised Policy of Scope of Discharge Authorization and Shield Associated with NPDES Permits(now known as the “1995 Policy Statement”). The 1995 Policy Statement added qualifying text to the second and third conditions in EPA’s 1994 Guidance document.  In both cases, EPA required that the pollutants for which the permit authority has not established limits or other permit conditions or that were not identified as present but which are constituents of wastestreams, operations or processes had to be “specifically” or “clearly” identified in writing and contained in the administrative record which is available to the public.”  Id. at 2-3.  

Thirteen years later, in Piney Run Pres. Ass’n v. City Comm’rs, 268 F.3d 255 (4th Cir. 2001), the Fourth Circuit held that the permit shield applies to discharges of pollutants not listed in a permit as long as the permittee had adequately disclosed the unlisted pollutants  to the permitting authority.  If the discharger, however, “has not adequately disclosed the nature of its discharges to permit authorities, and as a result thereof the permitting authorities are unaware that unlisted pollutants are being discharged, the discharge of unlisted pollutants has been held to be outside the scope of the permit.”    

            The Piney decision held the day for 13 years with no significant permit shield decisions in the interim. 

Times Are Changing.  After more than a decade of dormancy, the scope of the permit shield is now being tested.  In 2013 and 2014, the DOJ on behalf of EPA has filed – under very quick time frames – two briefs as amici curiae addressing NPDES individual and general permits and providing a more nuanced interpretation of Section 402(k).  DOJ now takes the position that a NPDES permit can shield its holder from liability only where the permit holder (1) complies with the express terms of the permit and with the EPA/State permit application rules; and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was granted.  DOJ made clear that any reliance on prong three from the 1995 EPA guidance “is misplaced” because, in the government’s view, the third prong of the guidance deals with  an entirely different situation – namely, it is intended to cover pollutants where there is no affirmative duty to disclose them during the permit application but where, nonetheless, the applicant has made a complete and adequate disclosure with respect to constituents of wastestreams, operations, or process” that “are clearly identified in writing and contained in the administrative record.  Southern Appalachian Mountain Stewards v. A&G Coal Corp., Case No. 13-2050 (4th Cir.), DOJ Brief at 27.

            Then, earlier this year, the Fourth Circuit issued a sharply-worded decision in  Southern Appalachian  Mountain Stewards v. A&G Coal Corp. upholding a lower court’s decision that A&G was not entitled to the permit shield because nowhere in the NPDES application did A&G state that it would be discharging selenium.  The Fourth Circuit did an about face from its decision in Piney based on upon DOJ’s amicus brief and its new disjunctive test, and held that unlike in Piney,  A&G did not disclose the unlisted pollutant adequately and, thus the permit shield was not available. 

            There are two cases pending before the Sixth and the Ninth Circuits that will address the scope of the permit shield.   The Sixth Circuit case – Sierra Club v. ICG Hazard, Inc. – was argued in April, 2013, and the Ninth Circuit case -- Alaska Community Action on Toxics v. Aurora Energy Services, LLC and Alaska Railroad Corp. --  has just recently concluded the briefing process.  DOJ has filed an amicus brief in the Alaska Community Action case which is substantially similar to the one submitted in the A&G Coal litigation.

            Once these decisions are rendered, there may well be a circuit split giving the Supreme Court the opportunity to become the final arbiter of the scope and meaning of Section 402(k)’s permit shield.

CERCLA

Posted on July 30, 2014 by Andrew Brown

More than thirty years after the enactment of CERCLA, basic questions relating to the liability provisions remain.  These issues can become critical when attempting to apply the limitation periods set out in the statute.  One of the unsettled questions is whether an Administrative Order on Consent (AOC) can give rise to the Section 107 cost recovery claim, or are the potential plaintiffs limited to a claim for contribution under Section 113. This question can loom large when trying to determine the applicable limitations period because a three-year statute of limitations applies to contribution claims, as opposed to the usually more generous limitations periods – three years for removal actions and six years for remedial actions --  provided for Section 107 cost recovery claims. 

The Supreme Court has addressed the relationship between Section 107 cost recovery claims and Section 113 contribution claims in two cases:  Aviall Servs., Inc. v. Cooper Indus. and U.S. v. Atl. Research Corp. In Aviall, the Court held that a Section 113(f) contribution action can only be brought during or following a suit under CERCLA Sections 106 or 107, or after liability is resolved in an administrative or judicially approved settlement.  In Atl. Research, the Court held any party, including a potentially responsible party (PRP), may bring a Section 107 action to recover cleanup costs but observed that Sections 107 and 113 provided distinct causes of actions that were available to PRPs depending on whether they were seeking recovery or contribution.  The Court noted that it was deciding the question of whether compelled costs of response can be recovered under Section 107(a), Section 113(f), or both. 

Since Atl. Research, circuit courts have not allowed cost recovery claims when a contribution claim is available.  This issue was addressed recently by the Sixth Circuit Court of Appeals in Hobart Corp. v. Waste Mgmt. of Ohio.  More specifically, the court considered whether the plaintiff was limited to a claim for contribution – and thus subject to the three-year limitations period – because it had entered into an AOC to prepare the Remedial Investigation/Feasibility Study. Following the lead of other circuit courts, the Sixth Circuit declined to apply a bright-line test but focused on whether under the AOC the plaintiff had resolved its liability to the government for some or all of the response costs.  If so, then recovery was limited to a contribution action under Section 113. The court held the AOC had resolved the plaintiff’s liability and called attention to three specific provisions in the AOC:  the release was operative upon the effective date of the AOC, contribution protection was available as of the effective date of the AOC, and the effective date was the date that the AOC was signed (rather than the date of the completion of the work).

Hobart is another reminder that litigants must evaluate their case very carefully before they assume they will have a Section 107 claim for costs incurred to satisfy the terms of an AOC.  At this point, it seems clear that for many AOCs, the only available claim will be one for contribution, especially when the terms of the AOC foreclose further adjudication of legal liability.  But the courts have taken on this issue on a case-by-case basis.  There may be some cases, as in ITT Industries v. BorgWarner, Inc., where the AOC is found not to be a “settlement” under Section 113(f) and a cost recovery claim may exist.  But until there is further guidance from the Supreme Court, the safest approach is likely to be to assume that only a Section 113 contribution claim is available to recover costs incurred under an AOC. 

EPA to Revisit Emission Guidelines for Existing MSW Landfills

Posted on July 29, 2014 by Carolyn Brown

In an Advanced Notice of Proposed Rulemaking (ANPRM) published in the July 17, 2014 Federal Register, EPA requests public input on reduction of emissions from existing municipal solid waste (MSW) landfills.  “Landfill gas” (LFG) contains methane, carbon dioxide and nonmethane organic compounds (NMOC).  NMOC includes various organic hazardous air pollutants and volatile organic compounds and was the focus of EPA’s initial landfill emission regulations in 1996.  However, the current driver for EPA’s focus on this source category is the President’s Climate Action Plan and the March 2014 Strategy to Reduce Methane Emissions

With respect to landfills, the Methane Strategy calls for EPA to update its rules to reduce emissions from new, modified, and reconstructed landfills; to explore options to reduce emissions from existing landfills; and to encourage energy recovery from LFG through voluntary programs.  The ANPRM addresses the existing landfill component of the strategy.  EPA notes that LFG is typically composed of roughly equal parts of methane and carbon dioxide and less than one percent of NMOC.  Methane has a global warming potential 25 times greater than carbon dioxide and is also identified as a precursor to ground-level ozone.

MSW landfills are a source category for which EPA has issued new source performance standards (NSPS) under Section 111(b) and emission guidelines under Section 111(d) of the Clean Air Act.  Both the NSPS and the emission guidelines were promulgated in 1996.  The designated facilities to which the guidelines apply are existing MSW landfills for which construction, reconstruction or modification commenced before May 30, 1991.  EPA required state plans to control MSW landfills of a certain size and NMOC emission rate if the landfill had accepted waste at any time since November 8, 1987, or had additional design capacity available for future waste deposition.

In the ANPRM, EPA states that it is not statutorily obligated to conduct review of emission guidelines but has the discretionary authority to do so when appropriate.  Despite the focus on the methane strategy, the circumstances EPA identifies for making the review appropriate here are “changes in the landfills industry and changes in size, ownership, and age of landfills” since the emission guidelines were promulgated in 1996.  The ANPRM states that any changes to the emission guidelines would apply to landfills that accepted waste after November 8, 1987, and that commenced construction, reconstruction or modification prior to the publication of proposed revisions to the landfill NSPS.  Landfills currently subject to the 1996 NSPS would have to comply with those requirements as well as any more stringent requirements in the applicable revised state plan or federal plan implementing the revised Section 111(d) guidelines.

Among the topics on which EPA requests comment are the following: (1) extent to which reduction in methane emissions should be taken into account in revising the guidelines; (2) possible changes in the regulatory framework such as eliminating or reducing the design capacity threshold for applicability; (3) criteria and timing for capping or removing the landfill gas collection and control system (GCCS); (4) emission reduction techniques and GCCS best management practices; (5) alternative monitoring and reporting requirements; and (6) what constitutes sufficient LFG treatment, including use of LFG as fuel.  Comments are due September 15, 2014.

Raining On The Cities’ Parades

Posted on July 22, 2014 by Charles F. Becker

Every city of any size wants development.  Some prefer commercial over residential, but they share the common belief that growing is the best way to survive.  The problem that arises, however, is nature. 

Development is, necessarily, hard surfaces.  It is rooftops, streets and driveways.  In other words, it is impervious area.  When rain hits the impervious area, it must be diverted, collected and pushed downstream.  While attempts can be made to allow it to soak into the ground, the reality is that there is simply no way to make up for all of the new impervious area without a great deal of planning, preparation and expense. 

Most attorneys who practice in the area of water regulation have received a call from a business or homeowner that is located at the “bottom of the hill.”  These entities are the ones who are feeling the effects of the urban development.  They have noticed that over the past five or ten years, they have been receiving more and more water to the point that they are now flooding on a routine basis.  They ask the obvious question:  Who is at fault?  Who can pay me for the destroyed basement, the flooded parking lot or the months of work stoppage while repairs are made?

In most states, riparian law prohibits the upstream neighbor from altering the water flow from his/her property in a way that adversely affects the next door neighbor.   But that does not provide a solution when it is the cumulative effect of many upstream neighbors, all of which have been issued permits from the city, that is the root of the problem.

As was recently reported, the stormwater runoff question was called in a recent series of class action cases filed in Illinois by an unlikely plaintiff, the Illinois Farmers Insurance Company.  In the suits, the insurance carrier alleged that 200 cities in Illinois had negligently maintained the stormwater system, had failed to remedy a known dangerous condition and had undertaken an unlawful “taking” in that the government had appropriated the properties of others to use as diversion and retention basins.  The carrier sought to recover amounts it had paid out under flood claims made by their insureds.

Interestingly, about fifty days after filing, Farmers Insurance filed a notice to dismiss the action.  The carrier said that it had successfully brought important issues to the attention of the respective cities and counties and that it hoped to continue a constructive conversation with the cities to build stronger, safer communities.  As one would expect, the spokesman for the cities believed that the dismissal was because the carrier recognized it did not have sufficient grounds for the suit. 

There are some things that local governments are particularly suited to do: manage solid waste, ensure the timely delivery of electricity and coordinate the development and maintenance of streets, for example.  These are matters that potentially affect everyone within the city limits and for which everyone must pay.  There is no better example of this than addressing stormwater that lands on every property in the city.  Having a system in place that safely carries the stormwater away from buildings cannot be done by any single landowner.  And regulating the bigger picture -- building the necessary stormwater infrastructure while encouraging development -- is uniquely within the purview of the city.

It would appear that the proverbial warning shot has been fired across the bow.  If cities are going to encourage activity that significantly exacerbates the stormwater problem, they may also be charged with protecting those that are affected by the fallout from those activities.  For this problem, time, without action, is only going to make the problem worse and the solution more expensive. And counting on the next case being voluntarily dismissed is a lot like hoping the rain won’t fall.      

3 BR, 2 Baths, With a Spectacular View of the Northwest Ordinance

Posted on July 21, 2014 by Linda Benfield

In Wisconsin, the desire to develop prime Milwaukee lakefront property is running head on into the Public Trust Doctrine and fueling interest in the state’s earliest history.  The lands that are now Wisconsin, Ohio, Indiana, Michigan and Illinois were initially included in the Northwest Ordinance of 1787 which established that navigable waters are “common highways” and are “forever free” to all citizens of the United States.  This language was incorporated into the state Constitution in 1848, and the Public Trust Doctrine is an integral part of Wisconsin’s environmental identity. The doctrine has been interpreted over the years to ensure that beaches have public access, that the public can swim, boat or walk in any water body as long as they “keep their feet wet,” and that restaurants located along Lake Michigan offer at least one cheap meal.   

Now a developer wants to replace an ill-suited County bus garage along the lake front with a high rise development that would include a hotel and high end apartments with lovely lake views.  The problem:  under the Public Trust Doctrine, title to the Lake Michigan lake bed (as it existed in 1848) off the shores of Milwaukee rests with the state, which is required to “preserve” and “promote” the public trust. A scramble to the history books and maps ensued, and an initial memorandum from the Wisconsin Department of Natural Resources “determining” that the land in question was not part of the lake bed in 1848 was rescinded when historical maps were found showing that approximately 2/3 of the property was in the lake bed at that time.  Proponents next argued that the property in question had accreted naturally, thus exempting it under a narrow exception to the Public Trust doctrine.  When historical documents showed that any structures that would have led to accretion were placed after the property was filled (and soil borings identified fill material), these parties turned to a 1913 deal with the Chicago Northwestern Railway.  The arguments that the city conveyed this property to the railroad, and that it would have become upland by the process of accretion, and in any event was for a public purpose and did not materially affect the rights of the public, did not gain independent traction, over similar public trust concerns.  

Enter the legislature. A budget bill was initially passed, whereby the legislature, as “Trustee,” approved the 1913 transaction. However, because Wisconsin law does not allow the legislature to include private bills in budget bills, a second bill was introduced and Act 140 was signed into law on March 17, 2014.  Act 140 sets the boundary of the lake bed at the line of the 1913 transaction, bars the Wisconsin Department of Natural Resources from taking a position on the determination, and declares that the legislature’s findings are “in lieu of, and have the same effect as,” a quiet title action entered by a court. 

The new law could have a profound impact on Milwaukee’s lake front.  This month, another company offered to purchase the county parking garage in the same area; this land was also part of the lake bed in 1848 and was included in the 1913 transaction.  The private company will pay off existing debt and commit to immediate, much-needed repairs to the parking garage.  It remains to be seen whether Act 140 will survive a judicial challenge, and whether judicial confirmation of the statute will be necessary to entice any necessary funding and title insurance for the developments.

TSCA Reform: Dead for Now

Posted on July 18, 2014 by Lynn L. Bergeson

Despite high hopes earlier this year for the promise of a legislative make-over, Toxic Substances Control Act (TSCA) reform measures are dead, certainly for the remainder of this Congressional session and possibly the next.  In the category of all things happen for a reason, maybe there is a silver lining to this disappointing result.

TSCA is among the oldest federal environmental laws, one of the most neglected, and clearly one of the most complex and divisive.  At the ripe old age of 38, TSCA’s elasticity has proven remarkable given the tremendous technological advancements made in the chemical manufacturing sector over the past four decades.  In other respects, however, TSCA is impossibly ill-suited to address advancements in risk identification, assessment, and management, societal changes that have profoundly recalibrated consumer expectations, and a more muscular role for states, especially forward-thinking ones like California.

The TSCA reform debate has focused on a handful of tough issues -- preemption, safety standard/risk management, and prioritization of existing chemicals.  Preemption tends to dwarf other issues and how amenable preemption is to resolution has been made all the more challenging given the implementation of the California Safer Consumer Products Regulations (SCPR), which went into effect last October.  The SCPR truly are game-changers and require consumer product manufacturers to assess the safety of chemicals in consumer products by mandating chemical substance “alternative” assessments to ensure products marketed to consumers contain chemical components least likely to cause risk to human health and the environment.

TSCA reform in the shadow of a Presidential election and a new Congress, the composition of which is anything but clear, makes meaningful predictions impossible.  A question worth pondering is not when TSCA will be amended, but whether we bother at all.  The European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) chemical management model, like it or not, is firmly embedded in multiple jurisdictions, and has already triggered massive changes and product deselection in the chemical sector.  The California SCPR are in place and with each passing day are becoming the default standard against which product formulation is being measured, fueled in no small part by a retailer imperative that directionally is joined at the hip with the California approach of “just get rid of the bad stuff.”  Given Congress’s attention span, the better part of valor may be to direct Congress’s limited attention to climate change and give up on TSCA reform.

New FDA Fish Consumption Advisories: Is the Proof in the Eating?

Posted on July 17, 2014 by Gregory Bibler

            On June 10, FDA issued draft updated advice on fish consumption. 

            The announced purpose of the new advice is to redress a health problem largely attributable to the old advice:  “For years many women have limited or avoided eating fish during pregnancy or feeding fish to their young children,” FDA stated.  Prominently featured in the old advice, which is still in effect, were warnings that methyl mercury may harm an unborn baby or young child’s developing nervous system, and that nearly all fish and shellfish contain traces of methyl mercury.  Women, and their doctors, became so concerned about the potential for trace amounts of methyl mercury in fish to cause harm that they avoided fish entirely.

            Acting on the misperception that all fish and all risk should be avoided caused more harm than good.  “[P]rimary research studies with pregnant women have consistently found that the nutritional value of fish is important during growth and development before birth,” FDA now says, “even though nearly all fish contain at least traces of mercury.”  Rather than trumpeting the dangers of methyl mercury in fish and shellfish, therefore, the new advice affirmatively promotes fish consumption (including shellfish).

            There is no indication in the advice that the data on methyl mercury have changed.  Both the old and new advisory, in fact, target the same four “bad” fish to be avoided:  shark, tilefish, swordfish, and king mackerel.  What has changed is a realization that, absent appropriately worded warnings, the public inevitably will conclude that there is no level of acceptable risk.

            The essential premise of FDA’s new advice, in short, is that it is not possible to eliminate all risk without unacceptable cost.  Implicit in FDA’s justification, in fact, is the realization that warning the public that trace levels of chemicals may cause harm, without making clear either the relative magnitude of the risk or the countervailing benefits that may be sacrificed in eliminating such risk, may itself cause harm.  This is not a new lesson.  Unfortunately, it is an historical lesson that we appear doomed to repeat.

Looking ahead to EPA’s next GHG Permit Program: more 2/3rds solutions when Congress goes missing

Posted on July 10, 2014 by Michael R. Barr

Last Monday June 23,  it was the Supreme Court’s turn in the UARG case to decide whether EPA could “tailor” its climate policy to fit the PSD and operating permit programs in the current Clean Air Act.  Both the Court and EPA faced the issue without any precise guidance from the missing branch:  Congress.

As a result, yet another court – the DC Circuit – must next consider the proper remedy in the UARG case and, if past DC Circuit decisions are a sound guide, remand the matter back to EPA to take action consistent with the courts’ decisions.  The DC Circuit will almost certainly not tell EPA what it can do, nor should it tell EPA how to exercise its remaining substantial discretion.  The courts are only telling EPA what it cannot do in certain respects.  Thus, the courts’ guidance to EPA is limited.

EPA will retain considerable discretion when it tries again to regulate GHG emissions from major stationary sources and major stationary source modifications under titles 1 and 5 of the Clean Air Act.  EPA has loads of options, as many commenters pointed out during the prior EPA rulemaking.  The options may fit the current Clean Air Act to varying degrees.  In the words of the Supreme Court in the June 23 UARG decision, though, “Even under Chevron’s deferential framework, agencies must operate ‘within the bounds of reasonable interpretation.’” (J. Scalia for the Court, slip opinion at p. 16)  

EPA may try to avoid options that would be most vulnerable to challenge under the principles expressed by the Court in the UARG opinion.  One Court majority held that EPA lacked authority to “tailor” the Act’s numerical thresholds governing the PSD and operating permit programs.  A different Court majority upheld EPA’s BACT rules for GHGs.  Some commenters will undoubtedly urge EPA to continue its drive towards regulating GHGs under titles 1 and 5 of the current Clean Air Act.  But, EPA should re-solicit the broadest public comment and carefully consider all options, as the Supreme Court requires under the Chevron standard of judicial review.  After all, there will be a national election in 2016 and there will be a new Administration with its own views on the options.  If the current Administration wishes to leave a lasting legacy in this area, it would be well advised to act on the basis of the most solid record and adopt moderate, fully vetted polices that can survive.  As retiring Congressman John Dingell recently said in a farewell speech held by the National Press Club in Washington, D.C., “Compromise is an honorable word."  

Congress is very unlikely to provide any additional guidance in this area any time soon, though.  The nation will miss some basic policy decisions and compromises, such as:

Should the PSD and operating permit programs apply to GHGs?  How?

Which sources should be covered?  When?  With a phase-in?  Tied to what?

In the PSD program, can and should BACT work the same way for GHGs as for criteria pollutants?

In the operating permit program, when should sources have to add GHG provisions (since there aren’t yet any substantive requirements for the operating permits to pick up)?

What substantive requirement should EPA develop and for which sources?  When? E.g., should EPA set GHG emissions standards or other requirements for power plants and other source categories under section 111(d) of the Act, as EPA recently proposed?

What role(s) should state and local agencies and programs play?

In the 1990 Clean Air Act amendments, Congress resolved issues like these in the Act itself.  The leading precedent is title 4 – acid rain – where Congress even allocated emissions of SO2 by individual numbered electric power generators in named powerplants in named states.  Both houses and both parties held hands and made this deal under the Capitol dome – a deal which has resulted in a stunning and stable policy success.  The acid rain deal largely avoided the dilemmas that EPA and the courts now face in dealing with stationary source permitting under titles 1 and 5 of the Clean Air Act.  It seems most likely that whatever EPA does next under the current Clean Air Act will be challenged vigorously in court – again and again – until Congress can once again come together under the dome.

Who’s doing a good job at water conservation? The answer might surprise you.

Posted on July 9, 2014 by Patricia Barmeyer

I was surprised by a recent piece on National Public Radio. California is in an historic drought, as we all know.  The story reported that Sacramento, the capital city of California, is now-- just now!--installing residential water meters.  Water meters are the simplest of all water conservation devices, and yet, the story reports, more than 250,000 households in California receive unmetered water.  Sacramento and other California cities are working now to remedy this obvious shortcoming.

The story invited a comparison to metro Atlanta.  As you may remember, metro Atlanta was the poster child for drought in 2007.  Lake Lanier, Atlanta’s primary source of drinking water, was at historically low levels.  Both Florida and Alabama accused metro Atlanta of taking more than its fair share of the streams that rise in Georgia and flow to our neighboring states.  The assertion that metro Atlanta was not managing its water resources wisely was trumpeted loudly and often repeated.  And even today, you’ll find “experts” opining that metro Atlanta has done “nothing” to address its water supply use. 

But are these claims true?  Hardly.  The fact is that metro Atlanta has been working hard for the past fifteen years to become a conservation leader, and  its efforts are paying off.  From 2000 to 2010, total water withdrawn from streams and reservoirs by metro Atlanta decreased by almost 10% while the population increased by almost 25% (1 million people).   Total per capita use in metro Atlanta is now just 106 gallons per day.  This is on par with the best of the best, and it is far better than peer cities in the Southeast.  Per capita usage in Birmingham, Alabama, for example, is more than 160 gallons per day.

This progress is the result of aggressive conservation planning at the State, regional, and local levels.  For example, the Metropolitan North Georgia Water Planning District has required local providers to do the unthinkable, which is not only to require metering, but also to put those meters to good use by charging more per gallon as usage increases.  99% of the population of the District is now subject to conservation pricing.  The impact has been dramatic.  Meanwhile, at the State level, the Georgia Water Stewardship Act of 2010 has helped to establish a culture of conservation statewide.

On top of these and many other efforts to reduce the amount of water withdrawn from the environment, metro Atlanta water suppliers have spent more than $2 billion on advanced systems to recycle the water withdrawn.  The District now recycles over 60 million gallons per day by discharging highly treated wastewater directly into area drinking water reservoirs.

In short, metro Atlanta is way beyond meters.  Are you surprised?

Ere the Bat Hath Flown: FWS Ponders Listing the Northern Long-Eared Bat as Endangered

Posted on July 8, 2014 by Chester Babst

 

On October 2, 2013, the United States Fish and Wildlife Service (FWS) proposed to list the Northern Long-Eared (NLE) bat as endangered across its entire range under the Endangered Species Act of 1973 (ESA).   The NLE bat is native to a large geographic area and hibernates or often roosts in caves or mines with large openings.  Within its range, which encompasses some 39 states and much of Canada, NLE bat populations have declined.  While an insignificant portion of this decline has been attributed to human activities, the predominant threat to the NLE bat population is White-nose syndrome (WNS) – a fungal disease that is transmitted in cold temperatures and exhibits a particularly high mortality rate.


Under Section 4(a)(1) of the ESA, FWS must consider five factors in determining whether to list the species as endangered: (1) “the present or threatened destruction, modification, or curtailment of its habitat or range,” (2) “overutilization for commercial, recreational, scientific or educational purposes,” (3) “disease or predation,” (4) “inadequacy of existing regulatory mechanisms,” or (5) “other natural or manmade factors affecting its continued existence.” According to FWS, where “one or more of these factors imperils the survival of a species,” an endangered listing may be necessary.


The proposed listing of the NLE bat carries particularly significant implications for the natural gas and mining industries, whose activities will require permitting that may be more difficult to obtain should the NLE bat ultimately be listed as endangered or threatened, even though such operations are acknowledged to insignificantly impact the NLE bat population.  Several other industries are likely to be affected as well, such as construction and agriculture.

In Pennsylvania, the Game Commission and Department of Conservation and Natural Resources are in the process of preparing an application to FWS for an incidental take permit (ITP) and habitat conservation plan (HCP) covering foresting activities over 3.9 million acres of state land that may provide habitat for the NLE bat and the endangered Indiana bat.  As described in the early scoping document for the proposed application, the draft HCP includes setback distances from roost trees and protection of hibernacula as potential impact “minimization measures.”  Although the draft HCP, if approved as submitted, would not cover coal mining activities on such lands, it is possible that agencies may nonetheless consider such measures in coal mining permitting decisions.

 Recently, several US Representatives from the Pennsylvania delegation sent a letter to the FWS challenging the proposed listing of the NLE bat as endangered due to its potential impact to several industries.  Instead, the Representatives requested consideration of listing the species as threatened, which would allow for establishment of special ESA “4(d)” rules that exempt activities that minimally affect the species.

 The FWS responded on June 30, 2014 by extending the NLE bat final listing determination period by six months and reopening the public comment period for 60 days through August 29, 2014, based on “substantial disagreement regarding the sufficiency and accuracy of the available data,” including NLE bat population trends and the probability of transmission of WNS to unaffected areas.  FWS also pledged to minimize or avoid the economic impacts described above by exercising “regulatory flexibility available under the ESA.”  However, it remains to be seen whether FWS will take a cooperative approach towards industries that could be impacted by the listing decision.  A final determination by FWS is expected no later than April 2, 2015.

Turning Guano into Gold

Posted on July 7, 2014 by Larry Ausherman

            From guano of seabirds, national treasure springs.  The treasure is the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean, and it contains some of the most pristine tropical marine environments in the world.  It is way out there and mostly under water.  The Monument was initially created by George W. Bush in 2009, days before leaving office, pursuant to his executive authority under the Antiquities Act of 1906.  But recently, on June 17, 2014, President Obama announced his proposal to expand the Monument nearly tenfold, from the existing area of almost 87,000 square miles to a new total area of 782,000 square miles.  Although the size of the Monument will not be finally determined until after this summer’s comment period, the proposal would create the largest protected area on earth and essentially double the area of the world’s oceans that is fully protected.  The Monument would be off limits to fishing, energy exploration, and various other activities.  Again, the Antiquities Act is the basis of President Obama’s action.  The announcement came at the “Our Ocean” conference, hosted by the State Department on June 16 and 17, where other marine conservation initiatives were also announced.  The guano that made it possible came at a different time and venue, which I will describe shortly. 

            Since the presidency of Theodore Roosevelt, the scope of executive power exercised by presidents under the Antiquities Act of 1906 has prompted both needed conservation and heated criticism.  For some, criticism of Obama’s proposal aligns with the “Imperial Presidency” moniker.  Indeed, the scope of Obama’s proposal is enormous.  But many other presidents have used the Act as well, and George W. Bush leads the league in number of marine monuments created by any president under the Act.  He created four.  The reach of executive powers under the Antiquities Act is told in history that ranges from the Grand Canyon to the Statue of Liberty. 

            As elegant as the tradition of the Antiquities Act is to the cause of conservation, the Pacific Remote Islands Marine National Monument was made possible in part by a less glamorous law -- the lowly Guano Islands Act of 1856.  It is guano as much as antiquities that support much of what may become the largest protected area in the world.  And, as an example of an ambitious stretch of governmental authority, the Antiquities Act has nothing on the Guano Islands Act either.  The Antiquities Act gives presidents the right to preserve American antiquities with the stroke of a pen.  But the Guano Islands Act gave American citizens the right to take possession of and claim for the United States any island in the world that was unoccupied and not under the jurisdiction of another country – so long as the island held guano deposits. 

            Enacted in a time of global exploration and exploitation, the Guano Islands Act was inspired by tales of vast island deposits of guano, a valuable source of fertilizer.  The Act gave any enterprising guano company the green light to become an American Midas, turning guano into big profits in the fertilizer business.  In the mid-1800s, most of the tiny islands around which the Pacific Remote Islands Marine National Monument is based were apparently known as “guano islands”.  There were also many other guano islands.  Under the authority of the Guano Islands Act, the remote guano islands of the present day Monument were claimed for the United States, and the islands became territories of the United States.  It is largely that “territory” status that creates the modern-day jurisdiction of the United States over the islands of the Pacific Remote Islands Monument. 

            The seven islands and atolls of the Monument are tiny.  How then could these specks in the ocean provide authority to the United States to require preservation for an underwater realm of 782,000 square miles?  It is because each of the scattered islands now comes complete with a U.S. Exclusive Economic Zone (“EEZ”) which surrounds it for 200 miles in all directions from its shore.  In 1983, in accord with the United Nations Convention on the Law of the Sea, a Presidential Proclamation by President Reagan (which was unrelated to the Antiquities Act) created this 200 mile EEZ for the United States and its territories.  The EEZ provides the United States with rights to conserve and manage resources within the 200 mile zone.  The remoteness of the islands causes pristine environments and minimizes commercial activity, two factors that work in favor of creating a reserve of this size. 

            The Pacific Remote Islands National Monument bears the fingerprints of at least five presidents, reaching across the aisle and the passage of time.  Franklin Pierce signed the Guano Islands Act of 1856 into law.  Theodore Roosevelt is responsible for the Antiquities Act of 1906.  Ronald Reagan created the 200 mile EEZ for territories of the United States.  George W. Bush created the Pacific Remote Islands Marine Monument out to 50 miles from the shores of each of the Monument’s islands.  Now, President Obama is going for the whole enchilada by expanding the Monument to the full 200 mile limit around each island. 

            The moral of the story is that the thing you cheer or fear is often not the thing that matters most in the end, and sometimes conservation comes from unheralded sources.  Executive authority under the Antiquities Act is a perennial topic in the conservation conversation, but the Guano Islands Act is a sleeper.  Its original mining purpose no longer pans out in the remote Pacific, but the Act is a federal foot in the door for a very different conservation purpose over a century and a half later.  These days, the gold in the guano islands is their marine environment.  It extends offshore for a very long way, and this time the President wants to bank it.

Engagement, Proportionality and Cooperation: Proposed Changes to the Federal Rules of Civil Procedure

Posted on July 3, 2014 by John Barkett

The Advisory Committee on Rules of Civil Procedure has taken a major rulemaking step to bring down the costs of federal court litigation.  Encouraging judges to become more engaged earlier in litigation, modifying the scope of discovery, and eliminating the circuit conflicts on the exercise of inherent authority in sanctioning the loss of electronically stored information are among the changes that will be made if the amendments are adopted.

In my October 17 2013 blog post, I described proposed changes to the Federal Rules of Civil Procedure published for public comment by the Advisory Committee on Civil Rules (of which I am a member).  The Committee received about 2,300 pubic comments on the proposed amendments.  There were three public hearings and the Committee listened to nearly 125 commenters in what amounted to about 25 hours of oral presentations.

The Advisory Committee assimilated these comments and at its meeting on April 10-11, 2014, adopted a final set of amendments.  On May 29-30, the Standing Committee on Rules of Practice and Procedure adopted the proposed amendments.  The votes of both Committees were unanimous.

The proposed reduction in the presumptive limits on depositions and interrogatories, and the proposed creation of a presumptive limit on requests for admissions (except as to authenticity of documents) received the greatest public attention.  The Committee was persuaded by the commenters to leave the existing limits in place and not to create a limit on requests for admission.

The change to Rule 1 received the least amount of public attention.  If it becomes law, it will provide that the rules will be “employed by the court and the parties” to secure the just, speedy, and inexpensive determination of every action.  Cooperation was on the minds of the Advisory Committee as a means to help bring down the costs of litigation without compromising a lawyer’s duty of diligence in representing a client.

Slight changes were made to Rule 16 to encourage district court judges to make maximum use of the initial case management conference to develop an understanding of the claims and defenses and then to keep the parties focused on discovery that is relevant to those claims and defenses.  In addition, Rule 16(b)(3) adds to the potential list of items included in a scheduling order that directs a party to request a conference with the court before moving for an order relating to discovery—consistent with the belief that addressing discovery disputes at their incipiency will reduce costs to all parties.

The public comments also affected the change to Rule 26(b)(1), which addresses the scope of discovery.  New Rule 26(b)(1) contains these changes:

• the words “proportional to the needs of the case” have been added to provide an additional contour on discovery that is otherwise “relevant to any party’s claim or defense”;
• the limits on discovery in current Rule 26(b)(2)(C) (the importance of the issues at stake in the action, amount in controversy, importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits) were moved directly into (b)(1) as factors to be considered in evaluating proportionality;
• an additional proportionality factor has been added: “the parties’ relative access to relevant information”;
• the current sentence allowing discovery of information “relevant to the subject matter involved in an action” upon a showing of good cause has been deleted; and
• the sentence, “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” has been replaced with this sentence: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Similar to the goal of greater engagement by the court under Rule 16’s changes, the changes to the scope of discovery are designed to reduce discovery costs by encouraging courts and parties to focus more thoughtfully on what information is important to a fair resolution of a claim.

The Committee decided to replace existing Rule 37(e) with new Rule 37(e) and to leave in the limitation of Rule 37(e) to electronically stored information.  Proposed Rule 37(e) creates a uniform standard nationwide for issuance of an adverse inference instruction for the loss of electronically stored information after a duty to preserve is triggered.  The Advisory Committee chose a bad faith standard (followed in the 5th, 10th, and 11th Circuits) over the negligence standard (followed in the 2nd Circuit).  Specifically, proposed Rule 37(e) provides that, “if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” then a court

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

There will be changes relating to document production.  I note two of them here.  Rule 34 will require that objections to document requests be made “with specificity” and that an objection state whether any responsive materials are being withheld on the basis of the objection.  Proposed Rule 26(d)(2) will allow delivery of a Rule 34 request more than 21 days after service but the request will not be deemed served until after the Rule 26(f) conference.

There will be changes relating to document production.  I note two of them here.  Rule 34 will require that objections to document requests be made “with specificity” and that an objection state whether any responsive materials are being withheld on the basis of the objection.  Proposed Rule 26(d)(2) will allow delivery of a Rule 34 request more than 21 days after service but the request will not be deemed served until after the Rule 26(f) conference.

Rule 84 relating to the forms that appear at the end of the Federal Rules of Civil Procedure has been abrogated.  There were very few public comments on this proposal consistent with the sentiment expressed by many to the Committee that the forms were not used enough to subject them to change through the rulemaking process.  Instead, the Administrative Office of the United States Courts will post forms on its website.  The time limit for service in Rule 4 has also been reduced from 120 days to 90 days.

The next stop for the proposed amendments is the Judicial Conference in September 2014.  Assuming a favorable vote there, the amendments will be transmitted to the Supreme Court and then the Congress.  Assuming no action by either body, they will become part of the Rules of Civil Procedure December 1, 2015.