Posted on March 2, 2021 by Andy Fitz

I first saw Grand Coulee Dam as a 10-year old.  My family and I were on our way to Spokane, Washington to attend Expo ’74, officially titled the “International Exposition on the Environment.”  Expo ’74 was notable for being the first environmentally themed World’s Fair.  It was also notable in that Spokane was, at the time, the smallest city to host a World’s Fair.  It took temerity for a relatively unknown, provincial city to pull off the feat.  In the end, it came down to imagination, a refusal to accede to common wisdom that they were dreaming too big, and the good timing to tap into the emerging environmental consciousness of the 1970s.

It is hard for a 10-year old to look at one of the largest concrete structures on earth and not accept it as a permanent, perhaps inevitable, feature on the landscape.  But much like Spokane hosting the World’s Fair, Grand Coulee Dam was hardly inevitable.  The construction of the dam was driven not by inexorable forces, but by the vision of a few key individuals, their refusal to be dissuaded, and the right confluence of circumstances. 

In Grand Coulee: Harnessing a Dream (Washington State University Press, 1994), author Paul C. Pitzer documents decades of conflict between competing proposals to irrigate Washington’s arid Columbia Basin.   For most of those decades, powerful business and political forces opposed the idea of a dam on the Columbia River, instead backing a competing plan to irrigate the basin through gravity flow from a different source.  For decades, studies dismissed the idea of a dam at Grand Coulee, and pumping water from behind the dam to irrigate, as technically and economically infeasible.  Opponents also spun the idea of a publicly owned, power-producing dam as a socialized threat to existing energy and agricultural interests. 

What changed?  First, a 1933 study supported the idea that power revenue from the dam could offset pumping costs and deliver irrigation more cheaply than the “gravity plan.”  More importantly, however, the Great Depression provided the right context for the dam promoters’ vision to take hold.  The promoters had long visualized the dam as a bold tool for transforming Washington’s agriculture and industry—build the dam, and progress will follow.  Their vision coincided with that of Franklin D. Roosevelt, who folded into the New Deal a project that would both deliver cheap public power to promote industry and subsidize irrigation to convert vast stretches of sagebrush into farmland.

Similar stories played out in the construction of other dams in the Columbia River system, including four dams erected in the 1960s and 70s along Washington’s lower Snake River.  The costs-versus-benefits of the lower Snake River dams were vigorously debated from the start.  But the vision behind the dams—creating a new barge transportation corridor and inland seaport at Lewiston, Idaho, while supplementing the Pacific Northwest’s hydropower and irrigation capacity—was strong enough to carry the idea forward. 

The contrary vision of an undammed river, however, has never died.  If anything, it has grown stronger over time, bolstered by environmental laws and protracted litigation based on those laws.  Anadromous salmon and steelhead in the Snake River and its tributaries are at a fraction of historic levels, with all four species listed as threatened or endangered under the Endangered Species Act.  Although all the lower Snake River dams are fitted with fish ladders, the dams and their slackwater are widely viewed as back-breakers among a multitude of factors stacked against these species.  Billions of dollars have already been spent to improve fish passage around the dams (including barging fish around the dams), with very little effect. 

The idea of dam-breaching on the scale required to dismantle the lower Snake River dams might seem audacious.  But like Expo ’74 and the story of Grand Coulee Dam, what seems audacious in “common wisdom” might, in fact, not be far-fetched.  And like those efforts, the right timing for the idea might have come.

On February 7, Idaho Representative Mike Simpson (R) released a Northwest in Transition Plan that proposes breaching the earthen berms of the four lower Snake River dams by 2031.  Simpson advanced the plan to break what he called an “unsustainable status quo” of poor salmon returns, endless litigation, and regional uncertainty.  Noting President Biden’s plan for a massive infrastructure and clean energy bill, as well as the number of Northwest members of Congress holding positions of power, Simpson posits that there is a “unique opportunity” for Northwest stakeholders to “create their own certainty and security,” rather than leave the fate of salmon and the dams to the courts. 

In addition to breaching the four dams, Simpson’s plan calls for creating a $33.5 billion “Implementation Fund” that, among other things, would support efforts to replace the energy produced by the dams and mitigate agriculture and transportation impacts created by breaching.  Significantly, Simpson’s proposal would also limit further environmental litigation.  The proposal includes a 35-year moratorium on litigation under the Endangered Species Act, NEPA, and the Clean Water Act related to all greater-than 5-megawatt FERC-licensed dams in the Columbia River basin, as well as locking in a 35-year license extension for those dams.  It would also provide “agriculture interests” that participate in designated “watershed partnerships” with a 25-year exemption from all Clean Water Act and Endangered Species Act suits related to “water issues.” 

It is unclear whether Representative Simpson’s proposal will take hold.  Even if the proposal fails, however, the vision of breaching the lower Snake River dams will almost certainly endure.  Dams are only as permanent or inevitable as the human imagination allows, even if they might seem immutable to a 10-year old.

Cost-Benefit Analysis Is Very Complicated — And Very Important

Posted on March 1, 2021 by Seth Jaffe

It’s only a slight rhetorical exaggeration to say that the limited bandwidth left to environmental issues other than climate change in recent years has been largely occupied by concerns about PFAS – Per-and polyfluoroalkyl substances, also known as “Forever chemicals.”  A fascinating story in Bloomberg Environment & Energy (subscription required) last week suggests that we may need a little more bandwidth for PFAS.

The Bloomberg story explained that fluoropolymers are integral to the rollout of 5G networks and are also critical to a number of advanced technologies, some of which may matter much more to society than just the ability to download movies very quickly.  For example, fluoropolymers are used in automatic crash prevention technologies in automobiles.  They are also critical in implantable medical devices. 

And thus we arrive at one of my favorite subjects, cost-benefit analysis.  At a certain level, the question of what to do about fluoropolymers seems tailor-made for cost-benefit analysis.  After all, the fundamental question is whether the benefits of fluoropolymers are worth the environmental risks.  And whether we acknowledge it or not, we are making implicit judgments about costs and benefits, even if we don’t explicitly recognize them as such.  If we ban fluoropolymers, we are making the judgment that the costs are greater than the benefits.  If we allow unfettered use, we are making the judgment that the benefits exceed the costs.  We might as well make these judgments explicitly, so we can be intentional about it and make certain that the cost-benefit analysis at least approximates something on which we can rely.

We all know that once the cat is out of the bag and the horse has left the barn, it’s difficult to put Humpty-Dumpty together again.  In short, once we start high-volume production of fluoropolymers, if it turns out that their production is associated with significant toxicity and environmental impacts, it’s going to be very difficult to avoid those impacts.  And yet, at this point, we don’t know the extent of those potential adverse impacts.  On the other side, we also don’t know the extent of their benefits, because we probably don’t know more than a tenth of their potential uses – they haven’t even been invented yet.

The only thing I do know is that these difficulties are no excuse for giving up.  As noted earlier, we don’t get to avoid making cost-benefit judgments just by pretending that we’re not doing so.

What are we to do when we find PFAS in private water supply wells? (And we will...)

Posted on February 19, 2021 by Robert D. Cox, Jr.

Here in Massachusetts, public water suppliers (PWS) have begun sampling for the presence of PFAS in their water supplies in accordance with new rules set by our regulatory agency, Massachusetts Department of Environmental Protection (MassDEP). In October 2020, MassDEP issued a PFAS public drinking water standard at a Maximum Contamination Level (MassMCL) of 20 nanograms per liter (ng/L) (or parts per trillion (ppt)) – individually or for the sum of the concentrations of six specific PFAS or the “PFAS6.”[1] The regulations detail the sampling requirements and corrective actions that PWS must take when the MassMCL is exceeded, as well as the provisions for public education and notice of exceedances so that communities may be proactive in protecting their drinking water quality.

Roll-Out Schedule: 

January 1, 2021: Large PWS, serving more than 50,000 people, began compliance monitoring.

April 1, 2021: PWS serving between 10,000 and 50,000 people are to begin monitoring.

October 1, 2021: Smaller systems, serving 10,000 or fewer people begin compliance monitoring,

September 30, 2022: Transient Non-community PWS (e.g., hotels and restaurants) must collect, analyze and report sampling results.

The big concern, of course, is that many PWS will find PFAS and need to install costly treatment at the expense of other necessary system upgrades. Based on experiences in other states, widespread PFAS contamination is not expected, but the cost to an individual PWS will depend upon the extent of PFAS contamination at that PWS.  To its credit, the state has made funding available for limited sampling as well as reimbursement for the design of PFAS treatment, along with low interest loans. Clearly, if PFAS detections are widespread and at elevated levels, public funding to support PWS capital infrastructure and other financial and technical assistance associated with PFAS testing, monitoring, and remediation will be necessary.

What about private drinking water wells?  While PWS are regulated by the Safe Drinking Water Act (Massachusetts took delegation of SDWA authority in 1977) and thereby are obligated to provide safe drinking water, it’s a different story with private wells. Private wells provide drinking water to more than 500,000 Massachusetts residents, and more than 13 million US households rely on private wells for drinking water. The SDWA does not protect private wells.  Unlike PWS, the 20 ppt PFAS6 MassMCL standard does not apply to private drinking water wells.

Massachusetts does have other laws that indirectly protect the quality of the water obtained from a private water system. The owner of a private well is generally responsible for ensuring the quality of their drinking water.

MassDEP is encouraging PFAS sampling of residential wells. For 81 Massachusetts towns where 60% or more of residents are served by private wells, MassDEP is offering free PFAS sampling. Sampling is suggested if a private well is located within one to two miles of a known source of PFAS or of other water supplies where PFAS has been detected. Known PFAS sources include airfields and firefighting training areas, where Aqueous Film Forming Foam (“AFFF”) containing PFAS was in use, and certain manufacturing facilities. Because PFAS have been widely used in consumer products such as food packaging and non-stick surfaces, septic systems and landfills may also be a source of PFAS in groundwater.

Here Is The Kicker:  Although the 20 ppt PFAS6 MassMCL standard does not apply to private drinking water wells, un-permitted releases of oil and hazardous materials, including PFAS6, into the environment are regulated under our state “superfund” law, Chapter 21E and MassDEP’s regulations, known as the Massachusetts Contingency Plan (MCP).  The MCP has a “Reportable Concentration” of 20 ppt for PFAS6 in groundwater used as drinking water. As a result, homeowners who test their private well and find that PFAS6 exists in groundwater in concentrations equal to or above 20 ppt are required to notify MassDEP, undertake MCP response actions, and may find themselves subject to significant legal and financial responsibilities under Chapter 21E.

If the source of PFAS6 in the drinking water well is known, MassDEP will require the parties responsible for the contamination to take necessary action. But, if the source of PFAS6 is unknown when the homeowner receives the data results, the owner is likely to be left holding bag. Under Chapter 21E and the MCP, the homeowner has responsibility to address the contamination. MassDEP will to provide technical information on actions needed - such as installation of Point of Use (POU) or Point of Entry (POE) water treatment devices - to ensure that “safe” water is available. But these systems are generally designed to meet the USEPA’s Health Advisory of 70 ng/L (or ppt) for the sum of PFOS and PFOA, and not specifically designed to meet Massachusetts’ drinking water standard for PFAS6.

Under Chapter 21E and the MCP, MassDEP has the authority to deem the homeowner a “Potentially Responsible Party” or “PRP” and require assessment and cleanup actions to address the contamination, including actions beyond the resident’s property, in pursuit of achieving a 20 ppt PFAS6 MCP cleanup standard.

End Game:  But is that how MassDEP or any state agency should use it powers to address PFAS found in private residential water well? Of course not. Let’s hope that does not happen here. There has got to be better way to address the risk to public health when we find PFAS in private water supply wells. 

[1] The six PFAS are: perfluorooctane sulfonic acid (PFOS); perfluorooctanoic acid (PFOA); perfluorohexane sulfonic acid (PFHxS); perfluorononanoic acid (PFNA); perfluoroheptanoic acid (PFHpA); and perfluorodecanoic acid (PFDA). MassDEP abbreviates this set of six PFAS as “PFAS6.”


Posted on February 18, 2021 by Jeffrey C. Fort


Climate is clearly an early priority of the Biden Administration.  The array and breadth of executive orders surely demonstrates the vast power of  the Federal  bureaucracy to achieve reductions in GHG emissions and climate impact.  While those measures would have been gladly received 4 years ago, the prior administrations retreat from climate leadership to climate denial has evoked a groundswell of actions by cities and states, and private citizens.  “We’ re still in” and the Climate leadership states have stepped up their commitments.  Indeed, even before the Clean Power Plan was replaced in 2019 by the American Clean Energy Rule, it was evident the private sector investment incentives from federal tax credits had substantially increased the use of solar and wind-powered electric generation,  reducing US dependence on coal for power generation.

Other actions, including renewable portfolio requirements from almost 30 states,  enhanced the results from the federal investment tax and production credits.  To keep nuclear power as part of the solution, some states [e.g. Illinois and New York] crafted “zero-emission” incentives to keep nuclear, base-load power plants running.

But the largest potential reduction in carbon emissions is the geologic sequestration tax credit, which earns a tax credit of $50 per ton of CO2 stored in appropriate geologic formations. Even when used for enhanced oil recovery or Direct Air Capture, the credit is $35 per ton.  Not only is this perhaps the largest emission reduction tax credit, but when implemented is a huge CO2 reduction strategy.  Sources in the mid-South and mid-west may boast excellent geologic formations for such.

The federal tax credit [known as 45Q for its position in the tax code] has captured much attention, as it should.  Getting the results expected of that tax credit will be difficult, but would go far beyond anything EPA assumed in the Clean Power Plan when adopted in 2015.

The 45Q tax credits for geologic sequestration and direct air capture have already stimulated as many as 30 projects announced to use geologic sequestration principles to remove CO2 from the troposphere.  Credits from these kinds of projects also may be used as credits in the low carbon fuel standard credits, which is part of California’s suite of climate policies.

As important as these tax incentives are for geologic sequestration, and for climate benefit if implemented, there are other actions which private citizens and states can take. One of those is to incentive changes in industrial processes by chemical fixation of CO2 exhaust gases. The reaction processes are well known and established; but the cost of making existing products using this approach is more expensive than existing in-place technologies.  

A potential incentive is to monetize the environmental attributes of such an approach by use of a carbon offset credit methodology. We have crafted such a methodology to quantify the saved emissions when certain conditions are met, and then create carbon offset credits to use elsewhere. A dozen or more end-use durable products in existing markets could be formulated using exhaust CO2 gas.[1]

Developed in consultataion with the American Carbon Registry and waiting to be put to public notice and peer review, this carbon offset methodology would do just that -- earn carbon credits for the re-use of CO2 exhaust if used in beneficial products.[2]

This is an open invitation to ACOEL members to investigate this opportunity -- to develop   a peer-reviewed carbon offset methodology, and apply it to a particular client or business segment.  Dentons and a client have done the heavy and creative initial lifting -- the opportunity is too special not to share. See

This is an opportunity to recover waste gases and convert into a wide range of commercial products, regardless of the extra market value from potential offset sales.

[1] A wide number of intermediate products could be created, which would then  be used in appropriate products. End use products which we have found likely to be eligible under this draft Methodology include: Plastics, Polymers, Coatings, Paints, Adhesives, Rubber & leather, Textiles, Paper, Glass, Metals, Wood and Concrete.

[2] Fuels would likely not qualify, since the focus of such is to again combust and release the CO2 into the environment.


It’s a Bird, It’s a Plane….It’s a Drone!

Posted on February 12, 2021 by Gail Port

As previously reported, the New York State Department of Environmental Conservation (NYSDEC) and New York State Energy Research and Development Authority (NYSERDA) are focused on meeting their ambitious goals to address climate change set out in the Climate Leadership and Community Protection Act (CLCPA). To do so, they have undertaken a number of innovative initiatives, including, as recently announced, that they will deploy drones to help reduce climate-altering greenhouse gas emissions from aging and abandoned oil and gas infrastructure in the State.

In New York, there are a number of orphan oil and gas wells that have been abandoned for more than a century, in some cases. Leaving these wells unplugged allows methane gas to leak into the environment.  Insofar as methane is, at least in its first two decades after its release, 84 times more potent than carbon dioxide as a greenhouse gas, this can have a significantly negative impact on the environment. The importance of plugging these orphan leaking wells is well-known.  Indeed, we are likely to see federal government also pushing this initiative, as the Biden-Harris transition plan included a proposal to create “250,000 jobs plugging abandoned oil and natural gas wells and reclaiming abandoned coal, hard rock and uranium mines.”  Plugging abandoned wells is only one step that NY is undertaking to reduce methane emissions from, among others, landfills, new and existing oil and gas infrastructure, and agricultural sources.

Until now the process to locate and plug these leaking methane emitting sources was very costly because it is difficult to spot them from the ground during land-based field surveys. It is expected that employing the use of drones to identify these wells will speed up the process and save taxpayer dollars. As noted in the NYSERDA/NYSDEC press release “[t]he specialized drones will fly over the landscape with equipment that reveals magnetic signals produced by the wells at specific GPS coordinates. Signal anomalies and other data will be used to create maps that DEC will use to identify locations for on-site visits to verify the presence of orphan wells.”

This is not the first time New York has used drones to improve its environmental efforts. In 2017, NYSDEC deployed a fleet of 22 drones to enhance the state’s environmental management, conservation and emergency response efforts. Such drones have been used for search and rescue missions, forest fire suppression, wildlife management and surveys, invasive species detection, and forest health evaluations.‎ Specifically, in New York state alone, drones have been used to locate an oil spill in a Staten Island wetland, to map an invasive plant across 200 acres of wetlands in St. Lawrence County, to detect underground bat hibernation sites in Mineville and even to control traffic at the New York State Fair.

Saving taxpayer money is certainly a laudable goal, but doing so while taking steps to improve the environment is even better! New York should be applauded for its initiative to leverage drone technology to make leaks “drone” dry.

ACOEL Co-Sponsoring February 22, 2021 Webinar on US-Cuba Environmental Cooperation

Posted on February 10, 2021 by David B. Farer

On Monday, February 22, ACOEL is co-sponsoring and participating in a joint webinar with Columbia University, the Environmental Defense Fund, and the Foundation Antonio Nunez Jimenez of Nature and Humanity (FANJ, a Cuban NGO) on the prospects and means of revitalizing the environmental MOUs that had been entered between the US and Cuban governments and other organizations during the Obama administration openings.

The program is titled “Cuba-US Working Together Again:  Lessons from Environmental Cooperation.”  The morning session will provide history and context.  The afternoon session will explore opportunities and strategies, including opportunities for College Fellows to provide pro bono services pursuant to the 2019 MOU between ACOEL and FANJ.

The webinar is open to all to attend, free of charge.  Here are links to the webinar flyer – which includes the registration link – and the announcement of the program.

ACOEL will be well represented in the event.  Dan Whittle will be moderating the morning panel on history and context.  Pam Giblin and Lee DeHihns will be on the afternoon panel that David Farer will be co-moderating on opportunities and strategies.

Registration link:


Posted on February 5, 2021 by Ridgway Hall

At ACOEL’s 2019 annual meeting in Williamsburg I chaired a panel on the ongoing restoration of the Chesapeake Bay Watershed, which I described as the biggest, and arguably the best, example of cooperative federalism in the country. The Chesapeake Bay is the biggest estuary in North America.  Its watershed covers 64,000 square miles in 6 states and the District of Columbia. It is home to 18 million people and over 3600 varieties of fish, shellfish, plants and animals, and is a multi-billion dollar driver of the mid-Atlantic economy.

However several centuries of commercial development and deforestation have resulted in severe pollution, with nitrogen, phosphorus and sediment posing the most serious problems, reflected in widespread violation of water quality standards. The biggest sources of these are farming and stormwater runoff. These sources involve almost entirely nonpoint source pollution which is not subject to regulation under the Clean Water Act.  After decades of unsuccessful efforts by the states to reduce this pollution, EPA in 2010 issued a multistate total maximum daily load (TMDL) under the CWA – the largest ever – which assigned to each state its share of the necessary load reductions of nitrogen, phosphorus and sediment. These reductions are designed to achieve water quality standards by 2025. EPA committed to oversee state compliance. For a detailed discussion of this TMDL and its implementation, see R. Hall, “Restore The Chesapeake”, The Environmental Forum (Jan/Feb 2016).

In 2009 President Obama issued an Executive Order declaring the Bay “a national treasure” and directing 7 federal agencies, under EPA’s leadership, to work with the states to restore the health of the Bay watershed and its habitat. To achieve the TMDL goals each Bay State developed its own “Watershed Implementation Plan” (WIP) laying out the regulatory measures, pollution reduction strategies, personnel and funding resources, and responsibilities for state and local agencies. The restoration effort has also generated an outpouring of participation from private sector organizations, NGOs and individual citizens.

In 2014 the Bay States and EPA entered into a “Chesapeake Watershed Agreement” identifying specific measures and responsibilities to achieve the water quality and habitat restoration goals. EPA reiterated its commitment to be the referee, making sure that each state does its fair share, and imposing sanctions for failures. This responsibility is based on language in the TMDL and CWA Section 117(g), specific to the Chesapeake, which requires EPA to “ensure that management plans are developed and implementation is begun [by the states] … to achieve and maintain … the [applicable] water quality requirements”.

At the Williamsburg meeting our panel described both the tremendous success of this program and the significant challenges it was facing, including funding shortfalls at the federal and state levels, compliance verification, climate change impacts (like heavier rainfall), the fact that Pennsylvania is far behind the other states, and the fear that the Trump EPA would not exercise effective oversight to make sure each state did its share. All of these challenges have proven to be significant, especially EPA’s failure to ensure performance. Then came Covid, forcing cutbacks in state funding, technical support and enforcement, and complicating performance in the field.

So what’s happening? Improvement in water quality, fish and shellfish populations and habitat has slowed or stalled, as documented in a recent “2020 State of the Bay Report” issued by the Chesapeake Bay Foundation. Because EPA approved WIPs from Pennsylvania and New York which on their face fail to achieve their TMDL requirements, suits were filed against EPA by the Attorneys General of Maryland, Virginia, Delaware and the District of Columbia and by the Chesapeake Bay Foundation under CWA 117(g) and the APA, raising issues of first impression.  Pennsylvania’s failure to commit the necessary resources to restoring the health of its degraded rivers and tributaries has placed achievement of the 2025 goals in serious jeopardy.

Meanwhile the Bay states continue working hard with diminished resources, and support from the private sector is as strong as ever. The arrival of the Biden administration promises fresh and much stronger leadership at EPA, which will be essential to renewed progress. While it will take months before a new Region 3 Administrator is installed and up to speed, just the prospect has energized the spirits of all involved in the restoration. Nevertheless, even if a reinvigorated EPA and an economic recovery provide twin shots of adrenaline to the restoration, achieving the TMDL goals by 2025 will still be a heavy lift.  Stay tuned.

Environmental Justice: Operationalizing TSCA to Fulfill Its Destiny

Posted on February 4, 2021 by Lynn L. Bergeson

The Biden Administration has embraced environmental justice with unprecedented gusto.  In its July 2020 Plan to Secure Environmental Justice and Equitable Economic Opportunity (Plan), the Biden Administration sets out in broad terms how it intends to use an “All-of-Government” approach to “rooting out systemic racism in our laws, policies, institutions, and hearts.”

The Toxic Substances Control Act (TSCA) is not explicitly mentioned in the Plan, but its potential utility to help achieve environmental justice is significant.  Congress amended TSCA in many ways in 2016, but two provisions are especially relevant to this discussion.  Congress added a requirement that, in prioritizing chemicals for risk evaluation and in conducting chemical risk evaluations, the U.S. Environmental Protection Agency (EPA) must consider whether a chemical substance presents an unreasonable risk to a “potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation” by EPA.

TSCA defines “potentially exposed or susceptible subpopulation” as follows:

The term “potentially exposed or susceptible subpopulation” means a group of individuals within the general population identified by [EPA] who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.

This enumeration of subpopulations is illustrative only, and TSCA authorizes EPA to identify other subpopulations, as appropriate.

The second provision relates to risk evaluation.  EPA is required under TSCA to review existing chemical substances and to conduct risk evaluations for chemicals identified as high priority.  To date, EPA has selected an initial 10 chemicals for risk evaluation and an additional 20 as high-priority chemical substances for risk evaluation.  EPA is in various phases of the risk evaluation and risk mitigation process for these 30 chemicals.  With approximately 41,000 substances active in commerce, EPA has a long, long way to go.

Importantly, and as noted, the 2016 TSCA amendments require EPA to determine risks to subpopulations with greater susceptibility to the health effects of chemical exposures.  Many would agree that the risk evaluations conducted to date, and the 2020 scoping documents for the next tranche of existing chemicals slated for evaluation, focus little on how potentially exposed or susceptible subpopulations are at increased risk from chemical exposure due to life stage, genetic polymorphisms, sex, race and ethnicity, lifestyle considerations, preexisting health conditions, nutrition, and other factors.  In a few evaluations, EPA has accounted for enhanced susceptibility by applying a default interspecies uncertainty factor of 10.  Detractors have noted that a 10-fold uncertainty factor can be presumed to be too small because EPA customarily uses it to account for normal expected variations in sensitivity within the healthy population.  EPA has applied an uncertainty factor above 10 to susceptible subgroups in other regulatory contexts, such as to infants and children under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) risk assessments.

No one is questioning the complexity of the risk evaluation task under TSCA.  Chemical risk evaluations are demanding under the best of circumstances, and the sheer number of them required under TSCA is daunting.  Importantly, however, Congress explicitly directed EPA to consider potentially exposed or susceptible subpopulations, which necessarily includes populations with unique and/or disproportionate exposure pathways, whose risk from combined exposures is likely to be underestimated, and perhaps greatly so, by more conventional risk assessment practices and assumptions.  These populations include environmental justice communities, generally defined by EPA to include urban and rural poor, fence-line communities, minorities, Native Americans, and others.

Many would agree that now, as amended, TSCA offers unprecedented opportunities to help achieve environmental justice.  To date, EPA has worked hard to implement the 2016 amendments, under sometimes-difficult circumstances.  With the Biden Administration squarely committed to the goals of environmental justice, TSCA stakeholders all have a role to play in optimizing TSCA.  Here are a few suggestions:

  • Build upon the competencies of the National Health and Nutrition Examination Survey (NHANES) model to support and include community-based research on environmental justice communities that may be at higher risk;
  • Task EPA’s Office of Research and Development with developing specific risk evaluation practices that more accurately reflect sensitive subpopulations, such as developing default uncertainty factors that better eliminate bias;
  • Ensure that TSCA Section 6 scoping documents routinely identify fence-line exposures and related susceptible subpopulations expected to be disproportionally impacted by chemical exposures;
  • Ensure that TSCA Section 6 scoping documents evaluate dietary exposure in native populations due to bioaccumulation in fish and hunted prey;
  • Consider convening a “national conversation,” not unlike (but perhaps more focused than) the National Conversation on Public Health and Chemical Exposures the Centers for Disease Control and Prevention (CDC) convened in 2009-2011 identifying how TSCA and other laws can be optimized to tackle environmental health disparities;
  • Utilize TSCA’s expanded Section 4 testing and Section 8 information-gathering authorities to compel testing and information reporting to inform prioritization of chemicals and the scope of risk evaluation, including testing and information relating specifically to environmental justice communities;
  • Create blue-ribbon committees to prioritize the hardest questions to answer in assessing chemical exposures and risks to environmental justice communities and then answer them; and
  • Utilize Risk-Screening Environmental Indicators to identify geographic areas with a high proportion of environmental justice communities that have high cumulative risk scores to identify chemical releases that might warrant review under TSCA Section 6.

A bipartisan Congress amended TSCA in 2016 and directed EPA explicitly to assess risk from chemical exposures with a view toward identifying and protecting subpopulations that may be at greater risk due to susceptibility or enhanced chemical exposure.  TSCA is a powerful weapon in the fight to help in “rooting out systemic racism in our laws, policies, institutions, and hearts.”  We can do better to operationalize it and eliminate fundamental inequities in chemical exposures and their assessment under TSCA.

Environmental Law Clinics Not Only Persevere But Flourish in 2020

Posted on February 3, 2021 by Seema Kakade

As 2020 came to a close, more than forty Directors of environmental law clinics, from law schools across the country, came together to reflect and share with each other.   The environmental law clinic directors meeting has become an annual gathering since 2017.   Yet, what was so striking about the meeting in December 2020, was the clear role that clinics have played in environmental law and policy during times of a global pandemic, political upheaval, and widespread concern over racial justice. 

In general, environmental law clinics take on pro bono legal and policy matters with law students as the primary staff.  Thus, the goals of most environmental law clinics are two-fold.  First, to provide pro bono legal services, typically for non-profit organizations and community groups.  Second, to teach law students how to practice environmental law.  The success of the clinics in these two goals, particularly in 2020, is frankly, astounding.

It was clear from the 2020 Directors meeting that the clinics are working in a variety of environmental law spaces.  Clinics are working in traditional environmental law areas like water and air permitting, public lands protection, zoning, and environmental impact statements.  A growing number of clinics are also focusing efforts on new areas of environmental law, particularly in the area of environmental justice on topics like energy justice, food access, and cultural competency.  Further, there is a growing diversity in the kinds of clients the clinics are supporting from advocacy groups to homeowners associations to individuals.   Many clinics too are working directly with minority populations, particularly African-American communities, and Native-American communities. 

It was also clear from the 2020 Directors meeting that the clinics are working in a variety of legal and policy arenas.  Several have active litigation dockets in areas such as zoning, electricity rate cases, and in amicus brief filings.   Several are commenting on environmental impact statements, rulemakings, and permitting.   Several are working on state legislative issues, supporting new bills through white papers and testimony.  Almost all clinics are deeply involved in client counseling and community legal education, providing much needed services and connections to real people.  

The 2020 Directors meeting also demonstrated that a growing number of clinics are working together.  Clinics are referring matters and pro bono technical experts to each other.  Clinics working on similar matters are sharing materials, technical knowledge, and lesson plans.  Clinics are taking on the same client together as co-counsel.   The relationship building between clinics has undoubtedly been a significant growth area. 

Moreover, all the work that the clinics were able to accomplish in 2020 happened virtually.  The Clinics were successfully able to provide online education to law students in oral and written advocacy, organization, critical thinking, and complex research.  The Clinics were able to meet with clients, attend hearings, and figure out electronic submittals with local government agencies.   Perhaps most importantly though, the clinics were able to provide a safe space for students to learn, discuss, and feel productive, in a time where many felt out of control and anxious. 

The hope for 2021 is that the Directors can once again meet in person.  The meeting has been hosted in the past by several schools including the University of Maryland, Columbia University, and the law schools in San Francisco (Golden Gate University/Stanford University/UC-Berkeley).   The goal is to meet in 2021 in Detroit, with Detroit Mercy Law as the host.   High on the list of topics for the 2021 Directors meeting is how clinics can support a goal of increasing diversity within the environmental legal profession as a whole.   Regardless of the ability to meet in person, however, it is clear that the Directors annual meeting will continue, as will the amazing environmental legal work of the clinics. 

Seema Kakade is the Director of the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law

Note: This Blog post is in memory of Wendy Jacobs, the Environmental Law Clinic Director at the Harvard Law School.  Wendy was an active participant in several clinic directors annual meetings.  She will be sorely missed in the clinic community.   

Looking for an outlet? The EVs are Coming, the EVs are Coming!

Posted on February 2, 2021 by Samuel I. Gutter

On January 29, General Motors stunned the vehicle world by announcing that by 2035, its goal is to phase out all vehicles powered by internal combustion engines, selling only zero-emission cars and trucks.  Given the long lead time to develop new vehicles and bring them to market, that is a stunningly short timeframe.

Why would GM make this bold move?  Is it to stay a step ahead of California and federal regulators who, in the Biden administration, will continue to push emission reductions?  Perhaps in part, but the core reason is simple:  competition.  Governments around the globe are legislating future bans on fossil fuel cars, most notably China, which has mandated that most vehicles be powered by electricity in 15 years. And China plans to make many of those vehicles itself.  At least six Chinese manufacturers are introducing EVs in Europe, with eyes on the U.S.  German manufacturers like Porsche are selling electric vehicles, and Toyota and other Asian-based manufacturers have cars in development.  Here at home, Ford is pushing its new all-electric Mustang.  In simple terms, GM doesn’t want to miss out.

That’s not the only force driving the electrification of the fleet.  Consumer demand is leading to more sales.  To disclose, when my family gathers it looks like a Tesla showroom.  My wife was an early adopter, still driving her 2015 Model S.  One daughter owns a Model X and the other drives a Model 3.  As we and other owners will tell you, electric vehicles are a hoot to drive:  they’re absurdly fast off the line or accelerating onto the highway, and they’re quiet and loaded with technology.  Ranges of close to 500 miles are coming to the market, and fewer moving parts (including no transmissions) means less maintenance.

The Biden administration is leaning into the EV market, as well.  Among other initiatives, President Biden has ordered that all vehicles purchased for the large federal fleet will soon be U.S.-made electric vehicles.

Other impediments are falling.  The argument that electric vehicles just shift pollution to coal-fired power plants wanes as renewable energy generation expands.  And while Tesla has its own network of proprietary charging stations, companies like Electrify America – funded by the VW defeat device settlement – are launching thousands of universal chargers nationwide.

Is the coming EV boom bad for Tesla?  Perhaps, but recall that in 2014 Tesla took the extraordinary step of opening its patents to other manufacturers.  Elon Musk might be one weird dude, but his vision of a world-wide fleet of commercially viable cars and trucks is becoming real within his lifetime.


Posted on January 29, 2021 by Ronald R. Janke

In the twilight of the Trump Administration, the Environmental Protection Agency issued an internal procedural rule entitled “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.”  The rule which is focused on EPA’s consideration of dose-response data, is widely predicted to have a limited shelf life.  Congressional veto under the Congressional Review Act; EPA reconsideration, revocation and amendment or successful court challenges in already pending litigation can be anticipated.  Nevertheless, the goals enunciated in the rule are worth pursuing, as they point the way to better EPA decision-making through greater science transparency.  As the references cited and listed in the preamble reflect, the call for greater science transparency pre-dates the Trump Administration and extends well beyond EPA and the federal government.

The rule establishes how EPA will consider dose-response data that are crucial to decisions in issuing significant regulatory actions and influential scientific information, such as Integrated Risk Information System (IRIS) profiles, which characterize hazards from chemical exposures.  The most vehement and widely-cited criticism of the rule is that it will prevent EPA from considering important dose-response studies because they cannot be made publicly available or submitted for independent validation due to  privacy considerations preventing human health data from being shared.  In the rulemaking, EPA responds to this concern initially by stating that all relevant scientific studies are in the scope of its review.

The rule identifies nine non-exclusive factors EPA will  take into account when evaluating the consideration to afford studies with underlying dose-response data unavailable for independent validation.  EPA’s rule calls for giving “greater consideration to pivotal science where the underlying dose-response data are publicly available in a manner sufficient for independent validation.”  The preamble notes that if based on these factors two studies are “relatively equal,” both may be considered; but “other things being equal” greater consideration should be given to the one whose underlying data and models are publicly available and can be independently validated.  Even this requirement is flexible in that the rule authorizes the EPA Administrator to grant on a case-by-case basis an exemption from any part of the rule if any of five listed circumstances exists.  Furthermore, the rule requires EPA, whenever it does make available to the public dose-response data, to do so in accordance with legal protections on privacy, confidentiality and confidential business information and with a sensitivity to national security. Lastly, human health privacy concerns are irrelevant to a vast quantity of non-human dose-response data, such as animal feeding or aquatic toxicity studies, on which EPA bases IRIS toxicological profiles, water quality criteria and standards, drinking water standards and other decisions.         

While the rule may encourage the public sharing of data by researchers, the rule does not necessarily result in disclosure of dose-response data to the public.  The rule requires EPA to ‘identify the science that serves as the basis for informing a significant regulatory action and to make it “publicly available to the extent permitted by law.” However, as EPA notes in the preamble, “the rule does not obligate it to “collect, store or publicly disseminate dose-response data underlying pivotal science.”   

Making scientific data publicly available lies at the core of the science transparency movement, and it is unfortunate the rule does not do more to make data publicly available.  To a large degree, EPA has not analyzed data when issuing rules and influential scientific information.  Rather, it relies on studies by researchers who summarize their methodology, data and analysis and who present their conclusions.  Published, peer-reviewed studies are regarded as the gold standard, but a peer-reviewed study is not necessarily pure gold.  Researchers rarely submit the underlying data with their manuscripts and these data are not seen by peer reviewers. 

As the preamble notes, “Peer review does not typically include reanalysis of the underlying data . . . and thus peer review is not considered a replacement for the data availability requirements of this rule.”    Moreover, as good as peer review may be, something more can be gained when any interested person can review data, replicate the researcher’s analysis or conduct additional analysis.  This process may lead to greater confidence in the researcher’s own conclusions, produce additional findings or present a new hypothesis and additional research.  Especially where data are generated with EPA’s funds, EPA should make data publicly available.  Other federal and state research-funding agencies should do the same in the ordinary course.  “Data,” according to Lawrence Summers, former Secretary of the Treasury and president of Harvard University, “is the ultimate public good.”  If the public paid for the data, they should be able to see it when a public agency uses it. 

A Personal Note: My View of Environmental Justice Through the Lens of Covid-19

Posted on January 27, 2021 by Earl Phillips

As Covid-19 swept through our country, I was struck by this virus’s patterns of spread and severity, which challenged its supposed impartiality.

Latino and African-American residents of the United States have been three times as likely to become infected as their white neighbors, according to the new data, which provides detailed characteristics of 640,000 infections detected in nearly 1,000 U.S. counties. And Black and Latino people have been nearly twice as likely to die from the virus as white people, the data shows.

Months earlier, statistics had shown that residents of majority-black counties were three times more likely to be infected with the virus, and suffer six times the rate of deaths as residents in majority-white counties. The virus itself has been constant across our minority communities, but as Dr. Fauci explained in a White House briefing, these results are a function of our country’s already-existing disparities in access to healthcare being exacerbated by the stresses of a global pandemic. These communities suffer from a lack of resources and protections, resulting more broadly in impacts to environmental health, safety, and welfare.

Environmental justice (EJ) is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.  Fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.

Unfortunately, the failure of the federal government to adequately protect EJ communities from Covid-19 is far from unique, and instead merely the latest chapter in a long and shameful history of neglect. For many different reasons, we lack any strong federal program or template to address environmental justice considerations and as a result we are left with a patchwork quilt of state programs - some strong, some weak, some non-existent.

In this relative vacuum, there are some states that have stepped forward (or are in the process of enacting or upgrading programs) in significant ways. Without getting into the specifics of any particular state’s program, the common elements of these programs tend to be:

A clear definition of what is and is not an EJ community; 

  • What actions, events, or decisions do or do not trigger an EJ program;
  • What is required of an applicant, respondent, and/or State to effectively notify and engage an EJ community;
  • What resources, benefits, or opportunities will be provided to an EJ community so that the community can meaningfully review the proposed triggering event and thoughtfully participate in any proceedings, and who will provide those resources; and
  • What burdens of proof must be met for decisions to be made that might further impact a host EJ community. 

The Biden-Harris campaign made addressing the absence of federal leadership part of their pitch last July when they released their “Plan to Secure Environmental Justice and Equitable Opportunity,” which promised voters an administration that would: (i) work with EJ community leadership to establish meaningful metrics; (ii) establish regular performance reviews to track progress; (iii) revisit and rescind certain Trump-Era actions that were presented as stream-lining but that had the effect of limiting opportunities for community engagement; (iv) reinvest in science and data gathering efforts; and (v) establish offices of Environmental Justice in the DOJ and White House while at the same time reforming EPA’s External Civil Rights Compliance Office. Unfortunately for this planned-for aggressive “whole of government” upgrade to the Environmental Justice commitment, a divided congress could slow or stall much of the Biden-Harris presumptive legislative agenda. That said, Executive Orders (again, and hopefully only for the time being) may be seen as a viable workaround solution in the interim.


Like many of you, I feel extremely fortunate to have had the opportunities that I have had along the way.

Like some members of the American College of Environmental Lawyers (ACOEL), I regularly represent companies looking to build facilities, manufacture products, mine raw materials, conduct research for new products and solutions, and/or generate energy. A number of these efforts have taken me to communities in states with more robust Environmental Justice programs. 

While the EJ process can be unsettling as you and your client work to alert and engage the community, and/or satisfy additional requirements, it has been my experience that effective EJ programs can lead to a better understanding of differing perspectives, an improved community/company relationship, a more thoughtful outcome, and in some instances, a better way to proceed. As we turn the page to 2021 I encourage you to think about the EJ programs in your regions or states, consider the potential value and importance of these programs, and HAVE A SAFE AND HEALTHY NEW YEAR.


Posted on January 26, 2021 by Dick Stoll

On January 19, 2021, the D.C. Circuit issued its long-awaited decision on the Trump EPA’s Affordable Clean Energy (ACE) rule.  American Lung Assn. v. EPA, No. 19-1140.  The ACE rule was the Trump EPA’s repudiation of the Obama EPA’s Clean Power Plan (CPP) under the Clean Air Act. 

Two spoiler alerts:

(1)    I will not in this blog even begin to analyze the extremely lengthy and complex majority and dissenting opinions.  I am too retired for that.  Hopefully an unretired Fellow will be helping us with that soon. 

(2)   I will not offer any views on which of the opinions is more meritorious, because I really don’t know.   I will conclude by saying, however, that new legislation would sure be nice. 

The most critical issue in both the ACE and the CPP is fairly simple.  In regulating coal-burning electric power plants under the CAA for climate purposes, is EPA authorized to impose “beyond-the-fenceline, generation shifting” measures?  These measures will hereafter be referred to as “BTFGS.” 

Or put another way, may EPA go beyond plant-specific emission controls, and impose measures that effectively require power companies to secure emission reductions on a company-wide or grid-wide basis?  If so, power companies may be forced to shift some (or all) of their capacity to non-coal-fired generation (such as natural gas) or even shut down some (or all) of their coal-fired generation.

The Obama EPA based its CPP on BTFGS requirements.  The Trump EPA repealed the CPP and issued ACE, which imposed no BTFGS measures.  In doing so, the Trump EPA took the position that the CAA’s plain words did not authorize BTFGS measures.

The D.C. Circuit’s new 2-1 American Lung decision — joined by Judges Millet and Pillard — rejected the Trump ACE.  The majority fully embraced the Obama CPP position that the CAA authorizes BTFGS measures.  Judge Walker dissented (more on that below).

The majority decision was hailed by many as giving the Biden EPA a “green light” to fashion effective climate regulations that the Trump EPA would never entertain.  This may or may not prove to be correct, however, if the Biden EPA decides to require BTFGS measures in future climate rules.  For even though the new decision may stand as binding in the D.C. Circuit, we must consider the U.S. Supreme Court (SCOTUS).

Two points on SCOTUS.  First, recall that in totally unprecedented fashion, SCOTUS in 2016 stayed the Obama CPP pending review, with the result that the CPP never came into effect before the Trump EPA repealed it.   The stay was issued by a 5-4 Court that included five conservative leaning and four liberal leaning Justices.  No opinion accompanied the stay, but it is fair to assume the conservative majority was skeptical of the Obama BTFGS position.  If any rule that relies on BTFGS comes before SCOTUS in the next few years, it will presumably face a Court that includes six conservative leaning and three liberal leaning Justices.

Second, and now I get to the Walker dissent.   Judge Walker, a recent Trump appointee, was well known on Fox News and other outlets for his strong conservative views before his appointment.   His dissent is a testament to those views.  

Whether you agree with Judge Walker or not, you may have fun reading his florid opinion.  I have attached a copy, in which I have highlighted various notable passages.  He throws in cites to Arthur Conan Doyle (p. 9), Shakespeare (p. 33), and Lawrence of Arabia (the movie, p. 14).  He explains that the U.S. Senate is designed to protect small States (pp. 3, 5).   He postulates that the doomed Obama 2009 legislative climate effort would have succeeded if there were proportional representation in both Houses of Congress (p. 6).  He engages in amusing word play (pp. 3, 35).

But why am I even bothering with Judge Walker’s dissent?   Recall that in 2014, then-D.C. Circuit Judge Kavanaugh filed a dissent in a CAA case against a majority opinion favoring stronger environmental controls.  White Stallion v. EPA, 748 F. 3d 1222 (2014).   On review, a 5-4 SCOTUS (with the conservatives in the majority) reversed the D.C. Circuit ruling, adopting and quoting from the reasoning in Judge Kavanaugh’s D.C. Circuit dissent.  Michigan v. EPA, 576 U.S. 743 (2015).

So not too long ago, a narrow conservative SCOTUS majority adopted the reasoning of a dissent from a conservative D.C. Circuit Judge to reverse a more environmentally protective D.C. Circuit opinion.  I suppose it could happen again, with an even more conservative SCOTUS now.  And by the way, Judge Walker clerked for Judge Kavanaugh when Kavanaugh was on the D.C. Circuit. 

Again, I offer no view on what I think the courts should do with BTFGS.  What I really hope is that Congress will enact CAA amendments to clarify EPA’s climate authorities.   Now that we have a Democratic President, House, and (barely) Senate, maybe this can finally happen.  Maybe the Senate will do away with the filibuster, or — even without that — enough Republicans in the Senate could come along?  There’s always hope. 

What a Difference a Day Makes

Posted on January 26, 2021 by Brian Rosenthal

Co-authored by Brian Rosenthal and Timothy Webster

On Day One, the 46th President of the United States signaled his focus on climate, the environment, and energy in executive orders, official correspondence, and memoranda.  In a few strokes of his pen, the President undid much or all of what his predecessor had done, also largely by executive order, and cast into doubt many of the prior administration’s environmental and energy policies and rules.

As has been widely reported, the new administration’s Day One executive actions established and implemented a broad range of policy objectives, several of which were environmental, that immediately start to make good on some of the commitments of candidate Biden during his campaign and President Biden in his inaugural address:

While unable to change substantive rules, the administration’s memorandum “Modernizing Regulatory Review” weaves themes together of environmental justice and equality. It supports the administrative agencies recommending steps for “improving and modernizing regulatory review” in order to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”  Among other things, this memorandum order seeks to review the regulatory process by 

(i) identifying ways to modernize and improve the regulatory review to reflect current science and economics considerations even where “difficult or impossible” to measure; and 

(ii) considering the regulatory impact on disadvantaged communities.

Similar themes are presented in the administration’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government.”  The order imposes equitable assessment benchmarking across agency programs to examine barriers in and to federal programs. 

Perhaps the boldest order for environmental lawyers was President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”  The order directs executive agency heads to review hundreds of agency actions implemented during the Trump Administration, including more than 120 related to energy and the environment.  In addition, the order suspends or revokes, in whole or in part, nearly one dozen Executive Orders issued by the prior president that were directly tied to energy infrastructure.

The order includes the phrases “listening to science” and “holding polluters accountable.”  It also emphasizes reviewing all regulations of the last administration for disproportionate effects on low-income areas.  Parenthetically, as noted in Seth Jaffe’s Law & the Environment Blog—the line between legitimate environmental concern based on cost benefit and NIMBY reactions is narrow but must be drawn.   

Opposition has already been expressed to many of these measures, several of which will surely spur litigation.

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Posted on January 25, 2021 by Seth Jaffe

Last week, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

keystone pipeline protestors in silhouette with man holding ‘NO XL’ sign (XXXL)

Why start here?

Well, it’s a big deal, any way you look it.  It’s pretty much the end for large fossil fuel pipeline construction in the US.  According to Bloomberg (subscription required), here’s what Alan Armstrong, CEO of the Williams Companies, had to say about it:

"I can’t imagine going to my board and saying, ‘we want to build a new greenfield pipeline’. “I do not think there will be any funding of any big cross-country greenfield pipelines, and I say that because of the amount of money that’s been wasted."

OK.  But there’s also another reason why this is important. Creating a new, renewable electricity grid is going to require substantial new transmission capacity.  In terms of direct impacts, there isn’t necessarily much difference between siting a pipeline and siting a transmission line.  They can both cause damage to wetlands and endangered species.

The difference between them is simple and stark.  Fossil fuel pipelines lead to greater GHG emissions, while new transmission is necessary to reduce GHG emissions.  And so much for the Trump administration’s efforts to minimize consideration of indirect impacts from infrastructure projects.  It’s all about the indirect impacts!

It can be a fine line between one person’s NIMBY and another person’s legitimate environmental concerns.  I sure hope we figure out how to assess environmental costs and benefits in infrastructure siting sooner rather than later, or that grid we’re all counting on to deliver zero-carbon electricity won’t be there when we need it.

Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

Leaving on the Midnight Train to Maui (Going Back to Find a Simpler Place in Time)

Posted on January 21, 2021 by Allan Gates

With apologies to Gladys Knight & the Pips:

It is not unusual for a lame duck administration to issue a flurry of midnight rules and administrative actions shortly before leaving office, and the Trump administration is no exception.  One of the last minute actions by President Trump’s EPA is a draft guidance document signed on December 4th regarding application of the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund.

Much of the draft guidance document reviews in unexceptional terms the threshold conditions that must be satisfied before an NPDES permit is required, namely:

  • There must be an actual discharge of a pollutant;
  • The discharge must be from a point source; and
  • The pollutant must reach a water of the United States.

The last page and a half of the draft guidance is where things get interesting.

The majority opinion in Maui identifies seven specific factors to consider in determining whether a point source discharge to groundwater that reaches navigable waters requires an NPDES permit.  The last page and a half of EPA’s draft guidance adds an eighth factor to the list.  The new factor is consideration of system design and performance.

According to the draft guidance document, the design and performance of a system should be viewed as something of a higher-order consideration that “can affect or inform all seven factors identified in Maui.”  Thus, if a system’s design and performance slows transit time of the pollutant, increases distance the pollutant travels, promotes dilution, or otherwise affects one of the Maui opinion’s seven enumerated factors, the fact that the system is designed and performing to achieve that result apparently should weigh against requiring an NPDES permit.  The draft guidance then proceeds to identify a number of specific systems that would be less likely to require an NPDES permit based on the new eighth factor:

  • Septic systems, cesspools, settling ponds and similar systems designed to provide storage or treatment;
  • Stormwater controls, infiltration or evaporation systems, green infrastructure, and other runoff management systems; and
  • Water reuse, recycling, or groundwater recharge facilities.

The draft guidance document implicitly acknowledges that its addition of an eighth factor to the Maui opinion’s list of seven goes beyond mere interpretation of the Court’s decision.  The guidance document notes, perhaps somewhat defensively, that the majority opinion in Maui expressly invites EPA to develop interpretive guidance that would illuminate application of the Court’s “functional equivalence” test.  The draft guidance document then goes on to claim that the agency’s eighth factor should be given deference under National Cable & Telecomm. Ass’n v. Brand X Internet Serv. even if it is deemed inconsistent with the Court’s opinion in Maui:

Even when an agency’s interpretation of an ambiguous statutory provision differs from a court’s interpretation, an agency may take such a construction because it remains the authoritative interpreter of the statute it administers.

EPA’s explicit call for Brand X deference to the agency’s draft guidance is particularly ironic because the government’s briefs in Maui did not ask for deference to EPA’s interpretation of the statute, and they did not even cite Chevron or Brand X.  Moreover, the Court in Maui summarily rejected the formal interpretive statement on discharges to groundwater that EPA issued one month before the government’s merits brief was due.

It is not clear whether the draft guidance will ever be finalized or otherwise survive the transition to the Biden administration.  But if it survives, the new eighth factor is likely to be the target of a number of questions.  For example, why should a system that is deliberately designed and operated in a manner that delivers pollutants to waters of the United States be given more lenient regulatory treatment than a less deliberate activity that delivers the same amount of pollutants to jurisdictional waters in an otherwise similar manner?  Isn’t a system with deliberate design and identifiable performance expectations exactly the kind of operation that fits logically into the scheme of NPDES individual and general permits?  And what are we to make of the list of specific systems that are to be given special consideration under the eighth factor?  Is this list anything more than a last minute attempt to put a finger on the scales whenever one of the enumerated systems may come under scrutiny for adding pollutants to waters of the United States?

Against this backdrop it is fair to ask whether the draft guidance document offers the kind of assistance in applying the functional equivalence test the Maui Court invited EPA to provide.

There’s a First Time for Everything

Posted on January 21, 2021 by Robert M Olian

Anyone with even a passing interest in environmental law has seen numerous articles over the past four years noting the Trump administration’s efforts to roll back this or that environmental regulation. ACOEL’s blog contains dozens of such posts, and the New York Times is probably not far behind. The NYT aptly reflected the thrust of most such commentary in a recent article:

“All told, the Trump administration’s environmental rollbacks could significantly increase greenhouse gas emissions over the next decade and lead to thousands of extra deaths from poor air quality each year, according to energy and legal analysts.” (emphasis added)

“Environmental rollbacks lead to extra deaths” was a story line long before there was ever a Trump administration, of course, but never, until now, have I seen the reverse, namely “extra deaths lead to environmental rollbacks.”

On January 17, 2021, California’s South Coast Air Quality Management District issued Executive Order 2021-01, which notes:

  • “… the current rate of deaths in Los Angeles County is more than double that of pre-pandemic years ...”;
  • "… the growing backlog of cremation cases within the county constitutes a threat to public health …”; and
  • “… permits issued by South Coast AQMD and currently in effect for human crematoria contain limits on the number of cremations … that may be cremated each month ….”

SCAQMD then proceeded to roll back the permit limits on crematoria (on a temporary basis).

Normally I’d now offer a snarky comment, but this is all just so sad that I can’t bring myself to write it, so you’re on your own.

Environmental Justice: Where Are the Roadblocks?

Posted on January 19, 2021 by Jerry L. Anderson

We have known since the 1980s that people of color bear a disproportionate share of environmental harms.  In 1994, President Clinton issued Executive Order 12,898, which required federal agencies to develop policies incorporating the principles of environmental justice into their mission.  EPA, as well as many state environmental agencies, established an Office of Environmental Justice, to help communities of color gain a voice in environmental decisionmaking and integrate EJ policies into all facets of the agency’s work.

Despite these efforts (and many others), the U.S. Commission on Civil Rights concluded in 2016 that little progress had been made in reducing disparate environmental impacts based on race.  The report shows that broad directives promising to reduce discrimination cannot overcome the structural barriers that frustrate or prevent effective progress. Today, I want to point to two possible levers of change.

1.       Who is making the decision? The issue of equitable representation.

Decisions that cause environmental harm are often made either by local zoning boards or by state environmental agencies, in the form of citizen commissions.  For example, the local Planning and Zoning Commission will decide where to site Locally Unwanted Land Uses (LULUs), such as landfills, waste incinerators or factories.  State appointed bodies, such as the Environmental Protection Commission in my state, often decide questions of water or air pollution permitting and enforcement.

Who is making these decisions?  Do they represent the population that will be impacted the most?

In a 2008 study, my research team at Drake Law found that 84% of large-city zoning board members where white, over 20 percentage points higher than their demographic percentage.  In addition, board members skewed heavily toward white-collar professionals, particularly those with a vested interest in development. 

State environmental boards also often suffer from a lack of diversity.  Often, state statutes require that certain economic groups be represented (e.g., industry or agriculture), but do not mandate representation for those impacted by pollution.

Local officials should recruit zoning board participants from underrepresented populations, including those most affected by environmental harms. In addition, state statutes should be amended to ensure adequate representation from impacted low-income and minority communities.

2.       Who can participate in the decision?  The issue of fair process.

In order to oppose the siting of a highway or factory that will impact their neighborhood, minority and low-income groups face numerous barriers to mounting effective opposition. They typically suffer from a lack of resources, limited free time, and restricted access to political networks.  Collective action problems weigh down their attempts to marshall resources to hire legal counsel or expert witnesses.

Adding to their difficulties, many states do not allow opponents of an environmental permit an adversarial hearing, thereby preventing them from effectively making a record at the administrative level. In contrast, permit applicants who are either denied a permit or whose permit contains limitations they object to are allowed an administrative hearing or “contested case.” See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had no right to contested case proceeding).  Opponents can only file written comments. If they want to challenge the permit, they need to file a case in state court.  That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence.  The court will review based on the record made below, which the impacted citizens were not allowed to fully participate in.

Making participation by impacted communities easier and more effective will require statutory and regulatory changes to administrative hearing procedures.  In the meantime, however, environmental attorneys should consider pro bono opportunities to help level the playing field.

These recommendations address only two structural issues lying behind the racial disparities in environmental harm. For further discussion of those barriers, check out this podcast series on Racism in Administrative Law.

To examine environmental justice in your community, I highly recommend EPA’s Environmental Justice Screener, which allows you to compare environmental harms against demographic data.

"Keep Makin’ Bacon” Indiana’s Right to Farm Act Statute Upheld As Constitutional

Posted on January 11, 2021 by Chris Braun

Indiana, like every other State, has adopted a Right to Farm Act to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” Indiana Code § 32-30-6-9(b) (“RTFA”). The RTFA limits the availability of state-law nuisance actions with respect to agricultural operations.

The Plaintiffs’ residential properties are located in rural Indiana near land owned by a family of second- and third-generation farmers who decided to convert land that had been historically used to grow row crops to a state-of-the art concentrated animal feeding operation (“CAFO”) for raising 8,000 hogs. The farmers obtained the necessary zoning changes, construction and operation permits, and environmental permits to build two 33,500 square foot buildings with ventilation fans, slatted floors and concrete pits to store liquid waste and began operations in October 2013. Two years later, the Plaintiffs commenced the action alleging claims of nuisance, trespass, personal injuries and property damage based on the odors and airborne emissions produced by the hog-farming operation.

The lawsuit was dismissed on summary judgment, with the dismissal upheld on appeal. The lawsuit included several constitutional challenges to Indiana’s RTFA. The Indiana courts held that the Plaintiffs’ nuisance claims were precluded by the RTFA, ruled that their trespass claims should be treated as nuisance claims as a matter of state law because they were essentially a repackaged version of the nuisance claims, and determined that the application of the RTFA did not effect a regulatory taking of the Plaintiffs’ properties. 

As the Indiana Court of Appeals held, Indiana’s legislature has declared that the Indiana RTFA is vitally important to Indiana’s agricultural economy and the protection of farmers’ rights related to livestock agriculture and the use of their farmland. The Court held that the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.”  Indiana Code § 32-30-6-9(b). The purpose of the law is “to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” The Court of Appeals also recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology.”

During the litigation, the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment. The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

The Plaintiffs’ filed a petition for certiorari with the U.S. Supreme Court. The question presented by the Plaintiffs’ petition was whether the application of Indiana’s RTFA to preclude Plaintiffs’ nuisance claims constituted a regulatory taking without compensation violative of the federal Constitution.

The Plaintiffs argued that the Supreme Court should take the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants responded that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.

The Plaintiffs’ litigation came to an end on October 5, 2020, when the U.S. Supreme Court denied the Plaintiffs ’ petition. As a result, Indiana farmers are now permitted to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree. Janet L. Himsel, et al. v. 4/9 Livestock, LLC, et al., 122 N.E. 2d 935 (Ind. App. 2019), Petition to Transfer Denied (Ind. S. Ct., Feb. 20, 2020), Cert. Denied (U.S. S. Ct.., Oct. 5, 2020, page 27).

Agriculture is an important part of Indiana’s economy as it contributes approximately $31 billion to the State, with $3.55 billion of that revenue coming from animal and animal product production.  More than 85% of the livestock raised in Indiana are raised in confined feeding operations.  There are more than 56,000 farming operations in Indiana and 96% of those farms are family owned and operated.  This case was important because the Indiana courts recognized the Indiana Legislature’s statutory framework to protect farmers who are not negligent in operating their farms while rejecting the various constitutional challenges to the RTFA, including equal protection, due process and taking arguments.  This case provides the necessary assurances to Indiana’s farmers and the agricultural community that they have the right to choose how best to modernize their farming and livestock operations.  In addition, Indiana’s RTFA and this case provide a helpful guide to other states that are interested in updating their own RTFA statutes to ensure a proper balance is struck between the needs of the agricultural community and neighboring property owners when dealing with such land use issues.   

Paying More than Your CERCLA Fair Share

Posted on January 8, 2021 by David G. Mandelbaum

The rhetoric of enforcement under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, plays well in public.  The government seeks “cleanup” and makes “the polluter pay.”  Cf. S. Rep. No. 96-848 at 13 (1980); Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020).  Contrast that with mitigating climate change where, in the words of the Pogo Earth Day poster, “we have met the enemy, and he is us.”  Four years ago, then-new EPA Administrator Scott Pruitt described the Superfund program as the “cornerstone” of EPA’s “core mission” of protecting the environment and human health.  Memorandum on Prioritizing the Superfund Program (May 22, 2017).  (To be sure, as things turned out, emphasizing Superfund may not really have been what the last administration was about.  See, e.g., Rule on Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 5, 2021).) If this next administration succumbs to the temptation to feature Superfund, perhaps it and we might focus on some of the mess the statute as drafted and read by the courts has made of private contribution claims, or a small corner of that mess.

The rhetoric plays better when the costs are higher and the work is more impressive.  So, Superfund has become a tool used repeatedly to clean up sediments in industrial waterways, mining sites, and similar “mega sites.” By contrast, it does not even have a straightforward way to approach voluntary response to common problems that cause human exposure to hazardous substances, like PCB contamination within buildings to be redeveloped.  And, of course, the “polluters” who are paying are not really the human beings who caused the releases.  Even if the business entity remains the same, the shareholders, directors, officers, and employees who were associated with a release decades in the past are not the same as those who must pay today.

Large, complicated sites and a capacious notion of “polluter” lead, naturally, to a desire to reallocate costs through contribution or private cost recovery actions.  But sections 113(f) (dealing with contribution), 113(g) (dealing with limitations periods), and 107 (dealing with cost recovery), produce a maze of procedural incoherence.

A CERCLA contribution claim seeks reallocation of costs the contribution plaintiff has incurred in excess of its fair share of the total.  Arguably, then, the claim is premature until the plaintiff can allege that it has incurred that excess.  That requires the plaintiff to be able to allege something about the total costs.  But there is confusion – sometimes so profound that it is not expressed – among lawyers and courts about what actions or costs count as the total. 

One natural approach would be to consider the total to be all costs incurred or to be incurred with respect to that facility.  Indeed, one ordinarily would think that costs incurred during various stages of response would net against each other when deciding whether a party had paid more than its fair share.  If I buy the baseball tickets, you would naturally buy the beer (at least up to the price of a ticket); if one party overpaid on a removal, it might get a compensating discount on the remedial action.  So, under this approach, a party cannot recover in contribution unless it can allege that it has incurred more than its fair share of all costs.

But that might be very hard to do before a large portion of the remedial action had been completed.  Section 113(f)(1) allows a contribution claim “during or after” a claim for cost recovery, and the limitations period for a contribution claim runs from entry of the judgment or entry into the settlement.  See 42 U.S.C. § 113(f)(1), (g)(3).  Thus, arguably some level of legal undertaking to incur future costs may count as “incurring” those costs for purposes of satisfying the requirement that a contribution plaintiff incur more than its fair share.

But even that may leave timing problems.  The limitations period is three years from a trigger:  a judgment or judicially approved settlement for costs or damages, or an administrative order settling costs under section 122(g) or (h).  An early settlement for RI/FS costs, for example, could be more than three years before a record of decision, let alone entry into any sort of commitment by anyone to implement the remedy.  The remedy could be divided into operable units, and they could be separated in time by more than the limitations period.

Treating each separate action as a stand-alone total would deny the netting principle.  It will always be true that a party (other than a solely liable party) pays more than its fair share of every dollar that that party pays.  But if you don’t allow for tasks to be divided up, you make settlement of cases with the government, or even among private parties, quite difficult.

None of this would be overly troubling if one could have confidence that courts would treat separate actions as simply parts of a single whole.  If one knew that, then allowing the limitations period to expire on a small, early set of costs would simply mean that the settling up for those costs would occur in the contribution action for later costs. 

But courts have, in some circumstances, decided that contribution may not even be available for later actions if they are conducted under orders or agreements that do not meet the requirements of Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), and Atlantic Research Corp. v. United States, 551 U.S. 128 (2007).  That is, costs incurred complying with a Unilateral Administrative Order, for example, are not costs incurred “during or following any civil action” under section 106 or 107, nor are they incurred under a settlement.  42 U.S.C. §§ 9613(f)(1), (3)(B).  Those costs would be recoverable from a jointly and severally co-responsible party through a cost recovery claim under section 107(a)(1-4)(B). Although typically the defendant would have a section 113 counterclaim, it is not clear how that would play out if some of the defendant’s (or the plaintiff’s) costs were incurred in a separate response action as to which the limitations period had run and how the accounting of paying more than one’s fair share would be accounted.

Finally, note that most courts would take equitable account of payments by insurers, indemnitors, or other contribution defendants in determining whether a contribution plaintiff has paid more than its share.  If separate actions are separate totals for this purpose, then one must allocate those payments by action when the insurer or indemnitor did not allocate, and even if the contribution defendant was allocating, it may also have been netting.

There isn’t any reason for all this complexity.  It is all readily fixable.  We just haven’t fixed it. 

Showerheads: Untangling the Outgoing Administration’s Last Attack on Energy Conservation Standards

Posted on January 6, 2021 by Adam Kahn

Regulatory trackers from Harvard Law School, Columbia Law School, and the New York Times identify over 100 rule changes from the outgoing Trump administration that could increase greenhouse gas emissions or decrease other protections of  the environment. The weakening of conservation standards for showerhead flows will be one of the last of such rules to go into effect prior to January 20, 2021. The Department of Energy (DOE) promulgated the so-called “Showerhead Rule” on December 16, 2020, which becomes effective on January 15, 2021. (DOE also promulgated new rules that weaken efficiency standards for certain washers and dryers on the same schedule.) 

The Showerhead Rule amends the Energy Conservation Program for Consumer Products Rules, found at 10 CFR Part 430. Part 430 implements part of the “Energy Policy and Conservation Act or EPCA, as amended by the Energy Policy Act of 1992, and codified at 42 U.S.C. 6291-6309.  Specific to showers, Section 31(D) of 42 U.S,C. 6293 defines “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” And 42 U.S.C. 6295(j) imposes a maximum water use of 2.5 gallons per minute for “any showerhead” manufactured after January 1, 1994.  Since Congress passed EPCA in response to the 1973-74 energy crisis, the implementing rules have largely been viewed as a success, and a stepping stone to further conservation efforts.  In January 2017, DOE described the appliance efficiency standards as “highly effective -- achieving high bang-for-the-buck energy savings.”  In short, this rule cannot be good for the environment.

Application of EPCA to showerheads was admittedly the subject of complaints about inadequate flow, particularly in the years immediately following implementation of the standards.  President Trump got lathered up about this too.  As he explained in July, 2020:

We’re bringing back consumer choice in home appliances so that you can buy washers and dryers, showerheads and faucets. So showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect. (Laughter and applause.)

In response, the Showerhead Rule added two definitions to its Energy Conservation Program rules: “Body spray means a shower device for spraying water onto a bather from other than the overhead position.  A body spray is not a showerhead” and “Showerhead means any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term ‘showerhead’ to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” (emphasis added).

What is the effect of this rule?  For “ordinary” one-head showers, not much.  Flow from a single head shower “spraying device” is still limited by statute to 2.5 gpm.  The differences are for those who want a shower with multiple spraying devices (e.g., waterfalls, shower towers, rainheads, and shower systems) and/or “body sprays.”  The definitions change a longstanding DOE policy that considers each spraying device from a single pipe to be part of one “showerhead,” so they are collectively limited to 2.5 gpm.  Now each spraying device in a product containing multiple “heads” are considered separately for purposes of determining compliance with the 2.5 gpm limit.  Thus, a shower with four water spraying devices can use 10 gpm (until the hot water runs out), and Body Sprayer flow is unlimited.

The Showerhead Rule allows showers to consume more water and use more energy to heat water.  The increase could be significant: the U.S. Energy Information Administration reports that water heating consumes more household energy than anything but space heating, and showers are one of the largest consumers of hot water. Time will tell whether the additional water and energy wasted in the name of consumer choice is a relative drip or flood.

The incoming administration has options to rescind or reverse rules, including the Showerhead Rule.  But President Biden cannot issue an executive order to invalidate an existing regulation.  Nor can he “freeze” a rule that has been finalized and has taken effect.  Changing a rule requires the usual notice and comment periods, unless the “good cause” exception in the Administrative Procedures Act (APA) can be invoked.  

Litigation could also change or delay the effective date of the Rule.  The deadline to challenge the Showerhead Rule under the APA and EPCA is March 16, 2021.  Litigation can be slow, but if a challenge is brought, in the near term the Department of Justice could decline to defend the rule and request a stay to give DOE the chance to consider amendment or repeal. Similar lawsuits were brought at the end of December 2020 by 15 state attorneys general and NGOs challenging the October 2020 “Dishwasher Rule” which loosened dishwasher efficiency standards.

Showerhead manufacturers also need to contend with state and local law. Many state energy conservation standards are preempted by EPCA, but that law also allows or requires preemption to be waived is specified circumstances.  DOE waived preemption for showerheads in 2010.  Six states then adopted standards stricter than 2.5 gpm:  California, New York, Colorado, Washington, Hawaii, and Vermont.  These state standards, which likely will be interpreted under the superseded DOE policy, reduce the incentives for showerhead makers to sell products newly authorized by the Showerhead Rule.  As other states try to reduce GHG emissions, additional states may promulgate new rules to avoid the effects of a federal rule that does just the opposite.

Will manufacturers retool and remarket their product lines on the assumption that the Showerhead Rule will remain in place, at least for the states that have not adopted their own standards? The choice is theirs, but with increasing ESG considerations, the limited market, and a flood of uncertainty surrounding future of the Rule, many may wash their hands of this opportunity.   

The Showerhead Rule will hardly go down as the worst attack on the environment from the outgoing administration. There is simply too much competition.  There is also hope that a future regulator will consider the (paraphrased) advice of Rodgers and Hammerstein and conclude: “I'm gonna wash this [Rule] right outta my hair, and send [it] on [its] way.”  At 2.5 gpm or less.

EPA’s Ozone NAAQS Decision — Perhaps the Statute Itself Deserves Some of the Blame

Posted on December 28, 2020 by Seth Jaffe

Last week, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb.  I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS.  After all, only one decision can be the single worst environmental policy of an entire administration.

I’m not that close to the science on the ozone NAAQS, but I have the sense that the ozone evidence is just more of the same in the past four years; it’s nothing like the seeming flood of evidence we’ve seen concerning the risks of PM2.5 at sub-NAAQS exposures.  We do need to remember that there was some substantial evidence in 2015, when EPA adopted the 70 ppb standard, that there are risks at concentrations below 70.

The real question is what we mean by an “adequate margin of safety.”  As I have previously noted, this is really a policy question, not a scientific question.  On the other hand, it’s not an infinitely malleable concept and it’s pretty clear that questions of background or the cost-effectiveness of the controls necessary to get to a level below 70 ppb are not relevant to whether a NAAQS set at an particular level in fact attains an “adequate margin of safety.”  The adequate margin of safety is what it is; whether we as a society want to spend the money necessary to ensure that there is an adequate margin of safety is a different question.

Conceptually, I understand why Congress made the choice that it did.  Let’s first answer the scientific question regarding what level is “safe.”  Then we can figure out how we get to that “safe” level and whether society is prepared to spend the money to do so.  Unfortunately, the structure of the Clean Air Act – not to mention the state of our politics in 2020 – doesn’t permit a rational discussion regarding the policy choices that flow from the “how safe is safe” decision.

And so we end up with what’s supposed to be a scientific question becoming infected with implicit policy questions, which perverts the answer to the scientific question.  From a legal point of view, it’s the conservative justices, who say that they care about what words Congress actually uses in writing legislation, who should be the quickest to reverse both Trump NAAQS decisions.  From a purely etymological point of view, it’s difficult to conclude that either the PM2.5 NAAQS or the ozone NAAQS currently protect the public health with an adequate margin of safety when there is substantial – even if not definitive – evidence that there is significant morbidity and mortality associated with exposures below the current NAAQS.

Do I expect the current conservative Supreme Court majority to do as I suggest?  No, but it would not be a bad litigation strategy for the public health advocates who will inevitably challenge both decisions to focus really sharply on just how much flexibility there can be in the definitions of the words in the phrase “adequate margin of safety”.

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Posted on December 10, 2020 by Seth Jaffe

On Tuesday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually.  That hardly seems consistent with the Clean Air Act, which requires that NAAQS be set at the level requisite to protect public health “with an adequate margin of safety.”

As the Trump administration winds down, I think we can start the discussion of the single worst environmental decision made in the last four years.  There’s a lot of competition, and I welcome reader submissions, but for my money, this may well be it.

I understand that there is discussion among the Biden transition team regarding how much to prioritize action to lower the PM2.5 NAAQS.  At some level, it’s a heavy lift, because a lot of work goes in to revising a NAAQS.  The administration may conclude that its climate efforts will address particulate matter as a co-benefit.  That would certainly be true, but the NAAQS are important.  To me, they are still the core of the CAA.  That should be particularly true as a heightened focus on environmental justice emphasizes the link between environmental issues and public health.  Many of those tens of thousands of excess deaths take place in EJ communities.

Retaining the existing PM2.5 NAAQS – worst environmental decision ever by the Trump administration.  And that’s saying a lot.

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

Posted on December 7, 2020 by Seth Jaffe

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue.  It went on to review the decision by the North Dakota Department of Health, which concluded that the emissions should be excluded and CCMC did not require a permit.  The Court held that the NDDOH decision was entitled to deference, stating that:

"The process for NSPS enforcement would be significantly impaired if the state authority did not have the ability to make determinations based on application of given facts to the SIP and EPA framework."

There was a vigorous dissent by Judge Stras, who found it incomprehensible that a federal court would defer to a state agency interpretation of federal law.  In his pithy introduction, Judge Stras asserted that:

"Most Americans would be surprised to learn that state bureaucrats can play an even larger role than federal judges do in interpreting federal law."

I’m inclined to put a pox on the houses of both the majority and the dissent.  The problem with the majority is that it is too cavalier in asserting that, under the CAA’s cooperative federalism regime, states have the responsibility to implement the permitting regime.  That’s true, but it’s not obvious that the states get to make major interpretive decisions, such as what EPA’s own regulations actually mean.  I think that the majority also wrongly gives short shrift to the problem of inconsistent decisions being made by different delegated states.

On the other hand, Judge Stras relies on a mode of constitutional interpretation that is void of any basis in the Constitution or our political history.  He also seems far too quick to reach a constitutional question that should not even be at issue.  First, I think Judge Stras is correct that the regulation is not in fact ambiguous in these circumstances.  I would have found that, even if NHDOH was entitled to some deference, its decision that the emissions did not come from a coal processing plant was plainly wrong.

Second, the real solution, not discussed by the majority or the dissent, should have been that this case should not be a dispute between the authority of a federal court and a state agency, but a dispute between EPA and a state agency.  SCOTUS already ruled, in Alaska Dep’t of Envtl. Conservation v. EPA, that EPA has authority under the CAA to override state agency permitting decisions.  The plaintiffs should have asked EPA to override the NHDOH decision.  I don’t know why that did not happen here – perhaps it was because the plaintiffs assumed (probably correctly) that EPA would not rule against CCMC, since EPA had embarked on a mission to save coal.  Even if that were the case, however, the plaintiffs could then have appealed EPA’s decision to federal court and the case would have been presented in the proper way.

Finally, I’ll reiterate that this case really may be important.  Judge Stras is a Trump appointee and I wouldn’t be shocked if some of the recent appointments to SCOTUS were sympathetic to his arguments.  What makes the case really interesting is that those same judges are also those most sympathetic to the state side of cooperative federalism issues.

If this issue were to make it to SCOTUS, it would be fascinating to see if Justice Gorsuch rules for the coal company, because federalism gives decisional authority to the states, or for the plaintiffs, because the Constitution precludes state agencies from interpreting federal law.

As a lawyer I once dealt with was fond of saying, “that’s what makes a horse race!”