Posted on November 19, 2014
DEFENSE TO JOINT AND SEVERAL LIABILITY
On September 25, 2014, the Seventh Circuit added two more opinions to the long list of decisions arising out of the Lower Fox River and Green Bay Superfund Site (Fox River Site) in northeastern Wisconsin.
In NCR Corp. v. George A. Whiting Paper Co., a contribution suit, the court reversed and remanded a decision by the Eastern District of Wisconsin, which had held that NCR was not entitled to any contribution from the other defendants.
In U.S. v. P.H. Glatfelter Co. (Glatfelter), an enforcement action, the court ruled on a number of important CERCLA issues, such as whether a permanent injunction can be issued to enforce a Section 106 unilateral administrative order. In affirming in part and reversing in part the same District Court decision, the Seventh Circuit provided the latest appellate guidance on the divisibility of harm defense to joint and several liability.
The District Court had rejected divisibility of harm defenses raised by defendants NCR and Glatfelter, ruling, as a matter of law, that the “harm” in one of the operable units of the Fox River Site (OU-4) was not “theoretically” capable of being divided. The District Court ruling thereby avoided the second step of the divisibility of harm analysis, the factual question of how a divisible harm might be apportioned. That was the question resolved by the Supreme Court in Burlington N. & Santa Fe R.R. Co. v. United States (Burlington Northern), a decision which gave Superfund practitioners great hope because the apportionment approved by the Court was so imprecise. Litigation in the lower courts following Burlington Northern quickly turned to the question of what makes a harm “theoretically” capable of being divided. The question is whether it is possible to approximate the contamination caused by each party.
In the District Court, defendants NCR and Glatfelter argued for divisibility of harm on different theories. NCR admitted that it had contributed to the contamination in OU-4, but argued that the harm was capable of apportionment and that it should be liable only for its apportioned share of the costs. Glatfelter argued that it did not cause any of the contamination in OU-4 and therefore was not liable for the costs of cleaning up OU-4.
As to NCR, the Seventh Circuit first addressed the question of what the appropriate metric should be for measuring the contamination caused by each party. The District Court, after a lengthy trial, had viewed the harm as “binary,” in the sense that contamination in concentrations above EPA’s maximum safety threshold of 1.0 ppm of PCBs was harmful; whereas, concentrations below that level were not. The Seventh Circuit rejected that “on-off switch” approach on the ground that the evidence at trial had shown that the dividing line between “harmfulness and geniality” was much more subtle. The Seventh Circuit reviewed the various metrics used by EPA to measure harm and settled on “surface weighted average concentrations” (SWAC) of 0.25 ppm throughout OU-4 as the appropriate value. Even that value, however, could not be viewed as “binary,” according to the Seventh Circuit , because lesser concentrations still could pose risks of harm.
This analysis led the Seventh Circuit to reconsider whether remediation costs can be a useful approximation of the contamination caused by each party. The District Court had concluded that, like contamination levels, remediation costs were “binary” in the sense that “sediment with PCB concentrations below 1.0 ppm would impose no remediation costs, while sediment with PCB concentrations above 1.0 ppm would always impose about the same remediation costs.” The Seventh Circuit said “[w]e think the district court got this wrong as well.” Instead, “remediation costs increase with the degree of contamination above 1.0 ppm. As a result, remediation costs are still a useful approximation of the degree of contamination caused by each party.” As the Seventh Circuit explained, that is so because “the cost of the remedial approach in a particular area is positively correlated with the level of contamination near the surface of that area, which contributes to the operable unit’s SWAC, and consequently, the harm.”
The Seventh Circuit concluded:
As a result, we think the harm would be theoretically capable of apportionment if NCR could show the extent to which it contributed to PCB concentrations in OU4. And if NCR cleared that hurdle, we think a reasonable basis for apportionment could be found in the remediation costs necessitated by each party.
The Seventh Circuit then went on to agree with the District Court’s critique of expert opinion offered by NCR to estimate the percentage of mass it contributed to OU-4, but faulted the District Court for failing to explain why it rejected an alternative approach to estimating mass-percentages. The Seventh Circuit did not say whether the estimated mass-percentages, if properly done, would have proven that the harm in OU-4 was “theoretically” capable of apportionment. Instead, the Seventh Circuit reversed the District Court’s rejection of the divisibility defense and remanded for further fact finding.
As to Glatfelter, the Seventh Circuit characterized its divisibility argument as an “all-or-nothing game,” in the sense that Glatfelter argued that none of its PCBs made their way into OU-4, obviating the need, in Glatfelter’s view, to approximate its share of the PCB contamination in OU-4. The Seventh Circuit thoroughly analyzed the testimony of Glatfelter’s expert (to the point of proposing complex algebraic formulas to demonstrate his testimony was unsound), concluding “Glatfelter failed to prove that the PCB discharges for which it is responsible were not a sufficient, or at least a necessary cause of at least some of the contamination in OU-4. Therefore, the district court correctly ruled against Glatfelter on its all-or-nothing divisibility defense.”
So what do Superfund practitioners learn from Glatfelter? Some things we already understood are confirmed. Divisibility analysis is a two step process; the initial and far more challenging step is to prove that the harm is “theoretically” capable of apportionment. The burden of proof on that issue rests with a defendant advancing a divisibility of harm defense. Glatfelter now instructs that the test to determine whether a harm is theoretically capable of apportionment depends upon the extent to which the defendant contributed to concentrations of contaminants at the site, an obvious subject for expert testimony. The battle on that issue can be expected to resume in the District Court. To the extent the first step is cleared, a reasonable basis for apportionment could be found in the remediation costs necessitated by each party.
More than theoretical is the fact the Fox River Site will produce more opinions for guidance to Superfund practitioners in this confusing and difficult area of the law.
Posted on November 17, 2014
November 1967: The Moody Blues release their second album, Days of Future Passed, said to be an influential work of the countercultural, psychedelic era. May 2014: Wolverine goes back in time to rally the X-Men against the Sentinels in Days of Future Past. In between: Ed Muskie and Leon Billings roamed the Earth, particularly the U.S. Senate, and modern-day environmental law was born and thrives.
2014 also is the centennial of the birth of Muskie in the old mill town of Rumford, Maine. On November 15, almost exactly 47 years after release of Future Passed, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, spoke on a panel looking back and to the future of laws like the Clean Air and Water Acts that were unanimously passed by the Senate through the guidance of Muskie and Billings.
Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s insistence of and ability to achieve bipartisanship, with allies for the CAA and CWA efforts including such Senators as Baker, Eagleton, Cooper, Bayh, Boggs and Dole, as well as the exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings.
Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings.
The second concept is that of climate change and the Clean Air Act. Billings was very clear: Section 111(d) was no accident, is not being misinterpreted, and Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, what Billings now calls the “epitome of the precautionary principle”. The phrase “selected air pollution agents” almost never made it out of the House-Senate Conference in December 1970, but a compromise was struck so late at night it never made it into the Conference reports. And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”
Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts as the font of legislative intent underlying many environmental laws, including frequent references to Muskie in court opinions and during oral arguments at the Supreme Court. He also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue for a short time as a defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Richard then showed slides of handwritten notes made by Nixon’s Chief of Staff, H.R. Haldeman of three discussions with the President: in February 1971, even when they thought environmental protection “has to be done”, at the same time they thought it “is not worth a damn”; in June “should take on environment—it’s not a sacred cow”; and by July 1971 they wanted to put the “brakes on pollution bills…when we can without getting caught”, and to “reexamine all pollution bills in terms of current economic impact”.
Richard also discussed the current EPA rulemaking under 111, especially referencing the term “best system of emission reduction”; EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just controls. He said that for EPA, Muskie is its “Mr. Clean”.
During Q&A, both panelists discussed the partisanship of the past 10-20 years contrasted with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying, “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.” Turning to NEPA, the concept of an” environmental impact statement” developed through a personal compromise Muskie struck with Senator Jackson.
Afterwards I asked Billings, “If Ed Muskie and you were in the Senate now, what would you be doing?” He said, “If we were the majority party, holding a lot of oversight hearings to bring in all the scientists and evidence; if the minority party, writing speeches.”
And that is how the Past (or Days Passed) in Environmental Law still have major force in today’s many controversies. Oh, by the way: The Moody Blues recently released a new box set, “Timeless Flight”, and are still touring. Long live rock and environmental laws!
Posted on November 13, 2014
So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to rein in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit EPA’s authority to recover oversight costs.
How many of us in the private sector have been in meetings with EPA where EPA had more technical people in attendance than the PRPs who were performing the remedy? How many of us have had clients receive oversight cost bills where the total amount of the oversight costs approached the amount spent on actually performing the remedy? How many us have had oversight requests that have turned response actions into research projects? All of this for a program that EPA’s own analyses always show to be at the bottom of the barrel when it comes to actual risks to the public.
Here’s the proposal. I’m not suggesting that EPA have no authority to recover oversight costs. Just limit it to 10% of the response costs incurred to actually design and implement the remedy. Make it 15% if you want to be generous.
Mitch McConnell, are you listening?
Posted on November 11, 2014
Bucking the trend of five Circuit Courts of Appeal, the U.S. District Court for Utah decided the Endangered Species Act (ESA) cannot be applied on private property for a wholly intrastate species. The threatened Utah prairie dog, found exclusively in Southwestern Utah, apparently has insufficient connection to interstate commerce to support federal protection when found on privately owned land.
In the aptly named People for the Ethical Treatment of Property Owners (PETPO) v. US Fish and Wildlife Service, PETPO sued the government when it modified its regulations establishing limitations on “take” (death, injury) of the Utah prairie dog, a species found only within Utah. Because the species was not found interstate and finding no other relationship between the species and interstate commerce, the court looked at and rejected all of the government’s arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate activities having a substantial relation to interstate commerce.
The government’s arguments were the same as have been made in multiple court decisions, each of which finding regulation of wholly intrastate species under the ESA supported by the Commerce Clause, including in the 9th, 11th, 5th, 4th and DC Circuits (respectively, see San Luis & Delta-Mendota Water Authority v. Salazar; Alabama-Tombigbee Rivers Coalition v. Kempthorne; GDF Realty Investments, LTD. v. Norton; Gibbs v. Babbitt; Nat’l Ass’n of Home Builders v. Babbitt.) The PETPO decision is contrary to this precedent, which, if upheld by the Tenth Circuit, may lead to a split in the Circuits and a shot at Supreme Court review.
Constitutional law groupies will recall the Supreme Court seemed to establish more strict limitations on the federal Commerce Clause power when it struck down the “Gun-Free School Zones” law in United States v. Lopez and overturned parts of the Violence Against Women Act in United States v. Morrison. At that time, folks questioned whether the ESA would survive a constitutional challenge involving a wholly intrastate species. For a number of years in a number of courts, the government has prevailed. Now there is a decision to the contrary to be watched as it makes its way through appeals.
The court soundly rejected all of the government’s arguments supporting the regulation. The government argued the “activities” prohibited by the rule are commercial or economic in nature; for example, limitations on farming and construction. This position was rejected because the regulation applied whether or not linked to an economic activity. More significantly, the court said the government was looking at the wrong thing for a nexus to commerce: the proper focus of the “substantial effect” test is the “regulated activity.” “In other words, the question in the present case is whether take of the Utah prairie dog has a substantial effect on interstate commerce, not whether the regulation preventing the take has such an effect.” The fact that property owners would have to stop farming or otherwise engage in some commercial activities did not, on its own, provide sufficient nexus to interstate commerce to support species protection.
The government also argued the Utah prairie dog has biological and commercial value, so that any takes of the animal have a substantial effect on interstate commerce. The Utah prairie dog is not a commercial species, and the court concluded, “any takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA.”
As far as biological value, Defendants argue prairie dogs perform many functions contributing to the ecosystem. This point was also rejected in strong language:
If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause. Accordingly, the asserted biological value of the Utah prairie dog is inconsequential in this case.
Finally, intervenor Friends of the Earth argued an interstate commerce connection based on the fact the prairie dog has been the subject of scientific studies and commercially published books. The court said lots of books had been published about both guns and women, but that was not sufficient under Lopez or Morrison.
Although no Clean Water Act decisions are cited, the PETPO opinion may be of interest to those following the constitutionality of federal regulation over wetlands. Pending proposed regulations defining waters of the United States for Clean Water Act jurisdiction rely in part on the connectivity of ecosystems dependent on clean water. (See here, here and here.) Rejecting the argument that the Utah prairie dog warranted federal protection as part of an integrated ecosystem, the Utah decision quotes Chief Judge Sentelle, in dissent in National Ass’n of Home Builders v. Babbitt, “The Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.’”
Posted on November 6, 2014
Ozone is the quintessential ambient pollutant. It is the result of complicated chemical reactions involving NOx and VOCs, sunlight, humidity and temperature. It is primarily an urban pollutant, because that is where most of the NOx and VOCs are emitted, but it is also a regional challenge particularly in the eastern U.S.
The Uintah Basin of eastern Utah is the quintessential Western U.S. Empty Quarter. It is sparsely populated and windswept, and is a high-altitude desert. It is home to the Ute Indian Tribe, and the greater part of the Basin is Indian Country for purposes of environmental regulation, meaning EPA – not the State of Utah – has regulatory authority. The Basin is home to extensive reserves of oil, gas, oil shale and oil sands.
If the Basin is a dry, windy environment, then why have ambient ozone levels spiked dramatically in the Basin the last few years, during the winter, no less? It turns out that ozone is not only created during hot muggy summer days, but when VOCs build up during winter inversions with a lot of sun and snow. Periodic winter high pressure systems trap the VOCs and the ozone appears. EPA has classified the Basin as “unclassifiable” for ozone and has denied an administrative petition to classify the area as nonattainment. That denial is currently under review at the D.C. Circuit.
So where is this aberrant ozone coming from? Although oil and gas has been produced in the Basin for decades, the fracking boom has swept into Eastern Utah with a vengeance, and the number of wells and associated facilities has mushroomed. Utah DEQ, EPA Region 8, the counties, the Tribe, NGOs and the operators are jointly working on strategies to mitigate the problem, including newly promulgated state rules requiring retrofit of existing wells with equipment to reduce VOCs. These efforts are complicated, however, by the jurisdictional differences over air issues as between Utah DEQ and EPA and the results are sometimes a bit clumsy. But all of the stakeholders see the need to address the ozone issue proactively, and the end result will hopefully be a model for addressing similar issues in North Dakota, western Wyoming and Western Colorado.
Posted on November 4, 2014
Over 30 earthquakes jolted the area in and around the City of Azle, Texas —20 miles north of Fort Worth—last November through January. In response to citizen concerns, the Texas House Committee on Energy Resources created a Subcommittee on Seismic Activity to investigate whether there was a link between earthquakes and increased oil and gas production and disposal wells. On August 12, the Railroad Commission of Texas, with support from both the Texas oil and gas industry and environmental groups, proposed rules that would require companies to do a seismic survey before obtaining permits for new oil and gas disposal wells—so-called Class II injection wells. On October 28, 2014, the Railroad Commission unanimously voted to finalize that proposal.
Presently, the state has more than 3600 active commercial injection wells used for the disposal of oil and gas wastes. The rules require applicants for new oil and gas disposal wells to provide additional information, including logs, geologic cross-sections, and structure maps for injection well in an area where conditions exist that may increase the risk that fluids will not be confined to the injection interval. Those conditions include, among other things, complex geology, proximity of the base rock to the injection interval, transmissive faults, and a history of seismic events in the area as demonstrated by information available from the USGS. The rules also clarify that the Railroad Commission may modify, suspend, or terminate a permit if fluids are not confined to the injection interval, that is, if it poses a risk of seismic activity. The effect of these rules will be not only to regulate oil and gas disposal activities to address potential seismic effects, but also to generate data that may be useful in determining whether and to what extent to further regulate those activities. The rules also may serve as a model for other states concerned about the seismic effects of oil and gas waste disposal.
Posted on November 3, 2014
The Science Advisory Board has at last released its peer review of EPA’s draft report on Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis, the technical support for the proposed rule on definition of “waters of the United States” under the Clean Water Act. The SAB paper is generally supportive of EPA’s analysis.
The proposed rule has generated a great deal of controversy, causing EPA and the Corps to extend the comment period twice (November 14 is the current deadline). Part of the controversy relates to EPA’s analysis of the technical literature supporting the proposed rule, particularly the effect of tributaries, intermittent and ephemeral streams on navigable waters. A detailed explanation of the proposed rule, case law leading up to it, and prior agency guidance can be found here.
The SAB paper confirms EPA’s science, but recommends more nuance in some instances. For example, the paper agrees that tributaries, intermittent and ephemeral streams can have a significant effect on the physical, biological and chemical integrity of receiving waters, but notes that the question is not simply whether there is a connection between upstream sources and navigable waters. The SAB chides EPA for taking a “binary” view of connectivity—either a water body is connected to a navigable water or it is not. Rather, the paper urges EPA to acknowledge there is a “gradient of connectivity.”
That there is a gradient of connectivity seems obvious, even from a lay standpoint; everything is connected at some level. But that observation by itself is not terribly helpful, as EPA and the Corps have a regulatory function that is binary in nature—either there is Clean Water Act jurisdiction or there is not. What would be helpful is guidance on where on the gradient government intervention matters; that is, how the agencies can recognize a truly “significant nexus” as prescribed by Justice Kennedy in Rapanos.
The SAB also makes recommendations to improve the clarity of the EPA report and make more definitive statements. For example, the SAB states that the literature supports a firmer statement on downstream functions of “unidirectional,” non-floodplain wetlands. The SAB also recommended that EPA expand the discussion of approaches to quantifying connectivity, which would increase the utility of the document for regulators.
The SAB paper certainly is a necessary element of the scientific support for EPA’s and the Corps’ proposed rule for determining jurisdiction. But it is unfortunate that the agencies reached their policy choices in the proposed rule without first having the benefit of the SAB’s input. That opens the door to criticism that the SAB paper is just window dressing.
Whether that reversed sequence matters in the long term remains to be seen. Even if EPA and the Corps had waited until the SAB completed its peer review, the rule would probably have come out roughly the same and attracted as much comment.
Posted on October 31, 2014
“Elmer Gantry,” a noir classic novel by Sinclair Lewis and a 1960 film, features a tortured central character with the word “love” tattooed on the knuckles of one hand and “hate” on the knuckles of the other hand. The vision of the hands together intertwined as symbols of the dilemma of the conflicted protagonist’s internal battles is evocative of the disconnect between our deep and undeniable thirst for energy and our disdain for the manner by which it is produced and delivered to us.
A History of Options:
Coal fired power plants are coming under heavy fire as the U.S. seeks to significantly reduce air emissions. Global climate change, health impacts and a series of other negative effects on the ecosystem are cited as bases for accelerated retirements of these generation stations. No doubt coal mining is a tough and dirty business; yet for two centuries it has provided the backbone of the development of electric power plants and the extraordinary benefits of electric energy. How to reconcile this history with the current political climate? How do we transition from coal as a major US fuel source, one that provides domestic supply and multiple benefits in employment, tax base, and economic activity?
Likewise, hydroelectric generation is enshrined in the transformation of much of the West in the songs of Woody Guthrie, as a magnificent contribution to our development as a nation. And, the desirability of hydroelectric generation is magnified when the only “issue on the table” is the greenhouse gas impacts of generation. Yet, the impacts of hydroelectric development have had deleterious effects on fish, landscapes, and water supply. And, as drought strangles much of the West, there is a struggle over whether to tear down the much admired, in fact almost “loved,” green dams of the New Deal Era. The question at issue here is which side is good and which is evil, and the answer is “it all depends.”
Another love-hate relationship lies with the nuclear generation fleet. From the standpoint of greenhouse gas emissions, the nuclear generation fleet is a winner. Yet to some anti-nuclear interests, the nuclear stations (for the most part, forty years or older) are the devil incarnate, and subject to exorcism. Yet, these facilities provide nearly 20 per cent of the electric power of the country. So again, the desire for a clean electric supply and antipathy to the technology clash. In this case, dealing with the aftermath of closing a nuclear generation station includes the significant and seemingly intractable problem of nuclear waste storage and disposal, leading to more profoundly difficult questions and concerns.
Another emotional “generation war” is centered on the role of natural gas fired generation. Once again, there are epic clashes over gas. Gas is ever more obviously abundant and relatively desirable from an environmental standpoint. However, extreme passions have been aroused by gas production-related issues like hydraulic fracturing, new pipeline capacity and fears about safety, and harmful environmental effects from natural gas drilling, production, transportation and distribution. Despite the fact that natural gas fueled generation has filled approximately a quarter of the nation’s electric generation demand for many years, and is likely to be a major solution to the shift from coal, nuclear and some hydroelectric plants, the heated anti-fracking debate continues. Thus, the struggle continues between “good,” (by those who see gas as a solution to the need for reliable generation) and “evil” (by those who oppose the drilling, development and delivery impacts of any form of hydrocarbon-related fuel). Indeed, the politics, sophistication and interest of high profile opponents has elevated the bitter war of words and politics to a new level.
Finally, the role of renewables as a source of generation to replace nuclear, coal and other forms of generation would, superficially, seem to be uncontroversial. Yet once the specifics of a project become known, opposition to the project grows. Like politics, all projects are local. Wind power towers, with associated land use, avian impacts, noise, reliability and transmission-related needs become the object of ire for interests that may not benefit from the projects. Likewise, solar projects with land use, impact on wildlife water use and other hot-button issues may precipitate other battles. The beauty of the project is in the eye of the beholder and beneficiary.
The Paradox Ahead
Overarching all these projects are difficult issues associated with transmission capacity and cost, reliability, taxation, employment and overall local economic dependency. And uncertainty about the need for new generation makes things worse: why tolerate potentially disruptive technologies if efficiency increases and other factors means that new generation isn’t needed? In light of the volatile, complicated, politically charged environment, the struggle for answers and stability will continue. As long as our society remains conflicted, these issues will continue unabated to be “front page,” and lawyer and politician intensive. The search for rational solutions to meet the needs of the country for reliable, safe, environmentally acceptable electric generation must continue for the nation to survive and thrive, despite the pain, cost and compromise necessary. And like the soul of “Elmer Gantry,” we must ultimately cease to be at war with ourselves to survive.
Posted on October 29, 2014
The unfortunate fact about copper mining is that it just cannot be done without impacting groundwater. This inevitable result occurs because of the massive excavations extending below groundwater elevations and the leaching of contaminants through the process of capturing copper. Most western mining states, including Arizona, have recognized this inevitable consequence and have crafted a “point of compliance” system where groundwater quality standards must be achieved at some designated point beyond the active mining site. Previously, the New Mexico Environment Department dealt with quality exceedances at active mining sites either by issuing variances from compliance requirements under the New Mexico Water Quality Act, or by simply ignoring the problem altogether. The Copper Mine Rule has been promoted as a pragmatic response to the cumbersome administrative variance procedure.
Under the New Mexico Water Quality Act, groundwater compliance must be achieved at any “place of withdrawal for present or reasonably foreseeable future use.” This jurisdictional threshold is markedly different than the jurisdictional standard for surface water discharges, which requires compliance precisely at the point of discharge into a body of surface water. The Copper Mine Rule recognizes that groundwater directly beneath an active mine site would not be available for use during the period of active mining operations and thus would not qualify as a “place of withdrawal” where groundwater standards must be met. Similar to the “point of compliance” approach taken by other states, the New Mexico Copper Mine Rule requires that groundwater standards must be achieved at monitoring well locations placed as close as practicable around the perimeter of the active mine site.
The Copper Mine Rule has been appealed by various NGOs and by the New Mexico Attorney General. The Attorney General contends on appeal that any determination of a “place of withdrawal” must be made on a case-by-case basis, rather than through a rule-making procedure. Interestingly, the Attorney General originally represented the New Mexico Water Quality Control Commission (“WQCC”) when it adopted the Copper Mine Rule, but abruptly reversed course and has lodged an appeal against the Rule for which it provided representation to the WQCC. As part of the response to the Attorney General’s appeal, the WQCC has filed a motion seeking to disqualify the Attorney General, based on a conflict of interest, from taking positions adverse to its former client. The matter is presently pending before the New Mexico Court of Appeals.
Posted on October 28, 2014
Many Clean Water Act practitioners will have their eyes on the Third Circuit on November 18 when oral argument has been set on an appeal from a decision upholding EPA’s issuance of a multi-state Total Maximum Daily Load (TMDL) for the Chesapeake Bay and its tributaries. The Chesapeake Bay TMDL, issued in December, 2010, is the biggest EPA has ever set, covering parts of 6 states and the District of Columbia. As I reported in a blog article a year ago on September 13, 2013, in a 99 page decision the Middle District of Pennsylvania upheld the TMDL against numerous challenges by the American Farm Bureau Federation, other agricultural trade associations and the American Home Builders Association. Those organizations appealed, and a flurry of intervenor and amicus briefs have been filed on both sides.
The issues raised by the appellants are whether EPA exceeded its statutory authority when (1) it set pollutant allocations for nitrogen, phosphorus and sediment on a watershed-wide basis, and then, by agreement with the states, subdivided them by state and by major river basin; and (2) it insisted that states provide “reasonable assurance” that they would implement measures reasonably calculated to achieve compliance with the TMDL within agreed-upon timetables.
As described in the district court decision, the Chesapeake Bay TMDL has a long history, including more than 25 years of cooperative but unsuccessful efforts by the Bay states, working together and with EPA, to design and implement programs to reduce the large amounts of nutrients and sediment flowing annually into the Bay. This pollution has contributed to the decimation of oysters, blue crabs and other fish, destruction of hundreds of acres of bay grasses, and significant economic, recreational and cultural losses throughout the watershed. Because of the inherently interstate nature of the pollution, and the inability of one state to stem pollution in another state, the states in 2007 asked EPA to set a multistate TMDL, which EPA did. At the heart of the legal dispute are issues of “cooperative federalism” – the proper roles for the states and EPA and the limits of EPA authority under Clean Water Act Section 303, which gives only minimal guidance on TMDL implementation. The district court decision addressed several issues of first impression and, in upholding EPA’s actions, provided a thoughtful analysis and helpful guidance.
The precedential significance of this case has not escaped states, cities and other interested parties elsewhere in the country. Briefs have been filed by intervening environmental groups, wastewater treatment agencies and municipal authorities in support of EPA. In addition at least 10 amicus briefs have been filed on behalf of over 100 other entities. A group of 21 attorneys general, mostly from western and Mississippi Valley states, filed a brief in support of the appellants. They were joined by a group of counties, and much later by a group of 39 Congressmen. Amicus briefs were filed in support of EPA by the states of Virginia, Maryland, Delaware and the District of Columbia (all in the Chesapeake Watershed). Also supporting EPA are a brief by the cities of New York, Baltimore, Philadelphia, Los Angeles, Chicago and San Francisco, and a separate brief for the City of Annapolis, plus two amicus briefs by groups of environmental organizations and a brief by 19 environmental law professors from around the country.
One of the interesting features of this case is that none of the EPA actions challenged by the appellants were forced by the agency on unwilling states. The “reasonable assurance” features are contained in “watershed implementation plans” drafted by each state. The deadlines are not inflexible, cannot be enforced by EPA, and were agreed to by the states. In fact on June 16, 2014, all 6 Bay states, the District of Columbia and EPA signed a new Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and the implementation measures. So stay tuned! The courtroom will likely be SRO, and I’ll be back to you after a decision.
Posted on October 22, 2014
Yes, and here’s why: Joseph Sax’s writings remain as fresh today as when they were published. This blog — in noting his death earlier this year — described Sax’s revival of the public trust doctrine, for which he is justly famous. But some of Sax’s other studies stay relevant, and not only to the generation of environmental lawyers he taught at the University of Michigan Law School and at the University of California Berkeley School of Law.
Sax’s career focused not on the intricacies of pollution control statutes, but on the broader issues of allocation and management of scarce resources. The idea that public trust resources ought not to be diverted from public use, discussed in this blog, is the beginning. Citing Sax, the California Supreme Court in the Mono Lake decision injected public trust concepts into California prior appropriation doctrine. As noted recently in this blog, California water allocation law continues to slouch toward the present. These issues show why Sax enjoyed teaching water law.
Sax delighted in challenging conventional views. In an early article, he exploded the myth, exemplified by supporters’ confidence in the National Environmental Policy Act, of “the redemptive quality of procedural reform.” In 2002, he spoke at the University of Michigan about the Great Lakes. The assembled faithful expected him to reinforce their view that not one drop of water should leave the Great Lakes basin. Instead, to their dismay, he demonstrated why water allocation decisions should be based on an evaluation of alternatives, even if that meant water withdrawals from the Great Lakes. Some of the water allocation issues among riparian states that he explores in that speech were recently heard by the Supreme Court in Kansas v. Nebraska, concerning interpretation of an interstate water allocation formula, and will be considered in Mississippi v. Tennessee, which concerns pumping underground water across state borders.
One of the foundations of environmental law is the takings clause. Sax’s 1964 article, Takings and the Police Power, often cited by the Supreme Court, deserves re-reading for its lucid and compact analysis. Following the Lucas v. South Carolina Coastal Council decision, Sax imaginatively proposed an economy of nature underlying the market economy while criticizing the majority opinion in Lucas for being the outlier in takings law that we now know it to be. But Sax sympathized with the unfairness of takings law on property owners. Recently he noted that the Supreme Court has exhausted its efforts to develop a coherent takings theory. But, he said, that fact brings no solace to a late-in-the-game developer who, denied permits by a municipality that gave away the entire increment of infrastructure amenities to earlier-in-time developers, unfairly receives no compensation.
Management of public lands is a large part of environmental law. As we learned at the 2014 annual meeting, this College is embarking on a new initiative for East Africa community land use and natural resources rights. The underpinnings for such policies are found in Sax’s 1980 book Mountains Without Handrails, which proves the preservationist’s view of national park management. But management of private land adjacent to parks is equally important, as Sax explored in Helpless Giants: The National Parks and Regulation of Private Land. Sax was inspired to write this article when, after hard hiking through rhododendron “hells” in the Great Smoky Mountains National Park rising to the Appalachian Trail, he was surprised to see a luxury hotel — located on private land adjacent to the park — thrusting up beyond a forested ridge of the park.
Sax’s foray into the community values inhering in public and private art collections, Playing Darts with a Rembrandt, is echoed in the recent debate over whether the collection of the Detroit Institute of Arts should be sold to pay the city’s creditors. Although disclaiming an exact fit with the public trust doctrine, the Michigan Attorney General opined that the DIA held the art as a charitable trust for the public.
Sax received many awards and much praise. His extensive scholarship was reviewed by his peers in a 1998 Ecology Law Quarterly symposium introduced by ACOEL Fellow Richard Lazarus. He received the Asahi Blue Planet Prize in part for drafting the Michigan Environmental Protection Act, the citizen-suit statute discussed here. If these recognitions do not convince you, reading Sax in the original should persuade you of the continuing relevance of his scholarship.
Posted on October 20, 2014
In the mid-1970’s, the nation faced long gas lines, the rationing of heating oil supplies, 55 miles per hour speed limits on the highway, the curtailment of holiday lighting, and the uncertainty of sufficient supplies of petrochemical feed stocks for industry. Pundits routinely predicted dire forecasts of shivering residences, financial dislocations, and geo-political struggles between the United States and the OPEC suppliers. Against this backdrop Congress banned most crude oil exports under the Energy Policy and Conservation Act of 1975.
With the emergence of unconventional drilling techniques, colloquially described by the shorthand term ”fracking”, the nation recently began to see growing supplies of natural gas and oil. Last year’s Annual Meeting of the American College of Environmental Laws featured a timely panel discussion on the environmental and economic issues associated with (1) the conversion of underutilized LNG import terminals into LNG export terminals, (2) the development of massive port terminals in Washington, Oregon, and Louisiana for coal exports to Asia, (3) the increased emission of the potent GHG methane from the higher level of drilling activity, (4) the downstream effects on rural communities that have become the homes of these “shale plays,” (5) the construction of massive mid-stream facilities and transmission lines ( like the Keystone XL pipeline in areas thought to be sensitive because of their habitat for endangered species and their location near valuable water supplies), and (6) the safety risks of the increased use of rail transport for crude oil. An executive with one of the major oil companies reports that oil production in the United States has jumped 50% since early 2011. The Energy Information Administration recently stated that United States oil production is expected to reach its highest level since 1970; this increase is occurring at a time when domestic oil consumption is declining.
Major oil companies, the U.S. Chamber of Commerce, the American Petroleum Institute and others have called for an end to the 40-year old ban on oil exports. Those calls have coincided with increased congressional interest from both House and Senate members in lifting the ban.
With the “sea change” in the domestic oil production picture, the administration of President Obama has begun to look at possible repeal of the 40 year- old - ban on crude oil exports. Energy Secretary Ernest Moniz recently addressed the Council on Foreign Relations on the current efforts to assess the “very different” oil market when the ban went into effect. A link to his 50 minute presentation on You Tube is found below. (The Secretary’s presentation touches on a wide range of topics, but his discussion of crude oil exports begins approximately 20 minutes into the address). Secretary Moniz did not give a time frame for a decision, noting that the nation remains a significant importer at this time. He said the final decision may turn on the market impacts. As of the date this blog piece is written, the price for oil has reached a very low point, in part due to the glut of new domestic supplies, to a level that calls into question the economics of new well completions with unconventional drilling techniques. The 50 minute speech also touches on other subjects, including the progress made in reducing methane emissions from leaking infrastructure, greater water recycling, more effective well completion requirements, as well as the improvements in the solar energy as a way to meet the nation’s goal of a low-carbon economy, and the plans for the U.S. to announce its climate change pledge in the first quarter of 2015.
Video: Energy Secretary Ernest Moniz on U.S. Energy Policy
Posted on October 15, 2014
Product Stewardship. It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing: arranging for collection and recycling or disposal of unused or waste products. Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide, the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.
We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad: from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint. Pharmaceuticals may be in the offing. A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.
Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs. According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products. (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)
Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products. And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications.
Some of these programs are after-market recycling operations. Others are closer to product “take-back” requirements. The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options. “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.
If you believe the literature, everyone is a winner: municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created. Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay).
More than a few manufacturers and industries are on board. Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs. ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.
In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs. By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC. At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG), intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase. The goal? Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal. While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach. The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs. The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.
Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around. What products will be next in your state? Or in your county? And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.
Posted on October 8, 2014
On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for use of groundwater: Assembly Bill 1739 and Senate Bills 1168 and 1319. California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers until such time as the aquifer is adjudicated, a process that takes decades to complete.
California historically had asserted regulatory authority only over surface streams and defined underground channels. But the most prevalent, and unregulated use, was of percolating groundwater. Overlying landowners were deemed to have “correlative” rights to the use of groundwater under their lands; that is, rights proportionate to the amount of owned land.
This laissez faire approach has led to widespread overdrafting of groundwater resources, subsidence, and ruined groundwater quality. Further, as stream flows decline—whether because of drought or climate change—more users turn to groundwater pumping, lowering the water table and driving up the cost of energy to lift the water.
All the other Western states exerted authority over groundwater in the previous century. For example, Oregon’s groundwater appropriation law was enacted in 1955. California finally joined the 20th Century with enactment of these bills as a response to unprecedented drought conditions and the fear that climate change will make matters worse.
In a nod to intense water politics, the bills take a local planning and management approach. Other states direct their water agencies to establish basin plans to manage their groundwater resources. In that sense, California has shown leadership in adopting a more decentralized approach to a water-scarce 21st Century. Under the new legislation, local entities are to develop management plans for their groundwater basin for state review. The state would intervene only if it deems the management plans inadequate or not enforced. This local approach has not prevented certain water users from denouncing the bills as a state power grab.
My first job as a lawyer was as staff counsel to the California State Water Resources Control Board. In response to what was then the worst drought on record, Jerry Brown, in his first iteration as Governor, convened a blue ribbon commission to review California water rights law. The group was staffed by U. C. Davis law professor Hap Dunning and a team of young water lawyers, including myself. We reviewed every aspect of California water law in a series of white papers, and made several sweeping and not so sweeping recommendations for reform.
None of the recommendations passed out of legislative committees. I suspect the current legislation would not have passed either but for the historic and severe drought conditions now facing the state. California will need to do whatever it can to stretch its limited and declining water resources to support its powerful agricultural economy and growing cities. Let’s hope that the new groundwater legislation will be a solution for this century.
Posted on October 3, 2014
The Blog Calendar Gods directed me to post something on September 16, 2014, which just happens to be the 40th anniversary of the date that I first started to practice law. Not wanting that coincidence to go to waste, I decided to look back 40 years, to a time when the practice of environmental law was far less complex – or, at least, the things that EPA then published in the Federal Register were a lot shorter.
On September 16, 1974, EPA’s rules and notices took up less than four pages in the Federal Register and consisted of a notice of receipt of applications for pesticide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); a correction to one line of a previously-published notice of proposed rulemaking under the Clean Water Act; and the approval of a compliance schedule under the State of Kansas’ state implementation plan. The entire Federal Register on that date was only 104 pages long.
Fast forward 40 years. EPA’s fairly typical Federal Register postings on September 16, 2014, include – as was the case 40 years ago – rulemaking proposals and notices under the Clean Air Act, Clean Water Act, and FIFRA; however, the September 16, 2014 proposals and notices from EPA take up more than 125 pages of the Federal Register, and a typical edition of the Federal Register these days is well over 300 pages long. I could complain that EPA did not celebrate my anniversary with the publication of a splashy huge new rule in the Federal Register – but I think many of my clients would consider that to be a good thing.
Perhaps the most significant change over the past 40 years, though, is to the overall length and complexity of the rules that are now appear in volume 40 of the Code of Federal Regulations. (There is that number “40” again.) In 1974, 40 C.F.R. – the volume of the code containing most of EPA’s regulations – was about 2000 pages long. In the decades following that time, 40 C.F.R. has steadily increased in size (and complexity). In 1984, it was approximately 5,800 pages long; by 1993, it topped 11,000 pages; and in 2012, there were over 25,000 pages of regulations in 40 C.F.R.
For those of you wondering what else was going on 40 years ago (outside of the practice of environmental law), let me share the following tidbits from September 16, 1974. The big news that day was President Ford’s announcement of his “Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” In addition, on that day, BART began operations in the Bay area, Bob Dylan recorded Blood on the Tracks, the Royal Canadian Mounted Police swore-in their first female recruits, and Joe Namath was on the cover of Sports Illustrated (he was shown rehabbing his battered knees, hoping to play one more season in his $250,000-per-year contract with the New York Jets). Also, if I had stopped cutting my hair 40 years ago today, my golden locks would be more than six yards longer than they are today.
I will be thinking about all of this as I lift my glass this evening and toast all of you and begin year 41.
Posted on September 25, 2014
Momentum continues to build as investors and fund managers develop and implement policies and investment guidelines favoring sustainability and clean energy, and disfavoring -- and in certain cases shedding -- investments in companies that are major producers of carbon emissions and greenhouse gases.
While legislators and regulators continue to grapple with the means to establish and enforce mandates to fight climate change, sectors of the investment community are weighing in by redeploying capital.
Two recent developments illustrate different approaches to investor action on climate change.
In the first, Yale University’s Chief Investment Officer, David Swensen, reportedly issued a letter to Yale’s outside investment managers requesting that they take into account climate change impacts and greenhouse gas emissions in evaluating investment options. Yale’s Investment Office is reputed to oversee the second largest endowment in the U.S., valued last year at close to $21 billion.
The Rockefeller Brothers Fund (RBF), a philanthropy valued at $860 million this year, announced that it is working to divest itself from fossil fuel investments. RBF, which in 2010 had already committed ten percent of the endowment to investments consistent with the goals of its Sustainable Development program, will focus initially on coal and tar sand investments, with the goal of reducing those exposures to less than one percent of the portfolio by the end of the year, while analyzing exposure to remaining fossil fuel investments in order to implement a strategy for additional divestments in the coming years.
The Yale approach stops short of requiring divestment from existing portfolio holdings, and, as reported by the Yale Daily News, Mr. Swensen’s letter came after the Yale Corporation Committee on Investor Responsibility voted against divesting the endowment’s holdings in fossil fuel companies. Still, the Yale paper quoted the letter as stating: “Yale asks its [investment managers] to avoid companies that refuse to acknowledge the social and financial costs of climate change and that fail to take economically sensible steps to reduce greenhouse gas emissions.”
The RBF announcement follows the growing number of individuals and institutions that have determined to sell off their fossil fuel holdings in the last few years. The announcement came a day after more than 300,000 participants gathered in New York City for The Peoples’ Climate March, and a day before commencement of the U.N. climate change summit in New York.
The New York Times cites a report from Arabella Advisors that investors ranging from wealthy individual to pension funds, and from philanthropic and religious organizations to local governments, have committed to divesting over $50 billion in fossil fuel investments and to turning to investments in cleaner energy.
Socially responsible investment strategies are nothing novel; funds dedicated to such benchmarks have been around for years. But as the Times article pointed out, it is notable that the latest reported entrant in the fossil fuel divestment trend is a fund established by a family whose wealth was substantially derived from the oil industry.
Posted on September 24, 2014
The history of the Clean Water Act (CWA) permit shield provision was recently addressed in a blog post by David Buente on July 31, 2014. This post covers an update on one of the referenced cases that was pending before the Ninth Circuit Court of Appeals. The case Alaska Community Action on Toxics v. Aurora Energy Services, LLC (“ACAT”) involved a facility in Seward, Alaska that conveyed coal onto ships where it was exported into international markets. The facility had been covered under the Multi-Sector General Permit (“MSGP”) since the mid-1980s. The MSGP authorized the discharge of stormwater and also identified eleven categories of non-stormwater discharges which were authorized under the MSGP. None of these categories covered discharges of coal.
The plaintiffs filed a CWA citizens suit in early 2010 alleging that coal was discharged from a conveyor into the ocean during ship loading operations and that these discharges were not covered under the MSGP. The alleged discharges involved small chunks of coal falling from the underside of the conveyor belt on the “return” trip and incidental dust or chunks unintentionally released during the loading of ships. The district court granted summary judgment in favor of the facility, applying the principles in Piney Run Pres. Ass’n v. City Comm’rs, 268 F.3d 255 (4th Cir. 2001).
On appeal, the Ninth Circuit reversed, holding that the MSGP did not cover discharges of coal. The court found that all non-stormwater discharges were prohibited except those identified in the list of eleven permissible non-stormwater discharges. The Ninth Circuit’s decision is most striking for what it does not say. First, there is no discussion in the opinion of the fact that the permittee had, in fact, disclosed its coal discharges during the permitting process. Second, the court places no weight - indeed, did not even mention - the fact that EPA and its state counterpart actively oversaw the facility, including its discharges of coal. In contrast, the district court specifically found that all the relevant parties - EPA, the Alaska Department of Environmental Conservation (“ADEC”), and the permittee - viewed the MSGP as extending to discharges of coal. As the district court found, “the discharges were not only ‘reasonably contemplated’ by EPA, but were actively regulated by the agencies under the General Permit.”
The Ninth Circuit’s decision in ACAT should make any MSGP permittee shudder since it suggests that many facilities may not be properly permitted. Specifically, if a non-stormwater discharge is not identified on the list of permissible non-stormwater sources, ACAT suggests that discharge is not covered by the MSGP. The case also reaffirms the point that reliance on agency communications and “course-of-dealing” with agencies can be a perilous exercise.
Time will tell whether the ACAT court’s analysis will be applied outside of the MSGP context to IPs and other GPs. In the meantime, when considering permit shield issues, permittees and their counsel would be wise to carefully focus on the language of permits and what a permit purports to cover (and not cover).
Posted on September 23, 2014
Financial responsibility is a familiar environmental law concept. Many of us have negotiated financial assurance provisions in site consent agreements. RCRA’s closure and post-closure financial responsibility requirements at treatment, storage and disposal (TSD) facilities are well-established. Financial responsibility obligations are also a component of many other federal and state environmental programs.
I suspect, however, that few practitioners are aware of a CERCLA financial responsibility provision that has been in existence since the Act’s inception. CERCLA Section 108(b) mandates that the President identify classes of facilities that will be required to demonstrate a financial ability to cleanup releases of hazardous substances. These facilities will be obligated to provide evidence of financial responsibility that is consistent with the degree and duration of the risks associated with their production, handling, treatment, storage and disposal of hazardous substances. The requirements of Section 108(b) are intended to assure availability of funds should the businesses go bankrupt or otherwise become financially unable to conduct future environmental response actions.
Section 108(b) generally imposes two regulatory tasks on EPA: Identify the classes of facilities for which financial responsibility requirements will be developed and promulgate regulations establishing those requirements. For twenty-eight years, EPA deferred breathing regulatory life into Section 108(b). EPA’s inattention to Section 108(b) ceased to be an option in 2008. Litigation commenced by the Sierra Club and others resulted in a federal court order requiring EPA to identify industries that would be first in line for Section 108(b) rulemaking. EPA determined in 2009 that the hard rock mining industry would be its first priority. In early 2010, EPA published advance notice of its intent to regulate additional classes of Section 108(b) facilities: chemical manufacturing, petroleum and coal products manufacturing and the electric power generation, transmission and distribution industry.
Although deadlines have come and gone, to date no financial responsibility rules have been proposed. Nevertheless, the lifeless form of Section 108(b) has finally begun to stir. EPA advised Senate lawmakers in June of this year that financial responsibility requirements for the hard rock mining industry would be issued by 2016. In the meantime, the NGOs remain ever vigilant. Armed with data indicating that, particularly during the recent recession, taxpayers and disadvantaged communities suffered the adverse consequences of EPA’s inaction, environmental advocacy groups filed a Petition for Writ of Mandamus demanding that the agency promptly comply with Section 108(b)’s rulemaking requirements. In contrast, many industry groups contended that the Section 108(b) rulemaking being developed is based on a flawed analysis of potential risk and ignores the impact of existing state and federal financial responsibility laws and regulations that have achieved most of the objectives of Section 108(b). Legislation introduced in the House of Representatives in 2013, generally supported by the affected industries, included significant amendments to CERCLA Sections 108(b) and 114(d).
Whether you believe that Section 108(b) is outdated and unnecessary, or that immediate and comprehensive implementation of its mandates is of paramount importance, I would submit that EPA’s seemingly cautious approach to Section 108(b) rulemaking is justifiable. Considering the financial consequences, the identification of target industries must be based on a careful and comprehensive evaluation of the actual risks associated with a particular industry’s handling of hazardous substances and the historic “track-record” of that industry’s ability to financially respond to releases. The extent to which existing federal and state financial assurance programs address the identified risks must also be carefully scrutinized to avoid unnecessary cost and duplication. EPA’s selection of acceptable financial assurance mechanisms is also of critical importance. Elimination of the so-called “financial test” method, for example, may impact the capacity of financial and credit markets to provide the necessary financial assurance and adversely affect global competitiveness.
Future rulemaking that is based on a thorough and defensible analysis of actual risk and is limited to filling in any gaps in existing financial assurance programs will best serve the public, the environment and the regulated community.
Posted on September 17, 2014
On Monday, the Environmental Council of the States (ECOS) publicly announced a memorandum prepared by ACOEL members concerning a controversial rule proposed by EPA and the Army Corps of Engineers to clarify jurisdiction over “waters of the United States.” In May 2013, ACOEL entered into a Memorandum of Understanding with ECOS to facilitate a relationship pursuant to which members of ACOEL will provide assistance on issues of interest to ECOS.
Since the Supreme Court decision in Rapanos v. United States, there has been significant discussion regarding the scope of Clean Water Act jurisdiction. In order to facilitate its members’ ability to comment on the proposed rule, ECOS requested that ACOEL members provide an objective analysis of how Rapanos has been interpreted to date and how the proposed rule might modify existing understanding of the term, if at all. A diverse group of ACOEL members from academia, private law firms, and public interest groups volunteered and produced the attached comprehensive memorandum, which was made publicly available today by ECOS.
In announcing the memorandum, Dick Pedersen, the President of ECOS and Director of the Oregon Department of Environmental Quality, thanked the members of ACOEL for their significant time and effort in preparing the “very informative” memorandum, and added that ECOS looks forward to working with ACOEL in the future. ACOEL hopes that this memorandum will serve as a valuable resource in connection with EPA’s anticipated rulemaking efforts in this area.
This is the second white paper produced by ACOEL members to aid ECOS members in assessing important federal environmental policy initiatives. The first concerned implementation of section 111(d) of the Clean Air Act.
Posted on September 12, 2014
On January 1, 2015, China will formally begin implementing an updated Environmental Protection Law. The updated Law imposes significantly stricter environmental controls and greater responsibilities on corporations and local government officials while also giving China’s environmental regulators, prosecutors, and non-governmental organizations (“NGOs”) more “teeth” to demand accountability and obtain compliance.
Key Aspects of China’s New Law
1. Increased accountability of polluters
Any violations may be made public and could damage a company’s reputation domestically and abroad. Individuals who were directly in charge of a polluting activity and/or other personnel who failed to abide by the updated Law’s more stringent environmental requirements will not be able to hide behind corporate walls. Fines will accrue on a daily basis and responsible officials will be subject to jail sentences. Companies will be required to publicly disclose their environmental impact assessment (EIA) documents and solicit public opinion on new projects to a much greater extent than previously required.
2. Increased accountability of government bodies /officials
While enterprises that did not comply with environmental regulations were previously subject to penalties, these were often overlooked, reduced, or waived due to local corruption. To deter lax enforcement, government officials will now be subject to more serious consequences (such as demotions, dismissals, and criminal prosecution) for committing unlawful acts, including improperly granting permits and approving EIA documents, covering up violations, and failing to issue orders to suspend operations for polluters. (Whereas opportunities to advance in the governmental hierarchy used to depend on meeting economic targets, performance evaluations will soon also take achieving environmental protection targets into account.)
3. Increased public disclosure
The new Law requires public disclosure of information regarding environmental monitoring, environmental quality, and the collection and use of pollutant discharge fees. Designated types of heavy polluters will also be required to disclose the names, concentrations, and quantity of emissions of the main pollutants discharged, and information on the construction and operation of their pollution prevention and control facilities.
4. Public interest lawsuits
The new Law allows NGOs to file lawsuits against polluters as long as the NGO is: 1) registered with the civil affairs department at or above municipal level, and 2) focused on environment-related public interest activities for five consecutive years or more. It has been estimated that there are currently 300 NGOs in China that could meet these requirements.
5. Protection for whistleblowers
The updated Law will protect any citizen or organization that reports: (1) environmental pollution or ecological damage caused by any company, or (2) any failure by an environmental regulatory body to perform its legal duties. Any such report and the identity of the whistleblower must be kept confidential.
The fundamental message the updated Law sends to corporations and regulatory bodies is clear – China is now serious about improving environmental quality and will measure its success in curtailing pollution in tandem with its success in fostering economic development. Keeping companies in key industries accountable for meeting higher environmental standards is, in fact, no longer just official verbiage, but an important strategic component of China’s overall economic strategy.
In addition to prioritizing compliance, local companies and multinationals can align themselves with the Chinese government’s message by investing in the growing environmental technology sector in China and by promoting corporate environmental awareness and accomplishments to the Chinese public and international audiences via websites and CSR reports. (In fact, multinationals are expected to lead the way in establishing transparency as a norm in China given their know-how and experience when operating in stricter jurisdictions.)
The updated Law constitutes a meaningful and strategic step toward improving China’s environment. While we cannot be sure how successful any particular aspect of the new Law’s implementation will be, companies are advised not to just take a “wait and see” approach. A passive strategy risks making the company the target of enforcement actions and potentially significant penalties, and, perhaps most significantly in the longer term, damaging the reputation of the company both in and outside of China. Instead, the economically and socially sound decision is to adjust corporate strategy in the nearer term to match that of the national Chinese government, and, perhaps, to aim to not only meet, but exceed, the environmental standards and requirements being put into place. If companies seize the window of opportunity to distinguish themselves from other firms in China in the near term, the potential positive payoffs are likely to be significant in the longer run.
*Jasmine Wee a law student at the University of Hong Kong assisted Mr. Falk with a longer article on China’s new Environmental Protection Law from which these observations were derived.
Posted on September 2, 2014
Will the ABA make leadership on issues of sustainability a permanent part of the organization's infrastructure and policy? That is the key recommendation of the American Bar Association’s Task force on Sustainable Development. The July 31, 2014 Task Force report recommends that the ABA strengthen its ability to provide leadership on sustainability by creating a sustainability entity within ABA that is directly responsible to the ABA president. “First and foremost,” the report said, "[the ABA] should establish a permanent infrastructure for integrating sustainability within the ABA over the long term.”
As recommended by the Task Force, the sustainability entity would engage "the entire organization and membership, and convey the ABA’s ethic for economic, social and environmental responsibility" under a “leadership team that reports directly to the ABA President.”
The sustainability leadership entity would be guided by a short “written statement of ABA’s vision and values on sustainability relevant to the legal profession.” It would be responsible for issuing an “annual report on ABA’s progress toward achieving sustainability” and on “law-related developments” on sustainability. In addition, it would run an “ABA-wide program of annual awards for exemplary sustainability efforts by lawyers, law organizations, and others.” Finally, it would be responsible for “[m]aintaining and enhancing the Resource Center” by, among other things, “making it prominently accessible from the ABA homepage.”
The Task Force recommendation follows from then-ABA President James R. Silkenat’s 2013 charge to the Task Force to “focus on ways that the ABA can provide leadership on a national and international basis on sustainable development issues.” (See my earlier blog, “ABA Task Force to Help Mainstream Sustainability in Law Practice.”)
The report also described the Task Force’s achievements in its first year. Chief among these is the creation of an online Resource Center "that is dedicated to provide, on an ongoing basis, sustainable development tools, links, and other information for lawyers and law organizations.”
The Task Force, which has twenty members (including me) representing the private sector, government, nongovernmental and intergovernmental organizations, and academia, is chaired by Lee A. DeHihns, a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia and a former chair of the ABA Section on Environment, Energy, and Resources. Although the Task Force was originally established for one year, the ABA Board of Governors has approved the Task Force for a second year. In its second year, the Task force plans to address three additional areas where greater effort is needed to foster sustainable development: legal education, the role of lawyers, and government.
On legal education, the task force will consider, among others, a recommendation to “identify specific areas of knowledge and practice skills that current lawyers and law organizations should possess in order to assure the basic understanding of sustainability needed for the competent practice of law in the 21st century.” It will also consider a recommendation for the development or endorsement of “sustainability education and certification programs (via law schools or [continuing legal education] providers) that would enable lawyers who have taken a specific number of hours of sustainability-related courses to obtain a certificate.”
On law practice, the task force will consider, among others, a recommendation that the ABA encourage all lawyers to consider ways of incorporating sustainable development into their law practice. On government, the Task Force will consider specific ways of supporting the U.S. Environmental Protection Agency in fostering sustainability, as provided by EPA’s new strategic plan.
The report notes that lawyers tend to lag behind their clients: “Clients, including business and industry clients, as well as nongovernmental and governmental clients, have become increasingly engaged in sustainability, with growing sophistication and more intensive commitment….[Yet] the legal community has been noticeably absent from meaningful participation in many sustainability ‘communities of practice.’ The Task Force is working to change that dynamic.”
Of course, the recommendations in this report are just that: recommendations. The ABA will decide how to respond to them by following its normal policymaking processes. However, the establishment of the Resource Center makes it easier for lawyers to obtain relevant information about sustainability. Keeping the Task Force active for a second year provides an opportunity for continued dialogue.
Posted on August 28, 2014
Over 30 earthquakes jolted the area in and around the City of Azle, Texas —20 miles north of Fort Worth—last November through January. In response to citizen concerns, the Texas House Committee on Energy Resources created a Subcommittee on Seismic Activity, to investigate whether there was a link between earthquakes and increased oil and gas production and disposal wells. In addition, the Railroad Commission of Texas—the agency with jurisdiction over oil and gas activities in Texas--hired a state seismologist and, on August 12, approved a draft of proposed rules that would require companies to do a seismic survey before obtaining permits for new oil and gas disposal wells—so-called Class II injection wells. Representatives of both the Texas oil and gas industry and environmental groups are supportive of this proposal.
Texas, in particular, has been part of the tremendous increase in oil and gas exploration and production activity nationwide through hydraulic fracturing and horizontal drilling. Although “fracking” per se does not appear to result in quakes, there is a concern that related disposal well injection might. The Railroad Commission proposal is intended to address this concern. Some have suggested the Texas proposal could be a model for other states.
The proposal would require applicants for oil and gas injection wells used for disposal to provide additional information, including logs, geologic cross-sections, and structure maps for injection well in an area where conditions exist that may increase the risk that fluids will not be confined to the injection interval. Those conditions include, among other things, complex geology, proximity of the base rock to the injection interval, transmissive faults, and a history of seismic events in the area as demonstrated by information available from the USGS. The proposal also would clarify that the Commission may modify, suspend, or terminate a permit if fluids are not confined to the injection interval, that is, if it poses a risk of seismic activity. Presumably, the effect of the proposal, if promulgated, will be not only to regulate oil and gas disposal activities to address potential seismic effects, but also to generate data that may be useful in determining whether and to what extent further regulation is needed.
Posted on August 27, 2014
On August 20, 2014 the 9th Circuit Court of Appeals issued its opinion in Center For Community Action and Environmental Justice; East Yard Communities For Environmental Justice; Natural Resources Defense Council, Inc. v. BNSF Railway Company; Union Pacific Railroad Company, No. 12-56086, D.C. No. 2:11-cv-08608-SJO-SS, determining that emissions of diesel particulate matter does not constitute "disposal" of solid waste under the Resource Conservation and Recovery Act (RCRA). As a result, plaintiffs could not state a plausible claim for relief under RCRA’s Citizens’ Suit provision, 42 U.S.C. §6972(a)(1)(B).
A number of environmental organizations had sought to enjoin the emission from defendants' rail yards of particulate matter found in diesel exhaust from locomotive, truck, and other heavy-duty vehicle engines operated on or near 16 rail yards in California. Plaintiffs cited studies by both EPA and the state agency, which identified diesel particulate matter as a toxic air contaminant with the potential or likelihood "to cause cancer and other adverse health problems, including respiratory illnesses and increased risk of heart disease." Plaintiffs contended that, while the particulate emissions were initially emitted into the air, they ultimately were deposited on land and water. They argued that people inhale the exhaust while it is airborne and after deposition (because the particulates are "re-entrained" into the air by wind, air currents, and passing vehicles). Defendants moved to dismiss arguing that RCRA only applies to air emissions from burning fuel which itself consists of or contains "solid" or hazardous" waste, i.e. a "discarded material." Otherwise, emissions fall within the scope of the Clean Air Act, which, they argued, was inapplicable.
The district court concluded that (1) any gap that might exist between the two regulatory schemes as they apply (or don't apply) to mobile sources of air pollution "was created through a series of reasoned and calculated decisions by Congress and EPA," and, independently, (2) plaintiffs failed to state a claim under RCRA because, even if RCRA does apply, diesel exhaust is not a "solid or hazardous waste."
In affirming, the appeals court cited (and distinguished) prior case law, but for the most part relied on the plain language of the statutes and pertinent legislative history of Congressional actions (or intentional inaction) related to regulation of mobile sources of diesel exhausts and rail yards. Relying on the principle of expressio unius est exclusio alterius (when Congress expresses meaning through a list, a court may assume that what is not listed is excluded), the court of appeals noted that "emitting" is excluded from the definition in RCRA of "disposal." Citing §6903(3), the court of appeals added that the specific statutory text further limits the definition of "disposal" to "placement" of solid waste "into or on any land or water" and concluded that emitting the exhaust into the air does not equate to placing the exhaust into or on any land or water. The 9th Circuit concluded that to decide otherwise would be rearranging the wording of the statute which courts cannot do. Specifically, the court of appeals held, "Reading §6903(3) as Congress has drafted it, ‘disposal’ does not extend to emissions of solid waste directly into the air."
The 9th Circuit might have stopped there, but it did not The Court of Appeals further supported its decision by (1) recognizing that the term "emitting" was used elsewhere in the statute and, therefore, was intentionally excluded from the definition of "disposal," and (2) reviewing the legislative history and determining that Congress had opted not to address diesel emissions from locomotives, heavy-duty trucks, and buses at various points in the history of the Clean Air Act amendments adopted in 1970. It also noted that a railroad emissions study required during the planning of a 1977 Clean Air Act overhaul (only one year after enactment of RCRA) omitted rail yards and mobile sources and resulted in a prohibition of federal regulation of "indirect sources" that included corridors attracting mobile sources, like roads or highways, leaving regulation of those sources entirely to the states. The opinion also discussed later amendments to the Clean Air Act, finding that in the 1990 Amendments to the Clean Air Act, Congress finally required EPA to promulgate regulations setting forth standards applicable to emissions from new locomotives and new engines used in locomotives and prohibited states from doing the same, but left the regulation of indirect sources including rail yards, exclusively to the states, noting that, once again, in 1990, RCRA applied to neither.
The court of appeals was not persuaded by plaintiffs' argument that the two statutes should be "harmonized" to fill any gaps, or that there was irreconcilable conflict between the two statutes, observing that in actuality no conflict existed because neither statute applied to rail yards' diesel exhausts. But to put an exclamation point on its holding, the 9th Circuit added: “[H]owever, to the extent that its text is ambiguous, RCRA's statutory and legislative histories resolve that ambiguity.”
The 9th Circuit's straightforward analysis of the plain language of the statutes and the statutory history of Congressional action in this opinion is a refreshing contrast to recent opinions in which courts have struggled to find justification for EPA's attempts to regulate in areas where Congress has clearly failed to take action.
Posted on August 26, 2014
As August gives way to harvest time, I decided to take this blog down to earth and talk about vegetable seeds. In particular, the news of a recent crackdown by the Pennsylvania Department of Agriculture on a local seed library.
In honor of Earth Day, the Simpson Library in Mechanicsburg, Pennsylvania decided to start a seed lending library. Seed exchanges are of course not a new concept. For countless generations, seeds have been collected and saved for later planting and have been swapped as well, whether among neighbors or at such venues as county fairs. In recent years, seed libraries have “sprung” up across the United States to preserve the genetic diversity of locally grown crops and encourage local gardening.
The Simpson Library, after consulting the county extension service, got its initiative off to a promising start, with sixty people signing up. Program participants could “borrow” seeds before the growing season and “donate” seeds back to the library at the end of the season. However, the Library was in for a big surprise. On June 12 the Pennsylvania Department of Agriculture informed the Library of several requirements under the Pennsylvania Seed Act, including the need for a license to distribute or supply the seed, and the necessity of having its name appear on each seed packet. In addition, each packet would have to be tested for purity and germination rate in accordance with rigorous requirements, with the same procedure to be followed for seeds donated back to the seed library at the end of the growing season. The Department explained that noncompliance could result in mislabeling of seed, propagation of potentially invasive plant species, cross pollination of varietals, and introduction of out-of-state poisonous plants.
The Department’s concerns may seem like overkill, and it is open to question whether all of the Act’s requirements are in fact applicable to a library that isn’t selling seeds. Nevertheless, such requirements are not unique. In fact, there are similar state laws and regulations across this country and at the federal level, some even more stringent than those in Pennsylvania. Many of the laws were adopted in the early 1900s when commercial seed companies became more prevalent, but they have seldom been applied to seed libraries. Now several of those libraries are waiting to see if the authorities in other states will follow Pennsylvania’s lead.
At least for the Simpson Library, there seems to be a happy ending with some qualifications. After further discussions with the Pennsylvania Department of Agriculture, the Library agreed to remove all commercially labeled seeds with expired use-by dates, and to purchase and accept only commercially prepared and labeled seeds for the current year or future growing seasons. In addition, since the Library does not have the testing capacity or proper storage for loose seeds, it will not accept or store harvested seeds from seed library participants. However, it can – and will - host seed swap events where individuals swap or trade their own seeds. The Library’s website contains several of the relevant documents.
My takeaway? Depending on your point of view, no good deed goes unpunished, or exercise caution when a stranger – or even your best friend – offers you heirloom tomato seeds, since you never know what dangerous properties may lurk within. And for all concerned, support your local library!
Posted on August 25, 2014
On August 12th, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.
In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal, California. Although section 165(c) of the Clean Air Act requires EPA to act on such applications within one year, EPA failed to do so.
Subsequently, and before EPA ever did issue a permit, EPA revised the National Ambient Air Quality Standard for NOx. Avenal Power apparently could demonstrate that emissions from the new plant would comply with the old NAAQS, but could not demonstrate that it would not cause an exceedance of the new NAAQS. After some waffling, EPA took the position that it could grandfather the permit application and review it under the prior NAAQS. Citizen groups appealed and the Court of Appeals held that EPA had no authority to grandfather the application.
To the Court, this was a simple application of Step 1 of Chevron. The Court concluded that sections 165(a)(3) and (4) and 110(j) of the CAA unambiguously require EPA to apply the NAAQS in effect at the time a permit is issued. Thus, EPA has no discretion to grandfather permit applications, even though EPA was required by law to issue a permit decision at a time when more lenient requirements were in effect.
I think that the Court’s decision is clearly right on the law. The statutory language seems unambiguous. But what did the Court have to say to those who feel that the result is inequitable, because Avenal was legally entitled to a decision in one year, and would have obtained its permit if EPA had acted timely? Pretty much, tough luck:
Finally, EPA relies heavily on the argument that the equities weigh in favor of Avenal Power. In short, we agree. Avenal Power filed its application over six years ago, and endeavored to work with EPA for years, even after filing suit, to obtain a final decision. But however regrettable EPA’s treatment of Avenal Power has been, we simply cannot disregard the plain language of the Clean Air Act, or overlook the reason why an applicant must comply with revised and newly stringent standards —that is, “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Honoring the statute’s plain language and overriding purpose, we must send EPA and Avenal Power back to the drawing board. (Emphasis added.)
In other words, EPA screwed up, and Avenal Power got screwed. Imagine having to explain that to your client.