Revisiting Rules: How Far Back Is Too Far Back?

Posted on December 29, 2009 by Andrea Field

Recently, while searching my bookshelves for a missing volume, I came upon a three-ringed binder of documents related to EPA’s 1980 PSD rules. Of particular interest to me were (1) my October 30, 1980 letter to then-EPA Administrator Douglas Costle asking that he clarify parts of those 1980 PSD rules, and (2) Administrator Costle’s letter responding to my inquiry. In his response, Administrator Costle assured me that the Agency would positively address my concerns in technical and conforming amendments that EPA was then preparing.

Any possible euphoria that I might have felt at the positive tone of Administrator Costle’s response was more than offset by the date of his letter: January 19, 1981, the day before Administrator Costle would be leaving EPA in advance of the inauguration of Ronald Reagan.   Even early in my legal career almost thirty years ago, I knew I could not put much faith in the well-intentioned assurances of an outgoing EPA Administrator. The incoming Administrator would look at all pending issues with fresh eyes and might – or might not – decide to continue down the path laid out by Administrator Costle.

In fact, the incoming Reagan Administration decided to re-examine many of the actions taken by the Carter Administration in its waning days.   Just as – 12 years later – the incoming Clinton Administration re-examined actions taken by the Bush (41) Administration as it left office; and 8 years after that, the new Bush (43) Administration re-thought actions of the departing Clinton Administration; and now -- 8 years later -- the Obama Administration is revisiting actions of the Bush Administration.         

I do not here bemoan the fact that new administrations want to revisit the end-of-term decisions made by their predecessors. I ask, though, how far back in time should new administrations reach in their “revisitings”? We have come to expect incoming regulators to review rules that are still in proposed form and to pull back from publication rules that were only recently signed but have not yet been published in the Federal Register. We have also come to expect incoming administrations to look at rules that were published by a previous administration and are the subject of ongoing litigation so that new regulators can determine if they wish to continue to defend their predecessors’ rules or, instead, to re-examine those rules.

What happens, though, when a new administration reaches back to reexamine rules that have been on the books for many months or even years and that are in the midst of being implemented by the states and the regulated community? And what happens if the new administration wants to keep in place portions of a rule but wishes to scrap the remainder of the rule? This is happening now as EPA reconsiders the ozone ambient standard rule that was adopted by the Bush EPA early in 2008 and that is now the subject of litigation in the D.C. Circuit. No one would have been surprised if the new administration had asked the D.C. Circuit to remand the 2008 ozone standard rule so that EPA engage in a sped-up rulemaking to develop new/replacement ozone standards while continuing to implement the 2008 rule. Instead of doing that, though, EPA is essentially asking the D.C. Circuit to divide its ozone rule into pieces, thus allowing EPA to implement parts of the ozone rule while essentially trying to stay implementation of other parts of the regulation.

A new administration’s going back farther in time to “undo” programs currently being implemented -- and trying to stay portions of those programs while continuing to press for implementation of other parts of the programs -- is disruptive for both regulators and the regulated community. I hope that the D.C. Circuit recognizes this in the ozone ambient standard litigation and decides to impose a rational framework for this – and any new -- administration to follow as it goes down the well-trod path of trying to change a rule of its predecessors.

Judge Dismisses Contribution Claims re: Fox River PCB Contamination

Posted on December 23, 2009 by Linda Bochert

“Thus, the Plaintiffs’ present claim that they never knew about the dangers of PCBs until after 1971 rings roughly as hollow as Captain Renault’s feigned outrage upon being ‘shocked, shocked’ to discover gambling at Rick’s Casablanca café.” 

Appleton Papers Inc. and NCR Corp. v. George A. Whiting Paper Co., et al. (slip op. at 25, US District Court, Eastern District of WI, Case No. 08-C-16)

 

With those words, on December 16, 2009 Judge William C. Griesbach, United States District Judge for the Eastern District of Wisconsin dismissed CERCLA §107 contribution claims brought by Plaintiffs Appleton Papers, Inc. (API) and NCR Corp. against all Defendants.   NCR and API sought contribution from 23 other paper mills, cities, utilities, and sewerage districts, and industrial dischargers to allocate the multi-million dollar costs of remediating the polychlorinated byphenyl (PCB) contamination in the Lower Fox River in northeastern Wisconsin. Defendants’ Summary Judgment motions asserted that Plaintiffs were not entitled to contribution because the Defendants are “essentially innocent parties who had no knowledge that recycling NCR paper or processing wastewater could lead to environmental damage.” Slip op. at 4. The Judge agreed.

 

Beginning in 1954, NCR developed a carbonless copy paper that relied on an emulsion based on Aroclor 1242, a PCB solvent manufactured by Monsanto Corporation. NCR created the emulsion and developed and sold the carbonless paper product. API’s predecessor manufactured the paper and coated it with the NCR emulsion. API’s wastewater was discharged to the Fox River, taking the PCBs with it. API also sold its waste paper to other mills to be recycled into paper products, resulting in PCB-containing wastewater discharges from those facilities. The result: significant PCB-contamination in the sediments of the Lower Fox River from the mouth at Green Bay to Lake Winnebago and what has been called the largest contaminated sediment cleanup in the world..

 

The decision turns on what the Plaintiffs knew about the potential harm of the PCBs in their carbonless copy paper and when they knew it. It includes an instructive recital of internal communications within and among NCR and API, Monsanto, and Wiggins Teape, NCR’s exclusive European-licensee, leading to the Court’s conclusion that “I am satisfied that by the late 1960’s Plaintiffs had access to the vanguard of data suggesting an appreciable risk of serious and long-lasting environmental damage resulting from the production and recycling of NCR paper.” (emphasis in original) Slip op. at 26.

 

Readers will find the case of interest on both the legal analysis -- application of the “Gore factors” in determining equitable allocation, consideration of successor liability, and the Court’s evaluation and weighing of the overall equities – and the factual history. On this latter point, the case may well serve as a primer on how a business’ historical records and risk management decisions can come back to haunt it with respect to future determinations of knowledge and liability: 

 

“In the face of increasing red flags, Plaintiffs’ approach in the late 1960s was to worry about publicity and wait for the ‘second shoe’ to drop. At its essence, Plaintiffs’ approach was a risk management strategy to accept the risk of potential environmental harm in exchange for the financial benefits of continued (and increasing) sales of carbonless paper containing Aroclor 1242.” Slip op. at 26.

 

Appeal decisions are still pending. For those who want to know more about the Fox River, PCB-contamination, and the clean-up, both the Wisconsin Department of Natural Resources and the United States Environmental Protection Agency maintain extensive websites:

 

Click here for WDNR’s Fox River website

 

 

Click here for EPA Region 5’s website

Tenant Liability Under CERCLA: Is It time To Move Beyond Enforcement Discretion Guidance?

Posted on December 18, 2009 by Charles Efflandt

Arguably the most significant moderation of CERCLA’s harsh “owner” liability scheme occurred in 2002 through the enactment of the “Brownfields Amendments.” Included in those amendments was the creation of new liability protection for “Bona Fide Prospective Purchasers” (“BFPP”) who acquire ownership of a facility after January 11, 2002.

 

A relatively straightforward roadmap for prospective purchasers to achieve BFPP status is set out in the Brownfields Amendments and the subsequently-promulgated All Appropriate Inquiry rule. The extent to which tenants might obtain protection from possible “owner” liability has, however, always been far less certain.

 

The potential applicability of this liability defense to tenants is currently limited to a short parenthetical in CERCLA §101(40). Specifically, a “tenant of a person” that achieves BFPP status shares the liability protections of the property purchaser. Although this “derivative” BFPP status established by the Brownfields Amendments helped clarify the reach of the liability defense with respect to tenants, a number of questions remained unanswered. For example, what happens if the property owner loses its BFPP status through non-compliance with the statutory requirements? Also, does the language of the amendment as it relates to tenants preclude a tenant from independently achieving BFPP status?

 

Earlier this year, EPA’s Office of Enforcement and Compliance Assurance issued an Enforcement Discretion Guidance (“Guidance”) that addresses the applicability of the BFPP definition to tenants. That Guidance clarifies how EPA intends to exercise its enforcement discretion with respect to tenants “on a site-by-site” basis. In essence, the Guidance provides:

 

 

  • Tenants with “derivative” BFPP status will lose that status if the property owner ceases to be a BFPP for non-compliance with one or more of the statutory requirements. Nevertheless, EPA may exercise its enforcement discretion and not pursue the tenant under an owner liability theory if the tenant satisfies certain conditions, including not having disposed of hazardous substances on the property and fully cooperating with EPA in its response actions.
  • Tenants whose lease documents establish sufficient “indicia of ownership” and who satisfy all requirements of CERCLA §101(40)(A)-(H) and 107(r) may be deemed to have independently achieved BFPP status and thus possibly avoid an enforcement action under CERCLA’s owner liability provisions. Indicia of ownership include the term of the lease, the range of permitted property uses by the tenant, reserved rights on the property by the owner, etc.

 

EPA’s Guidance is a welcome clarification of how the agency intends to enforce CERCLA’s owner liability provisions in these situations. However, the Guidance goes beyond the derivative status language in the Brownfields Amendments in its discussion of potential limitations on tenant “owner” liability. The problem is that a guidance is just that. It offers none of the statutory certainty that prospective purchasers now enjoy under CERCLA.

 

Because of the importance of tenant-operated properties to the economy in general and to the development of Brownfields property in particular, I would submit that tenants should be afforded the same clarity and certainty with respect to potential liability under CERCLA as those who acquire title to the property. As the Brownfield Amendments are largely self-implementing, that clarity and certainty is likely to be achieved only through further amendments to the liability provisions of CERCLA.

STATE OF MAINE IDENTIFIES OFFSHORE WIND DEMONSTRATION SITES FOR FIRST-IN-NATION DEEPWATER TECHNOLOGIES

Posted on December 16, 2009 by Jeff Thaler

On December 15, Governor John Baldacci received from the Maine State Planning Office and Maine Department of Conservation the results of a search process to identify demonstration sites for offshore wind technology located in Maine coastal waters. The team from the State agencies traveled up and down the coast of Maine over the last four months talking with fishermen, citizens, local officials and others to determine the best areas to take advantage of Maine’s amazing offshore resources. Three sites were identified by the process: The sites are off Monhegan Island, Boon Island and Damariscove Island.

The site off Monhegan Island will be used by a consortium led by Dr. Habib Dagher and his team at the University of Maine, to which I am legal counsel. The consortium was recently awarded an $8 million grant from the U.S. Department of Energy for this project. The consortium includes more than 30 partners, including private companies interested in offshore wind development. This will be the first deep-water test site in the United States; as Dr. Dagher said, “We have a national responsibility here to lead the country in that direction."

 

Maine has been increasingly active in the past several years with wind energy development. There are currently 300 megawatts operating or under construction in Maine, with another 450 megawatts of wind in various stages of development throughout the State. Already, Maine is home to 95 percent of the operating on-shore wind capacity in New England.

 

The Governor said that the potential of our offshore wind resources is even greater, estimated at 100 gigawatts, or three-to-four times the current peak demand for all of New England.

Maine has the greatest renewable protfolio standard in the country, and has established a bold vision of reducing the State’s consumption of liquid fossil fuels by at least 30 percent by 2030. Maine has set ambitious but achievable targets for development of wind power. A State Task Force on offshore energy, with which I have been involved this year, is prepared to recommend this month that Maine have as a goal the production, by 2030, of at least 5 gigawats of deepwater wind power.

 

“The willingness to move forward is a significant investment in this State’s future as a leader in renewable energy,” said Governor Baldacci. “Clean energy development will reap investments and jobs right here in Maine.”

 

The University has the goal for the first demonstration turbine to be operating in the water in 2011. The remaining two sites that are available for demonstrations of offshore wind or wave energy technology are available to developers, who must begin the process by obtaining an expedited permit through the Department of Environmental Protection.

More information, including maps of the demonstration sites, is available at www.maine.gov/doc/initiatives/oceanenergy/oceanenergy.shtml or by contacting Jeff Thaler at jthaler@bernsteinshur.com

2009 Annual Meeting - SAVE THE DATE!

Posted on December 15, 2009 by Rachael Bunday

The American College of Environmental Lawyers is planning its 2009 Annual Meeting for October 1-3 in Portland, Maine. A majority of the conference will be held at the Portland Regency Hotel (www.theregency.com). More information and an agenda to follow at a later date.

Carbon Offset Credits Available Now

Posted on December 15, 2009 by Patrick Dennis

Despite the widespread publicity surrounding the actions being undertaken by EPA and in Congress to address greenhouse gas emissions and the potential for a cap and trade program at the federal level, few lawyers are aware that rigorously verified carbon offset credits are currently available for purchase by third parties. Generally, carbon offset credits are issued in exchange for a project proponent’s (e.g., a property owner or other participating entity) implementation of practices and programs which sequester carbon or otherwise reduce greenhouse gas emissions. 

In some types of projects, CO2 (carbon dioxide) is sequestered in the leaves, trunks and roots of trees on the property, converted into carbon, and held in the vegetation and soil on the property. By growing a forest or managing a forest in such a way that it sequesters more carbon than would otherwise be held on the property, the project proponent becomes eligible for carbon offset credits, which can then be sold or optioned to third parties.

Carbon offset credits are issued not just for forest projects, but also for greenhouse gas reduction projects involving coal mine methane, landfill gases, livestock gases, and nitric oxide emissions. The carbon offset market incentivizes greenhouse gas sequestration and reduction, and provides a product to third parties looking for a way to offset their carbon emissions or otherwise satisfy regulatory requirements.

 

There are currently few organizations that issue any type of evaluation and registration for carbon offset credits. One of these organizations, the Climate Action Reserve is a non-profit based in Los Angeles, California which has registered a variety of types of greenhouse gas projects and is currently issuing carbon offset credits to project participants. The Chicago Climate Exchange also provides a cap and trade system for six greenhouse gases, with global affiliates and projects worldwide. There are other, regional and specialized programs that are much more narrow in their applicability and the types of emissions they verify.  

The Climate Action Reserve’s carbon offset credits are the result of a rigorous, third-party verification process to quantify and verify the net greenhouse gas emissions sequestration on projects based upon hundreds of pages of protocols which address details ranging from the modeling of carbon stored in live trees, dead wood and wood products, to annual monitoring requirements to determine reversals of carbon sequestration.  In the case of forest projects, covenants and contracts require that the project proponent (e.g. the property owner) abide by the protocols and sequester carbon for at least 100 years. 

A variety of legal issues arise about how best to document a project proponent’s commitments over the 100 year period, whether that be through contracts, covenants, restrictive easements, conservation easements, mortgages or some combination thereof. While California’s statutory scheme is relatively clear about what types of recorded documents run with the land, other States provide less guidance. See, e.g., California Civil Code 1460 et seq. Likewise, legal documentation must address a variety of issues including subordination to future encumbrances; future transfers of any subject property; reversals or significant carbon loss in the event of natural disasters (e.g., forest fires, earthquakes, etc.); and remedies in the event of intentional acts in violation the project proponent’s commitments (e.g., failure to sequester adequate carbon stocks).

After a project proponent complies with the documentation requirements, registers its project with the applicable entity and been issued carbon offset credits, it is then available to sell or option such credits to third parties. The market for these credits is growing. Currently, corporations and entities who have made voluntary greenhouse gas reduction commitments have purchased these credits to help fulfill such commitments. Obviously, if a mandatory cap and trade system is implemented either in California or on a nationwide basis, then such carbon offset credits will become more valuable. Likewise, if federal, state and local authorities, courts or other jurisdictions require project developers to mitigate their greenhouse gas emissions, carbon offset credits are likely to become more expensive.

Gibson, Dunn & Crutcher provides pro bono representation to the Climate Action Reserve. Posting submitted by: Patrick W. Dennis, Charles H. Haake and Shireen B. Rahnema of Gibson, Dunn & Crutcher.

Carbon Offset Credits Available Now

Posted on December 15, 2009 by Patrick Dennis

Despite the widespread publicity surrounding the actions being undertaken by EPA and in Congress to address greenhouse gas emissions and the potential for a cap and trade program at the federal level, few lawyers are aware that rigorously verified carbon offset credits are currently available for purchase by third parties. Generally, carbon offset credits are issued in exchange for a project proponent’s (e.g., a property owner or other participating entity) implementation of practices and programs which sequester carbon or otherwise reduce greenhouse gas emissions. 

In some types of projects, CO2 (carbon dioxide) is sequestered in the leaves, trunks and roots of trees on the property, converted into carbon, and held in the vegetation and soil on the property. By growing a forest or managing a forest in such a way that it sequesters more carbon than would otherwise be held on the property, the project proponent becomes eligible for carbon offset credits, which can then be sold or optioned to third parties.

Carbon offset credits are issued not just for forest projects, but also for greenhouse gas reduction projects involving coal mine methane, landfill gases, livestock gases, and nitric oxide emissions. The carbon offset market incentivizes greenhouse gas sequestration and reduction, and provides a product to third parties looking for a way to offset their carbon emissions or otherwise satisfy regulatory requirements.

 

There are currently few organizations that issue any type of evaluation and registration for carbon offset credits. One of these organizations, the Climate Action Reserve is a non-profit based in Los Angeles, California which has registered a variety of types of greenhouse gas projects and is currently issuing carbon offset credits to project participants. The Chicago Climate Exchange also provides a cap and trade system for six greenhouse gases, with global affiliates and projects worldwide. There are other, regional and specialized programs that are much more narrow in their applicability and the types of emissions they verify.  

The Climate Action Reserve’s carbon offset credits are the result of a rigorous, third-party verification process to quantify and verify the net greenhouse gas emissions sequestration on projects based upon hundreds of pages of protocols which address details ranging from the modeling of carbon stored in live trees, dead wood and wood products, to annual monitoring requirements to determine reversals of carbon sequestration.  In the case of forest projects, covenants and contracts require that the project proponent (e.g. the property owner) abide by the protocols and sequester carbon for at least 100 years. 

A variety of legal issues arise about how best to document a project proponent’s commitments over the 100 year period, whether that be through contracts, covenants, restrictive easements, conservation easements, mortgages or some combination thereof. While California’s statutory scheme is relatively clear about what types of recorded documents run with the land, other States provide less guidance. See, e.g., California Civil Code 1460 et seq. Likewise, legal documentation must address a variety of issues including subordination to future encumbrances; future transfers of any subject property; reversals or significant carbon loss in the event of natural disasters (e.g., forest fires, earthquakes, etc.); and remedies in the event of intentional acts in violation the project proponent’s commitments (e.g., failure to sequester adequate carbon stocks).

After a project proponent complies with the documentation requirements, registers its project with the applicable entity and been issued carbon offset credits, it is then available to sell or option such credits to third parties. The market for these credits is growing. Currently, corporations and entities who have made voluntary greenhouse gas reduction commitments have purchased these credits to help fulfill such commitments. Obviously, if a mandatory cap and trade system is implemented either in California or on a nationwide basis, then such carbon offset credits will become more valuable. Likewise, if federal, state and local authorities, courts or other jurisdictions require project developers to mitigate their greenhouse gas emissions, carbon offset credits are likely to become more expensive.

Gibson, Dunn & Crutcher provides pro bono representation to the Climate Action Reserve. Posting submitted by: Patrick W. Dennis, Charles H. Haake and Shireen B. Rahnema of Gibson, Dunn & Crutcher.

ACOEL Member Awarded First Columbia University Climate Change Chair

Posted on December 14, 2009 by Rachael Bunday

LAW: Climate change, a 'popular' area of law, gets its first endowed professor (12/14/2009)

Annie Jia, E&E reporter

Columbia University has established what it says is the world's first endowed professorship in climate change law.

The endowment will be a permanent source of funding for the director of the university's Center for Climate Change Law, which was founded in January. But it also secures a faculty position in a field that, though relatively young, is growing rapidly as climate change becomes an increasingly visible issue and is poised soon to come under complex federal legislation.

"The policies that are being negotiated in Copenhagen right now and that are under debate in Congress and around the country and the world will be implemented through the mechanism of laws," explained Michael Gerard, a longtime environmental lawyer and the center's director, who has been awarded the professorship.

Climate change law emerged as a field only a few years ago and is now the fastest-growing area of environmental law, Gerrard said.

"It was nothing of a field a few years ago," said Gerrard, who began work in the area in 2005, "and it is now by far the most popular subject of ... continuing legal education programs, as well as law school symposia and special journal issues."

From salamanders to the academy

Andrew Sabin, whose foundation, the Andrew Sabin Family Foundation, was a major funder of the endowment for the professorship, said he decided to contribute because he has known Gerrard for a long time and "we're good friends. There's nobody better. Ask any environmental lawyer in the country." Sabin declined to state the amount that his foundation contributed to the endowment.

Sabin, president of a precious metals refining company, has worked with Gerrard on several legal cases since the 1990s. The first case was over "some environmental issues" regarding one of the company's factories, Gerrard said.

But Gerrard has not only represented Sabin's company.

A self-proclaimed environmentalist, Sabin has fought a number of developments since the late 1980s that would infringe on the habitat of the Eastern tiger salamander, which is listed as an endangered species in New York state, where he lives.

One fight brought him head-to-head with Tanger Factory Outlet Centers, which was building a mall in Riverside in the mid-1990s.

"The mall hired the best developer lawyer they could find, and I hired the best environmental lawyer," Sabin said. "I did this because of my passion." As a successful businessman, he could afford such suits, whereas environmental organizations often do not have the money to fight them, he said. The case resulted in the creation of a 32.5-acre preserve for the salamanders.

Sabin is also a member of the organization Republicans for Environmental Protection and said he believes firmly in environmental education. As a Republican, he said, he is in a strong position to influence other Republicans' views on climate change "from inside."

"To me, climate change, I believe it's real, I believe it is happening. ... I believe that man has accelerated it; it's not reversible," he said. "By establishing this [endowed professorship], hopefully, a lot of people are going to be educated on climate change."

Litigation around climate change is growing

Gerrard said the number of lawyers dedicated to climate change law in the United States is still "modest."

Hannah Chang, deputy director of the Columbia Climate Center and a postdoctoral research fellow at the university, said that much climate change law work in the United States currently centers on litigation.

Litigation can include everything from attempts to force the government to act -- for example, to regulate greenhouse gases -- to challenges to government regulations -- such as vehicle standards -- to suits seeking monetary redress from corporations for damages from climate change.

In one case, landowners in Mississippi brought a suit against oil, chemical, and coal companies based on the claim that Hurricane Katrina was made worse by climate change, Gerrard said.

A 'whole host of issues'

But as U.S. EPA prepares to release its rules on greenhouse gas emission regulation, and as Congress debates sweeping climate legislation, the legal community is gearing up for much more work in the area.

"Most, if not all, of the law firms with environmental practices are educating themselves and trying to position themselves to do the work when it comes," Gerrard said.

Besides litigation, climate change law could range from regulatory advice to transactional work to lobbying to corporate compliance advice regarding securities disclosures, Gerrard said.

"Treaties and statutes and regulations will be required to determine what emissions are permissible, who will bear the costs, what energy efficiency improvements will be required, how the nations of the world will deal with each other on these issues, how buildings will achieve energy savings -- a whole host of issues will be subject to laws," Gerrard said.

Climate change law is a sweeping area and goes beyond simple environmental law, Gerrard said, who has worked in environmental law for 30 years.

Energy law, corporate law, securities law, tax law, transportation law, agricultural law, international law, trade law and other fields are all involved, he said.

Be Careful What You Wish For

Posted on December 11, 2009 by Lee A. DeHihns, III

On December 7, 2009, EPA Administrator Lisa Jackson stated that greenhouse gases (GHGs) “threaten the public health and welfare of the American people”. This CAA endangerment finding was what everyone had expected due to the strong proposed finding and the inevitable result of legislation that the Obama administration has been supporting.  

Now that the U.S. has a position to take to Copenhagen - either EPA or Congress will tackle and reduce GHGs - so count on the U.S. to do its part. Despite all the discussions about the costs of the U.S. policy on the U.S. economy, which are not close to being resolved, where will the money come from to help the 3rd World countries? Amounts of $10B a year and upwards of hundreds of billions of dollars are used like the money is easily available in today’s economy. 

If GHGs are a serious threat, reductions are necessary and need to start soon. However, let’s be very careful to not to solve the problem by pushing the cost of energy so high that most of the world will eventually enjoy clearer skies and air, while sitting in the dark or shivering during the winter months.   

In shifting to cleaner fuel sources like natural gas (or solar or wind) as preferred sources of energy we need to be certain that the supply system can be created in a cost-effective manner and in time to meet the GHG emissions reduction goals. We also need to be sure that siting such generation facilities meets with the expectations of the host communities.

 

The Challenges and Rewards of Environmental Pro Bono Work

Posted on December 10, 2009 by Christopher Davis

I suspect most of us did not go into environmental law to see how much money we could make as lawyers, but because we care about preserving and protecting the planet. While many of us, particularly in the private sector, have made a good living practicing environmental law, I believe it is our interest in and dedication to the subject matter and the outcomes that have attracted and kept most of us in this field. Most of us are “green” at heart and want to do well while doing good for the environment. Environmental pro bono work provides an opportunity to “give back” to the planet in ways private practice may not.

While we can do much good in private practice, the economic realities of private environmental practice impose some significant limitations on what we work on – generally solving the problems that our clients are willing to pay us to address that serve their business interests. To some extent, most of us are constrained to work on yesterday’s environmental problems – those which are regulated and for which clients will pay us to solve. Relatively few of us get a chance to work for paying clients on the great environmental issues of our time that will determine the future of life on earth: climate change, sustainable development and business practices, tropical forest preservation and species conservation, the impact of environmental degradation on the poor.

One way for those of us in private practice who are environmentalists at heart to more affirmatively work on the side of the environment and thereby increase our professional satisfaction and impact is to do environmental pro bono work. Pro bono work is generally defined by ABA Model Rule 6.1 and the Pro Bono Institute as performing legal work outside the ordinary course of commercial practice and without expectation of a fee, for persons of limited means or charitable, religious, civic, community, governmental or educational organizations, where such services are focused primarily to address the needs of persons of limited means, or to secure or protect civil rights, civil liberties or public rights. An additional category of pro bono work involves providing legal services to charitable, religious, civic, community, governmental or educational organizations in matters that further their organizational purposes. Environmental pro bono work typically involves the protection of public rights and the representation of nonprofit organizations in furtherance of their environmental missions. Many law firms have committed to the Pro Bono Institute’s Pro Bono Challenge, committing to dedicate at least 3% of the firm’s billable hours to pro bono work. 

 

Environmental pro bono work is a way for environmental lawyers to use their skills and experience to promote the environmental values that inspired us to practice environmental law. Environmental pro bono practice can include a variety of litigation and transactional work and related legal advice designed to conserve or protect resources, lay the groundwork for new laws or regulations, enforce existing environmental laws, and prevent or mitigate adverse environmental impacts to various environmental resources or disadvantaged communities. The latter, focusing on preventing adverse environmental impacts on low income, minority or other disadvantaged communities is typically described as “environmental justice” work. In Massachusetts, a referral clearinghouse called the Massachusetts Environmental Justice Assistance Network (MEJAN) has been set up by a non-profit organization and the Environmental Law Section of the Boston Bar Association to link environmental lawyers and consultants with community groups seeking legal assistance. 

 

Environmental pro bono work is often harder to come by than traditional pro bono work. One problem, particularly in a large law firm, is conflicts. In addition to the obvious ethical prohibition on handling matters directly adverse to a firm’s clients, proposed environmental pro bono work often raises “issue conflicts” where the proposed representation would involve representing an organization or position that might be considered generally adverse to the interests of the firm’s current or prospective clients (e.g., real estate developers, power companies or manufacturers), have the potential to create an adverse precedent for an important industry, or involve representation of interests and positions that some clients (or partners) do not like. In theory, pro bono clients and representations should be subject to the same ethical and conflicts standards as work for paying clients, but in practice this can be difficult to achieve given the politics and economics involved.

 

Regarding potential issue conflicts, there is a respectable argument that may be persuasive at least to enlightened clients (and partners) that it is helpful to be represented by lawyers who have worked on the other side of an issue, represented or have good relationships with adversaries and have a deeper understanding of the relevant environmental issues and perspectives. A lawyer who has worked on both the “environmental” and “regulated community” sides of an issue should be able to provide better advice and may have more credibility with regulators and citizen group adversaries that will be useful in negotiating a solution. Also, in our work for paying clients, it is not uncommon to take inconsistent positions for different clients in different matters, and to represent both plaintiffs and defendants or buyers and sellers.

 

Some types of environmental pro bono work may be less problematic in terms of client or issue conflicts. These may include conservation work for non-profits like The Nature Conservancy, the Trust for Public Land or local land trusts; matters seeking to enforce environmental laws against those government agencies and their operations, activities and projects, opposing particular development projects that threaten public resources, and certain environmental justice cases. Of course, each case is fact and situation specific and may raise conflicts or concerns.

We are fortunate to have the privilege to practice environmental law. Our work is generally interesting and significant – combining law, policy, science, economics and politics in solving complex and important environmental problems. Moreover, environmental lawyers are generally nice, thoughtful and decent people, and the environmental bar is still relatively small, collegial and public spirited. Each of us has the opportunity to do more good for the planet and achieve greater personal satisfaction than our paying practice allows through environmental pro bono work. Finding viable opportunities to do environmental pro bono work can be challenging, but is worth the effort.

Natural Resource Damages - Why Not a Cooperative Restoration Approach?

Posted on December 7, 2009 by Susan Cooke

There’s lots of talk among environmental lawyers these days about how to litigate Natural Resource Damage (NRD) claims, but relatively little discussion of  how those claims can be settled through restoration projects. The latter approach deserves more attention.

Last year the Department of Interior (DOI) issued amendments to its NRD assessment regulations to focus on resource restoration through the use of cost/benefit methodologies.  Those methodologies compare losses from resource injury to the gains expected from restoration actions. Under the amended regulations they have been expanded to include habitat and resource equivalency analyses for measuring resource losses used in determining the value of project benefits, which value is in turn needed to compensate for the damaged resource. See 73 Fed. Reg. 57259-57268 (Oct.2, 2008). 

A project restoration approach can be very attractive from a monetary standpoint. Past experience has shown that the benefits to be achieved from restoration projects can be significantly greater than their cost, with the cost/benefit ratio often being 1:5 and sometimes even greater. 

 

A good example of this favorable cost/benefit ratio is the NRD settlement reached with some of the Potentially Responsible Parties (PRPs) at the Hylebos Waterway portion of the Commencement Bay Superfund site in Tacoma, Washington. As noted in an article appearing in the Summer 2009 issue of the ABA’s Natural Resources & Environment publication authored by Suzanne Lacampagne and Jeffrey Miller, the NRD trustees determined that those PRPs could settle their NRD liability for a cash payment of $13.5 million. Alternatively, they could underwrite restoration projects that provide an equivalent monetary benefit. The PRPs chose the latter route, expending about one sixth of the amount required for a cash settlement.

Of course, before the restoration projects were completed, the Hylebos PRPs faced the prospect of potential cost overruns. If concern about additional expenditures in the future is of paramount importance, or if there is a need to close out all liabilities in the near term, then an NRD credit strategy may make the most sense. Such an approach involves the purchase, or a commitment to purchase, NRD credits equivalent to the value of the damaged resource once the NRD trustees have certified the validity and transferability of those credits.

This approach is being implemented at the Duwamish River Superfund site in Seattle, Washington, where the city is leasing out parcels of its property along the river that are in need of restoration to a company that will carry out the restoration work and sell NRD credits to PRPs interested in settling their NRD liability. The Seattle mayor’s announcement of the restoration project and credit approach can be found here.  

A link to the protocol entered into by the NRD trustees and the company carrying out the restoration projects can be found here as well.

One interesting feature of the Duwamish River restoration effort is the willingness of NRD trustees to consider settlement of a PRP’s NRD liability prior to completion of the remediation effort. See, e.g., discussion at p. 7 of the inventory of properties for the Lower Duwamish River Habitat Restoration Plan prepared by the Port of Seattle.  

A related feature of that willingness to consider settlement is that restoration activities will begin earlier in the process, while cleanup is still underway. This in turn can lead to more cost effective cleanup and restoration activities, as both categories of actions can be formulated and coordinated contemporaneously for maximum benefit.

Another example of a comprehensive settlement approach encompassing both remediation and restoration activities is set forth in the consent decree for the West Site/Hows Corner Superfund site in Plymouth, Maine. As memorialized in Appendix H of that decree, the settling PRPs have addressed their NRD liability through a restoration project, i.e., acquisition of property to be held and maintained by the state government as wildlife habitat. The consent decree with its appendices and the November 19, 2009 Federal Register notice of the settlement at pp. 59991-59992 can be found here.

In addition to the cost/benefit and related timing issues just mentioned, two other favorable aspects of the restoration project approach are the positive publicity that can be generated in the local community upon implementation of such a project and the cost savings associated with earlier resolution of NRD liability. With all these attributes in its favor, and with increasing experience in using the new equivalency methodologies and implementing projects based on their numbers, the restoration project approach may yet achieve the attention it deserves.

When Does The Rivers and Harbors Act of 1899 Trump the Clean Water Act?

Posted on December 3, 2009 by Karen Aldridge Crawford

 

United States v. Milner, Nos. 05-35802, -36126, 39 ELR 20232 (9th Cir. Oct. 9, 2009)

 

In a suit brought by the United States against homeowners for common law trespass to tidelands held in trust for a Native American tribe, the Ninth Circuit held that waterfront homeowners who built shoreline defense structures on this property are liable for common law trespass and for violating the Rivers and Harbors Appropriations Act of 1899 (RHA).  

 

 Between 1963 and 1988, the homeowners leased the tidelands from the tribe, giving them the right to erect shore defense structures on the tidelands. After the lease expired, the homeowners refused to remove the structures or enter into a new lease agreement. The homeowners argued that they cannot be liable for trespass, despite the movement of the tideland boundary, because their structures were lawfully built on the homeowners' property landward of the mean high water (MHW) line.  

 

 The court disagreed.  Under common law, however, the boundary between the tidelands and the uplands is ambulatory, changing when the water body shifts course or changes in volume. Because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the homeowners cannot permanently fix the property boundary, thereby depriving the tribe of tidelands that they would otherwise gain. And although the structures may have been legal as they were initially erected, the court found that this is not a defense against the trespass action nor does it justify denying the tribe land that would otherwise accrue to them.  

 

The court also determined the homeowners are liable under the RHA because they have maintained at least part of their shore defense structures below the MHW line and because the structures alter the course, location, condition, or capacity of a navigable U.S. water. Addressing whether the homeowners had also violated the Clean Water Act (CWA), the court held that it was unclear from the evidence whether the high tide line actually reached the area where the homeowners discharged fill material during their maintenance of the structures. The court emphasized that although the jurisdictional reach of the CWA is generally broader than that of the RHA, the RHA is concerned with preventing obstructions, whereas the CWA is focused on discharges into water. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, such as this one. 

EPA ISSUES FINAL RULE ON CONSTRUCTION SITE WATER POLLUTION

Posted on December 2, 2009 by John Crawford

by

 

John Crawford, Michael Caples and Gary Rikard

 

 

 

On November 23, 2009, EPA finalized technology-based effluent guidelines that are likely to have a significant impact on the construction industry.   The new regulation applicable to the Construction and Development Point Source Category is found at 40 C.F.R. Part 450 and imposes both non-numeric standards and, for the first time, numeric standards designed to reduce the discharge of pollutants to stormwater.         

 

According to EPA, construction site owners and operators are the largest group of dischargers under NPDES permits.   Despite existing requirements (see 40 C.F.R. 122.26 and similar state regulations) pertaining to “stormwater associated with industrial activity” which regulates discharges from construction sites that disturb one acre or more, EPA believes additional standards are necessary. The new rule requires construction site owners to monitor, report, and comply with effluent limitations guidelines (ELG) and new source performance standards (NSPS) set by EPA. EPA plans to implement the rule in phases over a four-year period.   While states with delegated NPDES programs are governed by MOUs with EPA which normally require new regulations to be adopted within one year of EPA adoption, it appears that the new standards will not have to be incorporated by states until existing stormwater construction general permits expire; thus, some states may have up to six years to incorporate the new standards into their general permits.

 

In non-delegated states, effective in February 2010, all construction site owners and operators must meet non-numeric effluent guidelines set by EPA. Beginning in August 2011, the rule will require construction site owners and operators of projects on twenty (20) or more acres to monitor discharges and comply with numeric effluent guidelines on turbidity to be determined by EPA. By February 2014, construction site owners and operators of projects on as few as ten (10) acres will fall subject to the regulation.

 

EPA’s new regulation largely affects the construction and development industry. According to EPA, the new rule requires compliance of an estimated 82,000 civil engineering, residential, and commercial construction firms. Former EPA Region 4 Regional Administrator Jimmy Palmer says, “These new rules for controlling stormwater runoff from construction sites trace back to 2002, in the Bush administration.  As with the entire federal stormwater program, this is another add-on to state wastewater permit requirements under Section 402 of the Clean Water Act.  The most serious impacts of these new rules are the costs of obtaining individual permits when they are required; very significant additional project costs for tighter best management practices, new control measures, and monitoring in order to comply with permit conditions; and dramatically increased enforcement actions, especially in cases where permits are required.”