Connecticut Legislature Opens the Door to Increased Armoring of Coast

Posted on August 29, 2013 by Gregory Sharp

My prior post about the impacts of Storms Irene and Sandy on Connecticut  noted some of the policy challenges presented in the storms’ aftermath for state government in Connecticut and elsewhere in the Northeast.  The tremendous destruction of property resulting from these events brought home to many coastal property owners a previously unappreciated but significant conflict between property owners’ rights and state coastal policy.

Many property owners seeking to protect their property from future storm events learned to their consternation that regulatory policies adopted in the Connecticut Coastal Management Act (“CCMA”) more than 30 years ago largely precluded those activities.  During the past year, the legislature has taken some small steps to address this conflict and armor the shorefront where developed property is at risk of flooding.

Property rights advocates were successful in substantially modifying the CCMA’s strong policy bias against the use of structural solutions to prevent damage to property from coastal flooding.  Prior to this session’s amendments, the CCMA provided that structural solutions were to be avoided in order to maintain the natural relationship between eroding and depositional coastal landforms.

The only exceptions previously allowed were for those structural solutions which were “necessary and unavoidable” for the protection of infrastructure facilities (undefined but generally construed to mean roads, bridges and other public infrastructure), cemetery or burial grounds, water-dependent uses, or inhabited structures constructed as of January 1, 1995. 

These narrow exceptions provided no avenue for protection of commercial property, unless it met the “water-dependent use” definition.  Moreover, the exceptions provided only very narrow relief for residential property, because residential use is not defined as a “water dependent use.”  In addition, the Department of Energy and Environmental Protection generally interpreted the term “inhabited structure” as applying only to the house, not accessory buildings, landscaping, etc.  As a result, homeowners were left with no ability to protect their property unless and until the house itself was in jeopardy, which in a storm scenario like Sandy came too late.

The General Assembly addressed these concerns in part by expanding the exceptions to include “commercial and residential structures and substantial appurtenances that are attached or integral thereto,” constructed as of January 1, 1995.  Structures built after the cut-off date presently have no options other than to elevate the structure.

How the DEEP will interpret these new provisions remains to be seen, but if the past is any indication, I would expect that the agency will construe them narrowly.

Yes, Another Blow, but not a Knockout

Posted on August 28, 2013 by Ralph Child

A recent post from Mary Ellen Ternes characterized the August 23, 2013 decision in EME Homer City Generation as another blow to EPA’s ability to enforce against long ago violations of the requirement to obtain New Source Review.

The Third Circuit’s decision certainly is a blow to EPA’s NSR enforcement initiative, but not nearly a knock-out.

First, the decision depended on the fact that neither the Clean Air Act or Pennsylvania’s EPA-enforceable State Implementation Plan expressly requires a major source to operate in compliance with the results of a New Source Review.  But some states do have that requirement in their EPA-enforceable SIPs, as the Third Circuit recognized in distinguishing other cases.  In such states, major sources that did not go through NSR as allegedly required at the time of construction or modification should still anticipate potential EPA enforcement via the SIP. 

Second, even where it is not illegal to operate in compliance with NSR, the question is still open whether the government may obtain injunctive relief anyway.  In United States v. United States Steel Company (N.D. Indiana), the Court held on August 21, 2013 that no penalties could be imposed at law because there is no federally enforceable requirement in Indiana to operate in accordance with the results of an NSR.  Yet the Court went on to  hold that the United States still can seek injunctive relief against a plant that allegedly violated the NSR requirement.  The Court reasoned that because the sovereign is not subject to laches, the government remains able to invoke the Court’s equitable powers and to seek an injunction to correct the violation.

On to the Seventh Circuit?

Another Blow to EPA’s NSR/PSD Enforcement Initiative

Posted on August 27, 2013 by Mary Ellen Ternes

Followers of this Blog will not be at all surprised with the Third Circuit’s August 22, 2013 ruling denying EPA’s requested CAA New Source Review enforcement relief against former and current owners of the grandfathered and allegedly subsequently modified power plant that has been called “one of the largest air pollution sources in the nation.”   Former and current owners of such aging power plants caught in EPA’s NSR national enforcement initiative are reassured with the Third Circuit’s finding that text of the Clean Air Act does not authorize injunctive relief for wholly past PSD violations, even if that violation causes ongoing harm.

Having lost its battle for the Cross-State Air Pollution Rule (CSAPR, or the Transport Rule) in August 2012, EPA was dealt another blow with United States v. EME Homer City Generation, in which the Third Circuit upheld the District Court’s 2011 dismissal of the government’s claims.

In 2011, the District Court for the Western District of Pennsylvania agreed with the current and former owners of the power plant that EPA had no authority to hold either party liable for alleged PSD violations arising from purported modifications to their grandfathered power plant.  In reaching defendants’ bases for dismissal, the District Court reviewed the permit actions approved by air permitting authorities in 1991, 1994, 1995 and 1996, which EPA alleged with Notices of Violation in 2008 (against the current owner) and 2010  (against current and former owners), to have triggered PSD, and which caused the current Title V permit to be incomplete.   The Court’s holding that the PSD violations constituted singular, separate failures by the former owner rather than ongoing failures meant that EPA was outside the five year statute of limitations, allowing no civil penalties against the former and current owners.  Moreover, the District Court held EPA was left with no injunctive relief against the current owner because they were in no position to apply for a PSD permit prior to their acquisition of the plant in 1998, and thus could not have violated PSD.

The District Court separately addressed EPA’s claims of injunctive relief against the former owner, recognizing the ongoing higher SO2 emissions that occurred without the benefit of an historic PSD permit.  The District Court was unwilling to reach a broad conclusion regarding its authority to award injunctive relief under the PSD program, but given that the former owners no longer owned or operated the plant, and therefore no longer violate PSD, held that there was no plausible basis for granting the rare and extraordinary remedy of injunctive relief, despite the higher emissions occurring the absence of BACT, which the court characterized as a present consequence of a one-time violation.

Upon review, the Third Circuit rejected EPA’s arguments that the current owners violated PSD by operating the plant without BACT with a simple, “no,” pursuant to the plain text of 42 USC 7475(a) which references merely “construction” and “modification,” not “operation, ” relying on U.S. v. Midwest Generation and Sierra Club v. Otter Tail Power Co.,  adopting the positions of the Seventh and Eighth Circuits that “even though the preconstruction permitting process may establish obligations which continue to govern a facility’s operation after construction, that does not necessarily mean that such parameters are enforceable independent of the permitting process,” and thoroughly refuting EPA’s arguments that PSD could somehow result in ongoing operational requirements outside the PSD permitting process.  

Likewise, the Third Circuit rejected EPA’s proposed injunctive relief, which would have required the former owners to install BACT or purchase emission credits and retire them, affirming the District Court’s decision on narrower grounds.  Specifically, the Third Circuit held that the text of the Clean Air Act does not authorize an injunction against former owners and operators for a wholly past PSD violation, even if that violation causes ongoing harm. 

Hopefully, this Third Circuit decision, along with the Seventh and Eighth Circuit decisions relied upon therein, will signal a substantive end to EPA’s NSR/PSD Enforcement Initiative for similarly situated historic grandfathered power plants and their former and current owners.  But, we may have to wait out EPA’s hard headed circuit by circuit enforcement approach.  See e.g., EPA’s December 21, 2013 enforcement memorandum, “Applicability of the Summit Decision to EPA Title V and NSR Source Determinations,” following the Sixth Circuit’s Summit Petroleum Corp. v. EPA et al.

CAA Does Not Preemmpt Source State Common Law Actions

Posted on August 26, 2013 by David Flannery

On August 20, 2013, the U.S. Court of Appeals for the 3rd Circuit in Bell et al. v. Cheswick Generating Station, GenOn Power Midwest, L.P. answered a question of first impression: “whether the Clean Air Act preempts state law tort claims brought by private property owners against a source of pollution located within the state?”  In this case, Plaintiffs filed claims under state tort law against the GenOn’s Cheswick Generating Station, a 570-megawatt coal-fired electrical generation facility in Springdale, Pennsylvania for allegations of ash and contaminants settling on their residential property (located within a mile of the plant).  The Appeals Court held that “(b)ased on the plain language of the Clean Air Act and controlling Supreme Court precedent, we conclude that such source state common law actions are not preempted.”
 
This decision was based upon the U.S. Supreme Court precedent found in Intl. Paper Co. v. Ouellette.  The question presented by Intl. Paper Co. v. Ouellette was “whether the [Clean Water] Act pre-empts a common-law nuisance suit filed in a Vermont court under Vermont law, when the source of the alleged injury is located in New York.” The U.S. Supreme Court held that: (1) Clean Water Act preempted Vermont nuisance law to extent that that law sought to impose liability on New York point source, but (2) Act did not bar aggrieved individuals from bringing nuisance claim pursuant to law of source state.

The Supreme Court of Appeals of West Virginia has previously applied the Intl. Paper Co. v. Ouellette decision to the Clean Air Act in Ashland Oil, Inc. v. Kaufman.  In the Ashland Oil case The Supreme Court of Appeals of West Virginia held that Intl. Paper Co. v. Ouellette  “requires the application of the statutory or common law of the source state to an interstate pollution dispute when the pollutants in question are regulated by the Clean Air Act. However, the procedural law of West Virginia shall be followed when the issues are being litigated in this State's courts.”

Thus, it appears, at least in the 3rd Circuit, that while interstate common law disputes are preempted by the Clean Air Act, intrastate disputes are not.

Those Dam Polluters!

Posted on August 23, 2013 by Rick Glick

The Columbia and Snake River federal network of dams, and the abundance of low cost electricity it produces, has long been the cornerstone of the Pacific Northwest manufacturing economy.  It has also supported another industry—the legions of lawyers fighting over the environmental effects.  The latest iteration is an attack brought by Columbia Riverkeepers against the Army Corps of Engineers for oily discharges from the dams.

Riverkeepers filed lawsuits in U. S. District Courts in both Oregon and Washington alleging that oils released from the dams are discharges of pollutants for which a National Pollutant Discharge Elimination System (NPDES) permit is required under the Clean Water Act (CWA).  The oils are used for lubricating turbine equipment, which Riverkeepers allege are released every day through spillways and penstocks at Bonneville, John Day, McNary, Ice Harbor and other federal dams.  The suits seek declaratory and injunctive relief, mandating that the Corps secure NPDES permits.

Oily discharges are common among hydroelectric facilities.  For the most part these are minor releases, though the complaint does allege a spill of 1,500 gallons of transformer oil containing PCBs from the Ice Harbor Dam on the Snake.  Most privately owned dams in the region operate under general permits encompassing the small-volume releases.  A few have NPDES permits.

As I have noted in prior blogs, courts have held that dams are “nonpoint” sources of pollution, which do not require a NPDES permit.  These holdings were in the context of dams merely passing through pollution flowing into reservoirs from upstream sources, as opposed to adding pollutants.  However, there have been cases where the discharge below the dam was not simply a pass through, and the court found a permit was required.

In relation to the ongoing litigation over the dams’ effect on salmon spawning, rearing and, migration, the Riverkeepers case will not likely have a significant effect on Corps operations.  Even if the suit is successful, oily discharges can be managed, if not wholly eliminated.  These cases should settle.

New Frontiers of Environmental Advocacy

Posted on August 21, 2013 by Eugene Smary

Since one of the objectives of the ACOEL blog is to promote thought and discussion, I have decided to plunge in with abandon.  Hopefully the objective of promoting discourse will be met.

We all have reconciled ourselves to the fact that environmental advocacy has become very politicized on all portions of the political spectrum—so much so, that environmental advocacy oftentimes morphs into political/partisan advocacy.  In the last several years we have seen environmental advocacy reach a new level.  I leave it to the reader to decide whether that level is high or low.  I have my point of view, and I suspect the reader will see that soon enough.

Two projects, one proposed, and one still only in the realm of “contemplation” serve as lightning rods for this new form of environmental advocacy:  the Keystone XL Pipeline project and the potential Pebble Mine.  Keystone XL formally has been proposed.  The Pebble Mine has yet to have a permit application submitted but nonetheless is the subject of protracted and unique opposition.

It is becoming increasingly common to witness the advocacy relating to the Keystone XL Pipeline project—unprecedented in both its breadth and emotional intensity--from proponents and opponents alike.  Proponents have tended to follow the more traditional advocacy approach of published opinion pieces and structured meetings and association support.  The opposition has been much less traditional.  Certainly there has been a history of focused opposition to some projects viewed by some as adversely impacting the environment, but those have been very focused locally or at most regionally.  We all recall “tree sitters” opposing harvesting of redwood timber.  Street theatre is not uncommon.  Here in Michigan I have seen an individual dressed up as a skeleton in opposition to use of a school built on an abandoned municipal landfill, or dressed up as a fish in opposition to a proposed hard rock mine.  The call for civil disobedience in opposition to Keystone XL goes well beyond street theatre, however.  It is something that has not been seen, at least in my memory, since the days of the Civil Rights and Vietnam War protests.  Lost in all of the demonizing of the development of hydrocarbons in Alberta, Canada’s northern reaches (called “oil sands” by proponents and “tar sands” by opponents) is the fundamental impact that a denial of the Presidential Permit necessary to construct the pipeline will have on the diplomatic relationship between Canada and the United States.   The failure to issue a permit thus far has contributed substantially to a reconsideration of Canadian policy goals and economic development.  No longer is the Canadian policy as focused and U.S.-centric as it once was.  Canada is reevaluating the degree to which it can continue to trust its southern neighbor.  It is not a stretch of the imagination to read the tone and tenor of the “policy” discussion and advocacy antics as being officious.  An offer to “help” with the evaluation of the climate change risk of the bitumen production and methods of amelioration, while perhaps well-intentioned, certainly is capable of being seen as sanctimonious, or even arrogant.  The old images of the “ugly capitalist”, and the “ugly American” are being supplemented by images of the “ugly environmentalist.”  The increasingly strident nature of the anti-Keystone advocacy ignores or dismisses broader foreign policy considerations.

Now, if that is not enough to get discussion going, I don’t know what is.  But, on the off chance that there is need for more encouragement, let me raise one other advocacy project:  the contemplated Pebble Mine located in the Bristol Bay, Alaska, watershed.  Pebble Mine may not be as well-known nationally as Keystone XL, but some NGOs are trying to make certain that it does become known—and opposed.  If Pebble is known for anything, it is that it is the subject of an environmental assessment being undertaken by U.S. EPA, in advance of any permit application having been filed and without any proposed mining plan having been developed.  Now Pebble has a major mail order retailer using its customer-based mailing list vigorously and bluntly to oppose the Pebble project.  Within the last several weeks I received a “fly fishing” catalogue from this company, a company from which I have purchased products for well over 30 years.  I started seeing full-page advertisements opposed to Pebble in the interior of its catalogues within the last year.  This most recent mailing is the first time I received a catalogue whose cover was emblazoned with the words “Pebble Mine” inside a red circle with a slash through it and the admonition to “JOIN THE FIGHT” at the company’s website.

In an age where social issues are increasingly being highlighted in commercial advertisements, perhaps I have been lulled into thinking that subtlety makes such advertising acceptable.  There is nothing subtle about this fly fishing catalogue’s assault on a mining project. Opposition to mining in sulfide ore bodies appears to have become a focal point for the leadership of this company.

This is a free country and we all enjoy freedom of speech.  The ultimate power, of course, is to take one’s business elsewhere, but I just found this to be a rather unique “in your face” form of environmental advocacy.  If I want to receive environmental advocacy—from any quarter, I will ask for it.  If I wish to purchase goods and get on a mailing list for that purpose, I expect to get future mailings about similar products.  I do not expect—or authorize—use of my name and address to receive decidedly political advertising nor biased social commentary.  I know how and where to get plenty of that in a setting where it is both thoughtful and analytical.  Combining a commercial catalogue with a political advertisement, or rather turning a catalogue into a political advertisement, crosses the line.  Perhaps it is a line that we as a society are willing to tolerate in this age of political intolerance.  We will see.

Now, let the discussion begin.

D.C. Circuit Slams the NRC, Grants a Rare Writ of Mandamus The Next Chapter of the Yucca Mountain Odyssey

Posted on August 19, 2013 by Donald Stever

For years the nuclear power industry, which could serve as a climate neutral bridge to a more carbon neutral energy policy, has been hampered by the high cost of electricity production and difficulty in securing new licenses and license renewals.  A not insignificant contributor to the cost of nuclear power, and one of the arguments raised against relicensing of older nuclear power plants, has been the necessity for the operators of nuclear power plants to store spent nuclear fuel onsite for an indefinite period of time. This was not supposed to be the case. Years ago Congress passed and the President signed into the law the Nuclear Waste Policy Act, which mandated the Department of Energy to develop a permanent repository for spent reactor fuel.

On August 13, a panel of the United States Court of Appeals for the District of Columbia Circuit, in In Re Aiken County issued a rare order, a writ of mandamus, compelling the Nuclear Regulatory Commission to resume the licensing proceeding on the Department of Energy’s application for a permit to construct  a permanent repository for nuclear waste at Yucca Mountain in Nevada. That process was to have been completed in June of 2011 under the Nuclear Waste Policy Act, but the DOE, acting on the President’s direct order, tried to withdraw its license application in 2010 and, though the NRC Licensing Board rejected DOE’s efforts,  the Chairman  of the NRC, also acting at the President’s request, shut the process down anyway.   

The case was brought by two states, two counties, three individuals residing near current temporary nuclear waste storage sites, and the association of regulatory commissioners. The Yucca Mountain project has been controversial for years, having been opposed by environmentalists and local politicians in Nevada.  DOE’s failure to find a central long-term repository for nuclear waste has forced the nuclear power industry to continue to store spent nuclear fuel in on-site casks or water filled pools, creating what is perceived by critics as enhanced risk of release of radionuclides to the environment. The decision contains a detailed, lengthy and fascinating discussion of the Executive Branch’s authority to exercise prosecutorial discretion and how that discretion is far different than its discretion to ignore clear statutory mandates.

The majority of the panel held that the Executive Branch, including the President (and by extension executive and independent agencies like the NRC), has no authority to disregard congressional mandates based on policy disagreements with the law in question. The panel concluded that the Nuclear Waste Policy Act and Congressional funding of the NRC’s permit review process created a clear mandate to the NRC to make a decision on the permit application pending since 2011.  Finding that the NRC is “simply flouting the law, ” and has “no current intention of complying with the law,” the majority opinion by Judge Kavenaugh (joined by Judge Randolph),  flatly rejected the defenses offered by the NRC. The court rejected the argument that Congress had appropriated insufficient funds to complete the project, finding that annual congressional appropriations never provide enough money to finish a multi year project, and that over $11 million exists to continue it.  The court also rejected the argument that the NRC’s decision to ignore the law was justified because Congress might not provide funding in the future, concluding that allowing an agency to ignore a clear mandate would “gravely upset the balance of powers between the Branches and represent a major unwarranted expansion of the Executive’s power at the expense of Congress.”

The court also rejected the argument that the failure of Congress to provide future appropriations for the Yucca project demonstrates congressional intent to shut down the process. The Court opined that  the measure of congressional intent is in the laws it passes, not what it debates, and that repeal by implication is inappropriate where previously appropriated funds are not taken back and remain available to advance the project. The court accordingly concluded that there is “no justification” for ignoring the clear statutory mandate. Finally, the court rejected the suggestion that an agency’s policy dispute with Congress’s decision is “not a lawful ground” for the NRC or the President to decline to follow the law.
           
In a dissent, Chief Judge Garland argued that all the NRC did was suspend the proceeding because there were not “sufficient funds to finish the licensing process and that the court should defer to the agency on this judgment, and therefore mandamus should be denied.  The majority rejected this, noting that the NRC’s continued repeated and unjustified disregard for the law despite the repeated warnings given by the court rendered mandamus appropriate.

The D.C. Circuit mandamus order will in all likelihood be appealed, and it is certain that the Yucca Mountain project will remain the subject of intense controversy. The stakes for the nuclear energy industry in having the spent fuel storage problem resolved are large.  Stay tuned.

What Direction Is The Wind Blowing?

Posted on August 16, 2013 by Gregory H. Smith

Ever since the shock of the oil embargo in 1973 we have been a nation in search of a comprehensive, sound energy policy. It was only a year later, in response to the proposal by Aristotle Onassis to locate an oil refinery on the coast of New Hampshire, that the New Hampshire Legislature adopted the first version of the State’s energy facility siting law.

Today, New Hampshire’s siting law, representing a balance of the need to develop new energy facilities with appropriate protection of the environment, preempts local authority and requires each project to undergo a rigorous comprehensive, consolidated evaluation before a  panel of high-ranking State officials from the several different departments having jurisdiction over all the relevant permits. To obtain all State permits and a Certificate from the siting committee, the applicant must be prepared to present the project in a consolidated process, subject to formal discovery, at an adjudicative hearing before the committee. Interested parties and municipalities may intervene and the Attorney General appoints Public Counsel for the case to represent the broad public interest. To take positions in the broad public interest, Public Counsel is charged with the responsibility to represent the interests of the public as a whole, and not simply the narrower positions adopted by intervening parties. To discharge this responsibility, which derives directly from that of the Attorney General in all other cases, the Public Counsel must take positions that balance the public interest in developing new, diversified energy facilities and the need to take into account environmental regulation.

This highly structured, energy facility permitting process is significant regionally and nationally because its standards tend to drive the design of interstate facilities. Current energy policy and its direction may be discerned from trends reflected in the written decisions of the siting committee over time.  Other states may be developing approaches to these issues.

Beginning in the late 1990s, a steady stream of energy projects have been presented to the committee. Until the mid-2000s, the majority of those projects involved fossil fuel generation, and in particular natural gas generating stations and transmission lines. As public policy, driven by concerns for global warming, has put increasing emphasis on renewable energy sources, there has been a significant increase in proposals to construct wind energy facilities. What is most striking from this perspective is that no energy project was rejected until 2013, although some facilities were subject to hundreds of conditions in their certificate.

This year, a proposed 30 megawatt wind farm in Antrim was rejected on its “aesthetics”, an indisputably highly subjective standard in search of criteria that will avoid arbitrary and capricious adjudications. Three previous wind power projects have all been approved with essentially the same characteristics, but for the first time the committee, at the urging of public counsel, has declined to approve the project rather than setting forth criteria and conditions that would bring essential predictability to this important technological advance in energy production.

The region and the nation will be well served by a steady expansion in the number of renewable energy projects, and this opportunity has the attention of large, even international, experienced and capable developers. Does the rejection of the Antrim project, despite public support, on the basis of the objections of special interests actively supported by public counsel risk a slowing down or abandonment by developers to the detriment of the region’s public interest in a diversified energy portfolio? Is it coincidence that a wind energy project was rejected recently in Maine, also on highly subjective grounds of aesthetics, a case that was referenced in the New Hampshire proceedings? And shouldn’t we ask whether advancing wind turbine technology is something we find in most places attractive, when it represents a great benefit to the environment and the public interest?

These cases bear watching. The New Hampshire case appears to be headed to the State Supreme Court. Will it turn out that these developments represent a turning away from favorable conditions promoting wind energy, so that wind energy development will decline in the years ahead? For environmentally sound economic development in this region and elsewhere we should hope not.

Environmental Regulation and the Rhode Island Business Climate: Governor Chaffee Tries To Fix It

Posted on August 15, 2013 by Richard Sherman

The business climate in Rhode Island is viewed by many observers as unpromising at best and dismal at worst. The reasons are too numerous to articulate here, but at least there is an effort now being made that may contribute to an improvement in such climate.

The administration of Governor Chafee is undertaking a significant effort not only to review and revise the myriad of environmental regulations that burden the regulated business community, but also to make efforts to revise the state environmental regulatory scheme to pre-empt conflicting local regulations and ordinances that inhibit the permitting and licensing process and otherwise discourage the growth of businesses of varying sizes.  The initial report includes findings and recommendations across the bureaucracy, but specifically addresses the Department of Environmental Management.  

While budgetary constraints may impact the speed with which such reform is undertaken and implemented, desperate times call for desperate measures. Hopefully, we will see some improvement in the relatively near future.

The Six Month Extension for a Listing Determination of the Lesser Prairie Chicken and Relevant Considerations Moving Forward

Posted on August 13, 2013 by Donald Shandy

The status of the Lesser Prairie Chicken has received a lot of attention over the last two years, but those affected by a listing decision will have to wait another six months to know whether the notorious bird will receive protection under the Endangered Species Act.  As part of a comprehensive settlement agreement in the case of In re Endangered Species Act Section 4 Deadline Litigation 2011, the U.S. Fish and Wildlife Service (“FWS”) agreed to make listing determinations under the Endangered Species Act (“ESA”) for more than 250 species by the end of 2016.  Pursuant to this agreement, on December 11, 2012, the FWS published its proposal to list the LPC as a threatened species under the Act, with a final determination to be made by September 30, 2013.  However, on July 9, 2013, the FWS announced a six month extension on the final listing determination, under an ESA provision that allows the agency to postpone decisions where there is significant scientific disagreement regarding the sufficiency or accuracy of the available data relating to the decision. In its notice, the FWS noted that it will solicit information to clarify and fully analyze issues raised during the initial comment period. These issues include whether the FWS has considered the effectiveness of conservation practices of the oil and gas industry and the agricultural industry, and the accuracy of short-term and long-term population trends of the LPC, particularly as it relates to climate change. 

Moreover, the FWS reopened the comment period for an additional thirty days.  Among other things, the FWS specifically requests comments on the application of the Lesser Prairie-Chicken Interstate Working Group’s draft rangewide conservation plan, developed in conjunction with the states of Kansas, Oklahoma, Colorado, Texas, and New Mexico to preserve LPC habitat and increase the LPC population.  Over the six month period, the FWS will obtain additional information and achieve better clarity on these and other issues prior to the final listing decision on March 30, 2014.  Until then, voluntary efforts to support the species’ population are sure to continue in full force, with the goal of helping the LPC population recover to the point where the protections of the ESA are not necessary.

Petroleum Refinery Enforcement Initiative 2.0

Posted on August 5, 2013 by Paul Seals

Enforcement with a Flair

EPA has seen the smoke.
This certainly is no joke.
Benzene is a neighborhood scare,
With upsets going to the flare.

On July 10, the Department of Justice and EPA announced the lodging of a consent decree with Shell Oil Company to resolve alleged Clean Air Act violations at Shell’s refinery and chemical plant in Deer Park Texas.  This agreement represents the fourth “refinery flare consent decree” in the past year.  More are expected.

Shell will spend $115 million to control emissions from flares and other processes, and will pay a $2.6 million civil penalty.  EPA alleged that Shell was improperly operating its flaring devices resulting in excessive emissions of benzene and other hazardous air pollutants.  Shell will spend $100 million to reduce flare emissions.

These flare consent decrees represent a new chapter in EPA’s national Petroleum Refinery Initiative (“PRI”), which, beginning in 2000, resulted in the entry of 31 settlements covering 107 refineries in 32 states, affecting 90% of the domestic refining capacity.  EPA did address refinery flares as one of the marquee issues in PRI consent decrees – compliance with the New Source Performance Standards (“NSPS”) for Petroleum Refineries.

EPA is now pushing the envelope to impose “regulatory requirements plus.”  Through an enforcement alert in August of last year, EPA warned industry that there were significant issues with flare efficiency and excessive emissions.  EPA Enforcement Alert:  EPA Enforcement Targets Flaring Efficiency Violations.

What is EPA doing?  What is the basis of this Petroleum Refinery Initiative 2.0 and the imposition of “regulatory requirements plus”?

EPA bases this new initiative on the “general duty” requirements.  NSPS requires that at all times owners and operators should operate and maintain a facility or source consistent with “good air pollution control practices.”  In addition, Section 112r of the CAA requires owners and operators to maintain a safe facility by taking such steps as are necessary to prevent releases of hazardous air pollutants (“HAP”), and to minimize the consequences of accidental releases which do occur.  Accordingly, with no threshold amount, any release of a listed HAP (e.g. benzene) that could have been prevented violates this general duty.  If a flare smokes, there must be a violation.

This general duty is used to require control measures that go beyond those specified in the regulations.  The consent decrees include conditions addressing flare combustion efficiency limits incorporating automated controls with complex and expensive monitoring systems, flaring caps for individual flares and the overall refinery, and flare gas recovery systems for individual flares.

The enforcement train has left the station.  Who will be next in line?  How much will the ticket cost?  Are there rulemaking or other actions that may be taken to slowdown or stop the train?  Flares are not unique to petroleum refineries and petrochemical plants (e.g. flaring in oil and gas production facilities).  Will EPA provide other industries the opportunity to go for a train ride?

Finding Common Ground

Posted on August 1, 2013 by Irma S. Russell

Last month’s decision by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District has been the subject of intense dialogue among ACOEL members and environmental lawyers around the country. The Court’s holding that the Water District violated the Fifth Amendment just compensation clause extended the Nollan and Dolan standard to the context of denial of a permit application and raised the need for land use agreements that achieve acceptable results for all involved – a tall order.

A recently published book provides a resource for lawyers and students working in the land use arena. Land In Conflict: Managing and Resolving Land Use Disputes (Lincoln Institute, 2013) by Sean Nolon, Ona Ferguson, and Patrick Field, focuses on land use disputes over the full range of zoning, planning, and development and provides a primer for professionals on all sides of land use issues, including local planners, proponents of projects, developers and their financiers. Parties involved in land use permitting can draw on the book to consider how their conduct and orientation facilitate (or, perhaps, impair) the ability of the parties to find common ground. This book provides insights regarding the public’s right to access to information about land use projects. Both proponents and opponents to projects will gain ideas from this book on interacting effectively, whether this is in the filing process of proposing or opposing a project before a local board or department with land use authority. The orientation of this work is to focus on reconciling the interests of all legitimate stakeholders in the hope of producing, as the authors note, more durable outcomes than typically achieved in the adjudicatory approach. This mutual-gains approach has wider application than land use. It is guided by principles that move decision making away from the impasse of rights rhetoric toward decisions that seek the best alternatives for all stakeholders.