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.
Posted on August 22, 2014
At the request of El Dorado Chemical Company (EDCC), the Arkansas Commission on Pollution Control and Ecology (Commission) twice approved site specific revisions to its water quality standards for dissolved minerals, finding that the new standards were protective of downstream uses. Twice, EPA rejected the rulemaking. In a court battle over a state’s right to set water quality standards, EPA won. El Dorado Chemical Company v. EPA, et al, Case No. 13-1936 (8th Cir. August 15, 2013).
Arkansas has the most restrictive water quality criteria for dissolved minerals (chlorides, sulfates and total dissolved solids) in the nation, having set the criteria years ago based on naturally occurring levels in undisturbed streams. Few receiving streams with industrial discharges can meet these “pristine stream” mineral standards, creating permitting problems, 303(d) listings of impaired waters, and the need for TMDLs. To address this issue, Arkansas developed a procedure to revise the standards on a site-specific basis to accommodate permitting historical discharges that were not impacting water quality.
EDCC received an NPDES permit from the Arkansas Department of Environmental Quality (ADEQ) with unachievable mineral limits, and a 3-year compliance schedule to provide time to pursue a criteria change. Following ADEQ procedures, EDCC demonstrated the absence of water quality impacts, and the Commission approved the new criteria, paving the way for an NPDES permit modification with achievable mineral limits. That was derailed by EPA Region 6, which rejected the criteria change, stating that potential toxic impacts to downstream waters had not been adequately evaluated. At the same time EPA was threatening enforcement against EDCC for permit violations that were then occurring because the NPDES permit compliance schedule had expired while EPA was holding up approval of the new criteria. EDCC did the additional work requested by EPA, which demonstrated that the water quality immediately downstream of EDCC’s discharge was not impacted, but a stream reach further downstream failed a simulated toxicity test for sub-lethality (reproduction) of the water flea. Since EDCC’s effluent mineral concentration was less than the background mineral concentration downstream, any downstream mineral toxicity was beyond EDCC’s control—likely the lingering effects of historical oilfield practices dating back to the early 1900’s. EDCC decided to forego any criteria change for the downstream reach. The Commission agreed and rescinded the criteria change for that downstream reach. The revised rulemaking was submitted to EPA for approval and EPA again rejected it, based on the sub-lethality failure downstream. In the meantime EDCC was participating in a project to construct a joint municipal/industrial pipeline that would by-pass these downstream waters and avoid the mineral criteria issue altogether, but appeals of the pipeline permit delayed that project as well. With no clear alternative, EDCC appealed.
EDCC relied upon the primary authority granted to states in the Clean Water Act to establish water quality standards, including the evaluation of potential downstream effects on water quality, and argued that EPA overstepped its bounds. Relying on EPA administrative appeals court decisions, EDCC argued that EPA must present "compelling evidence, based on strong science" before rejecting Arkansas’s proposed water quality standards. EDCC urged that more deference should be given to the state decision. EDCC also argued that EPA had relied upon a single, sub-lethal test result, in the face of overwhelming evidence relied upon by Arkansas, that downstream uses were not impacted. The district court and Eighth Circuit agreed with EPA that Arkansas had failed to demonstrate that the proposed water quality standards are protective of downstream water quality. The Court of Appeals said that EPA’s reading of its responsibilities under the CWA was not plainly erroneous, adopting the traditional APA standard of review, and found EPA’s decision to be consistent with the CWA’s broad purpose to "restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." With respect to the evidence of downstream impacts, the Eighth Circuit upheld EPA’s reliance upon the sub-lethal data, stating that EPA’s decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." During oral argument the Eighth Circuit panel seemed interested in EDCC’s argument that since the revised mineral criteria for the problematic downstream reach had been rescinded, EPA should deal with potential impacts from EDCC’s discharge to those stream reaches further downstream in the NPDES permit review. However, the opinion rejected that argument, stating that assessment of downstream impacts was part of EPA’s responsibility when evaluating proposed water quality standards—how far downstream this assessment can go is not discussed.
While the appeal was pending, the pipeline appeals were successfully resolved, and the pipeline has been operating since August 2013. Hence, EDCC has a compliance option in place. The Court of Appeal’s awareness that this compliance option had been implemented (and Arkansas’s failure to participate in the appeal to defend its rulemaking decision), may have influenced the Court’s decision.
ADEQ is currently working with EPA to pursue a long term study of Arkansas’ dissolved mineral standards, with a goal of developing a “simplified” procedure to deal with Arkansas’ overly restrictive mineral standards. If these discussions are successful, others should be saved from the ordeal EDCC had to endure.
Posted on August 12, 2014
Late last year, Amazon CEO Jeff Bezos announced on 60 Minutes plans to launch drones to deliver products purchased by Amazon customers. Fleets of flying arachnoid contraptions will deposit discount books and kitchen gadgets on customers’ doorsteps within minutes of their online orders. Is this an exciting innovation or a really bad idea?
The growing infatuation with what the Federal Aviation Administration (FAA) defines as Unmanned Aircraft Systems (UAS) for commercial, scientific, or recreational purposes presents the FAA with an extremely complex task of integrating these machines into the national system for regulation of airspace. In addition to serious airspace safety and national security concerns, the wider use of drones raises privacy issues as well as environmental concerns such as noise, emissions, injury and disturbance of wildlife, especially birds, impaired visibility, and aesthetic impacts to our landscapes and our skies.
In 2012, Congress passed the FAA Modernization and Reform Act to recognize and regulate commercial drones. The law requires the FAA to prepare and publish a five-year roadmap to guide aviation stakeholders on the tasks involved in integrating UAS into the National Airspace System of regulated aircraft equipment, procedures, operator training, and certification of compliance. The road map issued November 7, 2013, states that proposed civil and commercial uses of UAS include security awareness, disaster response, communications, cargo transport, infrastructure monitoring, commercial photography, aerial mapping and charting, and advertising. The agency has announced plans to propose rules to regulate small drones—those weighing less than 55 pounds and flown under 400 feet in altitude—this year to ease the restriction on machines presenting little or no risk to commercial aviation. But even this category of equipment presents significant regulatory concerns and complexities.
The FAA currently handles approvals for use of UAS by issuing certificates of waiver or authorization to public operators and special experimental certificates to civil applicants. Researchers from private universities have complained about being excluded from the approval process. FAA’s recent assertion of broad authority over “any contrivance invented, used, or designed to navigate in the air” has also come under criticism from this quarter on the ground that tight limits “stunt scientific advancement.”
The FAA knows how to set standards and certification requirements for aviation equipment and operators. Major differences with drones are the absence of an on-board operator to help avert collisions, the potentially much greater variety and quality of equipment, and the much larger number of operators to be regulated and subjected to liability for unsafe operation. Cheerleaders for faster approval of drones are apparently untroubled by the already significant level of accidents involving both military and commercial drone operations. (Craig Whitlock, FAA will miss deadline to integrate drones in U.S. skies, report says, WASHINGTON POST 2 (June 30, 2014.))
Advocates for opening the airspace to wider use of UAS are entitled to tout the benefits to be gained and money to be made from a new industry. However the first priority of government regulators must be to protect a system that has delivered a high degree of safety in the aviation sector. Beyond the challenge of assuring aviation safety is the equally daunting question of homeland security. Our huge investment in airport and airline security have so far succeeded in preventing further successful terrorist attacks on air transportation in the United States. The proliferation of commercial drones potentially armed and operated by thousands more people across the country presents new risks to our safety from criminal or terrorist activity that must be addressed by the FAA and the Department of Homeland Security
Cheap commercial drones carrying high-powered cameras, a favorite new application, can conduct surveillance threatening privacy interests. They will be stealthy surrogates for gum-shoe investigators trailing debtors, straying spouses, or people falsely claiming disabilities. At a time when the public has expressed worry, if not outrage, over governmental and commercial surveillance of their lives, magnifying this risk by the expansion of camera-toting drones will not be welcome. It is small wonder that polling by the Pew Research Center shows that 63% of Americans think it would be a change for the worse if personal and commercial drones are permitted to fly through most U. S. airspace.
The FAA’s five-year plan refers without elaboration to the National Environmental Policy Act. Actions to expand use of drones will require an assessment of environmental impacts, whether or not the FAA itself has the authority to address them. Environmental impacts are likely to be a function of the number of drones in use, where they are used and for what purpose, and how any limitations can be effectively administered and enforced. The risk-benefit calculation for the use of drones in Alaska or other wide open spaces, like farm fields or many border regions, will of course be different from their use in urban and suburban areas of the country.
The FAA, however, may not have the last word on commercial drone use. Restrictions on both launch sites and areas of operation are likely to be derived from land use regulation generally imposed by city and county governments. While the FAA can theoretically regulate noise and pollution from UAS at least by broad type, the FAA is not equipped to adopt the kinds of restrictions needed to protect neighborhoods and resources like wildlife from UAS intrusions adversely affecting local environmental health and amenities. State and local governments, therefore, may become the city-by-city battleground and city and county commissions may have the final say on whether they want Mr. Bezos’s drones to be the product-delivery system of the future or whether the speedy dispatch of non-critical consumer goods is not worth the price to be paid in community safety, privacy, and peace.
Posted on August 11, 2014
If you've been following the recent controversy surrounding the proposed rule regarding "waters of the United States" (referred to in some environmental and agricultural circles as "WOTUS"), you know the wave the EPA has created among opponents of the rule. In April 2014, the EPA and the U.S. Army Corp of Engineers ("Corps") published a proposed rule defining the scope of waters protected by the Clean Water Act ("CWA"). Originally, the public comment period for the proposed rule ended July 21, 2014. That period was extended to October 20.
According to its opponents, a majority coming from agricultural interests in the nation's Heartland, the proposed rule is a stealthy way to expand the EPA's authority; a clear land grab epitomizing government overreach. According to the EPA, the purpose is to clarify the definition of navigable waters in light of U.S. Supreme Court decisions in U.S. v. Riverside Bayview Homes, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
Although EPA explicitly stated that the proposed rule would not affect any exemptions to CWA Section 404 permitting requirements, which include normal farming and ranching activities, opponents think otherwise. Because of the expanded definition of navigable waters to include some waters that are merely connected to navigable waters, opponents worry landowners now will have new land covered by the CWA, forcing them to obtain permits under other provisions of the CWA for regular farming operations. Missouri farmer Andy Klay told Fox News he worries how long a permit might take. A day? A month? He and his wife created a parody video of the EPA to the tune of the popular song "Let it go" from Disney's Frozen -- "The EPA and the Corp. They will try, to justify! That's enough, that's enouuugh!"
Capturing the same sentiment, the American Farm Bureau Federation has launched a viral marketing campaign called "#DitchtheRule." The campaign supplies talking points and pre-written messages for supporters of #DitchtheRule to share on Twitter. For example, the campaign has a pre-written tweet "Ditches and puddles are not navigable. #DitchtheRule." In an attempt to set the record straight, the EPA has responded with a campaign called "DitchtheMyth." The campaign responds directly to the #DitchtheRule allegations. EPA contends, for example, that the myth that the rule will regulate puddles is "not remotely true." But the criticisms, or misconceptions, depending on your perspective, surrounding the rule are very real in the Heartland.
It remains to be seen how things will shake out when balancing the cost of increased regulation with the benefit of additional clarity in the rule. However, there clearly is a gap in communication and deep mistrust between the EPA and agricultural interests. Though some of the fear may be based in myth, folks in the Heartland want the EPA to tread lightly and take seriously the unintended consequences of the rule for farmers and ranchers. Either way, the rule's polarizing effect has already caught the attention of lawmakers. According to The Hill, more than 260 members of Congress, spanning both parties, have opposed the rule.
For more background, see: Weighing in on the Waters of the U.S. rule: an update
Posted on August 7, 2014
Developing wind energy is a good thing, right? Protecting eagles is too, isn’t it? Both may not be true given recent developments that highlight the tension between wind projects and the Bald and Golden Eagle Protection Act.
First, it is official. The U.S. Fish and Wildlife Service (“FWS”) issued a final rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) from five to thirty years. [50 C.F.R. § 22.26.] The rule took effect on January 8, 2014.
With the removal in 2007 of the bald eagle from the list of species protected under the Endangered Species Act, the FWS issued new regulations to authorize the limited take of bald eagles and golden eagles under the Eagle Act. In 2009 the FWS provided for eagle take permits for a maximum of five years. [50 C.F.R. 22.26 and 22.27.] The rule change to allow a 30-year permit is designed to facilitate development of renewable energy projects planned to operate for decades. Generally the life of a project will coincide with the life of a 30-year permit, satisfying risk-averse financiers that their collateral is protected, at least with regard to eagle takes.
The FWS committed to 5-year reviews of the 30-year permit, hoping to satisfy those concerned with eagle conservation. In addition, a permit applicant must implement measures to avoid, minimize, and mitigate threats to eagles over the life of the project. Compensatory mitigation that offsets eagle mortality may also be required. Under programmatic eagle take permits, permittees are required to implement advanced conservation practices -- scientifically supportable measures that represent the best available techniques to reduce eagle disturbance and ongoing mortalities.
There is no legal requirement for project developers or operators to obtain a programmatic eagle take permit under the Eagle Act. However, the risk of proceeding without such a permit can be significant given the civil and criminal penalties that include fines and incarceration for an unpermitted take. [16 U.S.C. § 668(a).]
Second, it is official. The American Bird Conservancy made good on its threat [April 30, 2014 Letter] to litigate the issue of the 30-year rule with the FWS [June 19, 2014 Complaint]. The claims are procedural -- that the FWS deemed the rule to be excluded from any National Environmental Policy Act review, and that the FWS privileged the interests of wind developers over protection of eagles, thereby violating the Eagle Act. The FWS has strong defenses, including its conclusion in 2009 that the eagle take permitting rule as a whole would not have any impact on endangered species. That conclusion will likely be approved under the deferential standard of review applicable in this type of lawsuit.
Third, it is official. The FWS issued its first golden eagle take permit to a wind developer, EDF Renewable Energy for the 102.5MW Shiloh 4 wind farm in Montezuma Hills Wind Resource Area within Solano County, California. The EDF eagle take permit is the first of its kind, allows for the take of up to five golden eagles over five years, and requires the company to implement conservation measures to reduce impacts to eagles. EDF’s application process for its eagle take permit began in 2011, when the five-year permit was the only available option. The application included an Eagle Conservation Plan, as well as a Bird and Bat Conservation Strategy, both of which describe current and proposed future actions to avoid, minimize, and mitigate adverse effects on eagles, birds, and bats. The wind farm repowered at the end of 2012, and was able to incorporate some of those strategies, including compensatory retrofitting of 133 power poles in southern Monterey County formerly considered high risk to both bald and golden eagles.
The first-issued five-year permit notwithstanding, a longer permit timeframe for wind developers may be important to long-term success, providing certainty as to regulations and permit requirements. And take permits that call for affirmative conservation practices allow the FWS to ensure adequate species protection over the lifetime of the permit. It’s a good thing, right?
Posted on August 6, 2014
A recent ruling from the Fifth Circuit involving the endangered whooping crane clarifies the level of proof require to show to establish proximate cause of “take” under the federal Endangered Species Act (“ESA”). The case also sets important precedent on the level of imminent harm required to obtain injunctive relief in ESA litigation.
The case, The Arkansas Project v. Shaw, involves the last remaining wild flock of whooping cranes in the world. According to plaintiff, The Aransas Project (“TAP”), the Texas Commission on Environmental Quality (“TCEQ”) water permitting program in 2008-09 caused the deaths of twenty-three endangered cranes (of the approximately 300 remaining in the wild) via the following seven-link chain of causation:
1. TCEQ grants water-rights permits.
2. Water-rights holders divert water
3. Low inflows of water into bays increase bay salinities.
4. Increased salinities diminish available foods for cranes.
5. Diminished food supplies cause cranes to search upland for food.
6. Upland movement of cranes causes them stress.
7. Stress weakens flock and causes crane deaths.
Defendant TCEQ and intervenors, including the Guadalupe-Blanco River Authority and Texas Chemical Council, challenged each causation step during a week-long trial in 2011. In March 2013, the federal district court judge issued a 125-page opinion agreeing with TAP’s theory and adopted TAP’s fact findings verbatim. The district court also ordered the TCEQ to immediately apply for an incidental take permit and submit a habitat conservation plan (as if it were that easy). Additionally, the Court enjoined TCEQ from issuing any new water permits in the Guadalupe and San Antonio River Basins, interjecting itself as the watermaster for all new and modified permits in the basins. TCEQ and intervenors appealed the order to the Fifth Circuit and successfully stayed the district court injunction. After an expedited briefing schedule, oral argument before the Fifth Circuit took place in the summer of 2013.
On June 30, 2014, the Fifth Circuit per curiam reversed the district court. The court of appeals held that TAP failed to prove TCEQ proximately caused takes of cranes. The Fifth Circuit is one of the first court of appeals to closely examine the issue of proximate cause and ESA liability since Justice O’Connor penned her concurrence on the subject in the 1995 U.S. Supreme Court opinion Babbit v. Sweet Home. Evoking the famous 1920s Palsgraf v. Long Island Railroad case, the Fifth Circuit compared TAP’s claims to the “butterfly effect” (i.e. the idea that a butterfly flapping its wings in China can affect storm systems in New York).
Importantly, the appeals court called into question the district court’s “simplistic” conclusion that a government entity can cause take simply by authorizing an activity that ultimately affects a species. The court noted that prior instances of governmental regulatory liability for take involved actions that “directly killed or injured species or eliminated their habitat.”
Ultimately, the court examined every link of TAP’s chain of causation and concluded that the district court and TAP simply failed to account for the number of contingencies, e.g. drought, affecting each link. As the court summed up, “only a fortuitous confluence of adverse factors caused the unexpected 2008–2009 die-off found by the district court. This is the essence of unforeseeability.”
For future ESA litigation, the court’s analysis of the standard required to obtain injunctive relief is as important as its detailed treatment of proximate causation. In particular, the court noted that the district court focused almost exclusively on the injury that occurred in 2008-2009 and could not explain how a steadily increasing flock showed that there was a reasonably certain threat of imminent harm to the cranes. The court held: “Injunctive relief for the indefinite future cannot be predicated on the unique events of one year without proof of their likely, imminent replication.” This is important precedent for future district courts examining injunctive relief even when past take liability can be proven.
TAP petitioned the Fifth Circuit for a rehearing en banc on July 28, 2014 questioning whether an appeals court can rule on proximate cause as a matter of law. So this case may not be over. But if the court’s ruling stands, it will provide fruitful discussion to examine for future ESA litigation.
Full disclosure: ACOEL Fellow Molly Cagle represented lead intervenor Guadalupe-Blanco River Authority in the Fifth Circuit appeal. She does not attest to any lack of bias in this case and is proud of the fact that the cranes are still doing well, despite unprecedented drought in Texas.
Posted on August 5, 2014
On September 3, the Wilderness Act turns 50 years old. This milestone marks the beginning of the golden anniversaries for the golden age of environmental statutes. During the next dozen years we will celebrate the 50th anniversary of the National Environmental Policy Act (1970), the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), the Resource Conservation and Recovery Act (1976), the National Forest Management Act (1976), the Federal Lands Policy and Management Act (1976), and soon after, the Superfund statute (1980). These 50th anniversaries are a time to reflect on the success and failures of each statute, as well as their capabilities to adapt to environmental issues that were hardly contemplated a half century ago. Although the Wilderness Act does not receive the air time as its media-specific cousins, it still is a useful model to evaluate an environmental statute as it reaches this vintage.
Today it seems almost incomprehensible that any federal statute of significance could pass a house of Congress with only one dissenting vote. Yet that’s what occurred when the House passed the bill in 1964 after eight years of debate and countless revisions. The Act probably never would have reached its current form were it not for the tireless work of Howard Zahniser and the decades of support dating back to legendary figures such as Bob Marshall and Aldo Leopold and others. With this legacy, it's not surprising that Act’s language defining “wilderness” borders on prose:
A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and community of life are untrammeled by man, where man himself is a visitor who does not remain.
The Wilderness Act is elegant in its simplicity, yet enormous in geographic scope. On the day of its enactment, the Act immediately designated 9.1 million acres, mostly in National Forests that already were managed as primitive areas. Since 1964, formal wilderness designation has grown to nearly 110 million acres in more than 750 different named areas.
Structurally the Act sets criteria for wilderness, reserves to Congress the authority to designate wilderness, and sets guidelines for management. The guidelines take the form of rigid categories of what can and cannot occur in a wilderness area. Generally that means no roads, few structures and no forms of mechanical transportation. The Act’s guidelines do not contain numeric standards, detailed permitting, or stringent enforcement regimes. This is not surprising because, unlike the media specific statutes like the Clean Air Act and Clean Water Act, the Wilderness Act was not intended to correct problems of the past, but instead is designed to preserve for the future a resource that was perceived to be vanishing.
*Click here to read full article*
Posted on August 4, 2014
For those who may be interested in the interplay of renewable energy, climate change and the public trust doctrine, I have a new article out in the Ocean and Coastal Law Journal on how federal and state public trust doctrines can be more central in the work and advocacy of environmental lawyers. The article (co-written with one of my students, Patrick Lyons), “THE SEAS ARE CHANGING: IT’S TIME TO USE OCEAN-BASED RENEWABLE ENERGY, THE PUBLIC TRUST DOCTRINE, AND A GREEN THUMB TO PROTECT SEAS FROM OUR CHANGING CLIMATE”, demonstrates how the public trust doctrine (PTD) can play a role in protecting ocean and coastal resources from climate change.
More specifically, the Article proposes that both federal and state PTDs can help protect traditional trust values of commerce, navigation and fishing—in addition to modern trust values of protecting tidal wetlands, estuaries, and wildlife—through establishing ocean-based renewable energy (ORE) as a public trust value. In addition to elevating ORE to equal footing with traditional trust values, we call for placing a “green thumb” on the scales of balancing competing trust values to explicitly guide courts and agencies alike to operate under a rebuttable presumption favoring ORE over other PTD values because of its ability to help reduce carbon and other greenhouse gas (GHG) emissions. This way, ocean based renewable energy would benefit public trust resources that are now being damaged by use of non-renewable energy sources—for example, the National Research Council (NRC), using 2005 dollars, that U.S. fossil fuel energy production caused $120 billion in damage, primarily through damages to human health from air pollution, and another $120 billion in damages from climate change, such as harm to ecosystems and infrastructure, insurance costs, negative effects of air pollutants, and national security risks.
The article first provides a brief overview of the history of the PTD in the United States, including its adoption from English common law and its evolution to its present status among the various states, and an introduction to the current legal framework governing federal ocean resources and sets up the argument for recognizing a federal PTD. It then focuses on climate change, how it is currently impacting the earth’s ecosystems, and the potential detrimental effects to our planet if carbon emissions are left unabated. We further document how climate change is affecting public trust resources and highlights the degradation and alteration these resources have already experienced, calling on all levels of government to fulfill their fiduciary obligation to protect ocean and coastal resources from the impacts of climate change.
With that as the foundation, we move to a discussion of offshore wind, tidal and wave energy, and the variety of public trust-like language found throughout the federal legislation that has authority over the permitting and compliance of ORE projects. We then bring PTD, climate change, and ORE together, in order to establish the basis for a federal PTD and legitimize its inception through common law, legislation, and executive order. The Article concludes by providing examples of how ORE can be incorporated into both federal and state PTDs, providing courts and governmental agencies with a doctrine that encourages and requires the utilization of ocean and coastal resources for harnessing clean, renewable energy in an effort to mitigate the impacts of climate change.
I hope you find it useful in your law and non-law work. Ironically, it was exactly fifty years ago that one of the leading songwriters wrote and sang these words:
Come gather around people, wherever you roam / And admit that the waters around you have grown / And accept it that soon you'll be drenched to the bone / If your time to you is worth savin’ / Then you better start swimmin’ or you'll sink like a stone / For the times they are a-changin’.
Isn’t it well past time to heed that warning and combat the rising levels of greenhouse gases, temperatures, seas, health care costs and storm damages by making maximum use of the clean, renewable energy available and waiting off our shores?
Posted on August 1, 2014
The China Project continues to provide opportunities for Fellows of the College to work on pro bono environmental law projects sponsored by non-governmental organizations and law faculties in China. Attorneys who have participated in the projects have described them as "peak experiences" and "once-in-a-career" opportunities. In the near term, the China Project has advisory and teaching projects underway. Moreover, the Project will likely offer the opportunity for one or more Fellows to train Chinese environmental lawyers in Beijing in September. Further projects are on the drawing board. Where Fellows travel to China, airfare, hotel, meals, transportation and visa expenses customarily have been reimbursed by the Chinese sponsor. Please email firstname.lastname@example.org now if you would like further details of the September opportunity.
The China Project has already had a substantial impact on Chinese environmental lawyers and Chinese environmental law. Some activities have involved, or will involve, travel to Beijing, Shanghai or other destinations in China. Others can be completed from a Fellow’s home or office in the United States. During the first half of this year, as participants in the China Project:
• ACOEL Fellows have consulted in person with representatives of the National People’s Congress, China’s Ministry of Environmental Protection, and the NRDC Beijing office about improving the enforcement of the country’s basic environmental laws. China’s participants in these consultations reported that they were “very productive” and that they came at a “critical moment” in the development of the National People Congress’s deliberations. The consultations were considered as among the important factors which led to amendments of the laws to enhance Chinese enforcement provisions. The amendments were later reported in the United States on National Public Radio.
• ACOEL Fellows are now preparing a comprehensive memorandum for training Chinese lawyers and scholars about the United States’ environmental impact assessment system.
• ACOEL Fellows are scheduled to train Chinese lawyers on various aspects of a broad range of United States’ environmental laws.
All of the consultations, training and analyses undertaken by Fellows during the China Project will be delivered in, or translated from, English. There is no foreign language requirement and no additional training required. The only special requirement arises where the Fellow will be traveling to China. He or she will need a Chinese visa – which should be easily obtained (even on very short notice in an emergency) by any Fellow in the College. If you need assistance on how to obtain a visa to visit China, contact me.
The China Project is a function of the College’s Policy Committee. For the future, the Committee is working on developing additional pro bono opportunities for sponsors in Central and South America, Africa, and India. Progress reports will be offered in future blogs and in reports at the Policy Committee meetings and presentations during the College’s annual conference (this year in Austin, Texas). For further information at any time – email email@example.com or call Jim Bruen at 415.954.4430.