Posted on October 31, 2014
“Elmer Gantry,” a noir classic novel by Sinclair Lewis and a 1960 film, features a tortured central character with the word “love” tattooed on the knuckles of one hand and “hate” on the knuckles of the other hand. The vision of the hands together intertwined as symbols of the dilemma of the conflicted protagonist’s internal battles is evocative of the disconnect between our deep and undeniable thirst for energy and our disdain for the manner by which it is produced and delivered to us.
A History of Options:
Coal fired power plants are coming under heavy fire as the U.S. seeks to significantly reduce air emissions. Global climate change, health impacts and a series of other negative effects on the ecosystem are cited as bases for accelerated retirements of these generation stations. No doubt coal mining is a tough and dirty business; yet for two centuries it has provided the backbone of the development of electric power plants and the extraordinary benefits of electric energy. How to reconcile this history with the current political climate? How do we transition from coal as a major US fuel source, one that provides domestic supply and multiple benefits in employment, tax base, and economic activity?
Likewise, hydroelectric generation is enshrined in the transformation of much of the West in the songs of Woody Guthrie, as a magnificent contribution to our development as a nation. And, the desirability of hydroelectric generation is magnified when the only “issue on the table” is the greenhouse gas impacts of generation. Yet, the impacts of hydroelectric development have had deleterious effects on fish, landscapes, and water supply. And, as drought strangles much of the West, there is a struggle over whether to tear down the much admired, in fact almost “loved,” green dams of the New Deal Era. The question at issue here is which side is good and which is evil, and the answer is “it all depends.”
Another love-hate relationship lies with the nuclear generation fleet. From the standpoint of greenhouse gas emissions, the nuclear generation fleet is a winner. Yet to some anti-nuclear interests, the nuclear stations (for the most part, forty years or older) are the devil incarnate, and subject to exorcism. Yet, these facilities provide nearly 20 per cent of the electric power of the country. So again, the desire for a clean electric supply and antipathy to the technology clash. In this case, dealing with the aftermath of closing a nuclear generation station includes the significant and seemingly intractable problem of nuclear waste storage and disposal, leading to more profoundly difficult questions and concerns.
Another emotional “generation war” is centered on the role of natural gas fired generation. Once again, there are epic clashes over gas. Gas is ever more obviously abundant and relatively desirable from an environmental standpoint. However, extreme passions have been aroused by gas production-related issues like hydraulic fracturing, new pipeline capacity and fears about safety, and harmful environmental effects from natural gas drilling, production, transportation and distribution. Despite the fact that natural gas fueled generation has filled approximately a quarter of the nation’s electric generation demand for many years, and is likely to be a major solution to the shift from coal, nuclear and some hydroelectric plants, the heated anti-fracking debate continues. Thus, the struggle continues between “good,” (by those who see gas as a solution to the need for reliable generation) and “evil” (by those who oppose the drilling, development and delivery impacts of any form of hydrocarbon-related fuel). Indeed, the politics, sophistication and interest of high profile opponents has elevated the bitter war of words and politics to a new level.
Finally, the role of renewables as a source of generation to replace nuclear, coal and other forms of generation would, superficially, seem to be uncontroversial. Yet once the specifics of a project become known, opposition to the project grows. Like politics, all projects are local. Wind power towers, with associated land use, avian impacts, noise, reliability and transmission-related needs become the object of ire for interests that may not benefit from the projects. Likewise, solar projects with land use, impact on wildlife water use and other hot-button issues may precipitate other battles. The beauty of the project is in the eye of the beholder and beneficiary.
The Paradox Ahead
Overarching all these projects are difficult issues associated with transmission capacity and cost, reliability, taxation, employment and overall local economic dependency. And uncertainty about the need for new generation makes things worse: why tolerate potentially disruptive technologies if efficiency increases and other factors means that new generation isn’t needed? In light of the volatile, complicated, politically charged environment, the struggle for answers and stability will continue. As long as our society remains conflicted, these issues will continue unabated to be “front page,” and lawyer and politician intensive. The search for rational solutions to meet the needs of the country for reliable, safe, environmentally acceptable electric generation must continue for the nation to survive and thrive, despite the pain, cost and compromise necessary. And like the soul of “Elmer Gantry,” we must ultimately cease to be at war with ourselves to survive.
Posted on October 29, 2014
The unfortunate fact about copper mining is that it just cannot be done without impacting groundwater. This inevitable result occurs because of the massive excavations extending below groundwater elevations and the leaching of contaminants through the process of capturing copper. Most western mining states, including Arizona, have recognized this inevitable consequence and have crafted a “point of compliance” system where groundwater quality standards must be achieved at some designated point beyond the active mining site. Previously, the New Mexico Environment Department dealt with quality exceedances at active mining sites either by issuing variances from compliance requirements under the New Mexico Water Quality Act, or by simply ignoring the problem altogether. The Copper Mine Rule has been promoted as a pragmatic response to the cumbersome administrative variance procedure.
Under the New Mexico Water Quality Act, groundwater compliance must be achieved at any “place of withdrawal for present or reasonably foreseeable future use.” This jurisdictional threshold is markedly different than the jurisdictional standard for surface water discharges, which requires compliance precisely at the point of discharge into a body of surface water. The Copper Mine Rule recognizes that groundwater directly beneath an active mine site would not be available for use during the period of active mining operations and thus would not qualify as a “place of withdrawal” where groundwater standards must be met. Similar to the “point of compliance” approach taken by other states, the New Mexico Copper Mine Rule requires that groundwater standards must be achieved at monitoring well locations placed as close as practicable around the perimeter of the active mine site.
The Copper Mine Rule has been appealed by various NGOs and by the New Mexico Attorney General. The Attorney General contends on appeal that any determination of a “place of withdrawal” must be made on a case-by-case basis, rather than through a rule-making procedure. Interestingly, the Attorney General originally represented the New Mexico Water Quality Control Commission (“WQCC”) when it adopted the Copper Mine Rule, but abruptly reversed course and has lodged an appeal against the Rule for which it provided representation to the WQCC. As part of the response to the Attorney General’s appeal, the WQCC has filed a motion seeking to disqualify the Attorney General, based on a conflict of interest, from taking positions adverse to its former client. The matter is presently pending before the New Mexico Court of Appeals.
Posted on October 28, 2014
Many Clean Water Act practitioners will have their eyes on the Third Circuit on November 18 when oral argument has been set on an appeal from a decision upholding EPA’s issuance of a multi-state Total Maximum Daily Load (TMDL) for the Chesapeake Bay and its tributaries. The Chesapeake Bay TMDL, issued in December, 2010, is the biggest EPA has ever set, covering parts of 6 states and the District of Columbia. As I reported in a blog article a year ago on September 13, 2013, in a 99 page decision the Middle District of Pennsylvania upheld the TMDL against numerous challenges by the American Farm Bureau Federation, other agricultural trade associations and the American Home Builders Association. Those organizations appealed, and a flurry of intervenor and amicus briefs have been filed on both sides.
The issues raised by the appellants are whether EPA exceeded its statutory authority when (1) it set pollutant allocations for nitrogen, phosphorus and sediment on a watershed-wide basis, and then, by agreement with the states, subdivided them by state and by major river basin; and (2) it insisted that states provide “reasonable assurance” that they would implement measures reasonably calculated to achieve compliance with the TMDL within agreed-upon timetables.
As described in the district court decision, the Chesapeake Bay TMDL has a long history, including more than 25 years of cooperative but unsuccessful efforts by the Bay states, working together and with EPA, to design and implement programs to reduce the large amounts of nutrients and sediment flowing annually into the Bay. This pollution has contributed to the decimation of oysters, blue crabs and other fish, destruction of hundreds of acres of bay grasses, and significant economic, recreational and cultural losses throughout the watershed. Because of the inherently interstate nature of the pollution, and the inability of one state to stem pollution in another state, the states in 2007 asked EPA to set a multistate TMDL, which EPA did. At the heart of the legal dispute are issues of “cooperative federalism” – the proper roles for the states and EPA and the limits of EPA authority under Clean Water Act Section 303, which gives only minimal guidance on TMDL implementation. The district court decision addressed several issues of first impression and, in upholding EPA’s actions, provided a thoughtful analysis and helpful guidance.
The precedential significance of this case has not escaped states, cities and other interested parties elsewhere in the country. Briefs have been filed by intervening environmental groups, wastewater treatment agencies and municipal authorities in support of EPA. In addition at least 10 amicus briefs have been filed on behalf of over 100 other entities. A group of 21 attorneys general, mostly from western and Mississippi Valley states, filed a brief in support of the appellants. They were joined by a group of counties, and much later by a group of 39 Congressmen. Amicus briefs were filed in support of EPA by the states of Virginia, Maryland, Delaware and the District of Columbia (all in the Chesapeake Watershed). Also supporting EPA are a brief by the cities of New York, Baltimore, Philadelphia, Los Angeles, Chicago and San Francisco, and a separate brief for the City of Annapolis, plus two amicus briefs by groups of environmental organizations and a brief by 19 environmental law professors from around the country.
One of the interesting features of this case is that none of the EPA actions challenged by the appellants were forced by the agency on unwilling states. The “reasonable assurance” features are contained in “watershed implementation plans” drafted by each state. The deadlines are not inflexible, cannot be enforced by EPA, and were agreed to by the states. In fact on June 16, 2014, all 6 Bay states, the District of Columbia and EPA signed a new Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and the implementation measures. So stay tuned! The courtroom will likely be SRO, and I’ll be back to you after a decision.
Posted on October 22, 2014
Yes, and here’s why: Joseph Sax’s writings remain as fresh today as when they were published. This blog — in noting his death earlier this year — described Sax’s revival of the public trust doctrine, for which he is justly famous. But some of Sax’s other studies stay relevant, and not only to the generation of environmental lawyers he taught at the University of Michigan Law School and at the University of California Berkeley School of Law.
Sax’s career focused not on the intricacies of pollution control statutes, but on the broader issues of allocation and management of scarce resources. The idea that public trust resources ought not to be diverted from public use, discussed in this blog, is the beginning. Citing Sax, the California Supreme Court in the Mono Lake decision injected public trust concepts into California prior appropriation doctrine. As noted recently in this blog, California water allocation law continues to slouch toward the present. These issues show why Sax enjoyed teaching water law.
Sax delighted in challenging conventional views. In an early article, he exploded the myth, exemplified by supporters’ confidence in the National Environmental Policy Act, of “the redemptive quality of procedural reform.” In 2002, he spoke at the University of Michigan about the Great Lakes. The assembled faithful expected him to reinforce their view that not one drop of water should leave the Great Lakes basin. Instead, to their dismay, he demonstrated why water allocation decisions should be based on an evaluation of alternatives, even if that meant water withdrawals from the Great Lakes. Some of the water allocation issues among riparian states that he explores in that speech were recently heard by the Supreme Court in Kansas v. Nebraska, concerning interpretation of an interstate water allocation formula, and will be considered in Mississippi v. Tennessee, which concerns pumping underground water across state borders.
One of the foundations of environmental law is the takings clause. Sax’s 1964 article, Takings and the Police Power, often cited by the Supreme Court, deserves re-reading for its lucid and compact analysis. Following the Lucas v. South Carolina Coastal Council decision, Sax imaginatively proposed an economy of nature underlying the market economy while criticizing the majority opinion in Lucas for being the outlier in takings law that we now know it to be. But Sax sympathized with the unfairness of takings law on property owners. Recently he noted that the Supreme Court has exhausted its efforts to develop a coherent takings theory. But, he said, that fact brings no solace to a late-in-the-game developer who, denied permits by a municipality that gave away the entire increment of infrastructure amenities to earlier-in-time developers, unfairly receives no compensation.
Management of public lands is a large part of environmental law. As we learned at the 2014 annual meeting, this College is embarking on a new initiative for East Africa community land use and natural resources rights. The underpinnings for such policies are found in Sax’s 1980 book Mountains Without Handrails, which proves the preservationist’s view of national park management. But management of private land adjacent to parks is equally important, as Sax explored in Helpless Giants: The National Parks and Regulation of Private Land. Sax was inspired to write this article when, after hard hiking through rhododendron “hells” in the Great Smoky Mountains National Park rising to the Appalachian Trail, he was surprised to see a luxury hotel — located on private land adjacent to the park — thrusting up beyond a forested ridge of the park.
Sax’s foray into the community values inhering in public and private art collections, Playing Darts with a Rembrandt, is echoed in the recent debate over whether the collection of the Detroit Institute of Arts should be sold to pay the city’s creditors. Although disclaiming an exact fit with the public trust doctrine, the Michigan Attorney General opined that the DIA held the art as a charitable trust for the public.
Sax received many awards and much praise. His extensive scholarship was reviewed by his peers in a 1998 Ecology Law Quarterly symposium introduced by ACOEL Fellow Richard Lazarus. He received the Asahi Blue Planet Prize in part for drafting the Michigan Environmental Protection Act, the citizen-suit statute discussed here. If these recognitions do not convince you, reading Sax in the original should persuade you of the continuing relevance of his scholarship.
Posted on October 20, 2014
In the mid-1970’s, the nation faced long gas lines, the rationing of heating oil supplies, 55 miles per hour speed limits on the highway, the curtailment of holiday lighting, and the uncertainty of sufficient supplies of petrochemical feed stocks for industry. Pundits routinely predicted dire forecasts of shivering residences, financial dislocations, and geo-political struggles between the United States and the OPEC suppliers. Against this backdrop Congress banned most crude oil exports under the Energy Policy and Conservation Act of 1975.
With the emergence of unconventional drilling techniques, colloquially described by the shorthand term ”fracking”, the nation recently began to see growing supplies of natural gas and oil. Last year’s Annual Meeting of the American College of Environmental Laws featured a timely panel discussion on the environmental and economic issues associated with (1) the conversion of underutilized LNG import terminals into LNG export terminals, (2) the development of massive port terminals in Washington, Oregon, and Louisiana for coal exports to Asia, (3) the increased emission of the potent GHG methane from the higher level of drilling activity, (4) the downstream effects on rural communities that have become the homes of these “shale plays,” (5) the construction of massive mid-stream facilities and transmission lines ( like the Keystone XL pipeline in areas thought to be sensitive because of their habitat for endangered species and their location near valuable water supplies), and (6) the safety risks of the increased use of rail transport for crude oil. An executive with one of the major oil companies reports that oil production in the United States has jumped 50% since early 2011. The Energy Information Administration recently stated that United States oil production is expected to reach its highest level since 1970; this increase is occurring at a time when domestic oil consumption is declining.
Major oil companies, the U.S. Chamber of Commerce, the American Petroleum Institute and others have called for an end to the 40-year old ban on oil exports. Those calls have coincided with increased congressional interest from both House and Senate members in lifting the ban.
With the “sea change” in the domestic oil production picture, the administration of President Obama has begun to look at possible repeal of the 40 year- old - ban on crude oil exports. Energy Secretary Ernest Moniz recently addressed the Council on Foreign Relations on the current efforts to assess the “very different” oil market when the ban went into effect. A link to his 50 minute presentation on You Tube is found below. (The Secretary’s presentation touches on a wide range of topics, but his discussion of crude oil exports begins approximately 20 minutes into the address). Secretary Moniz did not give a time frame for a decision, noting that the nation remains a significant importer at this time. He said the final decision may turn on the market impacts. As of the date this blog piece is written, the price for oil has reached a very low point, in part due to the glut of new domestic supplies, to a level that calls into question the economics of new well completions with unconventional drilling techniques. The 50 minute speech also touches on other subjects, including the progress made in reducing methane emissions from leaking infrastructure, greater water recycling, more effective well completion requirements, as well as the improvements in the solar energy as a way to meet the nation’s goal of a low-carbon economy, and the plans for the U.S. to announce its climate change pledge in the first quarter of 2015.
Video: Energy Secretary Ernest Moniz on U.S. Energy Policy
Posted on October 15, 2014
Product Stewardship. It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing: arranging for collection and recycling or disposal of unused or waste products. Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide, the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.
We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad: from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint. Pharmaceuticals may be in the offing. A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.
Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs. According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products. (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)
Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products. And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications.
Some of these programs are after-market recycling operations. Others are closer to product “take-back” requirements. The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options. “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.
If you believe the literature, everyone is a winner: municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created. Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay).
More than a few manufacturers and industries are on board. Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs. ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.
In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs. By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC. At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG), intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase. The goal? Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal. While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach. The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs. The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.
Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around. What products will be next in your state? Or in your county? And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.
Posted on October 8, 2014
On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for use of groundwater: Assembly Bill 1739 and Senate Bills 1168 and 1319. California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers until such time as the aquifer is adjudicated, a process that takes decades to complete.
California historically had asserted regulatory authority only over surface streams and defined underground channels. But the most prevalent, and unregulated use, was of percolating groundwater. Overlying landowners were deemed to have “correlative” rights to the use of groundwater under their lands; that is, rights proportionate to the amount of owned land.
This laissez faire approach has led to widespread overdrafting of groundwater resources, subsidence, and ruined groundwater quality. Further, as stream flows decline—whether because of drought or climate change—more users turn to groundwater pumping, lowering the water table and driving up the cost of energy to lift the water.
All the other Western states exerted authority over groundwater in the previous century. For example, Oregon’s groundwater appropriation law was enacted in 1955. California finally joined the 20th Century with enactment of these bills as a response to unprecedented drought conditions and the fear that climate change will make matters worse.
In a nod to intense water politics, the bills take a local planning and management approach. Other states direct their water agencies to establish basin plans to manage their groundwater resources. In that sense, California has shown leadership in adopting a more decentralized approach to a water-scarce 21st Century. Under the new legislation, local entities are to develop management plans for their groundwater basin for state review. The state would intervene only if it deems the management plans inadequate or not enforced. This local approach has not prevented certain water users from denouncing the bills as a state power grab.
My first job as a lawyer was as staff counsel to the California State Water Resources Control Board. In response to what was then the worst drought on record, Jerry Brown, in his first iteration as Governor, convened a blue ribbon commission to review California water rights law. The group was staffed by U. C. Davis law professor Hap Dunning and a team of young water lawyers, including myself. We reviewed every aspect of California water law in a series of white papers, and made several sweeping and not so sweeping recommendations for reform.
None of the recommendations passed out of legislative committees. I suspect the current legislation would not have passed either but for the historic and severe drought conditions now facing the state. California will need to do whatever it can to stretch its limited and declining water resources to support its powerful agricultural economy and growing cities. Let’s hope that the new groundwater legislation will be a solution for this century.
Posted on October 3, 2014
The Blog Calendar Gods directed me to post something on September 16, 2014, which just happens to be the 40th anniversary of the date that I first started to practice law. Not wanting that coincidence to go to waste, I decided to look back 40 years, to a time when the practice of environmental law was far less complex – or, at least, the things that EPA then published in the Federal Register were a lot shorter.
On September 16, 1974, EPA’s rules and notices took up less than four pages in the Federal Register and consisted of a notice of receipt of applications for pesticide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); a correction to one line of a previously-published notice of proposed rulemaking under the Clean Water Act; and the approval of a compliance schedule under the State of Kansas’ state implementation plan. The entire Federal Register on that date was only 104 pages long.
Fast forward 40 years. EPA’s fairly typical Federal Register postings on September 16, 2014, include – as was the case 40 years ago – rulemaking proposals and notices under the Clean Air Act, Clean Water Act, and FIFRA; however, the September 16, 2014 proposals and notices from EPA take up more than 125 pages of the Federal Register, and a typical edition of the Federal Register these days is well over 300 pages long. I could complain that EPA did not celebrate my anniversary with the publication of a splashy huge new rule in the Federal Register – but I think many of my clients would consider that to be a good thing.
Perhaps the most significant change over the past 40 years, though, is to the overall length and complexity of the rules that are now appear in volume 40 of the Code of Federal Regulations. (There is that number “40” again.) In 1974, 40 C.F.R. – the volume of the code containing most of EPA’s regulations – was about 2000 pages long. In the decades following that time, 40 C.F.R. has steadily increased in size (and complexity). In 1984, it was approximately 5,800 pages long; by 1993, it topped 11,000 pages; and in 2012, there were over 25,000 pages of regulations in 40 C.F.R.
For those of you wondering what else was going on 40 years ago (outside of the practice of environmental law), let me share the following tidbits from September 16, 1974. The big news that day was President Ford’s announcement of his “Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” In addition, on that day, BART began operations in the Bay area, Bob Dylan recorded Blood on the Tracks, the Royal Canadian Mounted Police swore-in their first female recruits, and Joe Namath was on the cover of Sports Illustrated (he was shown rehabbing his battered knees, hoping to play one more season in his $250,000-per-year contract with the New York Jets). Also, if I had stopped cutting my hair 40 years ago today, my golden locks would be more than six yards longer than they are today.
I will be thinking about all of this as I lift my glass this evening and toast all of you and begin year 41.