EPA Hubris, July 2015 Edition

Posted on July 31, 2015 by Seth Jaffe

Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. (For a useful summary of the rule and an analysis of some of the legal issues that might be raised in potential litigation, see Susan Cooke’s post from earlier this month.)  I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others.  If EPA’s purpose wasn’t simply to make the rule more – or less – stringent, why did it ignore the Corps and try to bury the disagreement?

How about hubris?

I noted earlier this year and as far back as 2010, EPA’s tendency towards self-righteousness.  I also pointed out how counterproductive that self-righteousness is; it makes it more difficult for EPA to achieve its goals.  While I still think that EPA is self-righteous, hubris seems the apt description today.

The ACOEL “China Project” - Speaking Opportunity in Xian, China

Posted on July 30, 2015 by James Bruen

The College’s International Pro Bono “China Project” reports a very interesting speaking opportunity in Xian, China.

            1.         Speaking at the All China Lawyers’ Association Annual Training Conference

            This speaking opportunity will be for one Fellow to address the All-China Lawyers Association’s annual training session. ACLA is the official professional association for lawyers (the rough equivalent of the American Bar Association) of the People's Republic of China. It was founded in July 1986. All lawyers of China are members of ACLA. 

            ACLA Director Zhou Saijun reports that the national lawyer training has been scheduled on October 17 and 18, in Xian. These dates conflict with the ACOEL annual meeting in New York, but we have no ability to change the date. On the other hand, we have spoken with officers of the ACOEL and they agree that the opportunity is for just one Fellow, so overall attendance at the annual meeting will not be materially affected.  The involved Fellow would accept this opportunity with the College’s full endorsement.

ACLA Director Saijun will forward the detailed agenda for the ACLA conference when the eventually complete it. But, as usual, they hope that the

“…. ACOEL speaker could introduce general US attorney system, environmental law and regulations, as well as how lawyer can play important role in the field of environment, energy and resource law. The topics for this annual training focus on lawyer’s role on oversea investment (relevant to Chinese international development strategy called one road one belt ), on enforcement of environmental law and how lawyer can serve PPP, etc.”.

As usual, we will ask ACLA/NRDC to confirm that they will reimburse the speaker for round trip coach airfare and other reasonable travel expenses. We imagine that the speaker may wish to extend his/her trip a day or more to see Xian’s famous terracotta warriors.

2.        To Be Considered for the Opportunity

If you wish to be considered for this opportunity, please promptly send Jim Bruen (jbruen@fbm.com) a copy of your current curriculum vita. Jim will also answer any questions. He will send all vitae received on or before 5:00 pm PST August 12  to ACLA/NRDC so that they may promptly select the Fellow who they feel best meets their needs as speaker. The selected Fellow will then contact Wu Qi and Grace Gao of NRDC/Beijing to coordinate travel and other arrangements.

Don’t miss this fascinating opportunity. 

View from the Top: John Cruden on Federal Environmental Enforcement

Posted on July 28, 2015 by Blogmaster

 

ACOEL Fellow John Cruden, head of DOJ’s Environment and Natural Resources Division, recently gave this speech to the ABA Litigation Section on the current direction of federal environmental enforcement efforts.  The speech focuses on efforts to coordinate with and leverage local, state, regional and international partners.

Third Circuit Upholds Chesapeake Watershed TMDL

Posted on July 24, 2015 by Ridgway Hall

On July 6, in American Farm Bureau Federation v. EPA, a Clean Water Act case involving important issues of first impression, the U.S. Court of Appeals for the Third Circuit upheld the Chesapeake Bay Watershed Total Maximum Daily Load (TMDL)  – the largest and most complex TMDL ever issued. This watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. Its population is 17 million and growing.

Under Clean Water Act Section 303(d), when a water body is not meeting water quality standards, a TMDL must be developed, typically by the state, subject to EPA approval. It specifies the maximum amount of a pollutant that can be discharged to the water body and still meet water quality standards. Under Section 303(e), the TMDL becomes part of a state’s “continuing planning process,” which specifies the measures the state will take to bring the impaired water body into compliance. This plan is designed by the state, with EPA oversight, but EPA has no authority to implement the plan.  In addition, the Act does not define a TMDL or spell out exactly what EPA may do to assure achievement of the water quality standards if the plan is not adhered to.

The Chesapeake Bay TMDL was issued by EPA in December, 2010. It was the culmination of over 25 years of unsuccessful efforts by the Bay states and EPA to stem the increasing discharges of nitrogen, phosphorus and sediment which were damaging the water quality of the Bay, causing losses of blue crabs, oysters, and other aquatic organisms – including notably those at the base of the food chain, and impairing a number of uses: commercial, recreational and aesthetic. Because of the interstate nature of the pollution and the complex scientific issues involved, in 2006 the Bay states asked EPA to take the lead in drafting a watershed-wide TMDL, in consultation with them and the public, which EPA did.

In prior blogs I have described the substance and background of the Bay TMDL, the district court decision upholding it and the issues raised on appeal and the large number of amicus briefs from across the country on both sides. In American Farm Bureau Federation, appellants claimed that EPA exceeded its statutory authority by (1) establishing not just the maximum daily and annual loadings of nitrogen, phosphorus and sediment, but also waste load allocations to a number of permitted point sources and load allocations to “sectors” of nonpoint sources (such as agricultural and urban stormwater), (2) specifying target dates for compliance (60% of the necessary measures in place by 2017, and the rest by 2025) and (3) requiring “reasonable assurance” by each state that it is making progress with its plan, to be reviewed at two-year intervals for which “milestones” were to be established. 

While the TMDL was in development, interim action has involved an iterative process in which each state developed a “watershed implementation plan” to eventually bring its part of the Bay watershed into compliance, with input from county and local government entities and the private sector. EPA has conducted regular reviews and advised states of any shortcomings. This advice is then discussed, with the states having the final say on implementation measures.

With this background, the Third Circuit first considered the jurisdictional issues of standing and ripeness, which had not been raised by the parties. The court held, as many other courts have, that a TMDL is not a regulation but an “informational tool” which gets implemented when permits are issued or other regulatory measures are taken. If it is not currently impacting anyone, who can have standing to challenge it? The court found that while the TMDL is not itself enforceable, where a petitioner can demonstrate a high likelihood that it will be affected by the implementation that will follow, it has standing. This test was met by the farm community represented by the Farm Bureau. The court then held that the TMDL was ripe for review because it was a purely legal dispute on a well-developed record, and hardship would result to the parties if the merits were not addressed. As the court put it: “If there is something wrong with the TMDL, it is better to know now than later.”

Because the statute neither defines a TMDL nor sets out what EPA must or might do if satisfactory implementation is not undertaken by a state, the court concluded that Chevron deference was warranted so long as EPA’s actions were reasonable and consistent with the purposes of the Act – in this case to substantially improve the quality of the nation’s waters. The court stated, citing extensive case law, that often Congress legislates in broad terms, leaving to the agency the task of filling in the “gaps” based on its expertise and evolving experience. The court then noted that EPA has had regulations in place defining a TMDL as the sum of the loadings from point and nonpoint sources to a water body for over 20 years, they had never been challenged, and had been discussed by numerous courts. The court held this definition reasonable. It further held that since a TMDL is an informational tool, EPA acted reasonably in including loading allocations to point sources and categories of nonpoint sources, especially in light of the interstate nature of the TMDL and the complexity of moving thousands of sources towards compliance with water quality standards.

The court also held that EPA did not err in prescribing target dates (which are hortatory but not enforceable) because Congress clearly intended that water quality standards be achieved with reasonable promptness. Similarly it held that EPA acted within its authority in requiring “reasonable assurance” from the states that they are taking appropriate measures leading to achievement of water quality standards. The court further held that none of EPA’s actions illegally impinged on the rights of the states to make the detailed choices as to which sources to regulate, and how stringently, to achieve the TMDL loadings. Nor did EPA intrude improperly into matters of local land use regulation, which is traditionally the province of the states.

As a result, all of the cleanup and restoration measures being taken throughout the watershed based on the TMDL can continue to go forward, now that the foundation on which they are based is secure. In addition, this decision, by resolving a number of key issues, will provide valuable guidance to practitioners across the country.

DUTCH COURT: NETHERLANDS MUST DO MORE TO REDUCE GREENHOUSE GAS EMISSIONS

Posted on July 21, 2015 by John Dernbach

            On June 25, 2015, The Hague District Court in the Netherlands issued an order and opinion requiring the Netherlands to reduce its greenhouse gas emissions by 25 percent below 1990 levels by 2020.  This level is more ambitious than the 17 percent reduction goal to which the Dutch government has currently committed.  The case, Urgenda Foundation v. State of the Netherlands suggests what courts may be willing to do when government policy lags behind what climate science indicates is needed. 

            Urgenda sued the government in tort under the Dutch Civil Code on behalf of itself and 886 individuals, claiming among other things that “the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change.”  For U.S. lawyers, accustomed to limited governmental tort liability under federal and state law, the breadth of this claim may be startling.  But it was also novel, though less so, to the court, which explained that this legal issue “has never before been answered in Dutch proceedings.” 

            Although the state has considerable discretion in policy making for climate change, the court said, that discretion is constrained by both the U.N. Framework Convention on Climate Change and the Treaty on the Functioning of the European Union (TFEU).  Objectives and principles of the Climate Change Convention and the TFEU that constrain Dutch discretion, the court said, include “protection of the climate system, for the benefit of current and future generations, based on fairness;”  the precautionary principle, and consideration of “available scientific and technical information.” 

            Urgenda’s case was based on numerous scientific reports, including the 2007 report of the Intergovernmental Panel on Climate Change (IPCC), which said that Annex I countries (including both the Netherlands and the United States), need to reduce their greenhouse gas emissions by 25-40 percent below 1990 levels by 2020, and 80-95 percent below 1990 levels by 2050, to limit the global temperature increase to 2.0 degrees Celsius.    Parties to the Convention on Climate Change have agreed that a temperature increase above that level (equivalent to 3.6 degrees Fahrenheit) would be dangerous. 

            After analyzing multiple factors relevant to the appropriate duty of care, the court concluded that the state “has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% percent compared to the year 1990.”   It ordered a 25 percent reduction, saying there are “insufficient grounds for the lower limit” of a 40% reduction from 1990 levels specified in the 2007 IPCC report.  

            Although the case was decided under Dutch legal rules that are quite different from our own, and may be appealed, it has significance to U.S. lawyers.  First, it shows great respect for climate change science, describing IPCC and other scientific reports in considerable detail.  The case therefore underscores the important role that courts can play in affirming the validity of climate change science.

            Second, the court’s willingness to interpret domestic law in ways consistent with international commitments, including those in the Convention on Climate Change as well as the commitment to keep warming to 2.0 degrees Celsius, raises an interesting and important question about whether U.S. domestic laws related to climate change also should be interpreted in ways consistent with international commitments.  U.S. courts have often held that statutes should be construed in a manner consistent with treaties and other international obligations.    

            Finally, the decision indicates the value of judicial intervention as a way of forcing governments and businesses to do more than they are doing.  Additional legal support for such cases was provided, in March 2015, by the issuance of the Oslo Principles on Global Climate Change Obligations.  These principles were developed by a group of legal experts from around the world.  The central idea is that “[s]tates and enterprises must take measures, based on” the precautionary principle, “to ensure that the global average surface temperature increase never exceeds pre-industrial temperature by more than 2 degrees Celsius.”  Many sources of local, national, and international law support these principles, the experts said, including “international human rights law, environmental law and tort law.” 

            According to a report issued on July 16, 2015 by the American Meteorological Society, 2014 was the warmest year on record.  As the effects of climate change intensify, there may be more such litigation, and decisions like this could become more common.       

IT’S BEEN A LONG TIME COMING… 27 Year Old RCRA Underground Storage Tank Rules Get a Facelift

Posted on July 20, 2015 by Karen Crawford

I remember as though it were yesterday when the Underground Storage Tank (UST) regulations were finalized in 1988, requiring owners and operators to register existing as well as new tanks, then ensure prevention, detection and remediation of releases into the environment.   Owners and operators were also required to perform release detection inspections and demonstrate financial responsibility for cleaning up releases.   New tanks were required to meet certain design, construction and installation requirements aimed at preventing releases.  While technology for meeting those requirements has evolved over the ensuing 27 years, no significant regulatory changes have been implemented – that is, until this week. 

Many owners and operators decided to pull or close USTs in lieu of meeting those regulatory requirements but, because certain tanks are underground for safety reasons, that was not always a viable alternative.  Because I was new to private practice and saw an opportunity, I set out to become the “Queen of USTs" in the Carolinas.  These days, I still help clients on remediation projects involving releases from USTs and review due diligence reports on real estate where USTs are or have been used, but it has been a long time since I gave a speech or wrote an article about UST regulation. 

On July 15, 2015, EPA promulgated a final rule modifying the 1988 UST regulations implementing requirements for secondary containment and operator training applicable to both new and existing USTs, implementing key provisions of the Energy Policy Act of 2005 (which modified Subtitle I of the Solid Waste Disposal Act) and fulfill objectives in EPA’s August 2006 UST Tribal Strategy ensuring parity in program implementation among states, territories and in Indian country.  Citing two peer-reviewed but unpublished studies of causes for releases from USTs, along with statistics showing there are still as many as 6000 releases from USTs discovered each year, and touting development of new, the 2015 changes to the original regulations are aimed at ensuring the USTs are still working as intended, by focusing on operation, maintenance and training requirements. 

While certain waste water treatment facility and nuclear power facility partial or complete deferrals are continued, this regulation removes deferrals set forth in 1988 for field-constructed tanks, airport hydrant fuel distribution systems that meet the UST definition, and UST systems storing fuel solely for use by emergency power generators.  Hospitals, airports, communications providers and utilities should particularly take note of these changes.

This blog would grow to an article if it addressed in detail all of the technical requirements of this 117-page regulation, but there are some that take effect immediately and require attention.  For example, regulations disallowing flow restrictors in vent lines to meet the overfill prevention requirement at new installations, and also triggered when an existing flow restrictor is replaced, apply immediately on the effective date of this final regulation, July 15, 2015.  Also, testing following a repair is required on the effective date of the regulation.  Most of the other implementation deadlines for notification, testing, inspection, recordkeeping, demonstrations of financial responsibility compatibility and required technology upgrades are set at three years after the effective date of the final 2015 UST regulation or July 15, 2018. 

There is one exception to the deadline for compliance being either immediately or in 3 years.  The secondary containment requirement is implemented for all new UST systems 180 days after the effective date of the rule, and tanks and piping installed or replaced after April 11, 2016 must be secondarily contained and use interstitial monitoring per the regulation.  EPA explains that 180 days allows owners and operators to adapt plans for new systems.       

Training of owners and operators (definitions for three classes are set out in this regulation) must be completed within the three years after the effective date of this regulation.   EPA explained that requirements for implementing walkthrough inspections and release detection equipment testing were adjusted to correspond to the training deadline so inspectors and testers will better understand what to look for.  Apparently, many of the deadlines and implementation requirements were adjusted by EPA in response to comments on the proposed rule.

Conversely, in response to comments regarding the potential costs on small business owners, EPA responded that it carefully considered such potential impacts of the proposal; EPA declined to implement recommendations of a small business advocacy review panel under the Regulatory Flexibility Act as some commenters suggested.  Finally, while EPA’s final rule allows records to be maintained on paper or electronically, in keeping with the move to electronic filings and submittals, the agency encourages owners and operators to maintain electronic records to “simplify compliance” and utilize “21st century technology tools.”

Tenth Circuit Rejects Commerce Clause Challenge to Colorado’s RPS

Posted on July 16, 2015 by Jeff Thaler

On Monday July 13, 2015, the 10th Circuit Court of Appeals held that Colorado’s mandate that the state’s biggest utilities get 30 percent of their power supplies from renewable resources is legal, rejecting a dormant commerce clause challenge. In the case of Energy and Environment Legal Institute v. Joshua Epel et al, decision, Judge Gorsuch began the unanimous decision in an unusually clear, direct and non-traditional style; the opening paragraph says it all: 

Can Colorado’s renewable energy mandate survive an encounter with the most dormant doctrine in dormant commerce clause jurisprudence? State law requires electricity generators to ensure that 20% of the electricity they sell to Colorado consumers comes from renewable sources. Under the law, too, this number will rise over time. It may be that Colorado’s scheme will require Coloradans to pay more for electricity, but that’s a cost they are apparently happy to bear for the ballot initiative proposing the renewable energy mandate passed with overwhelming support. So what does this policy choice by Coloradans affecting Colorado energy consumption preferences and Colorado consumer prices have to do with the United States Constitution and its provisions regarding interstate commerce? The Energy and Environment Legal Institute points out that Colorado consumers receive their electricity from an interconnected grid serving eleven states and portions of Canada and Mexico. Because electricity can go anywhere on the grid and come from anywhere on the grid, and because Colorado is a net importer of electricity, Colorado’s renewable energy mandate effectively means some out-of-state coal producers, like an EELI member, will lose business with out-of-state utilities who feed their power onto the grid. And this harm to out-of-state coal producers, EELI says, amounts to a violation of one of the three branches of dormant commerce clause jurisprudence.

In the end, the district court disagreed with EELI’s assessment and so must we. 

Deference to EPA on the Wane?

Posted on July 13, 2015 by Renee Cipriano

The Supreme Court’s latest opinion in an environmental rule challenge, this to the Mercury and Air Toxics Standard, or MATS, raises more questions than it answers.  As discussed on this blog site (see here, here and here,) the Court in Michigan v. EPA held that EPA had not reasonably considered costs when determining to regulate power plant mercury emissions.  EPA must factor cost into its initial determination that it is “appropriate and necessary” to regulate hazardous pollutants from power plants.  The Court passed no judgment on whether EPA can meet that burden. 

At the heart of the issue was Congress’ acknowledgement that the 1990 Clean Air Act Amendments would subject power plants to numerous controls to reduce sulfur dioxide, nitrogen oxides, and particulates.  Section 112 of the Act requires EPA to regulate power plants if “regulation is appropriate and necessary after considering the results of the study.”  Congress further acknowledged that these measures also might reduce hazardous air pollutants, and that no one knew at the time whether additional controls would be required to protect human health from air toxics emitted by power plants. 

To determine that, EPA was required to conduct a study.  In 1998, EPA’s study concluded that regulation of coal and oil fired power plants was “appropriate and necessary.”  EPA reaffirmed this finding in 2012, noting that mercury and other hazardous air pollutants were “appropriate” to regulate because they posed a risk to human health and the environment and that controls were available to reduce the pollutants.  EPA found that it was “necessary” to regulate because other pollutant emission limits and requirements did not eliminate the risks. 

The Court, in a 5-4 decision written by Justice Scalia, analyzed EPA’s action through the Chevron deference standard, determining that “EPA strayed far beyond those bounds when it read §7412(n)(1) to mean that it could ignore cost when deciding whether to regulate power plants.”  Ultimately, the Court held that “Chevron allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not.”  Id. at 9.

The Court went on to reject EPA’s contention that it need not factor cost into its initial determination to regulate because the agency must take cost into consideration when later determining how much to regulate.  The Court colorfully remarked that:  “By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system.” The Court’s strong language cautioning EPA to use “reasoned decision making” and not “gerrymander” statutory requirements should give EPA pause as it is set to promulgate greenhouse gas reduction measures for power plants in its Clean Power Plan this summer.  Numerous comments filed in the so-called Clean Power Plan rulemaking docket have charged EPA with overstepping its statutory boundaries, and the Court seems to be signaling its disfavor of such action.

Since the decision, speculation as to whether and how EPA will fix MATS has been rampant. 

  • Will EPA abandon MATS completely, requesting vacatur?  Not likely.  In public remarks and testimony before a Congressional subcommittee during the week of July 6, Administrator Gina McCarthy cited the health benefits already achieved by the rule, indicating the agency would not back down.
  • Can EPA fix the rule based on the current administrative record?  Some believe that EPA can simply re-jigger its existing analysis and logic, fronting the cost issue in the “appropriate and necessary” finding, perhaps calling this a “technical amendment” to the rule. 
  • Will EPA seek a stay of the existing rule while it recalculates costs and re-proposes the rule?  Because the rule went into effect in April 2015, companies already have installed a range of controls from activated carbon injection to installation of flue gas desulfurization equipment.  Each type of control has costs and benefits, as well as impact on other pollutants.  Many of these controls may remain operational to comply with other CAA requirements; therefore, a stay may have disproportionate impacts on industry members as some cease to operate controls and others continue to operate them.
  • But could EPA’s re-proposal result in even more stringent emission limits?   Absolutely.  Would EPA be wise to lower the standards further?  Given the cost and disruption caused by MATS so far, absolutely not.
  • And how will any of these possibilities affect the “already regulated” argument that will be used to attack the Clean Power Plan?  Section 111(d), the basis for the Clean Power Plan, prohibits regulation (whether of the source or the pollutant remains to be decided) if a Section 112 standard exists.  So if MATS goes away, does the legal basis for the Clean Power Plan become stronger?

How the ongoing, never-ending EPA effort to achieve hazardous pollutant reductions from power plants will play out remains to be seen.  The Supreme Court’s close reading of the directives contained in the statute, coupled with its references to balanced costs and benefits, leaves the impression that any rule with wide reach better be well-reasoned and justified.  No doubt EPA is taking notice. 

Water, Water, Everywhere - and not a Drop Unlitigated

Posted on July 10, 2015 by Susan Cooke

The U.S. EPA and Army Corps of Engineers have designated July 13 as the official issuance date for purposes of judicial review of their Final Rule defining the scope of “waters of the United States” or “WOTUS” under the federal Clean Water Act.  However, a number of lawsuits have already been filed, including four separate actions brought on behalf of a total of 27 states and a fifth action filed by Murray Energy Corp., a privately held coal mining company.

The lawsuits seek to overturn the Final Rule on several grounds that include:

  • Usurpation of state authority over intrastate waters in violation of the Constitution’s Commerce Clause and Tenth Amendment
  • violation of the federal Administrative Procedures Act (APA) due to the Final Rule’s allegedly unlawful expansion of federal powers granted under the federal Clean Water Act, as well the arbitrary and capricious nature of the rulemaking;
  • violation of the APA’s requirement to provide notice and opportunity for comment on proposed rulemakings, and to properly respond to comments made during the comment period; and
  • violation of the National Environmental Policy Act’s requirement to prepare an environmental impact statement for a major federal action significantly affecting the quality of the human environment.  

The object of all this attention is a long expected – and expansive – WOTUS interpretation adopted by EPA and the Corps.  As reported on this blog site, the rule is controversial; the draft generated over one million comments.  For a comprehensive analysis of the draft rule, including the cases leading up to the rule, see the American College of Environmental Lawyers report for the Environmental Council of the States.  

The Final Rule, which does not change much from the draft, is intended to provide more certainty regarding what is and is not subject to the Clean Water Act’s Section 402 and 404 permitting provisions and its Section 311 oil spill prevention and response provisions so as to reduce case-by-case determinations of applicability.  Despite the inclusion of a number of definitions and exclusions, it is doubtful that this goal has been achieved, given the number of new situations where a “significant nexus” determination must be made.

The significant nexus inquiry finds its genesis in Justice Kennedy’s concurring opinion in Rapanos v. United States where Justice Scalia wrote the plurality opinion.  According to Justice Kennedy’s opinion, wetlands adjacent to navigable waterways are waters of the United States based on a “reasonable inference of ecologic interconnection” in accordance with the Supreme Court’s 1985 opinion in United States v. Riverside Bayview Homes.  However, isolated wetlands or wetlands adjacent to a non-navigable tributary, either alone or in combination with similarly situated lands in the region, [must] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable” in order to fall within the purview of the Clean Water Act.  Rejecting a bright-line test, Justice Kennedy noted that a “mere hydrologic connection should not suffice in all cases” as it “may be too insubstantial . . . to establish the required nexus with navigable waters as traditionally understood.”

The Final Rule broadly defines “tributaries” and “adjacent waters” and classifies them as “per se” jurisdictional waters, along with waters used in interstate or foreign commerce, interstate waters and wetlands, territorial seas, and impoundments of such waters.  It also identifies a number of other waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairies) as navigable waters if they meet the significant nexus test which involves consideration of a number of factors identified in a compilation of peer reviewed scientific reports assembled by EPA.  

All of the complaints reference the Supreme Court’s Rapanos decision, as well as the Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, regarding what constitutes a “navigable water”.  In particular, they claim that the Final Rule goes well beyond the limits set forth in those decisions, including Justice Kennedy’s “significant nexus” test in Rapanos.  Some of the complaints provide pretty convincing arguments on the latter point, and so another “wave” of litigation can be expected.  Given that the litigation now extends back 30 years, a paraphrase of that old adage about water – and litigation - being everywhere seems right “on course”.

WILL POWER PLANT HAZARDOUS AIR POLLUTION SURVIVE MICHIGAN V. EPA?

Posted on July 8, 2015 by Leslie Carothers

Twenty-five years in the making, the Environmental Protection Agency’s regulations to reduce emissions of mercury and other hazardous air pollutants (HAPS) from power plants recently ran aground in the Supreme Court.  As discussed in this blog site last week, (see here and here,) the majority opinion by Justice Scalia in Michigan v. EPA held that EPA erred in failing to consider cost when it made the threshold statutory finding that listing of power plants for regulation was “appropriate” under a special provision for power plants in the hazardous pollutant sections of the Clean Air Act. 

The dissenters, in an opinion by Justice Kagan, disagreed that costs had to be considered at the initial listing stage.  She contended that costs were properly addressed when specific standards and requirements were developed for various source categories in the course of the normal rulemaking process, and emphasized that a final cost-benefit analysis was conducted to evaluate and support the decisions made. 

Although Justice Scalia was at pains to say that the Court was not specifying the details of the cost analysis required, the majority was plainly troubled by the agency’s findings that the benefits of the mercury controls alone were valued at an annual value of only  $4-6 million compared to an annual cost of $9.6 billion.  However, mercury was not the only HAP controlled by the rule, and the co-benefits of incidental removal of other toxic fine particulate pollutants were estimated at $36-90 billion in EPA’s cost-benefit analysis.  Those big numbers reflect robust scientific evidence of the incidence of illness and death caused by particulate emissions. 

The majority did not address whether such co-benefits could be relied upon in a determination that the cost of the power plant rules was “appropriate.“ The D.C. Circuit will have to define the terms of EPA’s redo of the cost analysis.  We are likely to hear more about counting of co-benefits in cost benefit comparisons, an issue also presented in EPA’s proposed Clean Power Rule for power plant greenhouse gas emissions.  Reducing carbon emissions also reduces particulate emissions even more, and the monetized benefits of that effect exceed the harder to estimate benefits achieved in slowing global warming. 

Public Health and Environmental Consequences of the Decision

Despite the Supreme Court’s action, commentators on both sides of the issues agree that major benefits of the regulation will not be lost.  A trade publication estimated in May that half of the power plants subject to the rule have already installed the required emission control technology to meet multiple EPA air pollution rules, in addition to the hazardous pollutant rule.   Another 200 plants given an extra year to comply are installing and testing equipment.  Several dozen plants accounting for only 1% of industry capacity reportedly are the remaining uncontrolled sources that will continue to operate without controls or plans to install them until the Michigan case is concluded. 

Many companies that have complied with the rules are doubtless disappointed to see the perennial “free riders” get another reprieve; some intervened on EPA’s side in the Michigan case to complain about unfair competition from uncontrolled plants.  But the majority of power plants, to their credit, are already delivering the public health and environmental benefits of the rule for the community.  

Citizens unhappy with the continuing failure to regulate old coal plants may wish to support the divestment movement, recently joined by Georgetown University, in dumping coal company securities.  The day Michigan v. EPA was decided, the stock of three major coal producers rose about 10%.  If the price jump holds, now looks like a good time to sell.

DONALD TRUMP AND THE 18 POINT SOURCES

Posted on July 7, 2015 by Michael Gerrard

Since he's much in the news these days, I thought I'd share this story about an encounter of Donald Trump with the Clean Water Act.

Back in 1919, Eugene Meyer (a chairman of the Federal Reserve, the first president of the World Bank, publisher of the Washington Post, and father of Katherine Graham) built a palatial mansion on a 230-acre property in Westchester County, New York (about 40 miles north of New York City) known as Seven Springs. Eventually the property fell into disuse, and in 1996 Trump bought it so that he could build a luxury golf course there, with the mansion as the clubhouse. The land straddled the extremely affluent towns of Bedford, North Castle and New Castle, so those towns' zoning approval was needed.  It was adjacent to Byram Lake, which serves as the drinking water reservoir for the much less affluent Village of Mount Kisco.  More than one-third of its population is Hispanic.

Crabgrass and dandelions, of course, would be utterly unacceptable at a Trump golf course, so the plan involved the considerable application of pesticides.  Mount Kisco became very concerned that the stormwater runoff from the golf course flowing into Byram Lake would contaminate their drinking water. They hired me as their environmental counsel to see if Trump's plan could be stopped. Since none of the golf course was in Mount Kisco, the village had no direct authority. The town of New Castle gave Trump a hard time over traffic impacts, and he decided to give up plans to use that corner of the site for his project. Bedford and North Castle don't rely on Byram Lake for their water and weren't so concerned about the pesticides.

A close reading of the appendices to the environmental impact statement (when laid against state regulations) revealed that pesticide levels in the runoff could exceed drinking water standards under certain scenarios.  Trump proposed to address this problem through a novel technology called "linear adsorption systems" that would involve a carbon filtration unit at each of the 18 holes. The land would be graded so that the runoff went into these filtration units, which were supposed to remove the pesticides and discharge clean water into Byram Lake.

No such system had ever been built before, and we didn't know if it would work. We wanted it tested first. A local citizens group made up buttons saying "We're Not Trump's Guinea Pigs," with a drawing of a guinea pig and a red slash through it. The golf course didn't seem to require any state approvals, but I was able to convince the state environmental department that capturing the runoff, treating it, and discharging it through pipes had the effect of converting a sheet flow into point sources, requiring NPDES permits for each discharge point. This afforded us the opportunity to get a public hearing before the state regulators (in which we packed a high school auditorium with Mount Kisco residents worried about their drinking water), and then an adjudicatory hearing at which we pressed the need for a pilot test of the treatment system.

The hearing led to a decision that a pilot test was needed. We then entered into protracted administrative adjudication over the parameters of the pilot test.

All this went on for eight years. Finally, in 2004, Trump gave up the idea of the golf course and decided instead to build a small number of large single-family homes. That residential project involved far less use of pesticides than a golf course, and Mount Kisco was satisfied with it. The NY Daily News covered the story with the headline, "Trump 'Fires' Plan for New Golf Course Over Community Pesticide Concerns."

The local approval process for the homes took many more years, and was punctuated by litigation with the Nature Conservancy over an access easement.  Trump now has his approvals but construction of the homes has not yet begun. The property has been mostly idle during all this time, except that in 2009 he rented a portion of the land to some tenants from the Middle East, until it turned out that the tenants planned to erect tents to be used by Muammar el-Quaddafi while he was In New York for a United Nations meeting. When Bedford learned of this, they issued a stop work order because one can't erect a tent in Bedford without a permit, and Quaddafi never visited.

In the end, the environmental impact review process and the Clean Water Act did their jobs, the people of Mount Kisco still enjoy clean drinking water, and the occasional dandelion still pokes its head through the grass. And, notwithstanding all of this, Donald Trump tells us that he is still really, really rich.

Report from the ACOEL International Pro Bono Program

Posted on July 1, 2015 by James Bruen

            There are exciting developments in the College’s pro bono projects for Cuba, China and East Africa. This is our updated report.

            1.         Cuba

            With permission of the Executive Committee, the College has applied for a license to work in Cuba from the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). OFAC has replied by assigning the College a case number (an important development since we now have access to a Treasury Department case officer to help us) and noting that the College’s potential activities might (or might not) qualify for one of the 12 exceptions to the requirement for an OFAC license. We can either take our chances by proceeding with work and keeping careful records of our activities while awaiting a potential audit or apply for a specific opinion or license for a specifically described project. The pro bono program will work further with the Executive Committee to determine the nature and timing of our potential work in Cuba, but we regard this as a very promising path forward for the program.

            2.         China

            Notwithstanding the May 26 press coverage of the proposed new Chinese legislation declaring that Western non-profits are no longer welcome in China (describing them as “potential enemies of the state”[1]), our program continues to go forward with opportunities to work there. Zhou Saijun, the Director of Environment and Energy Committee under All China Lawyers Association has confirmed that ACLA will continue to cooperate with ACOEL and NRDC for its annual lawyer training. This event will take place in Xian in September 2015. There will be an opportunity for a College Fellow to speak at the training session. We will know shortly the proposed date and topic for the speech. As usual, we will ask those interested to submit their curricula vitae to me for transmission to the ACLA. They will select the Fellow they feel is most suited to their needs.

            Xian, as you may well know, is the site of the famous, and once-buried, terracotta warriors and their terracotta horses. It should be on everyone’s bucket list.

            3.         East Africa

            Coordinating the legal and political clients for work in East Africa has been challenging. But within the month, I hope to circulate a survey to solicit expressions of interest for work on  East African environmental issues. I will do what I can to get our African contacts to pick up the pace.

            In the interim, please call me at 415.954.4430 if you desire further information.

 


[1] See May 26, 2015 Wall Street Journal article by Andrew Browne which states in part, ”There have always been challenges in dispensing humanitarian services across such a vast country—everything from HIV/AIDS awareness campaigns to environmental cleanups and care for orphans. Regulations are so onerous that it is virtually impossible for many civic groups to operate legally. Still, thousands persist, often counting on sympathetic local police and officials to turn a blind eye to infractions. But that kind of indulgence may soon be ending. A Chinese draft law treats the entire sector of foreign nonprofits as potential enemies of the state, placing them under the management of the Ministry of Public Security. ***”