FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

Posted on October 27, 2016 by Seth Jaffe

In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the Endangered Species Act (“ESA”).  Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play.  Specifically, the FWS announced that

"we will be initiating an entirely new status review of the North American wolverine,hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

Why You Should Pay Attention to ECOS

Posted on October 26, 2016 by Martha Rudolph

ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS?  And, why should you care?  As the current Past President of ECOS, I acknowledge upfront that I might be biased – but consider the following.  ECOS is the national non-profit, non-partisan association of state and territorial environmental agency leaders.  ECOS was founded in late 1993 at a time when the relationship between states and the EPA was strained.  As Mary A. Gade, then director of the Illinois Environmental Protection Agency, put it:  “The times called for states to assume primary responsibility and leadership for environmental protection.  As individual states began to articulate this new perspective, state commissioners realized the need to band together for information-sharing, strength, and support.” 

Today, reflected in the ECOS 2016-2020 Strategic Plan, much of ECOS’ original purpose remains:  “To improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of the United States of America. Our belief is that state government agencies are the keys to delivering environmental protection afforded by both federal and state law.”

While the purpose remains consistent, how ECOS achieves it has evolved.

One example lies in the ECOS-organized forums where states and EPA meet to discuss - and often debate - environmental concerns and our respective roles in implementing and enforcing environmental programs.  While the early ECOS years were not without success working with EPA, the tenor of the overall relationship with EPA was uneven.  Today, ECOS has a productive relationship with EPA.  We still discuss, debate, and disagree, but in a much more constructive way.  EPA representatives at all levels routinely attend and engage in the spring and fall ECOS meetings, as well as other ECOS conferences.  ECOS members have been invited to internal EPA budget meetings to share our budget concerns and needs.  ECOS and EPA have worked on several joint-governance projects, including the creation of E-Enterprise for the Environment.  Through E-Enterprise, state, EPA and tribal representatives work to streamline environmental business processes and share innovations across programs to improve environmental results, and enhance services to the regulated community and the public by making government more efficient and effective.

ECOS is fast becoming the “go-to” organization for Congress, the White House, federal agencies, national organizations, and the media to learn about state issues, concerns, positions, innovations and ideas regarding environmental matters.  Through engagement with senior government officials, testimony before Congress and many position letters, ECOS has expressed state perspectives on key legislative and regulatory issues, like reform of the Toxic Substances Control Act, funding for state environmental programs and water infrastructure, increased authority over coal combustion residual sites, workload flexibility in state-EPA agreements, enforcement training, expediting federal facility cleanups, and environmental justice tools. 

ECOS has developed relationships with the Department of Energy and the Department of Defense:  these agencies regularly participate in ECOS.    ECOS’ Legal Network brings state environmental agency counsel together with EPA counsel and DOJ’s Counselor, to explore lessons learned from successful enforcement and compliance initiatives, and to discuss best practices and enhanced collaboration. 

So, how about the relationship among the states themselves?  ECOS has also become a venue for states to explore differences in positions and ideas.  Not surprising, membership within ECOS is politically diverse.  ECOS has recognized and embraced this diversity by creating a space for states to express their opinions and positions, encouraging members to learn from each other, to reach “across the aisle” to understand differing perspectives, to compromise where needed and to develop strong and lasting relationships.  ECOS will pull in experts from within the states and from other organizations to provide valuable and sometimes critical perspectives and analyses on important issues, so that state environmental leaders can better understand the complexities and impacts of environmental programs and initiatives.  The lawyers of ACOEL are one source of that expertise, and they have provided valuable legal analyses to ECOS and its members on the Clean Power Plan and WOTUS.  ECOS is even reaching across state agency lines, as shown by this spring’s Memorandum of Agreement with ECOS, EPA, and the Association of State and Territorial Health Officials to advance cooperative initiatives pertaining to environmental health, acknowledging that the public health and well-being of U.S. citizens relies on the condition of their physical environment.

So, why should you care about ECOS?  Because the vast majority of day-to-day environmental program adoption, implementation and enforcement is done by the states.  As Mary A. Gade said when ECOS was first created: “Charged with advancing a state’s environmental agenda, state commissioners strategize daily with governors, state and national legislators, and local government officials to accomplish their goals.  State environmental commissioners have political access, substantive expertise and, most importantly, legislative combat experience.”  When you organize a group of battle-ready commissioners who lead state environmental programs, and who meet and work together on a regular basis, wouldn’t you want to know what they are doing?  My advice:  check out http://www.ecos.org and find out what you are missing.

WHO YA GONNA CALL?

Posted on October 25, 2016 by Keith Hopson

(Best read while humming the theme song from Ghostbusters)

In an unprecedented move (to my knowledge) the Industrial and Hazardous Waste Permits Section of the Texas Commission on Environmental Quality (TCEQ) recently requested permit holders provide the agency with their facility’s primary and secondary emergency response points of contact.  Specifically, they ask for the names and office and cell and/or pager numbers.

The information is typically included in a facility’s permit, but my personal experience is a change of phone numbers or even personnel may or may not result in a timely permit modification.  The fact the agency intends to keep this information in a spread sheet format should make the data more readily available in an emergency than having to extract the information from one or more permits.

The inspiration for this somewhat unusual request was the recent proliferation of earthquakes in our neighboring state to the north although any other natural (floods, hurricanes, or tornados) or manmade disasters could well result in the same need. 

A simple action?  Yes.  Could it be very beneficial?  Certainly; because, as we all know, in an emergency it’s important to know who ya gonna call …

Flint litigation: an interim update

Posted on October 13, 2016 by Jeffrey Haynes

Along with the flood of news coverage of the Flint water crisis comes the flood of litigation.  So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the expected plea deals.  Here are some highlights.

In April, a federal district judge dismissed for lack of subject matter jurisdiction a §1983 claim for “safe and portable water” as preempted by the Safe Drinking Water Act.  The case is on appeal.

Class actions have been filed against state and municipal officials in federal court, the Michigan Court of Claims, and Genesee County Circuit Court, seeking damages for personal injuries, property damages, and relief from water bills.  Along with the usual governmental immunity defense, defendants assert a statute of limitations defense, with a fair likelihood of success.  The governmental immunity defense is complicated by Governor Snyder admitting fault.  That admission strengthens plaintiffs’ gross negligence exception to governmental immunity.

So far, the Attorney General’s criminal charges have resulted in the usual plea deals by underlings.  The Flint water quality supervisor whom I lauded in a previous post as the only principled public servant in this mess (a position with which the Attorney General agrees) pled no contest to willful neglect of duty; the plea is essentially nothing, because the court took the plea under advisement with dismissal in one year if the supervisor cooperates with the investigation.  A state official reached a second plea deal, pleading no contest to willful neglect of duty regarding an outbreak of legionnaire’s disease with the usual cooperation clause.

Politics saturates the Flint legal landscape.  Attorney General Bill Schuette is widely expected to run for governor in 2018 and must therefore appear to be doing something, such as filing an unusual professional negligence and public nuisance claim against the Flint outside engineering firms.  And when the Flint mayor notified Michigan of intent to sue the state, the state receivership board with continuing jurisdiction over Flint removed the city’s authority to sue.

Stay tuned.

Cuba Delegation Part 4: Las Terrazas

Posted on October 12, 2016 by Eileen Millett

I stood staring at the ruins of slave quarters on what had once been a 19th century coffee plantation situated in the northwestern part of Cuba ― Las Terrazas, in the Sierra de Rosario mountains.  I was struck by the unabashed preservation of the old with the new.  Slave quarters juxtaposed with Algarrabo cententarios trees growing up through the balconies and ceilings of La Moka, an ecological hotel.  La Moka is a modern twist on old colonial architecture, with a multi-tiered atrium lobby built around trees that disappear magically skyward.  We had journeyed 45 minutes from La Habana above the shores of San Juan Lake and beneath the mountains to another place and time. 

Las Terrazas is a biosphere with a protected ecosystem, a buffer zone that supports ecological practices, and an area that fosters ecologically sustainable development.  It combines a small community of about 1,200 people, many of them artists, with ecotourism.  The hotel and the buildings seem to melt into the mountains by design.   In those mountains, even with my Spanish proficiency, I struggled to understand Ariel Gato, in his artist studio, where hanging in the sun was his very own recycled computer paper for drawing, prints, and other art work.  Later, I learned his accent was shared by many farmers, or campesinos, influenced by the Haitian settlers who brought coffee, and spoke the French language.   Gato is renowned for his art work, but he is clearly more than simply an artist.  

In 1968, then-President Fidel Castro founded a green revolution, making Las Terrazas a green project.  Architect Osmany Cienfuegos mobilized work brigades that created terraces of timber, fruits, ornamentals and vegetables.  Starting in 1971, the brigades carved roads through the mountains to build homes, schools, playgrounds and clinics all surrounding San Juan Lake.  Owing to the success of the reforestation project, the biosphere came under UNESCO protection in 1984.

We walked through Las Terrazas and were treated to zip line tours, steel cables whisking people above Las Terrazas; enjoyed coffee that was muy sabroso; and learned something about the art of coffee-making along the way.  In the old days, slaves had to turn the coffee beans― red in their original form― every 30 minutes.  Still today, this dry method is used where water is scarce.   Coffee beans are spread out on huge surfaces to dry in the sun.  Beans are raked and turned throughout the day and then covered at night or during rain, in order to prevent the beans from spoiling.   From this vantage point on the ranch, we could see the port of Mariel, where the Brazilians and Cubans are building a major container terminal that will have the capacity to handle vessels deeper than Habana Bay, and will have facilities for offshore oil exploration.  We are marching toward a new day for Cuba.

Small expressions of sustainable initiatives seem to be on the rise in Cuba.  The day before visiting Las Terrazas, we visited a local permaculture project near Cojimar, a seaside village, best known for its setting in Ernest Hemingway’s novel The Old Man and the Sea.  Mosquitoes fell in love with me there, but we could have been in any 1950’s fishing village.  Nearby, we encountered a family-run business –Planta de Fregado—an ecological car wash that uses plant solids, gravity feed and carbon filtration for a completely organic car wash.  The owner was enthusiastically confident of replicating his system all over Cuba. 

In Cuba, the legacy of slavery and the old African traditions blend seamlessly with so much of the new world.  In some ways they are frozen in time and in other ways, not so much.  Little Zika problem here, at least with standing water outside, as we witnessed systemized mosquito spraying throughout the countryside.  However, the mosquito problem occurs with water indoors, as no amount of education convinces people not to keep glasses of water under their beds, in the corners of rooms and on dressers to ward off evil spirits or to bring good luck.  Officially Cubans are atheists, unofficially Roman Catholic, but in reality most Cubans practice Santeria, a system of beliefs that merges Yoruba myth with Christianity and indigenous American traditions.  The Cubans are unabashed in recognizing African influence in their music, their food and their religion.  Perhaps it has, too, influenced permaculture projects, and the biosphere reserve ― Las Terrazas.  

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Cuba Delegation Blog 2: Notes from Our Informal Meetings

Posted on October 10, 2016 by David B. Farer

Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba.  I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there.  We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.

One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life.  Most, though, expressed optimism for the future of their country.

You may find some of the notes below inconsistent or contradictory.  I think that’s reflective of the differing viewpoints and experiences to which we were exposed.

Sept 7, 2016:  Meeting with Political Scientist /Publisher/Editor

•    Cuba in transition; you are here at a special time

•    Changes had already occurred before December 2014; more changes since then, and more to come

•    Electoral system:  Citizens vote for representatives to the  National  Assembly/ Assembly chooses President and Vice President

•    Raul Castro has committed to step down in 2018

•    Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro

•    Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers

•    Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals

•    In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.

•    Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.

•    The outside perception of Cuba may be that Cubans have the least available access to world views through the internet.  However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.

•    Human rights issues remain, including prohibition on founding political parties

•    Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.

  • This year: expecting the total to be more than 500,000

•    Key issues for updating the Cuban socialist model:

  • Have to confront increased social inequality & poverty
  • About 20% suffering from poverty; 4 times more than 20 years ago
  • Yet others are achieving higher overall income with salary plus additional sources of income.  Income differential and poverty must be dealt with.
  • Severe housing shortage is a critical problem.
  • Housing in bad condition/ and housing shortage
  • Super centralization as a defensive posture
  • Overextended bureaucracy
  • Water supply/ energy supply problems
  • 20% of Cubans are over 60; by 2025, that will be up to 25% 
    • Life expectancy is about 80 years
    • Population growth rate = -1.5%
    • Birth rate has been low since early 70s
  • Surge of migration.  65% more than the year before.  Up by 45,000 this year.
  • Media:  all media is currently government media
  • Inconsistent economic system 
  • High dependency on imports
  • Low domestic food production and industrial output

•    Last of the key issues/problems:  U.S. policy toward Cuba

  • Negative impact of embargo
  • Fortress mentality
  • Travel restrictions for U.S. citizens

•    Cuban culture is closer to American culture than that of any other country in the region

Sept 7, 2016:  Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science

•    The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).

•    Among other things, it manages protected areas in Cuba.

•    Foundation has collaborated with foundations/NGOs  in U.S., and there have been visits back and forth

•    Biggest problem is that the embargo gets in the way of funding from U.S. institutions

•    Over 50 international cooperative projects over the past 21 years

•    Goal of conservation of Cuban biodiversity and geographical diversity             

•    Problems:  invasive species/ pollution/ climate change/mining   

•    Existing environmental legal framework:

  • National environmental policies, strategies and legislation
  • Article 27 of the Constitution on protecting environment
  • Law number 81:  Approved 1997

•    Cuba has entered three treaties/conventions:  on bio diversity, climate change, and drought.

•    Most important current issues are seen as:

  • Soil degradation
  • Loss of biodiversity
  • Damage to forest cover and lack of water
  • Climate change vulnerability

•    Where does Cuba go from here?  Varying views expressed:

  • Process of last 60 years for environment has been good/big question is how to preserve going forward as things change     
  • Having to redefine behavior and economy
  • Problem of dealing with laws on the books that reflect a former reality
  • We are a country rich in spirit and ideas, but we are poor in our economy
  • How to organize the economy?
  • Challenge:  don't take the same directions that others took 100 years ago
  • Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
  • Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
  • Right now it is reactive, not preventive.

•    General discussion among them:

  • Need to access financing and technology to protect the environment and human settlements 
  • Existing law based on national/fed strategy and structure.  No local structure. 
  • No legal framework to determine the information you need and which set of regulations applies.   There can be conflicting regulations from one ministry to another.  This needs to be combined and systemized.
  • No unity on legislation, on what it means; you get lost looking for information.
  • Same on pollution controls:  different regulations from different ministries.  Cleanup standards as example:  One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
  • Implementing ministry does not itself have the power to enforce.  Other institutions may have power to enforce.  So there is an issue on means of enforcement.
  • Current law already has a way to incentivize local application of laws or enforcement  of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring

Sept 7, 2016:  Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)

•    The official worked at CITMA until she retired in 2014.  Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.

•    Overview of environmental law in Cuba:

  • Until 1990, done empirically
  • But after 1990, determined to be in interest of the  state and the agency to control environmental issues
  • Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
  • Continues under Ministry of Science
  • Within the Ministry, there is an Agency on the Environment
  • There are several other institutions within the environmental agency.
  • Local administrations propose areas to protect: geographic areas/not topics
  • The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
  • Ministry works together with local government
  • When a company wants to work in one of these areas, it has to pass consideration by  a commission that considers what company wants to do
  • Ministry of Science issues permits to companies to work in these areas.
  • Ministry's model for development requires compliance with permits:  risk, air quality etc. within one permit roof
  • Ministry follows UNESCO standards for protection of biosphere
  • Other ministries also have an interest:  geographical and others including tourism
  • Other involved institutions:  Ministries of Mining, Energy, Tourism, for example, depending on project.

Sept 9, 2016:  Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment

•    They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better

•    But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments

•    Since 1992, Cuba has been on path to amend laws to meet international commitments

  • As a result of those commitments, have to revamp institutions:
  • Such as sustainable development
  • But need a clearer legal framework to make it work better

•    Biggest problem here has been adaptation, as opposed to remediation

•    But now:  a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this

•    Per the Paris Accord, we have to deal with adaptation as well as mitigation

•    Have to regulate technology to regulate environment

•    Should look to integrate all of the different laws

  • Right now, each agency issues its own regulations
  • Would be good to integrate and facilitate within one unit       

•    Specific focus could be to introduce a legal framework for  the verification of  remediation, mitigation and adaptation.

•    Currently, each ministry issues resolutions:  their own general determinations to be followed

•    Vertical governmental structure:

  • Municipal/provincial/ national
  • Local decisions cannot contradict national or provincial decisions
  • They don't have equivalent of state legislation

•    CITMA decisions have to be observed all over the country

•    Each province also has experts in each area, representing the Ministry in the region

•    Same at municipal level

•    There are civil and criminal penalties in the current environmental laws

•    The environmental laws are meant to be preventative but there have been sanctions

•    Ministry of Justice tends to have all fines and sanctions in one single act.   And they do find efficiencies here, having fines and sanctions centralized within one act.

•    There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments

•    Almost everything needs an environmental license of some degree:  Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical

•    Mariel Port district being dealt with very firmly and strictly

•    There are municipal/ provincial/national courts, including specialty courts like the environmental court

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

Posted on October 6, 2016 by Seth Jaffe

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.

Cuba Delegation Part 1: Havana Calling – The College’s New Initiative for Pro Bono Work in Cuba

Posted on October 5, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

Is You Is Or Is You Ain’t Transformative?

Posted on October 4, 2016 by Andrea Field

More about that title later, but first let me set the stage.  On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor petitioners challenge EPA’s Clean Power Plan (CPP, the Plan, or the Rule).  The Plan regulates carbon dioxide emissions from existing power plants under Clean Air Act (CAA) §111(d).  I will refrain from addressing issues on which the trade and mainstream press have opined at length (e.g., the judges’ frustration at being asked to make policy decisions because Congress has failed to act and that participants – judges, lawyers, parties, reporters, the public – had to sit through almost 7 hours of argument in one day, in addition to the hours many spent waiting in line).  Instead, I offer an ACOEL-centric tour, in non-chronological order, of the five “segments” of the September 27 argument. 

Argument Segment #2:  The Battle Between CAA §§112 and 111(d).  Aficionados of the College’s 2014 white paper on EPA’s §111(d) regulatory authority will recall the difference of opinion over whether – under the 1990 Amendments to the CAA – EPA is prohibited from regulating power plants under CAA §111(d) if EPA already regulates power plants under CAA §112.  Plan challengers point to the plain meaning of §111(d)(1)(A) as it appears in the U.S. Code.  Plan supporters point to the existence of a “conforming amendment” to §111(d)(1)(A) found in the Statutes at Large but omitted from the U.S. Code, and they argue that EPA’s approach is a valid attempt to reconcile that amendment with the U.S. Code.  After listening to the judges express frustration at not being able to satisfyingly reconcile the two versions, I recalled D.C. Circuit Judge Leventhal’s concurring opinion in Citizens to Save Spencer County v. EPA, in which he concluded that contradictory CAA provisions should be viewed as “countermanding.”  Quoting from Eugene Field’s poem “The Duel” – about the fight between the gingham dog and the calico cat – he summed up the irreconcilable differences as follows:  “The tension between the two animals culminates in these final lines of doggerel:  ‘The truth about the cat and pup is this, They ate each other up.’ ”

Argument Segment #3:  Constitutional Issues.  If forced at knife-point to articulate the first portion of this argument, which began at 2:35 p.m., right after the lunch break, I would be unable to do so, other than to say that the word “commandeering” cropped up a lot.  More interesting was how the second advocate for petitioners on this point – Professor Laurence Tribe of Constitutional law fame – was able to expand his separation-of-powers argument into a further analysis of issues argued during the morning session. 

Argument Segments #4 and #5:  Notice and Record-Based Issues.  At the end of a very long day, the panel heard arguments on (a) whether EPA’s standards are “achievable” and whether parts of the Plan’s approach have been “adequately demonstrated” under §111; and (b) whether the final rule is so different from what was proposed that the public lacked notice and an opportunity to comment.  Petitioners arguing the former point (the unachievability of program requirements) faced a weary panel, which pondered what the options for state and source relief would be if the Rule is upheld but later turns out to be a train wreck.

A colleague describes as follows the situation that gives rise to parties complaining that they had no notice of what a final rule would require because EPA’s proposal was so different:  “EPA may propose an apple and finalize an orange.  That’s OK; they’re both fruits.  What EPA may not do (and what petitioners argue EPA has done here) is to propose an apple and finalize a pork chop.”  Dick Stoll passionately argued – in his June 7, 2016 post for ACOEL – that previous 3-judge panels in the D.C. Circuit have not properly dealt with this lack-of-notice issue.   Those panels refused challengers’ attempts to overturn pork chops, saying challengers of pork chops must first file administrative petitions for review under CAA §307(d)(7)(B) and then wait (for what could be years, if ever) for EPA to act on those petitions.  Dick argued that the only way the previous 3-judge panel decisions would ever be overturned was by action of the entire court, sitting en banc.  I cannot promise Dick the entire court will overturn the previous panels’ reading of §307(d)(7)(B), but I can say that Tom Lorenzen teed up the issue.  When asked by Judge Griffith whether this argument appeared in petitioners’ briefs, Lorenzen said it did not because when petitioners wrote their briefs, the case was going to be heard by a 3-judge panel.  But said Lorenzen, looking up at Judge Griffith, “Now we are here.”  To which Judge Griffith replied, “And who else to ask but an en banc court?”  “Exactly,” said Lorenzen. 

Argument Segment #1:  Core Legal Issues.  Although I visit Argument Segment #1 last, the fate of the Clean Power Plan may well rest on how the panel addresses the issue raised at the very beginning of the day:  whether or not the Plan is “transformative.”  The Supreme Court, in UARG v. EPA, held that EPA cannot engage in a “transformative expansion” of its regulatory authority absent “clear congressional authorization” to do so.  Petitioners argue that EPA’s Clean Power Plan amounts to a transformative expansion of EPA’s explicit regulatory authority and thus is illegal.  EPA argues the program is not “transformative”; indeed, says EPA, the Rule is very similar to other CAA programs that the D.C. Circuit has upheld.  So, is the Rule “business as usual” or is it “transformative”?

And so we return to the title of this post.  I cannot predict what the D.C. Circuit will decide, but I think its determination will revolve around how the en banc panel answers the following question about the Clean Power Plan:  Is You Is or Is You Ain’t Transformative?  And that question prompts me to offer these final lines of doggerel in memory (and honor) of Judge Leventhal:

 

To predict the end here, it’s informative

To know if C-P-P is transformative.

To prevail in this Court,

One must prove that the sort

Of change caused by that Rule is enormative.

Coming Soon to a Jurisdiction Near You—Mandatory Radon Testing?

Posted on October 3, 2016 by James B. Witkin

Starting October 1, 2016, Montgomery County, Maryland, requires that before a single family home is sold, it must be tested for radon.  The law applies both to existing homes and newly constructed homes being sold for the first time. The law permits either the seller or buyer to perform the test, but both parties must receive a copy of the results, and the test must be performed using a County-approved device. The law does not require that action be taken, or any remediation be performed, regardless of the test results.

Radon hasn’t been in the news much recently, so here’s the CliffsNotes summary: radon is a naturally occurring, odorless and colorless gas that results from the decay of certain radioactive soils and rocks, including uranium and radium.  Those substances are present in many areas of the country, including those that have never had a working uranium mine (such as Montgomery County, Maryland, which abuts Washington, DC). People exposed to high levels of radon are at a higher risk for lung cancer, especially if they also smoke. According to the National Cancer Institute’s website, radon is the second leading cause of lung cancer in the United States, and scientists estimate that 15,000 to 22,000 lung cancer deaths in the United States each year are related to radon.

Although the EPA has established guidance levels for radon--currently the agency suggests that people consider taking action if the level of radon in their home exceeds 4 picocuries per liter (pCi/L) of air--there are no enforceable federal radon law laws, and a quick review of state and local laws did not reveal any other jurisdictions that require testing or abatement.  Some laws do require disclosure if the seller of a home has knowledge of the presence of radon.  The Montgomery County mandatory testing law appears to be one of the first—if not the first--in the nation.

So why is Montgomery County a radon pioneer?  The County is affluent, its population  well educated, its politicians usually progressive, and as it is home to offices of agencies such as National Institutes of Health (NIH), and National Oceanographic and Atmospheric Administration (NOAA), it has been generally been receptive to environmental concerns. While the County is classified by the EPA as being located in an area with the highest potential for radon (compared to the rest of the country), radon has not been much in the local news.

At the Federal level, in 2015, a number of federal agencies and some private groups (including the American Lung Association) launched the National Radon Action Plan, a long range strategy with the goal (among others) of mitigating 5 million high radon homes by 2020. Still, in the country as a whole, publicity and awareness about radon appears relatively low, compared to other environmental health issues, such as the public water crisis in Flint, Michigan.

So:  is the Montgomery County radon law a harbinger of things to come nationally, or it is an outlier?  Take a deep breath, then take a guess.