Posted on November 29, 2016
President Obama’s Clean Power Plan is in trouble, both in the courts and politically. I believe that Plan is a lawful exercise of EPA’s regulatory power and deserves support from the public. But it is far more likely that by January 21, 2017 the new EPA Administrator will, at the direction of the White House, seek to rescind or eviscerate the Clean Power Plan because of both aversion to regulatory action in general and campaign promises to the coal industry. That would be a disaster for the U.S. (and global) environment since coal plant emissions are the largest single source of Greenhouse Gas (GHG) emissions in our nation and our refusal to reduce them will lead other nations to slow their own efforts to cut GHG emissions. The resulting international reaction, perhaps including threatened carbon charges on U.S. exports, will put intense pressure on the White House to take climate change more seriously.
There is, however, a way for the new Administration to reduce GHG emissions even more effectively than the Clean Power Plan – and without EPA regulatory action. The White House could simply ask Congress for authority to purchase the nation’s approximately 350 operating coal plants and then promise to close half of them in five years and the balance in 10 years. Such a plan would do far more than the Clean Power Plan to eliminate coal as a major source of GHGs in the US, and would do it faster and with more certainty than EPA’s complex and potentially unenforceable regulations. Investors in renewable energy projects would also have a clear path forward, without the prospect of continued coal competition, so that such projects could once again accelerate even without large-scale subsidies.
This purchase alternative, which I call “Plan A,” could also be attractive both to existing coal plant shareholders and their workers. Coal plant shareholders and lenders now face the prospect of near-term loss of their entire investment as bankruptcies ripple across the nation’s coal fields. Workers too face near-term unemployment with or without the Clean Power Plan. Under Plan A, workers would receive generous compensation as part of the purchase of their plants, along with assistance in meeting outstanding mortgage, car loan and medical bills, scholarship assistance for themselves and their children at nearby community colleges and priority in filling jobs at new renewable energy projects.
Given the age and condition of the coal plants being purchased and the relatively small number of coal workers still active in the country, the total cost of this Plan A alternative would likely be less than or equal to the public health benefits that EPA estimated would result from closing down only a portion of those plants under the Clean Power Plan. In short, Plan A could be a win-win solution for GHG emissions without relying on EPA regulations but on Executive and Congressional action that would dramatically improve the global environment and challenge other nations to do the same.
Posted on November 28, 2016
Speculation about the environmental implications of the impending Trump presidency is running rampant. That was the case as well when Ronald Reagan was elected President. I served as an attorney in EPA Region 4 during his administration so I have a sense of dynamics that will be in play at the regional offices during the Trump administration. With this historical perspective, I offer the following thoughts on the potential impact of the Trump administration on EPA enforcement at the regional level.
· Initial Frontal Assault – The early years of the Reagan presidency were marked by a robust and concerted effort to declaw EPA, largely carried out through political appointments at Headquarters and at the Regional Administrator level (the oft-repeated refrain was “doing more with less”). Based on his condemnation of the “Department of Environmental Protection” during the campaign, I’m inclined to expect the same from President-elect Trump. However, the list of names currently being floated for the positions of EPA Administrator and Assistant Administrator ranges widely from a climate denier to well-respected former program managers at EPA. So, at this point, the jury is out on whether President-elect Trump will follow the Reagan administration’s lead or, like the George W. Bush administration, take a more restrained approach to regulatory implementation and enforcement, while recognizing the Agency’s fundamental legitimacy.
· Effectiveness of a Frontal Assault – The efforts of the Reagan administration were largely unsuccessful and relatively short-lived. At the regional level, this was due in no small part to muted but resolute resistance to those efforts from career employees. If the Trump administration pursues similar goals, I would expect similar results. I anticipate that rank-and-file enforcement personnel in the regional offices will continue to pursue and prosecute instances of statutory/regulatory noncompliance (consistent with budgetary constraints). In light of the largely completed trend of delegating environmental programs to the states, enforcement actions undertaken these days by the EPA regional offices frequently involve allegations of significant regulatory noncompliance that state programs are unable (or unwilling) to address effectively. Regional political appointees will be hard-pressed to halt or forestall meritorious enforcement actions. In addition to wanting to avoid any appearance of impropriety, those appointees will be subject to an NGO watchdog network that is considerably more developed and vibrant than it was during the Reagan years. If EPA doesn’t enforce, the NGOs will.
· Times Have Changed – Like me, today’s regulatory enforcement landscape bears little resemblance to what it looked like 36 years ago. I can well recall spirited conversations in the late 70’s/early 80’s with reluctant program managers for some of the Region 4 states concerning the states’ adoption and enforcement of a regulatory framework that mimicked the basic structure of the major federal programs (air, water, and waste). Those days are long gone, and I would anticipate that any efforts to suppress enforcement at the federal level will have minimal impact in those authorized states that have active enforcement programs. Also, while some NGOs (e.g., NRDC, Sierra Club, Environmental Defense Fund) were quite active during the Reagan administration, particularly in high profile enforcement matters, the proliferation since that time in the number and variety of well-financed NGOs at the national, regional, and state level will likely compensate for any decrease in EPA enforcement that may occur under President Trump. Ironically, what we may see in some cases is initiation of enforcement actions by EPA that blunt the use of citizen suits by NGOs, followed by settlements on terms considered less stringent than the NGOs would prefer.
Given President-elect Trump’s penchant for unpredictability and the current uncertainties surrounding the ultimate composition of the Trump environmental team, I’m not confident in my predictive powers, other than to say that we are about to embark on what I will gently call an interesting time in the history of environmental regulation. Whether it proves to be déjà vu remains to be seen.
Posted on November 18, 2016
Q: What two things do Jeb Bush, John Kasich, Marco Rubio, Rand Paul, Chris Christie, Carly Fiorina, Mike Huckabee, Bobby Jindal, Ted Cruz, and George Pataki have in common?
A: (1) None of them ever claimed that climate change is a Chinese hoax; and
(2) Every one of them promised to revoke the Obama Clean Power Plan (CPP) if elected.
How Bad Is Bad?
I’ll come back to the CPP. But first, the question so many are asking: how terrible is Mr. Trump’s election going to be for the environment? Let me begin by reminiscing. In 1980, I was in EPA’s Office of General Counsel when the “killer trees” President was elected. I don’t remember actual tears in the office the next day, but people were pretty distressed and many were threatening to leave the agency.
Things really did look bad for a while. Remember Anne Gorsuch Burford, Rita Lavelle, James Watt and many others with similar agendas? But then remember the intense and angry public reaction when it appeared that core environmental protections for clean air and clean water were in jeopardy. These people were forced out of office. William Ruckelshaus returned at the top of EPA, and the ship was essentially righted.
With that history as a guide, I don’t think the Trump Administration (disclosure: I neither supported nor voted for him) will try to make any significant changes to the vast bulk of protective air, water, waste, etc. rules now on the books. I once calculated there are over 20,000 pages of EPA regulations in the C.F.R. That’s millions of words. I think that after four years of a Trump Administration, fewer than 1% of those words will be deleted or amended.
Now back to the CPP. I am pretty sure that will fall into the 1%. Others have written about what might happen to the CPP on judicial review and I won’t try to add to that guessing game. The key thing to remember is that the CPP is currently stayed by the Supreme Court, and that stay will remain in effect until any final Supreme Court disposition – which will be many months from now.
There is a good chance that the Trump EPA will not wait for any final judicial review but rather will soon undertake a rulemaking to revoke at least the more far-reaching and controversial elements of the CPP (i.e., the provisions “going beyond the fence-line” to force wind and solar in place of coal). As explained in one of my recent blogs, there would be no need to develop a new factual record in such a rulemaking. So this process may take a couple of years, but for much of that time the CPP will remain blocked by the Supreme Court stay and the earliest CPP standards aren’t scheduled to take effect until 2022.
As also explained in my blog, thanks to a recent 3-0 D.C. Circuit opinion authored by Judge Merrick Garland (and the Supreme Court precedent that he relied upon), those in the Trump EPA should have smooth sailing on judicial review if they take the time to clearly articulate their policy and legal rationale.
And what would public reaction be to such actions? Cutting the most controversial parts out of the CPP would not jeopardize the legal basis for core clean air and water protections as the early Reagan cutbacks were perceived to do. So even if revisions to the CPP provoke lots of noise from traditional public interest groups opposing any cut-backs in GHG regulation, that noise may not resonate much with a general public much more interested in jobs, health care, and public safety.
Public reaction could be far different, though, if – as indicated in some press reports -- the Trump EPA were to go beyond significantly cutting back on the CPP and deploy a nuclear option: reversing the Obama EPA’s 2009 GHG “endangerment finding.” By doing this EPA would be trying to free itself of any obligation to regulate GHGs under the Clean Air Act. (Note: I am not addressing the more limited August 2016 aircraft emission endangerment finding.)
I think such a reversal would be extremely unwise. First, I think it would be far more vulnerable on judicial review than a significant CPP cutback. Reversing the finding would require the building of a massive new factual record. And with the growing scientific consensus that man-made GHGs are causing at least some adverse effects, even conservative judges may have difficulty upholding such a decision.
Second, having EPA in effect deny there is any climate problem from air emissions could more easily foment the kind of intense and angry public reaction that the early Reagan EPA suffered. Recall from the above that none of the other Republican candidates gunning for the CPP ever said global climate was a Chinese hoax.
Finally, I believe such a reversal is entirely unnecessary as a legal matter. As long as EPA keeps some form of GHG controls on the books, it will have carried out its legal obligations stemming from the endangerment finding. Nothing in the CAA or any judicial decision requires that the degree of GHG regulation be driven by an endangerment finding. There is nothing remotely like the MACT mandate to achieve limits being met by the best 12% in a source’s category. In short, EPA does not need to touch the endangerment finding to accomplish the goal of amending the CPP to remove its more far-reaching and controversial provisions.
More Targets and Concerns
Getting back to the basic question of how much the Trump EPA may change things, there will certainly be more rules targeted in the 1% -- the Obama Clean Water Rule for almost sure. And there are valid concerns about how much EPA’s funding and enforcement efforts may be cut back even if most rules stay on the books. Spoiler alert: I may do blogs on these topics soon.
But my main concern for people at the Trump EPA now is that they remember what happened when the Reagan EPA tried to de-regulate in a manner that was perceived as threatening core values of clean air and clean water.
Posted on November 15, 2016
What will a Trump Presidency mean for environmental law? I’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:
- It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules. I don’t see Clean Air Act amendments happening. Significant amendments might be possible to the Endangered Species Act and Superfund.
- Changing regulations is more difficult than one might think. As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives. For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it. The Clean Power Plan is another matter. All Trump needs there may be a new Supreme Court Justice.
- The easiest target is executive orders. The social cost of carbon? Toast. Guidance on incorporating climate change into NEPA? Toast.
Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.
Deep-six the Clean Power Plan
Goodbye to winter
Posted on November 14, 2016
As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change. On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss.
Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions. Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.
The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings. In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding: “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”
In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable. Although Judge Aiken was undeterred by these considerations, I still believe that to be true. Still, did the election of Donald Trump give new impetus to the case?
The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team. This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.
It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility. Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions? Could the election create a sense of urgency that a court may feel the need to address? Maybe, but this still strikes me as tough case to sustain.
A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax. Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there. California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session. Local environmentalists think the chances of a successful local climate initiative are high. The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.
Posted on November 8, 2016
The American College of Environmental Lawyers annually presents the Herrmann Environmental Writing Award to the individual who has written and submitted what we judge to be the best article from a student-edited law journal or equivalent publication published by an accredited U.S. law school, including an article, note, case comment or essay. The winning piece is selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.
The award is named in honor of our College colleague Stephen E. Herrmann, who is a distinguished, nationally recognized environmental lawyer and who has – for some forty years – been a leader in the area of environmental law as a practitioner, teacher and writer.
This year, there were twenty-nine separate entries for the Herrmann Award. A panel of ACOEL members reviewed and evaluated each entry based on its originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. After completing that review, the reviewing panel announced at the 2016 ACOEL annual meeting in New Orleans that this year’s winner of the Herrmann Environmental Writing Award is Ms. Irene Weintraub Shulman. Ms. Shulman’s article – published in the Cardozo Law Review [link] – is “NEPA and Uncertainty in Low-Risk, High-Impact Scenarios: Nuclear Energy as a Case Study.” In addition to winning the award, Ms. Shulman received a stipend of $3,500, and the submitting law journal (Cardozo) received $500. Ms. Shulman was also invited to attend a portion of the College’s meeting in New Orleans.
ACOEL remains gratified at the level of interest and academic excellence represented by all the submissions we received. And we again congratulate Ms. Weintraub Shulman and the Cardozo Law Review on their fine submission.
Posted on November 3, 2016
It is time not only to plan and prepare, but also to bring human rights and land use policies together into the discussion and much-needed governance reforms. When one thinks of population migrations, one often thinks of international movements. The issues of human rights are front and center in that context, but we don’t yet have a developed language or set of principles to apply when thinking it through here in the U.S. Hence, last week, I co-hosted a 2 and ½ day workshop on the subject with my colleagues in the International Human Rights and Immigration Clinics. We brought together experts on human rights from all over the world to focus on 4 case studies. One was the Horn of Africa where pastoralists are on the move to escape drought conditions; one was Central America/Mexico from which people are fleeing not only gang violence and poverty but increasingly severe climate conditions; a third case study focused on Native Alaskan communities; and, a fourth on coastal cities in the U.S. In addition to international experts, also participating were government representatives of several coastal cities, an expert on the Hurricane Sandy property buy-outs, several climate justice activists (including the NAACP), and people working to relocate Native Alaskans.
Together we brainstormed how to build on the Nansen Initiative and other internationally-developed principles for creating governance structures and funding mechanisms to implement plans to protect displaced persons. (Brief mention was made of imposing a carbon tax and then applying the funds to adaptation measures.) A key point of consensus was the need to use “bottom up” approaches (including local referendums) to ensure that policy makers and decision makers understand the needs of affected communities when pursuing much needed legal reforms and to begin planning now for ultimate displacement instead of waiting for disaster to strike. Many barriers exist, however. A major barrier to effective and cost-efficient planning for and management of dislocations in the U.S. (and elsewhere) is the “siloing” of jurisdiction and expertise between the many tiers of government (domestic and international). Another is the dependency of municipalities on a strong tax base which leads many to resist the notion of “retreat” or “relocation” of at-risk populations. Furthermore, land-use planning is managed separately from disaster relief planning in the U.S. More resources are (inefficiently) disbursed for responding to disasters than avoiding them. Indeed, the sinking of communities into the sea is not even considered a “disaster” under current U.S. law. Many legal reforms are needed, ranging from zoning policies to building codes to jurisdictional issues to preemption. One example: the National Flood Insurance Program not only creates perverse incentives to continue building and re-building along the coast, but it does not require that municipalities adopt zoning codes that take sea level rise or storm surges into account. We discussed legal and policy mechanisms for managing infrastructure in communities that will need to be abandoned and creating infrastructure elsewhere to support people forced to relocate. Alaskan communities are caught in a terrible Catch 22: some still lack fundamentals, such as running water, but the government does not want to invest in infrastructure in communities that will have to relocate and yet the government has been tied up in knots and unable to build the necessary infrastructure in the areas to which these peoples will relocate. And, we discussed climate change gentrification and the need to ensure affordable, sustainable, safe and healthy housing for the dislocated poor.
There is much work to be done. If any member of the College is interested in working on any of these issues with us, please let me know!
Posted on November 2, 2016
Superfund practitioners have long known that unilateral orders issued by EPA under Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), commonly known as the Superfund statute, can be very potent enforcement tools. Recipients of such orders who “willfully” choose to defy them, “without sufficient cause,” face the prospect of potentially ruinous civil penalties under Section 106(b) and treble damages under Section 107(c)(3). The term “sufficient cause” is not defined in CERCLA and has been subjected to very limited judicial interpretation. Making matters worse, by virtue of Section 113(h), Section 106 order recipients cannot obtain pre-enforcement review of such orders. Instead, they must wait until EPA brings an enforcement action, or one of the other triggers listed in Section 113(h) occurs (while the penalties and treble damages continue to accumulate, for a period which could last for years), before they can obtain a judicial determination of whether or not their defiance was “without sufficient cause.” This enforcement scheme has thus far withstood due process challenges on the ground that no penalties or treble damages can be imposed until there is a court hearing. Waiting for that court hearing can produce extreme apprehension on the part of defiant order recipients.
In United States v. Glatfelter, one of the prodigious number of reported decisions relating to the Lower Fox River Superfund Site, the Court of Appeals for the Seventh Circuit, after concluding that permanent injunctions will not be available to enforce Section 106 unilateral orders, suggested how that apprehension might be relieved:
“Nothing we have said prevents the government from seeking declaratory relief to establish that a PRP lacks sufficient cause for noncompliance, such as the arbitrariness of the selected remedy or a defense to liability.”
This suggestion may trigger a whole new round of litigation regarding Section 106 orders. For instance, does a private litigant enjoy the same right to seek declaratory relief?