The Window, Again

Posted on December 23, 2016 by Steven J. Levine

My practice, one way or another, is all about compliance . . . or noncompliance.  This is as true of the litigation side as it is of the regulatory counseling side.  I typically face the question of which of those terms best describes the situation a client brings to me.  It’s always been true that the practice goes beyond the mere facts or law at hand.  The real world also includes the client’s culture and values, politics, and economics.  These aspects, and others in varying proportions, have usually controlled process and outcome.

Today I am witnessing what appears to be an unprecedented unraveling of these foundations.  I see it in the words and actions of regulators, consultants, other attorneys, judges, and clients.  Obviously this imposes itself on the lawyer’s task of figuring out what the problem is, on the one hand, and, on the other, what the best advice for a client might be, specifically how (and when) to address the problem.  The path forward these days seems to be influenced, often significantly, by two related things:  widespread mistrust of government/science/etc., and a social media rife with rumors, innuendo, assumptions, and the like.  So I find myself asking:  of what value is advice derived from traditional avenues of carefully established fact, well-analyzed law, professional judgment, and years of relationship building?

I find the answer in the first week at my first real law job clerking for a federal district court judge.  On the third day of that job, I stood behind my desk, looked out the window, and thought, with despairing certainty:  I don’t have the tools to do this job!  I will never make it as a law clerk!  I will never make it as a lawyer!  Why did I ever go to law school?  Time passed.  Things cleared up.  I learned how to begin to apply what I knew to what I had to do.  And, while the view may be new, the path forward is the same as ever.  Now, as I think about the potential unraveling of fundamental policies and foundations upon which we have rested for a generation, I’m looking out of that same window, in a sense. 

Doin’ the Dunes – I Thought It Was Over

Posted on December 20, 2016 by Joseph Manko

In July I wrote what I thought surely would be my last blog on the more than three years of legal challenges by the City of Margate, New Jersey Commissioners with their decision not to appeal the state and federal courts’ upholding the State’s and Army Corps’ authority to build dunes in Atlantic County, New Jersey.  I titled the blog “Signing Off” – concluding that the fat lady had in fact sung. 

Well I was wrong. 

Six residents have now paraded into U.S. District Court with their expert, Chuck Dutill, a civil engineer and hydrologist, to testify before Judge Renee Marie Bumb, who had decided the earlier case.  Judge Bumb called the testimony “pretty fantastic,” but confirmed that this was the gist of the testimony:

“It sounds like from your testimony the Army Corps is turning the beach into a junkyard,” she said. “You’ve described a big parade of horribles: animal feces, oils, adults being hurt. It sounds pretty fantastic. Is that in some way hyperbole if you don’t mind? Is that your testimony?”

“That is absolutely my testimony,” Dutill replied.

“What I’m hearing is what the defendant proposes to do is turn the beach of Margate into the junkyard of Margate,” the judge said. “That is what I’m hearing.”

And until she rules – and as expected rules against the residents – and they decide to appeal, the fat lady continues to stand by for yet another reprise.

Electoral College vs. College Football Playoffs

Posted on December 19, 2016 by Thomas Lavender

I’m not sure – but, here’s a thought.

As we all know, or should know, it’s fall, and college football in the South rules the weekends.  Alabama is still the consensus No. 1 in all the polls, including the College Football Playoff (CFP) poll, the only one that truly counts after mid-season – neither the AP Top 25 nor the Coach’s poll will have a bearing on the contestants vying for the chance to play for the final trophy. 

Strangely enough, even prior to the kickoff of the first college football game, our forefathers chose to establish the first Tuesday in November every four years as the day we face off in a more important college contest, that of the electoral college.  At a college football game where 95% of the attendees (or more depending upon the stadium), a/k/a, fanatics, or fans, are in favor of one contestant, and the outcome is measured by points scored in favor of the winner of any given game, the CFP poll ultimately determines, by some seemingly independent process, the four “best” teams in the country who will compete for the ultimate prize, the National Football Championship.

Now, to the Electoral College, which is also believed by some to be totally disconnected from the popular vote of the participants and by others as totally complimentary of the popular vote.  Here, the concept of the Electoral College was, by many accounts, crafted to achieve a balance of the demographics of the Country and to minimize the likelihood that the urban areas, or the aristocracy, alone, depending upon which version one reads, could determine who ultimately leads the strongest nation in the world.  At best, while potentially, or actually in more than one instance, the Electoral College “Trumps” the popular vote just like the CFP trumps the AP-25 and Coach’s polls.  Meaning, it doesn’t matter who the media or the college coaches think are the best four teams in the Country, or that 3 million more voters think the President should be, the CFP and the Electoral College will ultimately decide.

Like it or not, that’s just the way it is.

EPA Adds Vapor Intrusion to Hazard Ranking. Can You Say “Deck Chairs on the Titanic?”

Posted on December 16, 2016 by Seth Jaffe

EPA has finally issued a final rule including vapor intrusion in the Hazard Ranking System.  The good news is that this is appropriate, because VI is one of the few real hazards regulated by the Superfund program.  The bad news is that the Superfund program is so hopeless that promulgation of the rule will probably substantially multiply the cost of addressing VI without buying an ounce of additional public health protection.

In a blog post more than five years ago, I provided a rant that I feel has stood the test of time.  In that post, I asked why Superfund was ill-suited to address VI, even though it’s precisely what EPA should be doing.

"Why should this be so? Could it be because CERCLA is the last bastion of almost totally pure command and control regulation? Might CERCLA remedy decisions take less time if EPA did not have to select remedies, but instead only identified appropriate cleanup standards and let PRPs select the remedy? Might cleanups get implemented faster if the PRPs’ obligation was simply to meet cleanup standards and provide sufficient information to EPA or 3rd party auditors to demonstrate that the cleanup standards have in fact been met?

I hope that the new administration doesn’t roll back this rule while leaving CERCLA in place, because that would be backwards.  I hope instead that the administration leaves the rule in place, but takes a hard run at really reforming CERCLA.  The administration could work with Congress to amend CERCLA to provide that EPA would promulgate cleanup standards for different media and then allow PRPs to attain those standards without direct government oversight.

This is, of course, not a massive right-wing plot.  Many left-leaning states, including the great Commonwealth of Massachusetts, have done exactly that.  Massachusetts has been operating a privatized system for more than 20 years.  If CERCLA were thus amended, I think I could die, or at least retire, happy.  

And I won’t even try to pretend that this clip is really relevant, but it just seemed right.

WORRIED ABOUT OUR CLIMATE FUTURE? LOOK TO YOUR PLATE

Posted on December 15, 2016 by Peter Lehner

If the worst should happen—if the U.S. withdraws from the Paris climate agreement and rescinds President Obama’s Clean Power Plan—do we have any hope of protecting climate stability? Yes. Even in the face of such serious setbacks, all would not be lost. Clean energy and energy efficiency are already a part of our power system. Wind energy is less expensive than coal in some parts of the country, and the prices of wind and solar are expected to drop further still as projects already funded come online. Our vehicle fleet is more efficient than ever and will continue to save drivers money at the gas pump. And there’s another factor driving greenhouse gas emissions that we have enormous personal power to change: the way we eat. 

The effect of diet on climate change is extraordinary. According to a tool called the Global Calculator, developed last year by an international team led by the UK Department of Climate Change and the Environment, simply reducing (not eliminating) meat consumption worldwide—without any changes in other activities, including fossil fuel use—could move us nearly halfway toward meeting the 2° Celsius (3.6° Fahrenheit) limit in temperature rise set by the Paris agreement. By contrast, if the entire world ate meat in the way rich countries do now, emissions would go off the charts, even if we took big steps to cut climate pollution in other areas.

Eating meat—beef in particular—has a major impact on climate pollution because of the amount of carbon-storing forest that is cleared to raise grain for cattle, the emissions created by fertilizer used to grow that grain and the emissions from the digestive systems of cows themselves. Beef is responsible for about 20 times more climate pollution per unit of protein than lentils or beans and 8 times more than pork or poultry.

Eating meat, especially beef, has a major impact on climate pollution.

GLOBAL CALCULATOR

In the image above, the rising black line represents climate emissions if the world fails to take any other positive climate action. (All data is based on our modeling using the Global Calculator.) Continuing along our current path would lock us into 7.2°F of warming in this century and nearly 10.8°F in the long run, resulting in swamped coastlines, bleached coral reefs, increased disease, water insecurity and a host of other effects. On the other hand, if meat consumption falls to levels currently found in India (the caloric equivalent of eating one serving of chicken breast per week) and the proportion of beef in the meat we eat is reduced from 22 percent to 10 percent, as seen in China now, it would result in a major decline in emissions by 2050, as you can see in the falling green line.

The steep red line represents what would happen if meat consumption worldwide increased to current European levels (the equivalent of eating two servings of chicken breast per day) and the proportion of meat from beef increased from 22 percent to 28 percent, as seen now in Canada. In other words, if the world starts to emulate the diet of wealthier Western nations, emissions would rise sharply. In fact, emissions would climb beyond levels predicted under the worst-case scenario mapped by the Intergovernmental Panel on Climate Change in 2014. The panel warned of a two-foot rise in sea level by the end of this century, increasing the flood risks in coastal cities like Miami by 10 to 100 times. In other areas, droughts, deadly heat waves and tropical cyclones could also become more frequent and intense.

What’s alarming is that even if we pursue extremely ambitious reductions in climate pollution from transportation and energy, these efforts would not be enough to counteract the impacts of consuming meat at higher levels, as shown by the rising blue line on the chart.

Here’s the rub: The risk of catastrophic climate change will be almost impossible to avoid if we fail to address the impacts of meat consumption. As we ponder how the nations of the world will move forward to address climate change, and how America, in particular, will move forward under a Trump presidency, it’s heartening to know that a powerful solution like diet is available and relatively untapped.

No one expects the world to stop eating meat overnight, but we can reduce the amount of meat we eat. Many studies show that a diet high in plant-based foods and lower in red and processed meats benefits your health as well the climate. Restaurants and grocery chains are offering more plant-based options; there are even food delivery services like PlantPure Nation and Purple Carrot that make it easy to put a plant-based meal on the table. Food writer Mark Bittman’s “flexitarian” recipes are another good source of inspiration. As more people incorporate more plants and less meat into their diets, we’ll have a healthier population and a healthier planet, too.  

(This blog was first published by Earthjustice. http://earthjustice.org/blog/2016-november/worried-about-our-climate-future-look-to-your-plate)

Surveying the landscape – an approach to compensatory mitigation

Posted on December 9, 2016 by Thomas Lavender

Not that there is anything wrong with wetlands mitigation banking.  I, for one, would certainly like to own one with the perceived return on investment and lack of control on the market – but, there is another option that achieves the same “no net loss” goal for impacting wetlands.

While we all recognize that the Corps’ mitigation rule establishes a hierarchy that favors the purchase of credits from approved mitigation banks, permitted responsible mitigation is still allowable under certain circumstances.  In fact, most recently in South Carolina the landscape mitigation approach has been successfully used to further economic development projects.  In at least one instance, the landscape approach was used entirely in lieu of the purchase of mitigation banking credits.  In another, a hybrid approach was used which combined a permittee-responsible-project with the purchase of credits.

How did it work – you ask?  Rather well, I might say.  But how did it work? 

In each instance, the applicant involved a conservation entity to serve as the sponsor for the project.  Desirable property was identified which had previously been targeted for preservation by a state or federal resource agency.  The sponsor then entered into an agreement with the applicant to secure the mitigation property and, if necessary, perform any enhancement work to achieve the required mitigation credit for the project.  The applicant agreed to reimburse the sponsor for acquiring, holding, and enhancing the mitigation property.  In one instance, the sponsor will ultimately convey the property to a state resource agency.  The mitigation property will be transferred to the state resource agency, subject to a restrictive covenant to encumber the property as approved by the Corps and the resource agency.  The mitigation property only partially satisfied the mitigation obligation.  A small credit purchase for the balance was also necessary.   In the other instance, the mitigation obligation will again be partially satisfied by the purchase of the mitigation property by the sponsor on behalf of the applicant and then transferred to the federal resource agency.  However, the ratio of the credit purchase and the property purchase were approximately equal.  This approach seemed to work more effectively because it also provided for the involvement of an approved mitigation bank which did not object to the project.

Why do it – you ask?  Time and money – when time is money. 

On many large economic development projects there is often resistance from third parties or resource agencies.  Working with these third parties and resource agencies to identify desirable mitigation properties can facilitate consensus for securing a 404 permit in a timely manner.  The approach only works for the applicant when the permit timeline tracks with the project and the cost of the landscape mitigation approach is essentially equivalent to the cost of purchasing credits from an approved mitigation bank.

Try it, you might like it, Mikey. 

Conservation: Back to the Future

Posted on December 8, 2016 by Dennis Krumholz

In preparing the curriculum for my first environmental law class this coming semester, I thought it would enrich my students’ experience to read certain of the important antecedents of the modern era of environmental statutory, regulatory and case law.  Aldo Leopold’s A Sand County Almanac, a classic of conservation literature, came immediately to mind.  As a result, I have returned to a book that kindled my appreciation for ecology and the outdoors and, thereby, reinforced my interest in environmental law.

I began by reading the chapter in which Leopold muses about activities that take place during November at his sand farm on the Wisconsin River.  (Since my blog is due in early December, jumping in here seemed to make sense.)  Leopold recounts a myriad of activities in the mere twelve pages he devotes to describing this month’s developments.  One section is devoted to the unintended beneficial consequences that result from diseases that afflict his trees.  Various animals take advantage of the shelter and, especially, the food that these diseased and rotting trees provide.  Leopold’s insight is to look beyond the misfortune of losing trees; not only is this destruction a natural part of life, but - if only we are able to recognize it – death is offset by the sustenance the dying and dead trees provide to local animals.  While this “circle of life” approach is easily understandable these days, such an idea was radical when Leopold was writing in the 1940s.

The heart of the November chapter finds Leopold considering whether to chop down a white pine or a red birch.  Indeed, he considers conservation to be “a matter of what a man thinks while chopping, or deciding what to chop.  A conservationist is one who is humbly aware that with each stroke he is writing his signature on the face of his land.”  Leopold thoughtfully explores his motives in selecting to fell one tree or the other –which of the trees he planted, which is more scarce, which is likely to stand longer if untouched, which wood will fetch more money upon sale, the impact the tree would have upon animals and other plants if left standing … even his ancestors’ tree preferences.

Leopold casually reveals the many species that coexist in a deceptively simple sand farm.  He also educates his audience by gently illustrating the interrelatedness of the plants and animals and describing the seasonal impacts of cold and wind on each.  The descriptions of vegetation and, especially, the birds that nest in his trees and bushes, are enchanting.  One wishes to have Leopold take us by the arm and show us all that he observes and understands.

Leopold’s skill as a stylist, especially his use of a languid and folksy style, masks his considerable scientific knowledge.  We know that he was a college professor and that, among other fields, he understood evolutionary theory.  While it is obvious that this training informs his many observations and conclusions, yet, Leopold serves up this technical information so lyrically that readers whose experiences with botany and zoology were less than happy will feel at home.

A word about the philosophical aspect of the Almanac is warranted.  While Leopold’s observations are presented on the “micro” level, he carries a far broader message.  Leopold laments the loss of our natural environment but with an approach that educates more than criticizes.  “What is the value of wilderness?” is one of the many deeper questions lurking just beneath the surface.  Leopold believes that its value lies in and of itself, but also in its contribution to our wellbeing; the natural world is essential to the moral and spiritual welfare of humanity.

Environmental law began to catch up with Leopold’s ecological vision in the early 1970s.  Since then, it would be easy to focus our legal training on the interplay among various elements of so-called “positive” law in the protection of our natural world.  But omitting Leopold and others like him from the education of our future lawyers would be a costly error, as doing so would ignore the conservation and ecological ethic that lies at the very root of environmental protection.  Rereading Leopold reminds us of how and why our field of law first arose and why practicing it continues to hold our interest.  I urge my colleagues in the College to dip (back) into this resonant and loamy book.  I’ll bet dinner in Charleston if you, too, don’t come away with a refreshed appreciation of our natural world and a reminder of the part our professional activities play in preserving it for future generations.

AN ANTIDOTE TO INERTIA?

Posted on December 2, 2016 by Annette Kovar

Let’s face it – most seasoned bureaucrats (I confess I am one) often don’t react well to change.  Over time, there just seems to be an intrinsic inertia that builds in all bureaucracies. Federal and state environmental agencies are, unfortunately, no exception. While we in government do strive to avoid this inherent danger (problem?), the comfort of a routine can sometimes be the enemy of innovation. The catchphrases getting a lot of attention, and gaining some real traction, in government circles these days are “process improvement” and “performance measurement”.

Many state environmental agencies and the US EPA have undertaken a variety of self-examination techniques which fall under the general rubric “business process improvement” (BPI), including Lean, Six Sigma, and Kaizen to name just a few. The articulated objective is to examine key functions and processes with a view towards achieving a host of goals such as reducing costs to the agency, optimizing agency resources, and realizing better value for the agency’s “customers”. BPI may also help transform an organization’s culture to help embrace change and communicate better with the regulated community, the public, and other governmental partners. The Environmental Council of the States (ECOS) recently released a report entitled “State Environmental Agency Business Process Improvement Activity 2010-2016,” which accompanied the launch of an online database describing state BPI activities.

Applying process improvement goals in a meaningful way and tracking performance measurement through metrics helps agencies answer the question, “How are we doing?” Performance metrics can track costs and time saved, and identify areas needing improvement. It is not measuring for the sake of measuring, but rather measuring progress toward achieving identified performance goals, such as issuing an air quality permit or awarding grants within a specified period of time.

While the decision to engage in BPI may come as a top-down mandate, the implementation of actual techniques used to arrive at new goals will have to be tailored to each program’s process and appears in practice to be largely collaborative and creative, encouraging a “think outside the box” mindset. There will always be challenges—that’s probably inherent in the nature of government with the prospect of new leadership every four years or so. Process improvement and performance metrics won’t automatically diffuse the inertia in an organization. Change just for the sake of changing isn’t all that appealing without seeing real progress towards a goal.  Working together, however, initiatives borrowed from business may foster an institutional culture and organizational climate in government where personnel are more willing to accept change and perhaps come up with innovative ideas of their own.

(The author is Legal Counsel for the Nebraska Department of Environmental Quality.)

For PEAT’s Sake! Another Pathway Averting Climate Change

Posted on December 1, 2016 by Nicholas Robinson

After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times  (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere.  Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.

Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.

Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.

Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore.  Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.

Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.

Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions.  Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain. 

Some countries are taking steps to limit disturbance of peat deposits.  Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming.  Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions  of carbon dioxide from mining peat for use in compost remain at 400,000 tons.  To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats.  Peat is protected in federal parks lands of Alaska.

Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally.  Emission-trading schemes can help finance transitions from peat abuse to peat preservation.

Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change.  Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity.  Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases.  Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.

United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.”  It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.

This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.

Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030.  For peat’s sake, let us get on with it.