The Curious Case of the Prairie Dog that Stopped Barking

Posted on August 31, 2017 by Allan Gates

In 2015 a district court enjoined enforcement of an Endangered Species Act 4(d) rule on the ground the federal government lacked authority under the Commerce Clause to regulate the take of a purely intrastate species, the Utah Prairie Dog, on nonfederal land.  The decision flew in the face of four prior court of appeals decisions in other circuits and attracted substantial commentary, including a blog post by a fellow member of ACOEL. In late March the Tenth Circuit unanimously reversed the district court decision. The Tenth Circuit’s opinion expressly embraced the prior decisions in the Fourth, Fifth, Ninth, and Eleventh Circuits that the district court had rejected.

Standing alone, the Tenth Circuit’s decision would be notable only for the fact that it restored Endangered Species Act case law to a more orthodox state of consensus.  But four procedural details add interesting contextual background.

First, the Tenth Circuit took an unusually long time deciding the case.  The court heard oral argument and took the appeal under submission on September 29, 2015.  The court did not issue its decision until March 29, 2017, exactly eighteen months later.  It is not apparent why the Tenth Circuit took so long to issue its opinion, but the length of the wait was definitely a source of nervous contemplation among the parties.

Second, Friends of Animals intervened as a party in the district court and participated vigorously throughout the trial court proceedings and appeal.  At the time the Friends intervened, October of 2013, there was little reason to think the Fish & Wildlife Service would not vigorously defend its authority under the ESA.  By the time the appeal was decided, however, the picture was different.  The Trump administration had taken office, and there was significant doubt about its interest in vigorously defending the scope of Endangered Species Act jurisdiction.  The presence of Friends of Animals as a party, and not merely as an amicus, assured there would be vigorous party opposition to the plaintiff’s petition for rehearing and potentially its petition for certiorari.

Third, after the Tenth Circuit’s opinion was issued and before the deadline for responding to the plaintiff’s petition for rehearing en banc, the Fish & Wildlife Service ordered an internal review of the 4(d) rule in dispute, to be completed in 120 days.  The review is to consider, among other things, the effectiveness of the state’s Utah Prairie Dog Management Plan in protecting the species.  The Service asked the court for a 135 day stay of proceedings to allow completion of the internal review before requiring any other action in the appeal.  The Service argued the internal review could result in changes to the 4(d) rule that might render the plaintiff’s claims moot.  The court denied the Service’s request for stay and subsequently denied the plaintiff’s petition for rehearing en banc.

The Service’s decision to initiate internal review of the 4(d) rule may wind up frustrating both the anti-ESA property rights advocates and the environmental groups.  The Service’s statement that its internal review might moot the plaintiff’s claims will likely be advanced as a reason for denying any petition for certiorari the plaintiff may file.  And the Service’s explicit focus on examining the effectiveness of the state’s Utah Prairie Dog Management Plan may foreshadow an inclination on the part of the new administration to reduce federal protection of the species despite the success in beating back the assault on ESA jurisdiction.

Assisting in the Aftermath of Hurricane Harvey: Every Lawyer Can Help!

Posted on August 30, 2017 by Brian Rosenthal

Also authored by Andrea Field & Mary Ellen Ternes

Many in the College have been asking what lawyers can do to help those in need in Texas in the aftermath of Hurricane Harvey.  Answers to that question are pouring in from many sources.  The following are a few suggestions, based on what we are hearing from legal practitioners and aid organizations in Texas. 

First, if you are a member of the State Bar of Texas, you may have received a letter from Bar President Tom Vick.  It outlines specific ways in which you can provide legal and desperately-needed non-legal help.

Lawyers who are not members of the Bar of Texas, though, can also provide legal services.   Yesterday, the Supreme Court of Texas issued an emergency order to allow out-of-state lawyers to practice in Texas temporarily in the aftermath of Hurricane Harvey, and the Court provided a registration form for the temporary practice of law in Texas. According to Betty Torres – the Executive Director of the Texas Access to Justice Foundation, which is the largest funding source of legal aid in Texas – the following are some of the types of legal services that will be in high demand after the water recedes and people try to put their lives back together:  (i) assistance with securing FEMA and other benefits available to disaster survivors; (ii) assistance with life, medical and property insurance claims; (iii) help with home repair contracts and contractors; (iv) replacing wills and other important legal documents destroyed in the disaster; (v) assisting in consumer protection matters, remedies and procedures; and (vi) assistance with mortgage/foreclosure and landlord/tenant problems.

In addition, as is often the case, what is needed most right now is money.  For those who want to assist all Texans in need of essential legal services, please donate to the Hurricane Harvey Legal Aid Fund.

The Government’s “Bare Legal Title” CERCLA Defense Wears Thin

Posted on August 29, 2017 by Theodore Garrett

The United States has encouraged economic activities such as mining on federal lands.  Such activities have resulted in contamination and subsequent CERCLA cleanup orders.  Companies undertaking such cleanups have sought contribution from responsible parties including the United States.  Two recent decision reject the government’s argument that its “bare legal title” should not give rise to CERCLA owner liability.  A logical result and also poetic justice, since the United States has consistently urged that CERCLA be construed broadly and liberally as a remedial statute.  Turnabout is fair play.  

In Chevron Mining Inc. v. United States, the 10th Circuit on July 19, 2017 held that the United States was liable as an owner under CERCLA 107(a) because it owned national forest lands in New Mexico.  The lands were mined over several generations by Chevron Mining.  Chevron began remediation expected to cost more than $1 billion pursuant to three EPA administrative orders.  Chevron then filed suit against the United States seeking contribution.  The 10th Circuit held that owner liability attaches to the United States as the owner of portions of the site, and plaintiff need not show that the defendant caused the release of hazardous wastes that required cleanup.  The court rejected the government’s argument that “bare legal title” is insufficient to trigger owner liability, noting that CERCLA contains neither an express nor an implied exception for owners of “bare legal title.”  The court’s opinion also notes that Chevron received loans from the United States, under the Defense Production Act, to fund its exploration activities and received authorization from the Forest Service for pipelines to dispose of mine tailings.  The case was remanded to the district court for further proceedings to determine the government’s equitable share. 

Similarly, in El Paso Natural Gas Company v. United States, the District of Arizona ruled on August 15, 2017 that the United States is liable under CERCLA as an owner of 19 uranium mines.  The mines are located on the Navajo Reservation and are being remediated by El Paso.  The court cited longstanding law that the United States owns fee title to reservation land.  The fact that the Navajo Nation has significant rights in reservation land is not inconsistent with the power of the United States over reservation land.  The court cited the Chevron Mining case above with approval, and also noted dicta from the 9th Circuit that the passive title owner of real property is liable.  Given CERCLA’s broad remedial purposes, the district court held that the United States, as a fee title holder with plenary and supervisory powers over reservation land, is an owner for purposes of CERCLA.  The court’s decision does not address the extent of the government’s liability, to be addressed in the equitable allocation phase of the case. 

These and other decisions will support efforts by companies responsible for remediation at CERCLA sites on federal land to have the government contribute an appropriate share of the cleanup costs.  Also, mindful of its potential liability, perhaps the government will more carefully consider risks and costs when making remedy decisions, which would be welcomed at all sites, whether or not on federal lands.

Eight Things Environmental Lawyers Can Do in the Age of Trump

Posted on August 28, 2017 by Michael Gerrard

One of the great things about the ACOEL is that its members are very diverse in their views on politics and policy.  On the subject of reactions to President Trump's environmental policies, we have a spectrum ranging from outraged to jubilant. Count me at the outraged end. I would welcome counter-thoughts from the other end of the spectrum.

With that disclaimer, here are my personal views.

This is a time of unprecedented peril to U.S. environmental law.  What can those of us environmental lawyers who are outraged do about this?

Obviously, each individual’s flexibility depends in large part on where we work – we academics have almost complete flexibility, as do lawyers in their own small firms; lawyers in NGOs quite a bit; lawyers in big law firms have significant constraints; and lawyers in government are the most tightly constrained.

But to the extent people do have flexibility, these are eight things we can do.

1. Push back

Resist these efforts by Trump, Scott Pruitt, Ryan Zinke and the rest. That may involve speaking out; suing or intervening or joining as amici in others’ lawsuits; or filing comments when the opportunity arises. We need to try to preserve the gains that were made in prior administrations to the extent possible.  Some day – though not soon enough -- we’ll have a new President who actually believes in law and science and cares about current and future generations, and when that day comes we’ll want to get back on track as quickly as possible.

2. Think globally, act locally

Much of the most important action for the rest of the Trump era will be at the state and the city levels. I’m fortunate to be in a state and a city where there is overwhelming consensus on the importance of environmental protection, and we have leaders who want to move forward – maybe not always as far and fast as we would like, but generally in the right direction. So those who are in state or city government, or who work closely with those who do, have special opportunities to devise and deploy tools that can work where you are and can serve as a model for elsewhere.

3. Decarbonize

To avoid the worst impacts of climate change we need to move away from fossil fuels and toward a clean energy economy that is centered around renewables like wind, solar and hydro, and that operates with the greatest possible degree of energy efficiency. The plummeting costs of wind and solar, in particular, mean we are in the midst of a very positive energy revolution in which renewables push out fossil. Lawyers are needed to help acquire the permits, real estate, and financing for the many new clean energy facilities and devices.

4. Adapt

The outlook for future climate change is extremely serious and seems to be getting worse. Sea level rise, melting ice, episodes of extreme heat, drought and precipitation, and other projections are no less than scary.  We need to build resilience into construction projects, natural resource management, and all manner of other activities. This can happen through zoning actions, licensing and rate proceedings, environmental impact review, and many other settings where lawyers are central players. We should do this both because we need our projects and activities to be resilient, and because if the leaders of large enterprises are led to recognize the impact that climate change may have on their own organizations, ultimately this should have a political impact.

5. Do no harm

If you can, avoid representing the NIMBY side in litigation against renewable energy projects.

In law firms -- If you possibly can, stay away from matters where you’ll be litigating on the side of Trump’s environmental deregulation campaign.

And to our friends who work at EPA, Interior, DOJ and other federal agencies -- you are in our hopes and prayers, we’re thinking of you all the time, we admire your perseverance, and to the extent we possibly can, we have your backs.

6. Reduce personal environmental footprint

Each of us can do more to lower our own environmental impact. This can mean, for example, replacing incandescent light bulbs with LEDs; insulating our homes; driving less and walking, biking, or taking mass transit more; driving electric, hybrid, or small efficient cars; eating less meat (especially beef); diligently turning off lights and appliances and closing faucets; flying less; and recycling more.

7. Contribute

Even if we can’t litigate or campaign directly, we can contribute money to those who do.  NGOs that are on the front lines of litigation, lawful activism and needed research, political action groups that work for pro-environmental candidates, and such candidates themselves are all worthy of support.

8.  Vote

Finally, there is no excuse for U.S. citizens not to vote at every opportunity, and those who can should work hard to try to persuade others to vote, and to cast those votes for an environmentally positive future.

If you do as many of these things as you can, you’ll have done your part in helping the planet through this awful Trump era, and hopefully into an area where we can all smile a lot more.

A Win for Appropriative Water Rights

Posted on August 25, 2017 by Rick Glick

In an unpublished opinion released August 24th, the Ninth Circuit rejected a long waged effort to upend the City of Bend’s water planning by forcing it to abandon its vested surface water rights in favor of an all-groundwater supply.  As is often the case, plaintiffs chose a somewhat oblique attack on the City’s water planning, relying on NEPA and forest planning laws to force a change of direction.

Central Oregon LandWatch v. Connaughton was a challenge to a Special Use Permit issued by the U. S. Forest Service to the City to construct a new pipeline and to upgrade water diversion facilities on Tumalo Creek, within the Deschutes National Forest.  The existing pipeline also was previously constructed within the national forest under a SUP, but needs replacement.  The project drew controversy. 

Plaintiffs contended that cessation of water withdrawals by the City is necessary to preserve Tumalo Falls, whereas the City argued that the project would enhance Tumalo Creek.  To maintain pressure, the old pipeline needed to be kept full, resulting in constant diversions and discharge of surplus water downstream.  The new pipeline allows the City to withdraw water on demand, which will keep more water in the stream.  In addition, the City is working closely with the Tumalo Irrigation District to further protect the creek.

An amici group comprised of municipal and agricultural water users, intervened on behalf of the Forest Service and the City.  (Disclosure:  Our firm represents the amici, and serves as water counsel to the City, though we did not represent the City in this case).  The Oregon Water Resources Department separately intervened as an amicus.

The central concern for amici was the integrity of Oregon’s appropriative water rights law, which follows the first in time, first in right principle of other Western states.  Plaintiffs sought to upend that principle by elevating federal minimum flows in the forest planning context over state water law.  Oregon law allows the Oregon Department of Fish and Wildlife to apply for instream water rights, which would have priority from the date of application and would be treated like any other water right.  The purpose of the instream right is to prevent future appropriations, and so the “minimum” flows in the water right usually comprise or exceed the entire flow of the stream.

Plaintiffs argued that the Forest Service should have imposed minimum flows for the creek in the SUP, which they contended should be derived from the instream water established for Tumalo Creek.  The problem is that the instream water right is junior in priority to the City’s water rights.  Imposing the instream water right flows as a condition of the SUP would effectively turn appropriative water rights law on its head.  The instream right—with its aspirational flow regime—would then take precedent over the City’s right.

The court below rejected that outcome, as did the Ninth Circuit but on the basis that establishment of minimum flows are not required by rule or case law.  Further, doing so would not benefit Tumalo Creek because the City’s project would “positively impact stream flows” in one reach of the creek and “have no or minimal impact” in two other reaches, one of which is subject to Tumalo Irrigation District diversions that are not subject to the SUP.

The court also found that the Forest Service did not violate NEPA by limiting the alternatives analysis in the Environmental Assessment to just two: (1) implementation of the project and (2) a “no action” alternative based on the existing SUP.  In other words, the court was not troubled by the Forest Service assuming that continuing exercise of the City’s surface water rights represents the status quo.   The court rejected plaintiffs’ argument that the Forest Service needed to additionally evaluate an alternative scenario where the City reduces or ceases withdrawals from Tumalo Creek.  The court found that the discussion in the Environmental Assessment was adequate, and relied on language in the EA that fully supports the City’s water planning:

The Forest Service determined that the surface water formed a “critical component of the City’s dual-source [water] supply.” . . . The EA explained that groundwater-only options would “compromise the City’s ability to provide a safe and reliable water supply,” reduce water flows in other parts of the Deschutes River, be costly, and be less reliable than a dual-source system. The EA also flagged possible environmental concerns posed by the groundwater-only option, including reduced surface stream flows (which are fed by groundwater) and increased energy consumption caused by pumping groundwater. This discussion was sufficient.

A dual source water system is the dream of every municipal water planner.  That redundancy is insurance against natural or human-caused catastrophes that could disable one source.  And all water users need to be able to rely on the priority of water rights under the law.  That the Forest Service and the Ninth Circuit declined to upset the City’s long-term water planning is a victory for municipal water planners everywhere.

H.R. 23: A VERY BAD FEDERAL WATER LAW BILL—AND A WORSE PRECEDENT

Posted on August 24, 2017 by Richard M. Frank

H.R. 23 is an important and most unfortunate environmental bill currently working its way through the U.S. Congress.  Sponsored by California Republican Congressman David Valadeo—with a strong assist from House Republican Majority Leader Kevin McCarthy—H.R. 23 passed the House of Representatives last month on what was largely a party-line vote, 230-190.  It has now moved to the U.S. Senate.

This California-specific legislation would “reform” federal and California state water and environmental laws in order to provide more water from federal and state water projects in California to state agricultural interests in the state’s Central Valley.  H.R. 23 would do so at the expense of environmental values.  (That’s not mere interpretation or speculation on the part of this observer—it’s the express intent of the bill.)

Why, exactly, is H.R. 23--which has largely evaded public and media attention to date--such a flawed legislative proposal?  Let me count the ways:

First, it would reverse an over century-long tradition of federal deference to state water law regarding the construction and operation of federal water projects.  Congress made that commitment in the Reclamation Act of 1902, which transformed the settlement and economy of the American West.  Congress has reiterated this commitment to cooperative federalism in numerous subsequent federal statutes.  But H.R. 23 reneges on that promise, expressly preventing California state water regulators from imposing any restrictions on the federal Central Valley Project that would protect environmental values.

Doubling down on its preemptive effect, H.R. 23 expressly exempts the CVP (and those who obtain water from it) from application of California’s public trust doctrine, which—as is true of many other states—operates as a longstanding, cornerstone principle of California natural resources law.

Additionally, H.R. 23 brazenly exempts operation of the CVP and other California water projects from the federal Endangered Species Act “or any other law” pertaining to those operations.

H.R. 23 thus is terrible news for California’s environment.  But why should environmental attorneys from other states be concerned about the bill?

The answer is again multifaceted.  H.R. 23 represents the first serious Congressional effort of 2017 to weaken application of the Endangered Species Act.  The broad ESA exemption contained in H.R. 23 could easily be replicated in future federal legislation affecting federal, state or local projects in other parts of the country.

Similarly, if the longstanding tradition of federal deference to application of state water law is breached by passage of H.R. 23, rest assured that similar attempts will be made concerning similar projects in other states as well.

H.R. 23 is opposed by both of California’s U.S. Senators, along with California Governor Jerry Brown.  Even more notably, California’s largest water district—the Metropolitan Water District of Southern California—has signaled its opposition to the bill, declaring that it “goes too far” in elevating agricultural water interests over California’s environment.

H.R. 23: an awful bill for California, and a terrible precedent for the nation as a whole.

Refining the Relationship Not Retrenchment – Cooperative Federalism 2.0

Posted on August 23, 2017 by Robert J. Martineau Jr.

The cooperative federalism approach to environmental protection in this country has been a fundamental tenet of our federal environmental laws since the early 1970’s.   In short, Congress passed laws, EPA wrote the regulations, and States sought delegation of those programs and implemented and enforced them.  When those state programs were in their infancy EPA tended to have a strong oversight role and states often looked to EPA for technical support and guidance.    EPA often limited the discretion of states in implementing those federal programs.    As states programs matured, states developed their own expertise and often identified new and innovative ways to implement federal requirements and achieve desired outcomes.   States are now authorized to implement over 90 percent of the federal programs and also take lead on most enforcement matters.    Over time the federal state relations has slowly morphed from a parent –child relationship to one of an old married couple.  A decade or so ago, EPA officials might have bristled at the notion of a coequal partnership, but no longer.

States are looking to continue to refine that relationship to help improve environmental outcomes in an efficient and cost effective way to help ensure we put limited resources to work in the most productive way.     In June, the Environmental Council of the States (ECOS) issued a white paper entitled “Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health”.  Its purpose was to highlight an ongoing discussion of the relationship of federal/state environmental regulators.  The paper is intended “to stimulate and advance” an important discussion of how “a recalibration of state and federal roles can lead to more effective environmental management at lower cost.”

This document has certainly fulfilled its intended purpose.  Since the issuance of the paper, there has been extensive discussion by and between state and federal regulators, NGOs, industry groups, legislators and others on this topic.  ECOS’ paper has served as the framework and focal point for that discussion.

ECOS’ paper sets forth nine principles on the roles and functions of EPA and the States under Cooperative Federalism in this modern era of the environmental protection enterprise.  The paper sets out ECOS’ members’ views on what cooperative federalism should mean in the areas of: 

1.      Regulation development and setting national minimum standards to protect human health and the environment;

2.      Implementing  national regulatory programs;

3.      Allowing flexibility in meeting those standards;

4.      Engagement of other stakeholders in those implementation efforts;

5.      Enforcement;

6.      Oversight by EPA of states implementation efforts;

7.      Interstate and regional environmental  issues;

8.      Scientific research and data gathering; and

9.      Funding for federal and state programs.

The paper recognizes the many challenges of refining this relationship but the interest in and around this topic has fostered much thoughtful discussion and debate.  ECOS’ recent STEP Conference in Washington, D.C. was devoted to this topic and more than 150 state and EPA regulators as well as NGOs, industry groups and academics shared their thoughts and ideas.  The Environmental Law Institute also addressed this topic in an inaugural “Macbeth Dialogues” (named after the late Angus Macbeth, a longtime ACOEL member) in a “Chatham House” format.  Discussion leaders included those from state agencies, former EPA staff, NGOs and academics.    In addition, EPA senior staff and states agency officials have addressed how to refine the relationship in meetings at EPA Headquarters and several regional offices.

Some have explicitly suggested or inferred that this “Cooperative Federalism 2.0” discussion is a ruse for less environmental protection, or relaxing of standards.  Certainly for ECOS’ members, that is not the case.  Cooperative federalism does not equal deregulation or weakening environmental protection.     While there may be separate conversations ongoing about the veracity of the effectiveness of certain rules,  that is not what Cooperative Federalism 2.0 is about.  It is about defining the respective roles and accomplishing the mission of protection of public health and the environment in a cost effective way that respects the different roles of the federal and state partners.  As the ECOS’ paper notes in its conclusion, the ECOS member States “strongly believe that positive reforms and improvements to the bedrock of cooperative federalism are needed … to create and implement environmental protection programs worthy of 21st century challenges.  States are eager to engage our federal partners, and others who have a keen interest in how the states and federal governments perform their roles, on how we can move forward consistent with these principles, in order to protect the environment and public health”.  

What to do with $10,000 Now?

Posted on August 22, 2017 by Bradley Marten

You probably see the same articles I do, entitled “What to Do with $10,000 Now.”  Everyone has an idea.  Put it in Tesla. Invest in euros. Dig a bomb shelter.

I have an idea. Give it to a law student.

You already know this, but it’s harder to be a law student than when we went to law school.  When I graduated in 1981, you pretty much got a job as long as you didn’t spill soup on your tie during the interview lunch. Even at that, it was OK to spill, as long as it wasn’t tomato soup. But law firm and government hiring is down, especially for environmental lawyers. 

The thing is, there are nevertheless a lot of law students passionate about environmental law. And there are a lot of very good environmental law programs at a lot of very good law schools. Most importantly, for those of us gently called “senior lawyers,” there are good reasons to think about one’s legacy, and that legacy is not in making more money.  It’s in helping young people in our law schools achieve their dreams.

There are lots of ways to invest in the young environmental lawyers who will lead our field in the future.  You can hire them; you can sponsor them; you can teach them; as many of our ACOEL Fellows already do. But we can and should do more, because we are in the best position to do so.  

For what it’s worth, here’s what we do at our law firm.  We hire law students and law graduates each year, even if we aren’t sure we have the work for them.  “Just in time” sourcing may work for making refrigerators, but it doesn’t work for lawyers.  We have to invest in them, and prove later that our investment was a smart one.  Second, we give a stipend each year to a law student interested in public practice so they can spend a summer at the Environmental Law Institute in Washington, DC. There, they meet leading practitioners and scholars in the field and get to research and write about topical areas. Third, we bring leading practitioners and academics to our local law school, the University of Washington, where they meet with students and faculty, and sometimes give a pubic presentation at a downtown hotel.

Some of you already do these things. It’s not a competition, and we are happy to have others do more. But if you are looking to invest, some environmental law programs to consider spending $10,000 on include these:

http://www.nysba.org/

http://www.sierraclub.org/

https://law.ucla.edu/

If nothing there catches your eye, your alma mater or local law school is another place to consider. In addition, ACOEL will soon establish a 501(c)(3) organization, one purpose of which will be to support environmental education. Regardless of where you invest, at the end of the day, you may make more in the market but you’ll never feel as good as you will investing in others.

Using Offsets with a Carbon Tax? Use what works.

Posted on August 21, 2017 by Jeffrey C. Fort

Proposals to adopt a fee on emissions of greenhouse gases (also called "Carbon Taxes") have made headlines, with both "conservative Republicans" and "liberal Democrats" releasing ideas.   An elevated price on carbon -- the centerpiece of the suggestions for a federal program from both camps -- is not predicted to lower emissions, except by setting a very high price.  Such an approach is not practical, unless room is allowed for states to continue their innovations and for volunteers to also reduce emissions.   Getting the best result for the least cost - i.e. the most efficient emission reduction -- ought to be used.

EPA already has its Mandatory Reporting Rule.  It does not cover non-obvious sectors like farming who could be affected by the proposed fee.  The MRR reports provide a sound basis for any further federal program such as carbon fees.

Carbon taxes have yet to show direct evidence of any reductions in emissions of carbon equivalent greenhouse gases.  As another cost which can be passed on in many sectors, it is a clumsy way to achieve environmental benefits.

However, if a "fee" is imposed, it should recognize state programs such as the ARB and RGGI programs.  Those allowances ought to be counted and credited -- "a tonne is a tonne is a tonne" regardless of where emitted into the troposphere. 

Voluntary reductions from non-regulated sectors ought to count too.  Known as carbon offsets, they are issued by the several independent registries and have real environmental benefits and integrity. They are at least as real as monitored -- or more often estimated --emissions from AP-42 or other EPA-sanctioned sources.  Offsets can only be recognized: (1) for reductions which are not required by law and not business as usual; (2) if based on a scientific methodology to measure such which has been accepted after public comment and peer review, (3) from a project has been announced, undertaken and proven to have occurred.  Only after all such has been proven, is a credit awarded and available to be purchased and (4) then the offset credit must be chosen (i.e. purchased) for use by a regulated entity.  Thus, there are several steps at which such are scrutinized by independent parties.

The proposals for carbon taxes are well-intentioned.  But the most efficient and least disruptive approach would include not only recognizing state programs but also unlimited carbon offsets from economic sectors not under the tax.  All businesses should have a role; those who are more efficient in producing their products for lower climate impact ought to have a way to contribute.

Is Tier 3 Coming to a High Quality Waterbody in Your State?

Posted on August 16, 2017 by Eric Fjelstad

The Alaska Department of Environmental Conservation (ADEC) has taken on the task of defining a process to designate so-called Outstanding National Resource Waters.  These are often called “Tier 3” waters.  A quick recap of the Clean Water Act’s antidegradation regulations.  Under relevant EPA regulations, waters which do not meet water quality standards are classified as Tier 1 waters.  Waters which meet or exceed water quality standards are classified as Tier 2 waterbodies.  The best waters - Tier 3 waters - are defined by EPA in 40 CFR 131.12(a)(3) as follows:

Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

The regime has proven controversial in Alaska because it would apparently impose a “no degradation” prohibition on new and expanded discharges.  The term “degradation” is not defined in EPA’s regulations which leave open the question whether Tier 3 allows for any detectable pollutants. 

The State of Alaska is blessed with an abundance of high quality waters.  It also is a resource development state, and many projects occur in areas with high quality waters.  Conservation groups argue that Alaska’s water resources should be protected before they are compromised through development.  Development interests believe Tier 3 is just another regulatory initiative to stop projects.  ADEC has struggled to implement a Tier 3 regime, finding few friends in industry and conservation corners as it works to develop a program.  Amongst the questions ADEC has grappled with. 

· What criteria should be employed to screen potential Tier 3 candidates?  Alaska has many high quality waters and the debate has centered on whether the waterbody should be truly exceptional or unique by Alaska standards versus exceptional or unique compared to the Lower 48. 

· How much information should be in the proposal?  Conservation groups generally favor a streamlined proposal process.  For example, a few paragraphs on why a waterbody merits Tier 3 status, along with information on the basic social and economic implications of the designation.  Industry stakeholders argue that a Tier 3 designation effectively imposes a “no discharge” regime on an entire watershed and should be rigorously evaluated in a study akin to an environmental impact statement with the costs to be borne by the proponent. 

· Who should make the designation?  Conservation groups argue a Tier 3 decision should be made by ADEC or by an administrative commission and be reviewable in the courts.  Industrial stakeholders believe a Tier 3 designation is fundamentally a political decision, comparable to establishing a state park or wildlife refuge, and should be made by elected officials in the legislative process. 

· How would the “no degradation” standards work in practice?  ADEC has indicated that temporary discharges with minor impacts would be permissible under Tier 3.  However, ongoing discharges would be prohibited, even if the discharge complied with water quality standards at the “end of the pipe.”  There are unresolved questions how Tier 3 would apply, if at all, to nonpoint sources of pollution.

· Can a Tier 3 designation be changed?  There has been no clear statement from EPA on whether a Tier 3 designation could be changed.  The regulatory grapevine has yielded mixed signals with some suggesting a Tier 3 designation would be permanent.

EPA’s one sentence regulation leaves much to the imagination, and stakeholders would benefit from greater clarity from EPA in its regulations.  Given the open questions and the potentially significant restrictions a Tier 3 designation places on waterbodies, it is not a surprise that Alaska is struggling to define a rational Tier 3 process.  

A Nod to the Summer of Love

Posted on August 10, 2017 by Robert Falk

Fueled by a preceding series of so-called (and then legal) “acid tests,” what came to be known as the “Summer of Love” arose spontaneously in San Francisco fifty years ago.  In 1967, motivated in part by Scott McKenzie’s original rendition of the song “San Francisco (Be Sure to Wear Flowers in Your Hair),” young people from around the country descended on the Haight Asbury neighborhood and Golden Gate Park to “turn on, tune in, and drop out.”  The counter-culture, which included an embrace of respect for the natural environment by some of the flower children, was officially born and began to spread more broadly throughout the country. 

Few would go as far to claim that the majority of hippies who took up residence in San Francisco that summer were environmentalists.  Their quickly growing population and associated care-free and litter-filled lifestyles soon overwhelmed local public service capacities such that the entire “scene” became unsustainable within a matter of months.  The adverse impacts on “the Haight” became so overwhelming that long-time local residents, even including the Grateful Dead band members who then-lived at 710 Asbury Street, decided to move out and relocate to the literally greener pastures that lie to the north of the Golden Gate Bridge. 

But given its sandwiching between Rachel Carson’s Silent Spring in 1962 and the first Earth Day in 1970, the argument can be made that the Summer of Love and Flower Power were very much key catalysts in propelling the counter-culture to reach beyond the demands for civil rights and opposing the Viet Nam war so as to give political voice to the need for more modern and meaningful environmental protections in the United States. 

Indeed, the siren song’s lyrics, which were written by John Philipps of the Mamas and the Papas, may have been prescient in this respect:

If you're going to San Francisco

Be sure to wear some flowers in your hair

If you're going to San Francisco

You're gonna meet some gentle people there

 

For those who come to San Francisco

Summertime will be a love-in there

In the streets of San Francisco

Gentle people with flowers in their hair

 

All across the nation

Such a strange vibration

People in motion

There's a whole generation

With a new explanation

People in motion

People in motion

 

For those who come to San Francisco

Be sure to wear some flowers in your hair

If you come to San Francisco

Summertime will be a love-in there.

Whether these lyrics were actually prescient or not need not be further debated.  On the other hand, one probably needs to look no further than to U.S. EPA’s own official logo to see that the Summer of Love and Flower Power had real and indelible influence on the modern environmental movement.

WOTUS Washington Two-Step

Posted on August 8, 2017 by Rick Glick

The Trump Administration has begun rulemaking to undo the controversial rule defining “waters of the United States” or WOTUS.  In the July 27 Federal Register, EPA and the Army Corps of Engineers jointly announced that it is proposing a two-step process.  The first would be to rescind the 2015 WOTUS rule, and the second would replace it with something aligned with the Administration’s thinking.  As reported here, on February 28, 2017, President Trump issued an executive order directing the agencies to change direction. 

The Clean Water Act confers federal jurisdiction over “navigable” waters, which are defined as “waters of the United States.”  The agencies, courts and property owners have since struggled to elucidate that vague definition, particularly in the context of wetlands.  A divided Supreme Court, in Rapanos v. U. S., offered competing definitions.  Justice Scalia, writing for a plurality of the Court, would require running water, whereas Justice Kennedy in a concurring opinion, looked to whether a “significant nexus” exists between the waters or wetlands at issue and a navigable waterway.

The Obama Administration’s WOTUS rule attempted to bring clarity to the scope of federal jurisdiction, with an emphasis on the Kennedy approach.  Under President Trump’s executive order, the new rule is to follow Justice Scalia’s view of WOTUS.

During the interim between step one (rescission) and step two (replace), we will have to muddle along as before.  The Federal Register notice states:

The agencies would apply the definition of “waters of the United States” as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.

Simply stated, that means continuing uncertainty.  It will probably take some years before a new replacement rule can be developed under the deliberate process required by the Administrative Procedures Act.  If the reaction to the Obama WOTUS rule is any guide, the replacement rule will face many legal challenges, which could also take years to resolve, probably at the Supreme Court.  Thus, it is unlikely that there will be binding policy change during the first term of the Trump Administration.

In the meantime, it is useful to remember that the states are free to adopt their own definitions of jurisdictional wetlands, which many have done or in the process of doing.  States with strong environmental protection traditions—such as Oregon, California and Washington State—can be expected to assert jurisdiction, perhaps where the federal government does not.

REFLECTIONS ON SMCRA AT 40

Posted on August 4, 2017 by Robert Uram

Through the persistent efforts of Representative Mo Udall and many other advocates for federal regulation of surface mining, on August 3, 1977, after a decade of legislative debate and two vetoes by President Ford, President Carter signed the Surface Mining Control and Reclamation Act. SMCRA established comprehensive national reclamation standards designed to ensure that all surface coal mines would be reclaimed and required coal companies to pay a fee on each ton of coal they mined to fund a program to eliminate environmental and safety hazards from abandoned coal mines. SMCRA created the Office of Surface Mining Control Reclamation and Enforcement to administer the law and provided the OSMRE with extensive oversight authority over state and federal reclamation programs. SMCRA is an important milestone in the environmental movement in our country.

SMCRA created stringent new reclamation standards that raised the baseline for mining reclamation and provided needed federal funding and oversight. Coal mining reclamation regulation has come a long way since the days when two States sued to have SMCRA declared unconstitutional on grounds that it violated the Fifth and Tenth Amendments and the Interstate Commerce Clause and armed United States Marshalls were needed to accompany OSMRE inspectors to coal mines to ensure their safety. Over the past 40 years, despite their many differences and the active resistance of some States to enactment of SMCRA, the OSMRE and States and Indian tribes have accomplished much in making the coal fields a better place for people to live and work. More than 2 million acres of mined land have been reclaimed. Efforts to improve the quality of reclamation, through programs like the Appalachian Regional Reforestation Initiative, are ongoing. Offsite impacts from mining operations are closely monitored and have been greatly reduced in number and severity better protecting the environment and the people living in the vicinity of mines. Cemeteries and homes are protected. Coal field residents are entitled to participate in oversight and the oversight process is open and transparent.

The Abandoned Mine Land Reclamation Program, while chronically underfunded, is a model for effective federal/state/Indian tribe cooperation. The AML program has improved the environment and public safety by closing more than 40,000 abandoned mine shafts, eliminating nearly 1,000 miles of high walls, addressing hazards at 3,700 dangerous water bodies, cleaning up 129,000 acres of dangerous spoils and embankments, restoring 35,000 acres of streams and land and replacing infrastructure for over 53,000 polluted water supplies. Mining reclamation contributes to the local economies and provides good jobs.

While the program has had its difficulties, and many serious concerns need to be addressed, including the significant effects of mountain top removal mining, had the Congress never passed SMCRA, life for people who live and work in the coalfields would be far worse today. Earl Bandy, a long-time OSMRE employee whose father and grandfather were coal miners in Harlan County, testified before Congress on the 30th anniversary of SMCRA that:

I cannot imagine what our nation's land and water resources would be today if it were not for SMCRA. Congress' enactment of such a forward-thinking law was an awakening and recognition of the potentially dangerous and harmful cumulative effects of coal mining on the land and water.

His words ring true today. While implementation of SMCRA could have and should have been better and more effective, the success of SMCRA still needs to be recognized and appreciated. Many people are responsible for these successes. OSMRE’s dedicated employees have labored long and hard, many times without any internal or external support. Many of those employees are genuine environmental heroes for their dedication and contributions. The many thousands of State program employees are critical to the SMCRA’s success. They have become increasingly aligned with the goals of SMCRA and have developed a shared commitment to making SMCRA work. Some coal companies still question the need for stringent environmental protection laws; many companies have developed a good environmental ethic and take pride in their reclamation. The really bad actors and wildcat miners who simply flouted the law have been driven out of the industry.

A great deal of credit also goes to the citizen groups, like the Kentucky Resources Council. The citizen groups have been insistent that SMCRA be fully implemented and have filed dozens of lawsuits to force state and federal regulators to do their jobs. Without their efforts, the program would have lagged even further behind. The country is also indebted to watershed groups like the Friends of the Cheat River in West Virginia, which are devoted to making their communities better by helping to clean up of streams long polluted by acid mine drainage. Through their efforts and the assistance of their federal and state partners, thousands of miles of orange acid mine drainage-polluted streams have been restored to productive use.

Forty years is the blink of an eye. Good environmental regulation is a task that never ends and that will always be needed. Much has been accomplished; much needs to be done. The Congress should ensure that OSMRE and its State counterparts are well funded to carry out their regulatory responsibilities and the Congress should fully fund the abandoned mine reclamation program. As we recognize SMCRA’s 40th anniversary, the country should rededicate itself to the task of ensuring that every acre of mined land is restored to productive use and that the legacy of environmental harm and public hazards from abandoned mines is wiped out. 

ALCHEMY 2.0

Posted on August 3, 2017 by Stephen Herrmann

Alchemy 1.0 hoped to turn coal into diamonds.  Alchemy 2.0 plans to turn coal-fired power plant effluent into useable products -- and thus keep millions of tons of CO2 from polluting the atmosphere.

Capturing CO2 from sources such as coal-fired power plants has been studied for a number of years.  But the plan has always previously been to store the CO2.  The “Global CO2 Initiative” (Global) was launched in 2016 during the meeting of the World Economic Forum as a non-profit corporation to stimulate innovative research in carbon capture and utilization (“CCU”).  An independent market analysis of the climate benefits and market potential of carbon capture and utilization funded by Global Initiative showed that there was a potential to remove 10 percent of annual global CO2 emissions from the atmosphere by 2030, while creating an estimated $1 trillion yearly market for at least 25 CO2-based products.  The products would include concrete, fuel, industrial gas/fluid, plastics, asphalt, agricultural products, construction fills and new materials.  The assessment catalog of CO2-based products was done by McKinsey & Company based on rigorous projections of the potential revenues and carbon capture. 

Unlike coal to diamonds, coal-fired power plant effluent to useable products has firm footing in science.  Also in 2016, UCLA researchers, led by Gaurav Sant, Associate Professor in Civil and Environmental Engineering; Richard Kaner, Distinguished Professor in Chemistry and Biochemistry; Laurent Pilon, Professor in Mechanical and Aerospace Engineering and Bioengineering; and Mattheiu Bauchy, Assistant Professor in Civil and Environmental Engineering, have developed a closed-loop process:  capturing carbon from power plant smoke stacks and using it to create a new building material -- CO2NCRETE - that is fabricated using 3D printers.  Thus far, the new construction material has been produced only at a lab scale.  However, this type of innovative research hopefully will drive not only corporations seeking commercial products, but also governments to fund other Alchemy research as a strong additional pillar of limiting greenhouse gas usage worldwide.

A second example of products from CO2 has been put forward by Stuart Licht, a Professor of Chemistry at George Washington University.  Licht says his group has demonstrated technology which both captures the CO2 from the air and employs an electro-chemical process to convert it to carbon nanofibers and oxygen.  The conversion process is much more efficient and potentially a lot cheaper than existing methods.  But, it has this additional salutary benefit.  In recent demonstrations his group used a unique concentrated solar power system, which makes use of effluent sun light to generate the large amount of heat needed to run the desired reaction to produce nanofibers.

For further information, on the work of global CO2 initiative, check in at GlobalCO2Initiative.org.

Pop Enviro Quiz and EPA’s New “Happy Tooth” Standards

Posted on August 2, 2017 by Susan Cooke

EPA’s new “Happy Tooth” standards should make you feel just a little bit better about that trip to the dentist.  But before you learn the details, you first need to take this pop quiz and get the backgrounder.

Question #1:  What earth element is linked to gold mining, volcanic eruptions, and dental amalgams? 

Answer:         Mercury.

Question #2:  What is the environmental angle?

Answer:         All three result in mercury releases that can eventually reach the aquatic environment where bacterial action produces toxic methylmercury. 

According to the United Nations 2013 Global Mercury Assessment Report which is based on 2010 data, anthropogenic (human) activities are responsible for about 1960 metric tons, or 30%, of annual mercury emissions to the air.  Artisanal and small-scale gold mining and coal burning represent the two largest sources of that 30% share, at 37% and 24% respectively.  Another 10%, or about 653 metric tons, reportedly comes from natural geological sources.  The remaining 60%, or about 3920 metric tons, comes from re-emission of previously released mercury that has built up in surface soils and oceans, with most of that originally coming from anthropogenic sources.   

For the first time, the UN report includes an estimate of anthropogenic releases of mercury to water.  That estimate is at least 1000 metric tons per year.  The sources considered in making that estimate were:  mercury releases to land and water from artisanal and small-scale gold mining (800 metric tons); mercury releases to lakes and rivers from deforestation (260 metric tons); and mercury releases from contaminated sites such as old mines, landfills, and waste disposal locations (8-33 metric tons).

Once again, artisanal and small-scale gold mining operations, which are often illegal and hard to measure precisely, constituted the “leader of the pack”.  Indeed, gold rush activities from 1850 to 1884 appear as orange peaks on a graph included in the UN report, the graph showing mercury levels found in two Wyoming ice core samples.  The graph also shows that major volcanic eruptions, denoted as natural events in green, have been an important contributor, as evidenced by spikes attributable to the Mt. St. Helens, Krakatoa, and Tambora eruptions:

The third member of my mercury triumvirate is dental amalgam waste.  Mercury is mixed with some other metals to make dental amalgam because it is soft enough to create the mixture and the amalgam hardens quickly after it is pressed into a tooth.  Until recent years, waste dental amalgam was often discharged in a dental office’s wastewater.  However, some state and local governments have started to regulate those discharges.  EPA has now joined that effort

EPA’s standards cover dental office mercury discharges to Publicly Owned Treatment Works or POTWs and are set forth at 40 C.F.R. §§ 441.10-441.50.  Those standards, which are applicable regardless of state and local government requirements, were published in the June 14, 2017 Federal Register and became effective on July 14, 2017.  The regulatory preamble notes that dental offices have been the main source of mercury reaching POTWs which remove about 90% of such mercury prior to surface water discharge.  The preamble also estimates that the new standards will reduce the POTW discharge of dental mercury from 1003 to 11 pounds per year, a very significant reduction.    

Under the final rule, existing dental offices discharging wastewater containing dental amalgam to a POTW must use a device to capture and remove at least 95% of the amalgam mass by July 14, 2020, and must implement two best management practices by the same date.  Dental offices that commence such a discharge after July 14, 2017 (so-called “new sources”) must utilize an amalgam separator and institute those two best management practices when the discharge begins.  

One of the two best management practices prohibits the discharge to a POTW of waste or scrap dental amalgam, such as flushing it from traps or filters.  The other best management practice prohibits the use of so-called line cleaners, such as bleach or chlorine containing cleaners, which could dissolve solid mercury when cleaning chair-side traps and vacuum lines whose discharge goes to the POTW. 

Certain types of activities are exempted from the rule’s coverage.  They include dental practices that are not engaged in replacing or making new fillings containing mercury, dental offices that collect all dental amalgam and do not discharge it to a POTW, mobile dental units, and dental practices that discharge dental amalgam only in limited circumstances such as an emergency situation.   

I call these new provisions the “Happy Tooth” standards for two reasons besides their obvious connection to the treatment of tooth decay.  First, they will reduce POTW discharges of mercury by two orders of magnitude.  Second, the standards will not be delayed by appeals since EPA worked cooperatively with the American Dental Association (ADA) to develop them.  Indeed, the ADA president has stated that the rule represents a “fair and reasonable approach to the management of dental amalgam waste”, and that such a federal standard “is preferable to a patchwork of rules and regulations across various states and localities”

It is important to note that the new regulations do not cover direct discharges to waterways under an NPDES permit or its state equivalent.  In addition, they do not cover the management of mercury in POTW sludge, such sludge being subject to EPA standards set forth at 40 C.F.R. §§ 503.1-503.48 that include mercury limits.