The Packers, Beer, Cheese Curds and …Regulatory Reform?

Posted on January 30, 2018 by Todd E. Palmer

If states are the crucible of policy experimentation, Wisconsin’s regulatory reform efforts deserve attention as the Trump Administration implements its federal deregulatory agenda.   Wisconsin has been pushing an aggressive deregulatory agenda for the last five years and its experiences might better inform the federal debate in this area.

The cornerstone of Wisconsin’s regulatory reform effort has been Act 21.  Enacted in 2011 during a Special Session of the Legislature, Act 21 prohibits a state agency from implementing or enforcing any requirement, standard or permit term unless it is explicitly required or authorized by statute or administrative rule. Although largely ignored for its first five years, Act 21 has become a significant force in the state.  A previous ACOEL blog post highlights a Wisconsin Attorney General opinion that interprets Act 21 as restricting the Wisconsin DNR’s authority to regulated high capacity wells.  That issue is working its way through state courts.  More recently, Act 21 has been the legal predicate for further limiting state agency regulation in other areas, including:

-          A decision issued by the Wisconsin DNR Secretary concluding that her department lacks explicit authority to impose a limit on the number of animals at large livestock operations or to require that monitoring wells be installed around such operations. The Secretary’s decision reversed an ALJ’s opinion to the contrary.

-          A State Attorney General opinion that animal unit limits in WPDES permits are unlawful because they are not explicitly authorized by a statute or rule.

-          A judicial settlement agreement executed by the State of Wisconsin agreeing to refrain from enforcing any standards applicable to feed storage leachate or runoff management unless promulgated as a rule.  The state further agreed to withdraw and not enforce draft program guidance that sought to impose such requirements. 

-          A State Attorney General opinion that state agencies cannot enforce rules that are not explicitly authorized by statute, even if those rules were promulgated before enactment of Act 21.

-          A State Attorney General opinion that state agencies do not possess “any” inherent or implied authority to promulgate rules or enforce standards, requirements or thresholds.  The general statements of legislative intent, purpose or policy that are often found in statutory provisions do not confer or augment agency rulemaking authority.  

In the wake of these developments, the State Attorney General recently observed that “Act 21 completely and fundamentally altered the balance [of government administrative power], moving discretion away from agencies and to the Legislature.” 

As Act 21 forces Wisconsin agencies to create rules to implement their regulatory programs, the State Legislature is turning its attention to the rulemaking process. The Legislature passed its own version of the Reins Act (Regulatory Executives in Need of Scrutiny) which, in the most general of terms, increases the procedural requirements and legislative oversight of the state’s rulemaking process.  It now takes roughly three years to pass an administrative rule in Wisconsin.   

Having added procedures that delay the rulemaking process, the Legislature is debating bills that would expedite the rule repeal process. These bills would establish an expedited process requiring agencies to inventory and petition the Legislature for repeal of certain rules. For example, one bill would require the repeal of state rules concerning air pollutants that are not regulated under the federal Clean Air Act.  Another bill would automatically repeal certain environmental regulations ten years after they take effect. Although the Wisconsin DNR could attempt to readopt an expiring rule, that effort could not commence any sooner than one year before a rule’s expiration. 

In the Judicial Branch, the Wisconsin Supreme Court will soon decide whether the state’s practice of deferring to agency interpretations of statutes comports with the Wisconsin Constitution.  Recent decisions suggest that the majority of Justices will answer in the negative.  A decision should be issued this summer and could impose additional restrictions on agency authority.  

Not surprisingly these reforms have been controversial.  ENGOs have filed lawsuits challenging permits that fail to include terms and conditions due to the restrictions of Act 21.   The regulated community has taken the opposite view, challenging permit terms and conditions that are not explicitly authorized by rule or statute.  At some point these roles are likely to reverse since the regulated community often relies upon implicit agency authority to establish permit conditions which it finds favorable. 

Much like the federal initiative, Wisconsin’s reforms have been wrapped in the trope of reducing the regulatory burdens placed on state businesses and thereby improve the state economy. So far the state’s economy is doing quite well.  These efforts warrant continued monitoring to gauge how the economy and environmental concerns have been balanced while implementing these reforms.   

Musings on Starting a New Superfund Case – Hope springs eternal?

Posted on January 25, 2018 by David Rosenblatt

As lawyers, many of us enjoy the “rush” of starting a new case.  A new matter can be a welcome fresh tablet, providing us with the opportunity to use our skills and experience in creative and interesting ways to further our client’s interests.

But -- for those of us who have fought for clients on the front lines of EPA’s Superfund program over the years -- maybe not so much.  As Superfund practioners, we must deal with a cumbersome, almost 40-year-old law and an agency whose approach is dictated by a raft of standard operating procedures within an entrenched bureaucracy, decades-old guidance documents and forms, and a seemingly endless review and comment process.

To add to the challenge, clients have changed over the past 40 years, even if the Superfund law and its implementation have not. Today’s clients demand quicker, more practical, and cost-effective solutions in resolving their legal problems, without years of negotiations and endless administrative boxes to check off along the way in assessing and cleaning up sites.

There are other paradigms.  Many states have operated as laboratories of innovation in site cleanup through privatization and reduction of bureaucratic obstacles. In July 2017, EPA issued a Superfund Task Force report recommending numerous reforms to streamline the Superfund process and expedite cleanup.

Yet despite these advances on the state level -- and a supposedly business-friendly administration now in Washington and at EPA -- Superfund, well, remains Superfund. 

So here I embark on yet another Superfund Special Notice negotiation in early 2018.  I am armed with fresh ideas to bring to the table and an EPA Task Force report in my pocket, just hoping I will discover that a few of these new approaches will somehow have resonance with my EPA counterparts and that Superfund 2018 is somehow different from Superfund 1998.

Anyone want to take any bets on what I will find?    

One Brief Shining Moment of WOTUS Clarity

Posted on January 24, 2018 by Rick Glick

In a rare moment of clarity in the benighted history of the Waters of the United States or WOTUS rule, a unanimous Supreme Court declared that jurisdiction to review the WOTUS rule lies in the District Courts and not the Courts of Appeal.  The immediate effect of the January 22 ruling in National Assn. of Manufacturers v. Dept. of Defense  is to lift the nationwide stay of the rule imposed by the Sixth Circuit—which held that the appellate courts have original jurisdiction over the rule—thus reigniting a lot of dormant trial court challenges. 

The Clean Water Act applies to “navigable” waters, which is defined simply as “waters of the United States, including the territorial seas.”  EPA and the Army Corps of Engineers administer the CWA, and have tried without much success to refine this vague definition.  The latest attempt is the WOTUS rule, adopted by the Obama EPA in 2015.  The issue in National Assn. of Manufacturers is not whether that attempt hits the mark, but in which court should challenges be heard.

As noted in Bob Brubaker’s take on this case, the Court looked to the plain language of the statute, and to context when further explanation is needed.   The CWA extends original jurisdiction to the Circuits for EPA “approving or promulgating any effluent limitation or other limitation.”  The government argued that the WOTUS rule falls within “any . . . other limitation.”  The Supreme Court rejected that argument, holding that such other limitations must be related to effluent limitations, and the WOTUS rule just establishes a definition that would apply generally to the scope of CWA.  The Court also rejected applicability of another CWA basis for Circuit Court jurisdiction advanced by the government, “issuing or denying any [NPDES] permit,” concluding simply that the WOTUS rule is not the same as permit issuance.

So what difference does it make if a trial judge or an appellate judge makes the initial decision on WOTUS?  WOTUS has drawn a multitude of challenges in both the District Courts and Courts of Appeals, including some in which plaintiffs filed in both courts to be on the safe side.  The case will end up at the Supreme Court anyway, right? 

True, but consider that the Sixth Circuit consolidated all the challenges in other Circuits and issued a decision that applied across the country.  The district court litigation has not been consolidated, and some cases have come to different conclusions, with many remaining to be litigated.  So, we can expect years of litigation in many different courts, followed by years of appeals heard by the Circuits, and finally to the Supreme Court . . . again.

But wait, Scott Pruitt’s EPA has initiated a rulemaking process to rescind and replace the WOTUS rule, so wouldn’t that moot the pending challenges to the rule?  It would not.  EPA has announced it is delaying the effective date of the 2015 rule for two more years to allow the Agency to develop its replacement.  But, in the meantime, the 2015 WOTUS rule remains in place.

The practical result is that the current round of cases in the District Courts will continue, followed -- if not accompanied -- by a new round of litigation challenging the proposed change of effective date, and the proposed rescission and replacement rules.  Safe to say there will be no certainty on the definition of WOTUS and the scope of Clean Water Act jurisdiction for many years to come.

Justice Sotomayor’s Two Greatest Commandments of Statutory Interpretation

Posted on January 23, 2018 by Robert Brubaker

I expect to see many brilliant ACOEL blog posts (from members that unlike me are Clean Water Act oracles) on the Supreme Court’s decision in National Association of Manufacturers v. Department of Defense et al., No.16-299 (January 22, 2018).  That decision holds that the district courts rather the circuit courts have initial jurisdiction to review EPA’s action in promulgating the Waters of the United States (WOTUS) rule.  I write to comment briefly on one aspect of the opinion: what it teaches us about statutory interpretation.

The field of environmental law is comprised of an exceptionally abundant amount of statutory law (in contrast to, say, antitrust law at the other extreme).  Environmental practitioners are continuously confronted with issues of statutory interpretation, often of incredible difficulty.  What jumps out at me from the unanimous WOTUS opinion, authored by Justice Sotomayor, is the clarity of articulation of the two greatest commandments of statutory interpretation.  The first commandment is that the statute’s plain language is of paramount importance to the correct interpretation, transcending all other considerations.  The second commandment is that context and structure are the most important guides to the correct interpretation when the statutory text is insufficiently clear.  We are well-advised to not overlook or overcomplicate the two most basic rules of statutory construction.

Another thing jumps out at me from Justice Sotomayor’s opinion for a unanimous Court.  To my knowledge, it is the first federal appellate court decision since 1984 involving an EPA interpretation of its enabling legislation, in a notice and comment rulemaking, that does not cite Chevron v. NRDC.

Even the irrationality of a bifurcated judicial review scheme, and the compelling interests in quick and orderly resolution of rulemaking disputes, in judicial efficiency, in avoiding conflicting outcomes in district court cases brought as late as six years after the claim accrues – all ably argued by EPA – were not enough to overcome the two greatest commandments of statutory interpretation.

WHEN SCOTT MET JANUS

Posted on January 16, 2018 by Robert M Olian

The amateur horologists among you will recall that all of the calendar months are named after fabric fresheners (February - Febreze), gods (March - Mars, April - Aphrodite, May - Maia, June - Juno), emperors (July - Julius, August - Augustus), or simply their place in the calendar - Sept, Oct., Nov. and Dec. for the seventh, eighth, ninth, and tenth…. Whoa, wait a sec!  (I could explain, but instead that issue is left as an exercise for the reader).

We are interested in January, named for the god of beginnings, Janus, who is always depicted as facing in two directions.  Could one write a blog post about the current state of environmental law based on the theme of a two-faced ruler who thinks he’s one of the gods?

OF COURSE one could! But that would be too easy. Instead, how about a blog post to make everyone happy, while the festive warmth of the holidays is still washing over us? Using the game of MadLibs as our inspiration, first complete the following phrase by choosing either Answer A or Answer B.

“I {insert answer} vote for Donald Trump in the 2016 Presidential election.”

A. did not

B. did

If you picked answer A, read the following blog post using the phrases from option A. If you picked answer B, read the post using the phrases from option B. Make sure you use the correct option, or you will be an unhappy reader instead of a happy reader, and we don’t want that.

*******************

The environmental trade press is replete with top ten lists at this time of year —top ten judicial rulings, top ten regulatory decisions, etc. — but the goal here is to step back and look at things from the 50,000-foot level. Here’s the shorter meta list:

1.  EPA Administrator Scott Pruitt installed a Sensitive Compartmented Information Facility (SCIF) costing nearly $25,000 in his personal office (EPA already had another secure room in the headquarters building) and is the only EPA Administrator to ever request a 24/7 security detail. The 18-member security detail cost taxpayers more than $830,000 in Pruitt’s first three months at the helm and required that EPA agents be pulled away from ongoing criminal investigations to staff the security detail. These actions suggest that EPA is being run by someone who is

1A. self-aggrandizing to the point

1B. appropriately conscious

of

2A. paranoia.

2B. security risks that are increasingly important at a time where environmental issues intersect those of national security.

2. “More than 700 people have left the Environmental Protection Agency since President Trump took office, a wave of departures that puts the administration nearly a quarter of the way toward its goal of shrinking the agency to levels last seen during the Reagan administration,” (NYT, 12/22/17), including a disproportionate number of scientists. The brain drain is intentional according to:

1A. Obama science adviser Thomas Burke

1B. Trump OMB Director Mick Mulvaney

who added,

2A. “The mission of the agency is the protection of public health. Clearly there’s been a departure in the mission.”

2B. “You can’t drain the swamp and leave all the people in it. So, I guess the first place that comes to mind will be the Environmental Protection Agency.”

3. The United States withdrew from the Paris climate accords, a move that was

1A. denounced

2A. praised

by many, ranging from:

2A. the Pope to the head of Goldman Sachs.

2B. Charles Koch to David Koch.

4. The United States was battered by record flooding, hurricanes and forest fires, all of which were

1A. substantial evidence suggesting the existence of

1B. a bizarre coincidence.

2A. anthropogenic climate change.

2B. [Sorry, there is no phrase to describe something whose existence is denied]


But wait, you say, that’s only four items, not a top ten. Sorry, but there are eight; you only read four. If one of you As will add another to the comments, and one of you Bs will do likewise, that will get the total to 10.

A VISIT TO THE DUTCH ROYAL PALACE TO HONOR GLOBAL ENVIRONMENTAL INNOVATORS

Posted on January 10, 2018 by Robert Percival

The initial email, quickly skimmed, had hallmarks of spam – words like “royal palace” and “100,000 Euros”.  But the attached letter of invitation contained wonderful news.  The Dutch royal family’s Prince Claus Fund had selected Chinese environmentalist Ma Jun to receive its top award. They wanted me to prepare a tribute to him for inclusion in the official awards book and to be their guest at the presentation at the Royal Palace in Amsterdam.

I first met Ma Jun after I gave a talk in Beijing in 2009.  Astonishingly, he asked me to autograph the fourth edition of my casebook Environmental Regulation: Law, Science & Policy. When I asked why, he declared that “page 438 changed my life.”  That was the portion of the book where material on the U.S.’s Emergency Planning and Community Right-to-Know Act (EPCRA) began. Ma Jun was so impressed by the EPCRA’s Toxics Release Inventory that he vowed to create a website providing the Chinese public with similar information.  But he did not stop there.  He created apps that enabled the public to use their cellphones to access real time information on air and water quality in more than one hundred Chinese cities. 

In a country that at the time lacked express legal authorization for citizen suits, Ma Jun grasped the power of information to mobilize public demand for environmental protection.  He founded an NGO called the Institute for Environmental and Public Affairs (IPE) that quickly became a major force in China’s environmental movement.  Working with a coalition of NGOs, Ma Jun launched audits of the Chinese supply chains of major multinational electronics companies to assess their compliance with environmental and labor laws.  The results of these audits helped convince Apple to agree to regular, independent audits of it Chinese suppliers, the results of which now are presented annually in the company’s Supplier Responsibility Reports.

Another brilliant project that Ma Jun pursued jointly with NRDC’S Beijing Office was to publish annual ratings of China’s 120 largest cities reflecting how well local governments comply with requests for environmental information under China’s Open Information Law. This Pollution Information Transparency Index (PITI) has become a powerful tool for encouraging compliance with the law.  IPE and NRDC frequently hear from local officials in China who want to improve their ratings, much as U.S. universities scramble to increase their annual standings in the U.S. News rankings.

The Prince Claus Fund, named for the late husband of former Queen Beatrix, is funded in part through the Dutch Ministry of Foreign Affairs. It also made awards to other social and cultural innovators. These included Brazilian filmmaker Vincent Carelli, a champion of indigenous tribes, scientist Brigitte Baptiste, who is working to protect post-conflict areas in Colombia, Burkino Faso architect Diébédo Francis Kéré, who designs green buildings for African villages, Khadija Al-Salami, who champions women’s rights in Yemen, and Indian artist Amar Kanwar. It was inspiring to get to meet these heroes during the ceremony at the Royal Palace and to learn more about their work helping to build a better world in all corners of the planet. 

Chronic Pesticide Exemptions May Increase Risks to Our Pollinators

Posted on January 8, 2018 by Stephanie Parent

EPA has the responsibility to protect the public and the environment, including bees and other pollinators, from the use of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Before any pesticide can be sold or distributed in the United States, EPA must register it after determining that its use will not generally cause “unreasonable adverse effects on the environment.” Section 18 of FIFRA allows use of pesticides that have not met this standard if “emergency conditions exist.” Congress intended use of Section 18 emergency exemptions to address urgent pest conditions such as severe and unexpected insect outbreaks. Yet, in some cases, EPA seems to administer the emergency exemption program so that it functions as a shortcut, allowing pesticide use to bypass the registration standard.

EPA’s repeated “emergency” exemptions for use of the insecticide sulfoxaflor on cotton and sorghum over the last six years are a good example of this. Sulfoxaflor is an insecticide, which EPA acknowledges is very highly toxic to bees. In 2015, the Ninth Circuit vacated EPA’s decision to register sulfoxaflor because “[w]ithout sufficient data, the EPA has no real idea whether sulfoxaflor will cause unreasonable adverse effects on bees, as prohibited by FIFRA.” In 2016, EPA registered sulfoxaflor without additional bee data or studies. Instead, EPA explained that the new registration results in “essentially no exposure to bees” because this time it did not allow use on indeterminate blooming crops, such as cotton, or on crops grown for seed. And, the registration restricted applications on certain “bee attractive” crops to post-bloom only.

Despite these restrictions in the registration designed to avoid harm to bees, EPA has exempted the use of sulfoxaflor over 70 times from 2011 through 2017. All but one of these exemptions was for use on cotton, which was retracted from the registration application following the Ninth Circuit’s decision, or on sorghum, which was never included in the registration in the first instance. Most recently, EPA exempted the use on alfalfa grown for seed, even though the registration also prohibits such use to avoid adverse effects to bees. The Center for Biological Diversity, where I work, makes the case that EPA’s chronic approvals of Section 18 exemptions for use of sulfoxaflor no longer reflect “emergency conditions” and are circumventing the FIFRA’s registration standard. We may learn more about sulfoxaflor and other exempted pesticide uses when EPA’s Office of Inspector General concludes its evaluation of whether EPA’s emergency exemption process maintains environmental and human health safeguards.