From Graduation to Earth Day

Posted on May 31, 2018 by Charles F. Becker

“Ben, I just want to say one word to you. Just one word.”

                        “Yes, sir.”

“Are you listening?”

                        “Yes, I am.”

“Plastics.”

                        [Pause] “Exactly how do you mean?”

“There’s a great future in plastics. Think about it. Will you think about it?”

                        “Yes, I will.”

“Enough said. That’s a deal.”

The Graduate - 1967

Mr. McGuire’s sage advice to young Ben Braddock advanced an era of plastics that continues to this day. Once considered to be a miracle product, it is not possible to avoid it in everyday life—it is everywhere, in one form or another. Yet, as we now know, plastic presents certain environmental problems – it won’t go away and there is a lot of it:

The focus of Earth Day 2018 (April 22nd) was on plastic — educating everyone on the environmental impact of plastic disposal.  Education is always worthwhile, but it isn’t as though we don’t know the dangers.  Moreover, this is a world-wide problem, with China being the major contributor and the U.S. a distant 12th.  So what is the solution?

One possibility is to use less plastic.  That could be by governmental mandate, business choice or societal shaming.  But if history is a teacher, “just say no” will not work. Plastic production has increased steadily at a compound average growth rate of 8.4% per year since 1950.  As of 2017, we have created 6.3 billion metric tons of plastic waste; by 2050, that figure is expected to be 26 billion.  

Perhaps we could use a biodegradable form of plastic—something that will break down in the environment. Regrettably, business hasn’t shown much interest.  Capacity for such production is less than 0.2 percent of petrochemical-based plastic.

Recycling is perhaps the most commonly suggested solution. But with decades promoting the recycling of plastics, it is still the case that at least 85% of all plastics are not recycled.  Further, a recent study on recycling plastic into clothing indicates we may actually be making the situation worse by causing the shedding of micro-fibers of plastic that get to waterways.

So is all lost? Scientific ingenuity—and some luck—tells us no.

Like the discovery of penicillin, x-rays, and plastic itself, it may be that the solution has been stumbled upon by accident. In 2016, a Japanese team identified a plastic-eating bacteria as a possible natural solution to plastic pollution. In 2018, while trying to reproduce the results, a team from the University of Portsmouth accidentally created a more potent form of the released enzyme.  The enzyme breaks down the plastic to its original building blocks. It may even be possible to spray it on huge floating plastic ocean islands to break up the material. 

Is this the silver bullet we need?  It appears promising, but research is ongoing.  We can only hope it turns out to be the solution because the alternatives seem to be the equivalent of stopping a freight train with a pillow.

As a postscript, I should give time to another view – let nature take its course.  George Carlin figured it out when he said:

The planet will be here for a long, long, LONG time after we’re gone, and it will heal itself, it will cleanse itself, ’cause that’s what it does. It’s a self-correcting system. The air and the water will recover, the earth will be renewed. And if it’s true that plastic is not degradable, well, the planet will simply incorporate plastic into a new paradigm: the earth plus plastic. The earth doesn’t share our prejudice toward plastic. Plastic came out of the earth. The earth probably sees plastic as just another one of its children. Could be the only reason the earth allowed us to be spawned from it in the first place. It wanted plastic for itself. Didn’t know how to make it. Needed us. Could be the answer to our age-old egocentric philosophical question, “Why are we here?” 

Plastic… a**hole.

I’m rooting for the enzyme.

Paving a Legal and Regulatory Path to America’s Clean Energy Economy

Posted on May 30, 2018 by Kenneth Berlin

A clean energy revolution is underway in this country, buoyed by market forces making renewable energy sources increasingly cost-competitive with fossil fuels. Wind and solar are now cheaper than coal and natural gas in much of the country, and their costs will continue to drop. This stunning decrease in the price of wind and solar generation has created a new paradigm in the energy industry.

Similarly, the cost of energy storage is falling fast, and batteries will soon eliminate – at fully competitive prices – the intermittency issues around wind and solar. Meanwhile, electric vehicles are projected to become both cheaper to purchase and cheaper to run than gasoline cars by 2025.

Despite these extremely favorable economic trends, legal and regulatory barriers that protect fossil fuels continue to slow the transition to a clean energy economy. Removing these obstacles is a critical step toward securing a clean, safe and prosperous future.

At the outset, new clean energy projects face potential challenges around siting and transmission, including permitting restrictions, utilities’ unwillingness to enter into the necessary contracts, and a lack of support from public officials.

Once a project has cleared those hurdles, additional legal, regulatory and policy barriers may remain. Some of the primary impediments include:

o   Non-existing, limited, or even preventative legal frameworks for independent power producers – like homeowners – to sell energy to utilities or third parties. These power purchase agreements are currently allowed in only 26 states, the District of Columbia and Puerto Rico.

o   Utility interconnection, or connection of home or commercial renewable energy systems to the regional grid, that may be limited or severely restricted by regulation or laws.

o   Lack of or insufficiently priced net metering policies that make renewable investments much less attractive. In 2016, for example, Nevada’s Public Utilities Commission (PUC) sought to triple fees for solar customers while at the same time reducing credit for net excess generation by approximately three-quarters. After pushback from solar manufacturers and installers, as well as the prospect of hundreds of solar jobs leaving the state, the PUC approved new rules, partially restoring the net metering rate.

o   Tariffs on components of renewable energy systems like those recently announced by the Trump Administration on solar panel imports.

These obstacles don’t even touch on the fact that fossil fuel companies are not held financially responsible for the global warming pollution they dump into our shared atmosphere, leaving everyday Americans to foot the bill for these extraordinary health and economic costs. They also don’t factor in the uneven playing field that well-funded lobbyists tilt in favor of the fossil fuel industry, including enormous government subsidies.

The good news is that many individuals and organizations are working to build the political support needed to remove these barriers, including my organization, The Climate Reality Project, and our Founder and Chairman, former US Vice President Al Gore.

With enough voices working together across many sectors, we can eliminate these challenges and allow market forces and popular support to usher in a new clean energy economy.

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Posted on May 29, 2018 by Seth Jaffe

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.  EPA said that they were.  However, the petitioners pointed to cross-sections in the record that showed a confining layer existed between the bedrock and overburden aquifers.  More importantly, the record showed that EPA did not even attempt to explain why the cross-sections did not undermine its determination.  That’s a no-no.  As the Court noted:

It was arbitrary and capricious for EPA to rely on portions of studies in the record that support its position, while ignoring cross sections in those studies that do not. … Although EPA ‘is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’

Counsel from DOJ tried to repair the damage in the litigation, to which the Court replied that:

These arguments come too late. We may only uphold a rule “on the basis articulated by the agency” in the rule making record.

Lesson for EPA?  Don’t ignore comments in the record – and don’t count on your lawyers to fill in the gaps.

Lesson for potential petitioners?  Make sure that the record looks as good as possible – and focus like a laser beam on EPA failures to respond to your evidence.

And who knew that there was a band called The Substantial Evidence?

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

If, as held by the Fourth Circuit in the recent decision in Upstate Forever v. Kinder Morgan,

  • A release from a point source to groundwater that reaches jurisdictional surface waters in measurable quantities is an unpermitted discharge in violation of the Clean Water Act, and
  • The unpermitted discharge is deemed to be “continuing” so long as the seepage through groundwater continues to add pollutants to jurisdictional waters, even though the discharge to groundwater has ceased

then, indeed, the potential for citizen suit liability has been vastly increased and, most troubling, the requirement for an “ongoing violation” has been significantly eroded.

The recent decision of Upstate Forever v. Kinder Morgan, L.P. (4th Cir. April 12, 2018), addressed a citizen suit arising out of a spill of gasoline from an underground pipeline. The pipeline operator repaired the pipeline shortly after the spill, implemented remediation and recovery measures required by state regulators, and recovered much of the gasoline from the spill site. NGOs brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the CWA. The district court dismissed the suit, finding that (1) the CWA does not regulate the movement of pollutants through groundwater, and (2) the alleged violation was not ongoing because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters.

The Fourth Circuit reversed on both points and allowed the citizen suit to move forward. The decision has two key holdings:

  • First, while acknowledging that the CWA does not generally regulate releases to groundwater, the Fourth Circuit panel held that discharges to groundwater with a “direct hydrological connection” to surface waters may be regulated by the CWA, so long as the  discharge results in pollutants reaching jurisdictional waters in “measureable quantities.”
  • Second, the Court found that the repair of the pipeline breach was not sufficient to render the alleged CWA violations “wholly past,” because the continuing seepage of gasoline was continuing to add pollutants to jurisdictional waters.

Assuming the majority opinion stands, the implications are very troubling.

The first holding makes even an accidental release to groundwater an unpermitted discharge under the CWA, if the pollutant makes its way to jurisdictional waters. This “groundwater as a conduit” theory, also adopted in County of Maui v. Hawaii Wildlife Fund, 2018 WL 1569313 (9th Cir. Feb. 2018), is the subject of much debate in the courts, in Congress and at EPA, which has solicited comment on the issue. 

The second holding is at least as problematic. Even assuming that the accidental discharge to groundwater was an unpermitted discharge to jurisdictional waters in violation of the CWA,    one must wonder how the party responsible could ever cut off liability. According to the decision in Upstate Forever, stopping the point source release and even remediation to state standards does not make the violation “wholly past.” Depending on the amount released, the amount remaining after remediation, the distance to jurisdictional waters, the soil characteristics, the speed of groundwater movement, and other factors, it is possible that the risk of citizen suit liability could continue for years—long after the incident has been corrected, repaired and remediated.

There is a strong, well-reasoned dissent that concludes that there is no ongoing discharge of pollutants from a point source because “the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Slip Opinion at 40. The defendant pipeline operator has filed a petition for rehearing and rehearing en banc, arguing that the panel decision is erroneous on both issues and emphasizing the inconsistency with Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

If it stands, however, the Upstate Forever decision could indeed create the risk of citizen suit liability almost “forever.”

TSCA Implementation: A Catalyst for Litigation

Posted on May 22, 2018 by Lynn L. Bergeson

Extensive revisions to the Toxic Substances Control Act (TSCA) were signed into law almost two years ago and the U.S. Environmental Protection Agency (EPA) has been extraordinarily busy implementing the many Congressional mandates set out under the law that amended it, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The new law was one of the last acts of Congressional bipartisanship and, given the rancor that is now rooted in our hyper-partisan Congress, agreement on environmental legislation this sweeping is not expected again anytime soon.

Unsurprisingly, the three core rules outlining critically important aspects of the revised law, referred to as the TSCA “framework rules,” have all been judicially challenged.  In August 2017, Safer Chemicals, Healthy Families and 11 other organizations sued EPA in the U.S. Court of Appeals for the Ninth Circuit challenging the Risk Prioritization and the Risk Evaluation final rules.  Other organizations similarly filed suit over the same rules in the Second Circuit (Environmental Defense Fund (EDF) in New York) and in the Fourth Circuit (Alliance of Nurses for Healthy Environments in Virginia).  The challenges to the Risk Prioritization rule were consolidated in the Ninth Circuit on November 27, 2017 (Safer Chemicals, Healthy Families v. EPA, Nos. 17-72260, et al.) and the challenges to the Risk Evaluation rule were consolidated in the Ninth Circuit on December 11, 2017 (Alliance of Nurses for Healthy Environments v. EPA, Nos. 17-73290, et al.).  Industry trade association and other chemical interests motioned to intervene in these challenges, which the Ninth Circuit granted.  The remaining framework rule, the Inventory Notification rule, was judicially challenged by EDF last September in the U.S. Court of Appeals for the D.C. Circuit (EDF v. EPA, No. 17-1201).  Industry trade groups and others have been granted leave to intervene in the case.

Of particular note is another challenge filed on January 5, 2018, by the Natural Resources Defense Council (NRDC) in the U.S. Court of Appeals for the Second Circuit (Second Circuit) of what it characterized as an EPA “final rule” that was released on November 7, 2017, titled “New Chemicals Decision-Making Framework:  Working Approach to Making Determinations under Section 5 of TSCA.”  The draft Framework Document, as it has come to be called, is the final rule at issue and was posted in EPA’s docket opened for comments related to its two TSCA public meetings that took place last December.  It is reasonable to assume that the Framework Document is decidedly not referred to by EPA as a final rule and was not published in the Federal Register as a final rule because EPA believes it is a document that outlines a “conceptual approach” to how EPA may go about making decisions on new chemicals.  The document appears in the “supporting & related material” section of the meeting notice.  EPA specifically states that the document, referred to as a “draft” in the Federal Register notice that announced the two public meetings, “outlines EPA’s approach to making decisions on new chemical notices submitted to EPA under TSCA section 5, as amended,” and includes EPA’s “general decision framework for new chemicals” and a breakdown of how EPA “intends to approach each of the five types of new-chemical determinations required under the statute.”

NRDC’s opening brief was submitted on May 1, 2018.  It is an excellent read on the topic of why NRDC believes the draft Framework Document is actually a final rule in disguise that EPA implemented without the requisite process required under the Administrative Procedure Act.

The law suit raises novel and interesting procedural issues.  Is the draft Framework Document a final, reviewable rule amenable to judicial appeal as final agency action?  If the Court chooses to address the substantive TSCA issues, a key one relates to how EPA interprets “not likely to present an unreasonable risk” in reviewing TSCA Section 5 new chemical notifications, and what exactly Congress meant by “the circumstances … under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  Is EPA misapplying the new language in Section 5 that NRDC claims is mandatory, or is EPA properly exercising its authority under Section 5 in identifying conditions of use as outlined in the Framework Document in conducting its Section 5 reviews?

These are hard questions and much depends on their outcome.  For TSCA new chemical aficionados, understanding “conditions of use” is the Holy Grail, and any judicial gloss a reviewing court offers is expected to have a profound impact on how EPA reviews new chemicals and, thus, how and when new chemicals will be commercialized in the U.S.

NOT VERY NEIGHBORLY

Posted on May 17, 2018 by Linda Benfield

Southeast Wisconsin’s continued relief from nonattainment rules is not assured yet. And did we mention we are about to build a large new factory just over the Illinois border?

Southeast Wisconsin labored under some form of ozone nonattainment status for 20 years – but in July 2012 the area was declared to be in compliance with the then-applicable 8 hour ozone standard. The region has enjoyed five years of relief from the enhanced permitting, emission offsets, and other restrictions on expansion that come with Nonattainment New Source Review.

That glorious period appeared to be coming to a close when, on December 20, 2017, EPA informed Governor Walker that the proposed nonattainment areas for the more restrictive 2015 ozone standard would include all of five southeastern Wisconsin counties, and parts of four other counties bordering Lake Michigan. The Walker administration and the business community were not pleased.  

In public comments filed with EPA, the State of Wisconsin and every major business group for the state and affected counties pushed back on EPA’s policy decision, with arguments based heavily on the scientific data collected during the past 20 years. Commenters emphasized that the air quality and meteorological data does not support including the entire geographic boundaries of all of the counties, there is a seasonal component to the nonattainment data, and as the state has emphasized for years in nearly every context involving air emissions, most of the ozone impacting southeast Wisconsin is transported from outside Wisconsin, including from our neighbor to the south – Illinois.

EPA listened, and on May 1, 2018, released a substantially pared down final list of counties designated as nonattainment for ozone –the list only includes the lakeshore areas of six counties. Notably, because of gaps in the certified data, Racine County, which will be home to a new $10 billion development by Foxconn Technology Group, will not be included in the nonattainment area. Foxconn and its affiliated vendors will manufacture liquid crystal display screens at the Racine location, which was chosen over other contenders, including sites in Illinois.

Stirring up trouble in our Midwest neighborhood, on Friday, May 4, 2018, Illinois Attorney General Lisa Madigan announced that she will file suit in the D.C. Circuit challenging the ozone designations. Her announcement ties the designations to the Foxconn development and  complains that EPA’s action puts “a company’s profit ahead of our natural resources and the public’s health.”   

The new designations have not yet been published in the Federal Register, but this neighborhood dispute may be headed to court. Responding to Ms. Madigan’s press release, Governor Walker said “The State of Wisconsin will push back.” If Illinois wants to pick a fight, Wisconsin could consider a counter claim, or its own suit against Illinois under Section 126 of the Clean Air Act, which allows downwind states to pursue out of state upwind emission sources. Ozone monitors in southeastern Kenosha County have shown for years that emissions from Illinois are the primary source of nonattainment on the Wisconsin side of the border.

Hoping All Your Consequences Are Happy Ones

Posted on May 3, 2018 by Kenneth Warren

Those of us who remember Bob Barker’s years as host of the game show Truth or Consequences recognize the title of this blog as his customary closing line.  His desire to limit the ramifications of bad decisions has a corollary in Pennsylvania law.  As the Pennsylvania Supreme Court recently held, statutory provisions may be construed narrowly “substantially in consideration of the consequences of a particular interpretation.” 

In EQT Production Co. v. Pa. Dep’t. of Envtl. Prot., an energy company operated an impoundment to contain hydraulic fracturing wastewater.  Wastewater leaked through holes in the impoundment’s liner into the underlying base layers, soils and “waters of the Commonwealth” which include “underground waters, or parts thereof.”    

The release from the impoundment into groundwater clearly violated the prohibition in the Pennsylvania Clean Streams Law on discharging or permitting the discharge of industrial wastes into the waters of the Commonwealth.  Anticipating that the Pennsylvania Department of Environmental Protection (PADEP) would seek a penalty for each day that contaminants remained present in the environment, EQT sought a judicial declaration that civil penalties may be imposed only for days that pollutants were actually discharged from the impoundment.   

As the declaratory judgment action progressed, PADEP acknowledged that the mere presence of contaminants in groundwater would not alone support the imposition of penalties.  But it contended that a violation occurred on each day that the contaminants initially released from the impoundment passively migrated from soil to groundwater (the “soil-to-groundwater” theory) or moved from one part of the waters of the Commonwealth to another (the “water-to-water” theory).   

The Pennsylvania Supreme Court concluded that the language of the Clean Streams Law, which prohibits any discharge of an industrial waste “into” a water of the Commonwealth, is ambiguous.  The language could be interpreted to cover only movement of a pollutant from outside the waters of the Commonwealth into these waters, but could also be read to include movement of a previously released contaminant from one part of the Commonwealth’s waters into another part.   

In resolving the ambiguity, the Court noted that even after remediation occurs, a small quantity of contaminants may remain present in groundwater and continue to migrate.  If each day constitutes a violation, massive civil penalties would result.  Principally because it believed this consequence to be unreasonable, the Court rejected the water-to-water theory.  By excluding water-to-water mitigation from the ambit of the Clean Streams Law’s prohibitions, the Court created Pennsylvania’s version of the “unified waters” approach.  At least in this context, it makes good sense.    

But EQT still suffered serious liabilities.  It was required to remediate the contamination that it caused.  And the soil-to-groundwater theory remains in play; the Court chose not to rule on its validity because EQT’s pleadings and application for summary relief did not raise that challenge.  Penalties in excess of $1 million were assessed against EQT and will be reviewed on appeal.  In a fictional game show world, all consequences are happy ones.  In real life, even a solicitous state Supreme Court will not guarantee an entirely happy ending for a party who has violated environmental laws.

A 2-Fer Update

Posted on May 1, 2018 by Mark Walker

Seth Jaffe and I have both previously blogged about Public Citizen v. Trump. It is the lawsuit challenging Trump’s Executive Order 13771 which, with some exceptions, mandates two existing federal regulations be eliminated for every new regulation. Several public interest groups challenged the EO asserting that it will block or repeal regulations needed to protect the environment, health and safety and that it directs federal agencies to engage in decision making that is arbitrary, capricious and contrary to other existing laws.

Since its filing, no substantive issues have been addressed. Instead, the case has been mired in addressing the issue of standing. Standing requires that the plaintiffs demonstrate a personal stake in the outcome of the controversy. In order to demonstrate Article III jurisdiction, the plaintiff associations must either show “associational standing” or “organizational standing”. Associational standing requires that the plaintiffs demonstrate that the EO will substantially increase the risk that at least one of their members will either be harmed or face a substantial probability of harm once such increased risk is taken into account. Organizational standing requires that the plaintiffs demonstrate that they have standing to sue in their own right which requires that they show the EO will have a chilling effect on their missions.

On February 26, 2018, Judge Moss ruled that the plaintiffs had failed to demonstrate standing and that, therefore, the court did not have jurisdiction to entertain their lawsuit. In a lengthy decision, the judge held that the plaintiffs had not identified a specific member who had yet suffered an injury as a result of the EO. The plaintiffs brought this action before any specific regulatory actions had been taken pursuant to the EO. Therefore, they could not identify any specific regulations that had been repealed or were likely to be repealed as a result of the EO. The court held that plaintiffs’ allegation that it was “likely” that the EPA and other agencies would stop seeking new regulations in order to protect existing ones was overly speculative.

Most of plaintiffs’ arguments in support of associational standing related to their claims that the EO had already delayed the issuance of new regulations. For example, the plaintiffs alleged that the EO had already delayed an unspecified regulation on greenhouse gas emissions. One of the NRDC’s members asserted that global warming and the resulting rise in sea level would deprive him of water supply and the use of his home. However, as Judge Moss noted, the plaintiffs had not identified any proposed rule or putative regulatory action that addressed this concern or that had been delayed by the EO.

As to organizational standing, the plaintiffs claimed that the EO would cause them harm by chilling their advocacy activities. The advanced basis for this claim was that the plaintiffs would now have to “think twice” about advocating new regulations with the knowledge that a new regulation could result in the elimination of two regulations which plaintiffs believe are necessary protections, thus imperiling their ability to advocate thereby chilling their First Amendment right. However, the plaintiffs could not point to any specific regulation which had yet presented this alleged Catch 22. Instead, they merely claimed they were now forced to consider the issue. Judge Moss held that this “think twice” argument did not establish an injury in fact.

This case is a text book example of the difficulties public advocacy groups face in demonstrating standing, particularly where the new proposed regulation has not yet been adopted or implemented. Although the plaintiffs amended their claims once before to address standing, Judge Moss has allowed them to amend again to try to establish standing. Of course, if subsequent agency actions pursuant to the EO demonstrate standing, the plaintiffs will then be allowed to pursue a lawsuit. It is noted that the Trump Administration is now proposing a 3-for-1 plan for 2018.