The Side-Agreement Takes Center Stage: Environmental Surprises in the Draft U.S-Mexico-Canada Agreement

Posted on October 30, 2018 by Tracy Hester

NAFTA’s successor - the awkwardly named U.S Mexico Canada Agreement (USCMA) - has already stirred up a swarm of commentary.  The initial draft tackles major economic questions among the three countries, including important decisions about agriculture, intellectual property, telecommunications, and energy.  These big issues have provoked a welter of summaries, analyses, attacks, and punditry.

Except, surprisingly, for environmental issues.  Only a small percentage of the popular and political coverage has picked up on the USMCA’s new environmental provisions.  That silence is especially puzzling because the draft agreement contains some important environmental provisions.

First, a little background.  When the U.S, Mexico, and Canada negotiated the original North American Free Trade Agreement, the backlash over its perceived neglect of environmental concerns led the parties to negotiate the North American Agreement on Environmental Cooperation (NAAEC) as a parallel side-agreement.  NAAEC established a permanent Commission on Environmental Cooperation (CEC) to provide a framework for coordinated environmental actions by the three nations, and the side-agreement also created a ground-breaking environmental enforcement review process to let private citizens request inquiries into alleged failures by any of the three nations to enforce their own environmental laws.  While this process suffers from several important shortfalls, it nonetheless remains a trailblazing step to emphasize environmental concerns by assuring private citizens a voice in international trade relations.

Despite their importance, NAAEC and its environmental enforcement review process have languished in a diplomatic netherworld for years.    As each country shifted leadership and political alignment, the CEC and its enforcement review unit suffered from periods of malnourished funding, benign neglect, or even outright hostility.  When Canada, Mexico, and the U.S. negotiated the TransPacific Partnership, that agreement did away with NAFTA’s and NAAEC’s separate environmental approaches in favor of a unified environmental section that included specific requirements for certain industry sectors (such as fishing), and substantially watered down the enforcement review process.   Given the TPP’s change in course, the prospects for NAAEC, the CEC, and its enforcement review process looked dim when the Trump Administration forced a renegotiation of NAFTA earlier this year.

Those fears now seem a bit unfounded.  The draft USMCA text adopts several key structures of NAAEC, leaves clear room for the CEC to continue, and contemplates entry of an Environmental Cooperation Agreement (ECA) to ultimately replace NAAEC.  While we have yet to see the draft ECA, the USMCA’s environmental provisions already affirm NAAEC’s enforcement review process and even incorporate some reforms sought by commentators for years.  The USMCA also includes some of the TPP’s express environmental mandates for particular industries without that agreement’s troubling retreat from NAAEC’s review process.  The USMCA, notably, consigns all fights to the dispute resolution process of the overall trade agreement, which potentially gives its environmental obligations a much sharper bite.

The USMCA remains only a draft, and the pending ECA may take its environmental directions entirely astray.  But in the meantime, the current draft USMCA’s environmental provisions promise a surprising, and promising, move away from the side-agreement sideshow and into the heart of the parties’ main trade agreement.

A Sliver of Hope for the Government’s Remaining NSR Enforcement Cases?

Posted on October 16, 2018 by Seth Jaffe

Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative.  The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.

However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief.  Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign.

I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce.  I’ll settle for three points.  First, it may not be a legal doctrine, but I’d apply the doctrine of common sense, rather than the doctrine of concurrent remedies.  Given that all courts agree that NSR does not impose ongoing operational requirements, it doesn’t even make sense to me to think of ongoing forward-looking injunctive relief with respect to a one-time violation that may have occurred twenty years or more ago.

I’ll add to that a related point.  As other NSR cases have noted, many of these facilities have changed hands since the projects at issue were constructed.  In those cases, the former owners aren’t subject to injunctive relief, because they don’t own the facilities and thus have no ability to install BACT.  The new owners aren’t subject to injunctive relief, because they did not violate the Clean Air Act.  In these circumstances, are we really going to make the availability of injunctive relief subject to the random circumstance of which facilities have been sold and which have not?  That just seems nuts.

Finally, I’ll emphasize that EPA and DOJ shouldn’t get too excited over this decision.  The Court was very clear that it was not deciding whether injunctive relief was appropriate, only that it wasn’t barred by the statute of limitations.  The Court’s language was unlike any I’ve ever seen before and is worth a read:

On remand, the district court must further consider whether any equitable relief is appropriate and proper under the legal and factual circumstances of this case in which the legal relief has been time barred. We recognize that we are not giving the district court much guidance in this task. … Perhaps the answer to this knotty question of injunctive relief will reveal itself after a full hearing and the presentations of the parties. And we hope that we are not being too cowardly when we sincerely wish the district court good luck.

And I’m sure that the District Court will appreciate the 5th Circuit’s good wishes.

CROSSWORD PUZZLE FOR SEVEN STATES SUBJECT TO REGIONAL EMPHASIS PROGRAM FOR A NEW AGRICULTURAL SAFETY INITIATIVE

Posted on October 11, 2018 by Brian Rosenthal

To address the concerns for worker exposure to potentially hazardous gases and chemicals commonly used in agricultural operations, a federal agency, will provide a three (3) month period of education beginning October 1, 2018. Enforcement is then scheduled to follow through September 30, 2019. According to the agency, workers in this industry face hazards that include fire, explosions, and exposure to toxic gases and hazardous chemicals. Work the Crossword to discover the seven states subject to a new Regional Emphasis Program targeting the fertilizer storage, mixing/blending, and distribution industry in those states.

*Key below (upside down)

Overview of the Past ACOEL Year

Posted on October 3, 2018 by John Cruden

The American College of Environmental Lawyers just completed one of the most significant and exceptional years in its history.  As President, I set goals for the College this year to emphasize outreach, education, and pro bono efforts using our six committees and six newly appointed task forces as the vehicles for our work.  The following is a brief summary of what we accomplished, with recognition to some of the individuals who made it happen.

Here are some of the “firsts.” We had our first joint conference with another college, the American College of Construction Lawyers, led by Michael Gerrard and held in Columbia Law School.  And, we are now collaborating with the National Judicial College and the American Institute of Chemical Engineers. Dave Tripp, our task force leader for other colleges, has been key to our success. We had our first webinars for the college (put together by Outreach Chair Mary Ellen Ternes and Government Liaison Chair David Erickson), interviewing EPA leadership, culminating in the just completed interview of the Acting EPA Administrator. And we have already completed a highly-regarded joint educational seminar with the American Law Institute and have another one scheduled. Jim Bruen, as the first President of the related ACOEL Foundation, obtained IRS certification as a nonprofit organization, which will allow us to advance the Foundation in the coming year.  For the first time, our blog was rated as one of the top 100 in the nation and we published over a hundred high quality blogs, about one every other weekday. 

Pam Giblin led a project by the former ACOEL Presidents to create an extensive list of the responsibilities of the President and President-elect.  Our communications committee, chaired by Andy Field, led the way in creating a new web page, spearheaded by Peter Culp, and we are well on our way to completion. 

On the outreach side, I have spoken on behalf of ACOEL internationally (keynote speaker at Toronto Canadian Environmental Law and Lisbon International Bar Association Conferences), and to numerous ABA groups, Law School gatherings, state bar conferences and other events.  And, we have dramatically enhanced our pro bono efforts, with the new domestic Envision Utah project, as well as actions in Africa, India, and Cuba. The just released (July-September) edition of the African Wildlife Foundation’s magazine, Travel Africa, includes an article on Mentoring Wildlife Crime Prosecutions. The article speaks about training wildlife crime prosecutors and establishing the institutions needed to support their ongoing work, stating that “The American College of Environmental Lawyers has also offered its support to the prosecutors during and beyond their mentorship period.” All this is a tribute to the great work of Chair Jim Bruen and Deputy David Farer.

This year we will have our annual conference in October at Grand Teton National Park, our first in a national park. I salute Peter Hsiao, who has supported incoming President Allan Gates to put together a superb three-day conference—we expect record attendance (and a new Conference App). At our annual conference we will give the annual Hermann writing award to Emily Hush, selected by the outreach committee, led by their Deputy JB Ruhl, from 15 high quality nominations from law schools.  And, at the conference, we will also celebrate the life of Steve Hermann, the founding member of the college, with a short video from the oral histories task force. The conference will also feature keynote speakers by leading administration officials and three different panels on the most important environmental issues of the day.

Our other task forces, including Illegal Wildlife Trafficking (mentioned above), Disaster Planning, and Environmental Principles, have been active and produced superb results. For example, our Disaster Response Task Force, led by Jeff Civins, is creating a white paper on disaster planning, and was instrumental in planning EarthX Texas, touted as the largest event in the world of its kind celebrating Earth Day.

Finally, orchestrated by our Regional Director Ted Garrett, we had ACOEL activities in every Region and meetings with key federal and state administration officials, including a number of regional administrators.  And we were all proud to have our own, Alex Dunn, selected to be an EPA Regional Administrator and, more recently nominated by the President to be EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP).

We are proud of our college and its many accomplishments.  As you read this blog, and review the many other blog submissions on this website, you will get a greater knowledge of the high quality of the now over 250 members of the College.

PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.