ORSANCO ADDS FLEXIBILITY TO OHIO RIVER WATER QUALITY PROGRAM

Posted on November 26, 2019 by David Flannery

In an earlier blog, I raised the question of “When Should A Regulatory Program Be Eliminated”. After a four-year effort, three public comment periods, four hearings and six webinars, the Ohio River Valley Water Sanitation Commission (ORSANCO – the interstate compact that regulates the water quality of the Ohio River) acted in June 2019 to answer this question. ORSANCO did so by revising its Pollution Control Standards to make it clear that while its Ohio River numerical water quality criteria would remain in place, the designated use for the Ohio River established by the ORSANCO Compact would be the primary mechanism by which ORSANCO would protect the quality of the Ohio River. 

In explaining the significance of its decision to leave its numerical water quality criteria on-the-books, ORSANCO offered the following sentence making it clear that its standards were to be considered by member states but were not mandatory:

The standards were adopted by the Commission for use or consideration by signatory States as they develop and implement their programs to assure that those designated uses and other goals regarding pollution control and prevention set forth in the Compact will be achieved. Emphasis added.

At its meeting in October 2019, ORSANCO adopted the process by which it would assess the consistency of the state-issued NPDES permits with its revised Pollution Control Standards.  Under that review process, ORSANCO’s staff will review the conditions on permits issued by member states and will compare those permit conditions to what they would have been had the ORSANCO numerical water quality criteria been applied.  If the state-issued permit contains any less stringent conditions, the state will be given the opportunity to explain how the terms of its permit would protect the designated uses of the Ohio River established by its Compact.

In short, while the ORSANCO numerical water quality criteria will continue to be available for “consideration” by States, the only mandatory duty imposed on the member states is the issuance of permits that are protective of the designated uses that the ORSANCO Compact has assigned to the Ohio River. 

Confidentiality of “Voluntary” Submittals to EPA

Posted on November 25, 2019 by Stephen Gidiere

When is the confidentiality of sensitive information provided at EPA’s request protected?  In Food Marketing Institute v. Argus Leader Media (“FMI”), the Supreme Court addressed the question, but uncertainty remains.

It happens at least once in every television crime drama.  The police bring in for questioning the prime suspect.  After an initial back and forth, it becomes apparent they have no warrant or enough evidence to hold the suspect, who then asks:  “Am I under arrest?”  “No,” the police respond.  “You are free to leave.”  But of course, they never do.  In reality—warrant or not—the suspect is stuck there.

For years, the same drama repeated itself countless times for companies and individuals facing requests from EPA for confidential business information and, understandably, concerned about the further dissemination of sensitive data submitted to EPA via the Freedom of Information Act (“FOIA”).  While FOIA Exemption 4 provides that “trade secrets and commercial or financial information obtained from a person and privileged or confidential” are exempt from further disclosure, determining whether certain information is protected is no simple task, thanks mostly to a web of court decisions interpreting Exemption 4.

For decades, the inquiry began by asking whether the information was submitted to EPA “voluntarily.”  That’s the test the D.C. Circuit established in its 1992 Critical Mass decision.  If the information was submitted voluntarily, then the submitter could protect the information by simply showing it was not the kind of information that it normally releases to the public.  If the information was compelled or required, then the submitter would have to meet a more stringent “competitive harm” test.

And so debates raged over what exactly it meant to provide the information “voluntarily.”  If the submitter objected to EPA’s statutory authority to issue the request, but submitted the information anyway, was that “voluntarily?”  Did EPA have to issue and enforce a subpoena to defeat such a claim?  Or was it enough that EPA possessed authority to do so, even if not exercised?  In reality, like the suspect, the submitted was never really free to leave, right?

But thanks to the Supreme Court’s recent decision FMI, submitters of information to EPA have been liberated from their imaginary chains!  In FMI, the Supreme Court held that the “competitive harm” test is “inconsistent with the terms of statute” and rejected the D.C. Circuit’s “casual disregard of the rules of statutory interpretation” in formulating that test.  In addition, the Court found “no persuasive reason” to distinguish between “voluntary” and “required” submissions.  Instead, the Court held that all submissions should be evaluated for Exemption 4 coverage based on whether the information is “customarily and actually treated as private by its owner.”

So, now submitters are in control, right?  Not so fast.  The Court also found that Exemption 4 may not apply unless the information was “provided to the government under an assurance of privacy,” arguably putting EPA and other agencies back in control.  Should submitters insist on such an assurance before submitting their information and data?  Sounds likes it is time to lawyer up.

Dan Esty’s Challenge to ACOEL: Let’s Do It

Posted on November 21, 2019 by Ridgway Hall

At ACOEL’s meeting in Williamsburg last month Dan Esty challenged us to undertake a multi-year project to transform the legal framework for environmental protection. He argued persuasively that our country has outgrown its tolerance for command and control regulation, and that advances in emissions modeling and risk assessment plus the ready availability of abundant and low cost data now make possible a shift to a market-driven system. This would allow a price to be put on pollution, or “harm”, and eliminate externalities: that is, everyone must either eliminate or pay for his or her pollution.

This system would be science-based, flexible, transparent, and more efficient than command and control. It would also be more politically appealing by allowing the market to determine our choices instead of regulatory hammers. Dan’s proposal is described at length in his thoughtful article Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability.

The need for such an overhaul is great because our current system is not working well. Unless we can develop a legal framework that is more efficient and politically acceptable, environmental protection faces an uncertain future at a time when the need for responsible stewardship has never been greater. The magnitude of the challenge is enormous. Yet who is better equipped to tackle this than ACOEL? No one. We should do it. My purpose in this article is not to debate that. Rather, as an initial step, it is to point out that about 25 years ago, when EPA was 25 years old and we had already seen the last major piece of federal environmental legislation, the Clean Air Act Amendments of 1990, there was a widespread recognition even then that we needed major reforms in our legal framework. The call was for greater flexibility, market incentives, and more holistic approaches. During the 2 year period 1996-98 at least six major reports were published based on thoughtful analyses by a wide range of stakeholders committed to finding better ways to protect our environment and human health. They provide a useful foundation for any new effort. They include: 

- The Aspen Institute, The Alternative Path: A Cleaner, Cheaper Way to Protect and Enhance the Environment (1996)

- Enterprise for the Environment, The Environmental Protection System in Transition: Toward a More Desirable Future (William Ruckelshaus, Chair; Center for Strategic and International Studies, National Academy of Public Administration and The Keystone Center, 1998)

- The President’s Council on Sustainable Development, Sustainable America: A New Consensus for Prosperity, Opportunity and a Healthy Environment for the Future (1996)

- National Environmental Policy Institute, Integrating Environmental Policy: A Blue- Print for 21st Century Environmentalism (1996)

- National Academy of Public Administration, Resolving the Paradox of Environmental Protection: An Agenda for Congress, EPA and the States (1997)

- Marian R. Chertow and Daniel C. Esty, eds., Thinking Ecologically: The Next Generation of Environmental Policy (a collection of papers produced by the “Next Generation Project” of the Yale Center for Environmental Law and Policy, 1997).

A consensus ran through all these reports that while command and control regulation focusing on end of pipe controls was right to deal with the serious environmental problems of the 1970s, something more flexible and cost-effective was needed for the future. The proposals included a focus on the multi-media footprint of an entire plant, consideration of regional and ecosystem-wide approaches, incentives for innovative management and market-driven solutions, and sector-based strategies. They also included greater use of corporate environmental, health and safety management systems coupled with robust compliance auditing; greater incentives for innovative technology; product life cycle management; “alternative tracks” under which a facility would be given broad performance or protection goals with flexibility on how to get there; and the use of tax incentives, marketable pollution rights, and other financial mechanisms.

While some considered replacing our media-specific statutes with a single holistic environmental statute, there was broad recognition that even by the mid-‘90s the mood in Congress was sufficiently divisive that that was not possible, and any effort to do that could produce something much worse. Robert Sussman proposed a more promising alternative, “An Integrating Statute” (Environmental Forum, March/April 1996) which would allow broad-gauge, multi-media strategies though integrated application of existing statutes.

What was the result of this extraordinary outpouring of creative thinking from the brightest, most experienced and diverse brainstormers available? No new legislation, some minor efforts to streamline regulations, a few more flexible policies at EPA, and little else. There is a lot in these reports that will provide helpful background for any effort that ACOEL or anyone else might launch to achieve the new legal framework that Dan envisions, but getting there will be a huge task.  It will almost certainly require new legislation that can attract bipartisan support.

Just this past April, in recognition of EPA’s 50th anniversary, the American University Center for Environmental Policy and the EPA Alumni Association hosted a 2 day conference on “EPA and the Future of Environmental Protection”, featuring a wide range of highly qualified speakers, including four past EPA Administrators. Many of the same issues were discussed, but some fresh perspectives and ideas seemed to emerge. A report is due to be released within the next few weeks, and I will discuss its principal recommendations in a future blog post.

Will NEPA’s Golden Anniversary be Tarnished by the Trump Administration’s efforts to overhaul the long-established regulations?

Posted on November 18, 2019 by Brenda Mallory

As the 50th Anniversary of the National Environmental Policy Act approaches, we may be on the verge of one of the most significant regulatory revisions in the statute’s history. NEPA advocates—and all those who believe it is important for the federal government to have a robust tool to assess the impacts of its actions before commencing them—watch and wait with trepidation for the release of proposed rules substantially modifying the Council on Environmental Quality’s longstanding regulations governing NEPA practice.

What is the cause for concern? On October 11, 2019, CEQ submitted proposed regulations to the Office of Information and Regulatory Affairs within the Office of Management and Budget, to begin the inter-agency review process governed by Executive Order 12866.  CEQ’s proposal is highly anticipated because, in the name of “streamlining” and reducing “burdens” on industry, NEPA has been a target for reform since the beginning of the Trump Administration. The Administration’s emphasis on instituting shortcuts has far exceeded any focus on ensuring sufficient environmental review or public engagement. Through a series of Executive Orders, President Trump has directed all agencies, but particularly CEQ and OMB, to take steps to remove obstacles to infrastructure and energy development, among other priorities.

In January 2017, Executive Order 13766 focused on expediting environmental reviews and approvals for “High Priority” infrastructure projects. In March, Executive Order 13783 proclaimed a national interest in promoting the development of the nation’s energy resources while avoiding regulatory burdens that “unnecessarily” encumber energy production. In August 2017, Executive Order 13807 directed CEQ and OMB to take actions to promote streamlining and greater accountability in the environmental review process. Then, in June 2018, CEQ issued an advanced notice of proposed rulemaking soliciting comments on revising broad aspects of its NEPA regulations, from details on page limits to the definition of core, NEPA terms such as “significantly,” “reasonably foreseeable,” and “alternatives.” It was clear that every aspect of the regulations was open for discussion. CEQ received approximately 12,500 comments.

Since then, CEQ issued proposed Guidance on addressing GHG impacts, encouraging a narrow focus for review and offering a litany of reasons why only minimal qualitative analysis might be necessary (i.e., emissions are not “substantial,” it’s not “practicable,” or “the complexity of identifying emissions would make quantification overly speculative”). In addition, a number of agencies and departments have issued revisions to their internal rules and guidance that reflect these themes of reducing burdens and greater efficiency, with seemingly little concern about the impact on environmental analysis or public participation. For example, the Forest Service has proposed revisions to its regulations that, among other things, dramatically expand categorical exclusions and discourage site-specific analysis. BLM has issued a number of guidance documents on oil and gas development, oil and gas leasing reforms, and the NEPA document clearing process that shorten time-frames for analysis and eliminate public input. Finally, the Department of Homeland Security, in the name of border security, has issued waivers of many environmental review requirements.

What changes could be harmful from an environmental and public participation perspective?

The changes that have been implemented by the agencies referenced above as well as others are instructive on the type of revisions we can expect to see in CEQ’s upcoming proposal, although the revisions are likely to go farther and have the effect of imbedding these themes in foundational terms. The public should be on the alert for revisions that have the following impacts on the NEPA process:  

  • Eliminating the need for NEPA documentation and avoiding public process: These may include
    • Expansion of categorical exclusions, changing the administrative processes so exclusions can be established without CEQ oversight, and the removal of limitations on when categorical exclusions can be used;
    • Allowing multiple categorical exclusions to be used on one project;
    • CEQ adoption of a practice created by BLM known as the Determination of NEPA Adequacy (DNA), which would allow agencies to determine that existing NEPA documentation on tangentially-related actions eliminates the need for further environmental review or public process; and
    • Elimination or reduction of time-periods for scoping and public comment, making it difficult if not impossible for the public to engage.
  • Narrowing the scope of review associated with specific federal actions so that neither the agency nor the public can assess or understand the full impact of the action: Revisions that have this effect include
    • Discouragement of site-specific analysis and site visits;
    • Redefining what is considered a foreseeable effect of an action requiring analysis; and
    • Reframing what is within the agency’s discretion or authority.
  • Reducing the number of alternatives that need to be evaluated; and
  • Truncating consideration of appropriate mitigation measures.

As of this writing, it is not clear when the proposal will be issued or how much time will be allowed for comments, but unconfirmed rumors suggest it will be soon.

I encourage those interested in protecting this important tool for environmental assessment and public engagement to let their voices be heard. While striving for greater efficiency can be a laudable goal, NEPA was not intended to be a process for rubber-stamping government decisions. We should not allow NEPA’s ultimate goals to be subverted by false claims for good government.

The author is an ACOEL fellow and is the former General Counsel of CEQ.

What’s Up with Gundy?

Posted on November 14, 2019 by Allan Gates

Last summer the Supreme Court announced its decision in Gundy v. United States.  Conservative advocates had eagerly followed the case, hoping it would restore the nondelegation doctrine to the glory days of 1935, the year Schechter Poultry and Panama Refining Co. v. Ryan used the nondelegation doctrine to cut down a broad swath of New Deal programs.

The decision in Gundy disappointed conservative hopes, but only by the slimmest possible margin.  A plurality of four justices — Justice Kagan joined by Justices Ginsburg, Breyer, and Sotomayor — voted to uphold the statute in question, following the very tolerant nondelegation analysis the Court has used consistently for decades.  Three justices — Justice Gorsuch joined by the Chief Justice and Justice Thomas — voted to invalidate the statute using a new and much more robust nondelegation analysis.  Justice Alito concurred in the judgment reached by the plurality, but only because a short-handed Court did not have a majority of Justices willing to establish a new (or resurrect a very old) nondelegation standard.  His opinion openly invited a new nondelegation challenge once the Court has a full complement of nine justices.  Justice Kavanaugh did not participate in Gundy because he was not on the Court when it heard oral argument.

College fellow Lisa Heinzerling wrote a very perceptive blog post about Gundy last May, three weeks before the decision was announced, noting that the Court was lingering over Gundy longer than any other case that Term.  In retrospect, the timeline is even more interesting than Lisa could have known.  Gundy was argued on the first day of the Term, October 2, 2018.  It was decided at the very end of the Term, June 20, 2019.  Justice Kavanaugh joined the Court on October 6, 2019.  Presumably, Justice Kavanaugh was in the room at every conference in which the Court struggled over how to resolve its 4-4 split over nondelegation in Gundy.  When one considers this timeline, Justice Alito’s open invitation for another nondelegation challenge packs special punch.

The significance of the unusual timeline was not lost on Gundy’s counsel, a New York public defender who had taken Gundy’s case farther than anyone could have expected.  She promptly filed a petition for rehearing.  Rehearing in the Supreme Court is extremely rare, but Gundy’s public defender aptly noted that her request presented one of the few circumstances that has prompted the Court to grant rehearing in the past, namely a short-handed Court that divided 4-4 with a new justice in place who could resolve the split if rehearing were granted.

The timeline of the Court’s consideration of Gundy’s petition for rehearing is also interesting.  The petition was filed on July 11 and scheduled for consideration at the Court’s October 1, 2019 conference.  Following that conference, the Court relisted the petition for consideration at the October 11, 2019 conference.  Since then it has been relisted four more times.  Most recently the petition has been scheduled for consideration at the November 15 conference. 

As the Justices ponder Gundy’s petition for rehearing, it seems likely they know if rehearing were granted, the result would be different the second time around.  Among other things, the Court is probably considering how the general public would react to seeing the Court flip on a do-over of a high profile constitutional case solely because a new Justice joined the Court, particularly when that Justice was confirmed by a bare partisan majority after a bruising confirmation hearing.

It is worth noting that there are petitions for certiorari pending in Paul v. United States and Caldwell v. United States, cases identical to Gundy, that were being held pending the decision in Gundy.  The Court might mitigate the public appearance of a highly political flip by taking one of those cases as the vehicle for addressing nondelegation.

IMO 2020 – A Strikeout for Sulfur, but Black Carbon Is Still on Base

Posted on November 7, 2019 by Susan Cooke

Greenhouse gas (GHG) emissions from international shipping supposedly represent 2% to 3% of the world total, about on par with those emitted by Germany.  However, there are no GHG emission restrictions covering ships on the high seas.  Moreover, even the current limits on sulfur and NOx are far less stringent than those imposed in many developed countries, although things are about to change on the SO2 front.

That is about to change.  The International Maritime Organization (IMO), which is part of the United Nations, recently announced a new and more stringent standard, set forth in Annex VI  of the International Convention on the Prevention of Pollution from Ships (MARPOL).  On January 1, 2020, marine vessels must meet a 0.5% (by weight) sulfur-in-fuel standard or install scrubbers to meet that standard.  In addition, starting March 1, 2020, such vessels without scrubbers may no longer carry heavy fuel oil on board.  Even more stringent standards are already in place within so-called Emission Control Areas.  For example, there is a 0.1% sulfur-in-fuel limit for vessels operating within the territorial waters of Canada, the continental U.S., Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. 

Annex VI also contains provisions for lowering NOx emissions.  Marine diesel engines above 130 kW installed on a ship constructed on or after January 1, 2011 must meet so-called Tier II standards, and such diesel engines installed on vessels constructed on or after January 1, 2016 and operating in the U.S. and Canadian waters described above must meet the more stringent Tier III standards. 

It is expected that most vessels will utilize lower sulfur fuel rather than employ scrubbers.  This move away from residual fuel oil (known as heavy fuel oil or HFO) toward low sulfur blended intermediate fuels and lighter, more refined grades will have another salutary effect – a reduction in the emission of black carbon, the sooty material resulting from incomplete combustion of fossil fuel, which comprises a significant portion of particulate matter, an air pollutant.  And while black carbon has a lifetime of only days to weeks after its release into the atmosphere, its warming impact on climate, per unit of mass, is 460-1,500 times stronger than CO2.

In 2018 the IMO adopted an initial climate strategy targeting a 50% reduction in GHG emissions by 2050 from 2008 levels through a mix of proposed measures ranging from efficiency improvements to existing vessels, speed reductions, use of lower carbon fuels, methane and VOC emission controls, national action plans, and GHG reduction initiatives implemented at ports.  While black carbon is estimated to account for 7%-21% of the overall climate impact of international shipping, this initial strategy does not include any specific measures for reducing black carbon emissions.  However, an IMO subcommittee is now considering what action might be undertaken to address this pollutant beyond the ancillary effect of the new sulfur standard. 

One particular concern is the increased shipping anticipated in Arctic waters as ice recedes, and the deleterious impact of black carbon emissions from an increased number of vessels plying those waters.  Indeed, the impact of black carbon emissions is specifically noted in Par. 70, ANNEX 2, of the IMO Note regarding adoption of its Initial Strategy.   

A new ball game – or at least the warm-up for that game – is about to commence where various measures to control black carbon emissions will be tossed out for consideration.  While the winning strategy is expected to be several years in the making, one proposal garnering interest is the mandated use of distillate fuel in lieu of HFO, which can be paired with mandated use of diesel particulate filters to remove most of the black carbon.  But this strategy will be costly and may not make it to first base.  Consequently, in the inimitable words of Yogi Berra: “It’s tough to make predictions, especially about the future”.