Jersey Girl ‘Cause down the shore everything’s all right, You and your baby on a Saturday night….

Posted on December 23, 2019 by Virginia C. Robbins

These lyrics from the Jersey Girl tune on Bruce Springsteen’s 1984 single echo the summers of his youth spent at the New Jersey shore.  I was reminded of Springsteen while reading the book “The Geography of Risk, Epic Storms, Rising Seas, and the Cost of America’s Coasts” written by the Pulitzer Prize-winning journalist, Gilbert M. Gaul, that was published earlier this year.  Gaul’s book makes clear that today everything is definitely not all right at the shore.

Gaul’s well-researched and engaging book presents, among others, the cautionary tale of development and post-storm restoration on Long Beach Island, a barrier island located midway along the 141-mile-long New Jersey coast. Gaul introduces us to an industrious New Jersey character, Morris Shapiro, a Lithuanian immigrant who arrived in the U.S. in 1899. In 1926 Shapiro bought 53 acres on Long Beach Island between the ocean and the bay. Over time, Shapiro, his sons, and others built thousands of small summer homes on Long Beach Island and along the bay coast behind the barrier island. These modest homes were not built for the wealthy, but for teachers, postal employees, and auto assembly workers in a nearby Ford plant. If a storm knocked one of the tiny houses down, it would be replaced with another small cottage.

By 1962 there were 5,361 homes on Long Beach Island. The tax base from this development allowed the local communities to flourish. On March 6, 1962, a mega-storm known as the Ash Wednesday Nor’easter obliterated much of the island. One thousand homes were severely impaired and 600 were destroyed. The storm caused $2 billion in damage in today’s dollars. In the immediate aftermath of the storm, rather than giving serious consideration to whether reconstruction in such a vulnerable location would be prudent and sustainable, town leaders wanted to know how quickly the homes could be rebuilt in time for Memorial Day weekend.

At the time, New Jersey’s Governor Hughes tried to slow down the redevelopment by proposing a 6-month moratorium on new building while a plan for protecting the coast was prepared. The U.S. Army Corps of Engineers agreed with the governor and suggested a 50-foot wide buffer along the barrier island to protect its sand dunes. But the beach-town mayors and other politicians would have none of this. They were focused on the economic disaster that would occur if the shore were not up and operating by the summer season.

Gaul says his book, in part, is a meditation on the question of risk: How much should be private; how much public? He states that the cost of storm damage that was once borne by beach towns and homeowners is now largely paid for by federal taxpayers. In the 1950s, the federal government paid for 5 percent of the cost of rebuilding after hurricanes. Today it covers 70 percent, or in some cases 100 percent. Federal government subsidies created a moral hazard by encouraging development and reconstruction in fragile coastal ecosystems not only in New Jersey, but also in North and South Carolina, Florida, Louisiana, Alabama and Texas. Gaul’s narrative includes insights on the political and business leaders in these states whose economic and political interests encourage reconstruction after storm events. In contrast, Gaul speaks with Duke’s Emeritus Professor of coastal geology, Orrin Pilkey, who describes the relentless development along our shores as “madness and hubris of unbelievable proportions.”

The author describes the hurricanes that have recently devastated the U.S. coast and how U.S. taxpayers living far from the coastline pay for federal programs that grant disaster relief, issue flood insurance and pay claims, and recreate beaches. Gaul explains that by law federal flood insurance premiums are not based on an assessment of the risks associated with the location of a particular insured property, but rather on national blended averages that overstate the risk for some inland homes and understate it for coastal homes. This makes little sense given that, since 2000, the federal program has paid more than $45 billion in claims for coastal floods, and many of these for second homes, but only $5 billion for all other types of floods. The federal flood insurance program is underfunded and owes the U.S. Treasury about $24 billion.

Gaul calls the failure to slow unrestricted coastal building one of the most costly and damaging planning failures in our history with about $3 trillion worth of property now at risk. To create resiliency to protect this property, there are funding demands being made now for extraordinarily expensive infrastructure projects: $20 billion to protect New York Harbor and lower Manhattan; and $61 billion for the coast of Texas, including Galveston and the Houston Ship Channel. But can we ever build enough surge gates, barriers and levees to protect our cities and industries in coastal areas or will the water win in the end? This book suggests that we have no choice but to attempt to protect the heavily developed and valuable properties in coastal areas. At the same time, we should consider a more equitable way of charging for the resiliency projects, rather than simply passing all the costs on to taxpayers.

What impact will this book have? It should prompt serious public debate and action at the local, state and federal levels to restore natural resiliency along our coasts, but I doubt it will. The history of government funding of reconstruction in fragile coastal ecosystems over the past 60 years leads me to believe that the forces profiting from the current policy are far stronger than wrecking-ball rain and wind. To avoid economic disaster, I believe coastal communities will continue their infrastructure resiliency efforts using local, state and federal funds (raising roads, elevating homes, constructing better bridges). That might be acceptable if we devise an equitable way of allocating the costs of these projects in large measure to those who benefit most from them. But sadly, this approach ignores any land ethic, as in the words of Aldo Leopold from his A Sand County Almanac: The land-relation is still strictly economic, entailing privileges but not obligations.

There are communities that appear to be reaching a sustainability breaking point because of rising sea levels. One example is the barrier island of Ocracoke, NC, at three feet above sea level. Hit hard by Hurricane Dorian, some residents retreated after being traumatized by rising flood waters. In a November 9, 2019 article about Dorian’s impact to Ocracoke, The Washington Post reported that local and state officials are committed to rebuilding the island even though they recognize that long-term recovery does not appear sustainable. Orrin Pilkey is right – madness and hubris.

The Bees Just Got Busier: EPA Approves New Fungicide to be Delivered by the Bees Themselves

Posted on December 20, 2019 by Richard Horder

EPA has been a hive of activity regarding the declining bee population. The agency recently approved an organic fungicide that is to be delivered to crops via “bee vectoring”—a process by which commercially-reared bees walk through trays of pesticide powder, collecting it on their legs and fur. The bees are then released into the wild, and when they land on flowers to collect pollen, the pesticide is distributed directly to the source. It’s true! I am not pollen your leg here.

The fungicide, Clonostachys rosea strain CR-7 (also known as “Vectorite”), is aimed at protecting “high value” crops such as almonds, blueberries, strawberries and sunflowers. The fungicide’s creator, Canadian company Bee Vectoring Technology International (BVT), claims it is a “naturally occurring, non-genetically modified, unique fungus found throughout the world”—in other words, totally bee-nign. 

BVT had to seek approval from EPA for this unique fungicide and distribution process. Section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) authorizes EPA to set tolerances, or maximum residue limits, for pesticide residues on foods. Without such a tolerance, food containing residue is subject to seizure by the government. EPA approved an exemption from this tolerance requirement for residues of Vectorite in August 2019, finding that it is “safe” within the meaning of FFDCA. Vectorite is the first pesticide EPA has ever allowed to be deployed by bees—a bee-utiful use of the exemption.

Here is what all the buzz is about: Vectorite may be a win-win for bees and struggling crops alike. Bumblebees have been declining at an alarming rate in the U.S. in recent years, and studies show that common chemical fungicides are responsible for at least 70% of this decline. These fungicides are traditionally applied via spraying, an imprecise method which requires more product than necessary, with the rest ending up in water sources or on land—a stinging result for the environment and bees alike. But the use of bee vectoring, a highly precise distribution method, may end up replacing the use of these traditional fungicides, thereby bolstering the declining bee population. It seems like bee vectoring is the bee’s knees and a honey of a solution!

But now for the buzz kill: some biologists believe the fungicide may prove harmful to the busy bees who deliver it. Sheila Colla, a conservation biologist at the University of York, thinks that farmers will continue to use insecticides in addition to Vectorite to combat fungal diseases. Not only that, but there is also the potential that this method will adversely affect the wild bee population. The rusty-patched bumblebee (Bombus affinis), listed as endangered under the Endangered Species Act just two years ago, may very well have “[rapidly declined] because they were exposed to a novel disease from managed bees.” For more on the rusty patched bumblebee, see an earlier blog post of mine, Bumble Bee Buzzkill.

The question is, then (with apologies to Shakespeare): “to bee, or not to bee?” Even if Vectorite is not the solution to the plight of the American bumblebee, hopefully it will, at the very least, make farmers buzz off of the large-scale application of harmful chemical fungicides.

Whiskey In The Punch Bowl At SCOTUS: What’s The Point (Source)?

Posted on December 18, 2019 by Theodore Garrett

If you have wondered if confusion over the jurisdictional reach of the Clean Water Act may drive one to drink, read the transcript in County of Maui v. Hawaii Wildlife Fund, SCOTUS No 18-260, argued on November 6, 2019. 

The issue in Maui is whether a NPDES permit is required for the discharge of pollutants from injection wells that reach the ocean by migrating through groundwater.  The district court and court of appeals held that a permit is required.  The issue has potentially important ramifications for affected parties who discharge pollutants that may eventually migrate to waters of the United States (WOTUS), and interested parties will await the Supreme Court’s decision in Maui to see if it offers a workable solution.

Both sides seem to agree that the relevant question is whether there is a discharge from a point source to WOTUS.  The Solicitor General, perhaps in an early holiday mood, offered a punchbowl analogy: “For example, if at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle.”  Under this approach, where a pipe discharges to land or groundwater, one would not need a NPDES permit because the discharge was not from a point source to WOTUS. 

Not to be outdone on the analogy front, the Wildlife Fund’s lawyer took the Court shopping for groceries.  “When you buy groceries, you say they came from the store, not from your car, even though that's the last place they were before they entered your house.”  In the same vein, he argued, pollutants in the ocean that came from the county’s injection wells thus require a permit.

The Justices’ comments reflected difficulty in distinguishing discharges requiring a permit and those that do not.  Perhaps tough analogies make for tough decisions.

With respect to the Wildlife Fund’s position, Justice Alito offered the example of “an ordinary family out in the country that has a septic tank, and they buy it from somebody who installs them and they get the building permit that's required by that rural municipality.” What if they discover years later that pollutants are leaking out of the septic tank and migrating to waters of the United States.  Would they be violating the Clean Water Act for lack of a permit?  The Fund’s lawyer, apparently struggling, said that if the homeowner would have no reason to believe the pollutants from the septic tank would get to navigable waters, “they wouldn't be held liable.”  When that didn’t seem to get traction, he moved to the concept of traceability.  But noting that “water does run downhill,” Justice Breyer said that “traceability and causation don't quite seem to do it, “asking plaintiff’s counsel if he had “any sort of fall-back” position “that would cure my worry.”  Justice Gorsuch posited hypothetically that discharges from a septic tank are foreseeable and will end up in waters of the United States: “what limiting principle do you have to offer the Court?”  Justice Alito added that the term "from" could be read very broadly to cover a discharge “ by some means, no matter how remote” that reaches WOTUS: “So what concerns me is whether there is any limiting principle that can be found in the text and is workable and does not lead to absurd results.”

The Justices also had problems with the county’s position. Justice Breyer expressed concern with preventing evasion, asking what would happen if one decided to end a pipe a few feet from a river or the ocean.  “Now you know perfectly well that it'll drip down into the ground and it'll be carried out into the navigable water.”  In that case,  Justice Beyer said, “what we have is, I take it, an absolute road map for people who want to avoid the point source regulation.” The county argues that such discharges should be regulated under state groundwater programs.  But Justice Sotomayor found that to be a problem: “Because it presumes the state will regulate, and some states don't.”  Later on, she asked rhetorically: “Why are you doing what you're doing? This is fairly traceable to you in large quantities. The state didn't control you.”  Justice Kagan said that the question isn’t whether there is a back stop, but rather whether the statute requires a permit: “So, here, it's from a point source, which is the well, and it's to navigable waters, which is the ocean, and it's an addition.  How does this statute not apply?”

The Court will discuss these issues in conference and issue its decision in due course.  One might posit that a hydrologic connection should be dispositive, but in Rapanos, the Court split 4-4-1 on the issue of the scope of WOTUS, and the composition of the court has changed since then.  And in the Sackett case, where the plaintiffs prevailed 9-0, the plaintiffs complained of uncertainty whether they needed a permit, a factor which might be of concern to some Justices in the present case.  Will there be a majority opinion for the Court containing a workable “limiting principle?”  Stay tuned.

EPA’s Game Plan on Federalism -- Block-by-Block

Posted on December 13, 2019 by Gregory Bibler

I commend Vicki Arroyo’s recent elegy on the Dissolution of Cooperative Federalism in the Trump Era. both for its eloquence and its restraint.  To paraphrase, the Trump Administration’s lawsuit against California’s climate change policies “is just the latest salvo in a sustained, direct assault by EPA and the Administration on the bedrock principles of states’ rights and ‘cooperative federalism.’”

The Trump Administration’s EPA, at least as envisioned by the President and EPA’s Administrator, is not like any this country has seen before.  Administrator Wheeler represented in the written statement he submitted at his confirmation hearing that EPA is “advancing the President’s regulatory reform agenda.”  The  Administrator’s favorite measure of EPA’s success, in fact, is the number of “major deregulatory actions” it has implemented.  As of January 2019, he reported, EPA had finalized 33 such actions.  The Administrator has updated that metric regularly in his public remarks.  In his recent address to Detroit’s Economic Club, he announced EPA has taken 46 major deregulatory actions, and that another 45 are in the pipeline.  The Administrator also lauded EPA’s preeminence in complying with the President’s executive order requiring agencies to eliminate two regulations for every new one finalized.  As of October 2019, EPA has cut 26 regulations while creating four new ones, he stated.

The Trump Administration’s attitude toward “states’ rights” and “cooperative federalism” only make sense when viewed through this policy lens.  EPA’s current focus and mission is deregulation, not environmental protection.  If allowing states to create their own standards for emissions from coal-fired power plants will ease regulations inimical to coal-producing states, then EPA favors states’ rights.  When states employ authority given to them under Section 401 of the Clean Water Act to impose conditions or limitations on fossil fuel infrastructure projects, or California reaches agreement with automobile manufacturers on more ambitious auto emission standards, however, then EPA insists on exercising preemptive federal authority.

This sometimes-federalism frequently is derided as “Fickle Federalism.”  One commenter has coined a term that is more apt:  “Jenga Federalism.” Jenga is a game in which the goal is to destabilize a stack of blocks piece-by-piece rather than knocking it down in one blow.  As the EPA Administrator’s deregulatory metrics show, that is precisely the game EPA now is playing.

It was not enough, however, for the Trump Administration’s EPA to take direct legal action against California standards that conflicted with EPA’s deregulatory agenda.  EPA retaliated by threatening to withhold federal highway funds, demanding that the state submit a plan to control water pollution tied to its “homelessness crisis,” and referring auto manufacturers who agreed to meet California efficiency and emission standards to the Department of Justice for potential anti-trust prosecutions.

Using enforcement authority against a state as a political weapon – particularly a “Blue State” viewed by the White House as a political enemy – is an unprecedented EPA tactic.  Sadly, it is not without precedent in this Administration.  It is a form of quid pro quo.

To be clear, I have lodged my full share of challenges to EPA’s and states’ decisions, interpretations, guidance and regulations.  I expect and intend to continue to do that, as and when appropriate, based on the science, the law, and common sense.  There is an institutional process for that.  It is called the rule of law.  It is the process, in fact, currently underway across the country in dozens of administrative and judicial proceedings challenging deregulatory actions taken or proposed by EPA and other federal agencies.

What troubles me most is that, by engaging in political score settling against California, EPA has diverged from our institutional norms.  It is one thing for the President, personally, to engage in such tactics.  It is quite another when the Administration, as a whole, does so at the President’s bidding.  It reflects a Hobbesian philosophy of government, in which the Executive wields centralized and undivided power, and the private interest of the Executive is perceived to be the same as that of the public.  That is not a vision that the Constitution will support.  And, surely, it is not a vision that our judicial system or our democratic institutions will endorse.

Cutting Carbon While Feeding People: The Role of Food Rescue in Slowing Climate Change

Posted on December 11, 2019 by Adam Kahn

The Natural Resources Defense Council reports that up to 40% of all food in the United States is wasted, even as 40 million Americans lack consistent access to adequate and nutritious food. Donation of useable food has palpable and obvious social benefits.  Recovering (or rescuing) edible food from restaurants, groceries and institutions that would otherwise go to waste can help “bridg[e] the gap between abundance and need.”  Reduction in food waste (through food rescue or otherwise) will also yield big reductions in carbon emissions.

From an environmental regulatory perspective, managing food that has been deemed unsalable has traditionally been considered a solid waste problem.  Four northeastern states (Connecticut, Massachusetts, Rhode Island, Vermont) and California limit the disposal of “food waste” or other organics in conventional waste streams that go to landfills or waste to energy facilities.  Getting usable food out of the waste stream, for the most part, satisfies most existing regulatory schemes, regardless of how it is done.  However, these rules do not create a clear preference or incentive for “rescuing” food so that it can be eaten by people. 

This is not to suggest that regulators are ignoring benefits of food waste reduction in setting solid waste policy.  The USDA and US EPA have presented inverse pyramids of priorities for preventing or diverting wasted food; food rescue is number two, right after prevention of food waste at the production level.   These efforts and similar efforts may be having some effect:  In my home state of Massachusetts, the current draft Solid Waste Master Plan appropriately highlights the 60% increase in rescue of fresh and perishable food between 2010 and 2018.  The non-profit ReFED has developed an impressive Food Waste Policy Finder that compiles ways in which food wastage can be reduced, and an equally impressive Roadmap to identify cost-effective regulatory, policy, and business solutions to reduce food waste.  Outside of solid waste rules, food waste can be reduced by improving “sell by” or “use by” date labeling requirements, food handling practices and regulations, usage and waste tracking information, packaging and portion sizes, consumer and business education, and donation-related tax incentives.  

Food rescue and other forms of food waste reduction can also reduce greenhouse gas emissions.  The Intergovernmental Panel on Climate Change (IPCC) has concluded that 8-10% of total anthropogenic carbon dioxide equivalent (CO2e) emissions result from food loss and waste.  In 2011, the Food and Agriculture Organization of the United Nations (FAO) similarly found that food wastage accounted for 3.6 billion tons of CO2e, or as FAO put it “if food wastage was a country, it would be the third largest emitting country in the world” (right after China and the US and right before India and Russia).  Of that figure, about 35% comes in the distribution and consumption phases of the food supply chain, which are the stages where food rescue comes into play.  Similar statistics abound in other reputable publications.

So, what role can environmental law serve to help realize the climate benefits of food rescue, apart from continued improvements in solid waste policy?

Jurisdictions that regulate carbon emissions, or have carbon emission caps or reduction targets, should consider providing tradable credits for rescue of food or other beneficial reuse.  This will be complicated, particularly in the absence of economy-wide regulation of carbon emissions.  Nonetheless, an administrable system would create a new avenue to enable would-be producers of food waste to monetize their good deeds through tradable carbon-avoidance credits.  As a first step to any of this, we should agree on a transparent and understandable standard for measuring the carbon impact from food rescue.  The Food Loss and Waste Accounting and Reporting Standard is one potential example.  Once a methodology is accepted, the carbon benefits of food waste reduction can be quantified and then rewarded. 

Even in the absence of tradable credits, requiring carbon offsets in the form of food waste reduction could form part of a jurisdiction’s larger carbon reduction plan.  For example, state and local regulatory authorities with mandates to minimize environmental impacts could require development projects (particularly those involving the food industry) to offset incremental greenhouse gas emissions through food waste reduction.  Similarly, environmental regulators that retain the ability to consider supplemental environmental projects could consider food waste reduction as part of resolution of environmental enforcement actions.

These ideas will take time and collective will to put in place.  But individual action does not need to wait: reducing food waste today will have carbon benefits today even if no one is measuring, regulating, or rewarding it. 

Supremes Let Hoopa Stand, Leave Door Open for EPA to Reshape CWA 401

Posted on December 10, 2019 by Rick Glick

On December 9, the Supreme Court denied certiorari to review the D. C. Circuit Court of Appeals ruling in Hoopa Valley Tribe v. FERC.  As reported in this space, in January the D.C. Circuit roundly rejected the common practice of withdrawing and then refiling applications for state water quality certification to avoid the one-year limit for state action under Section 401 of the Clean Water Act. 

Under Section 401, applicants for federal authorizations that could result in a discharge to navigable waters must first obtain certification from the state that applicable water quality standards would be met.  States must act on Section 401 applications within one year, or they are deemed to have waived their authority.  State authority under Section 401 is broad and presents an opportunity to superimpose state policy on federal licenses or permits, an opportunity many states are eager to exercise.

Section 401 is often invoked in the context of licensing and relicensing of hydroelectric power facilities before the Federal Energy Regulatory Commission.  Such facilities and their impacts are complex, and states struggle to complete their analysis within one year.  This has led to states offering applicants the choice of either withdrawing and refiling the application to reset the clock, or having their certification denied.

In the Hoopa case, PacifiCorp entered into a settlement agreement with the states of Oregon and California, and other stakeholders, concerning removal of four dams on the Klamath River.  As part of the settlement, PacifiCorp would annually submit a letter to withdraw its pending Section 401 applications before both states and simultaneously refile the application with no changes.  The D. C. Circuit found this practice a subversion of the plain statutory language limiting state action to one year.

So, with the Supreme Court’s denial of certiorari, the withdrawal/refile stratagem seems less viable.  Where do we go from here?  One answer is that when states need more time they will simply deny Section 401 applications without prejudice, meaning the applicant can reapply.  But that approach could also be seen by the courts as an evasion of the one-year limitation.

Another answer lies with EPA, which recently proposed new rules to constrain state authority under Section 401.  As part of the reform of Section 401 policy, the new rules would adopt time limitations “consistent” with the Hoopa decision:  “The certifying authority is not authorized to request the project proponent to withdraw a certification request or to take any other action for the purpose of modifying or restarting the established reasonable [i.e. no more than one year] period of time.”

Under the new rules, then, one year means one year.  However, the new rules, once adopted, will certainly be challenged.  Two related issues are whether EPA has authority to direct state implementation of Section 401 and, if it does, whether EPA’s interpretation is entitled to Chevron deference.

While all of this plays out, however, the D. C. Circuit’s decision in Hoopa stands, but many questions remain to be answered.  Did Hoopa effectively kill the withdraw/refile workaround?  Or should Hoopa be read narrowly and limited to the unique facts underlying the case?  And how will all this ultimately affect the timing and content of federal permits for major projects?  Stay tuned.

Should Someone be Reading The SEP Policy its Last Rights?

Posted on December 5, 2019 by Heidi Friedman

Chances are if you have been on either side of a settlement for an environmental violation over the past 20 years, you have discussed and/or negotiated a supplemental environmental project (SEP) as part of the overall resolution of a matter.  SEPs are projects that go beyond what is required by law, although the projects do have to have a “nexus” to the violation being addressed.  Settling parties can receive a credit toward mitigation of the civil penalty for a portion of the value of funds spent on implementing SEPs, and SEPs are the favorite child of many since a quality SEP can close the gap on a contentious penalty negotiation – visualize a bridge that pops up bringing two sides together.  Instead of building these bridges, the Asst. Attorney General’s August 21, 2019 Memorandum analogizes SEPs to elephants explaining that “Congress does not ‘hide elephants in mouseholes’ (citing Gonzales v. Oregon, 546 U.S. 243, 267 (2006)) and if Congress had intended the use of such a “controversial miscellaneous-receipt-circumvention device[], it would not have done so without mentioning SEPs by name.”  And while the elephant/mousehole analysis relates specifically to an interpretation of the 2018 Clean Water Act Amendments, it still seems challenging to think of such a long-accepted settlement tool as now being the elephant in the room. 

The August 2019 memorandum all but eliminates SEPs for civil consent decrees and settlement agreements with state and local governments, which at first read may be seem a narrow focus.  Yet, the grounds set forth in that memo and related analysis provide a clear path for this Administration to fully exterminate this elephant or at least put it to rest for now.  One recent example is in July 2017, when DOJ modified a finalized settlement with Harley Davidson in a Clean Air Act case by removing the SEP.  This left the American Lung Association without its project to retrofit or change out wood-burning fireplaces and left Harley Davidson paying a larger penalty.  From the defense side of things, many companies favor SEPs since a SEP can allow the company to support an innovative project that can truly benefit a community’s local environment.  And to be transparent, there can also be potential tax advantages while penalties are not tax deductible. Keep in mind that the SEP does not replace the payment of a penalty, it supplements and somewhat mitigates the potential penalty payment that might have been sought and obtained.

Yet, what we are seeing is a clear signal that money is the only path to resolution.  The crux of Clark’s analysis and any debate over SEPs is that SEPs are seen as “…mechanisms for sidestepping the power of the purse.”  (citing to H.R. Rep. 115-72, at 5-6) or said in another way, “…implicating Congress’ constitutional power over appropriations.”  The Clark view is that Congress should be able to spend its penalty funds as it pleases whether its defense spending or the opioid crisis, without any nexus to the alleged violation, and thus, allowing a SEP to direct funds in a manner that serves narrower statutory purposes interferes with this autonomy.  Don’t get me wrong, we need government intervention in the opioid crisis, but do we further the purpose of our environmental laws when we are just collecting as much penalty money as possible?  Using environmental penalty policies to fund another defense tank for example seems counter intuitive to the intent of the Clean Water Act or the Clean Air Act in the first place.  While I am certainly not a constitutional scholar, I do know that we have the judiciary reviewing and approving SEPs as part of the Consent Decree process providing a further check on the scope and direction of this often favored alternative. 

For you elephant lovers out there, EPA does seem to be keeping the policy alive and well at the moment as the memo is not even posted to the SEP page on its website.  According to the EPA 2018 enforcement statistics, the value of SEPs in settlements jumped from 17.75M in 2017 to 28.93M in 2018.   Further, in FY2018, EPA enforcement cases included 100 SEPS.   Looking at the last 10 years (2008 to 2018), the total value of 1,418 SEPS was $577M. This is not peanuts no matter how you look at it, but here’s hoping we are able to keep the elephant alive and well.

12 Legal Tools to Push Climate Preparedness

Posted on December 4, 2019 by Michael Gerrard

We know that, mostly as a result of climate change, extreme weather events are becoming more frequent and severe.  Reducing greenhouse gas emissions should be the highest priority, but that won’t be enough to prevent severe impacts, some of which are already occurring. Here are twelve ways the law can help society cope with these impacts.

1. Flood maps – The Federal Emergency Management Agency should update its flood maps and make them reflect anticipated future climate conditions, not just past experience.

2. Disclose flood risks – Prospective buyers of property should be given information about any flood risks faced by the property.

3. Environmental impact assessments – Environmental reviews under the National Environmental Policy Act and its state counterparts should consider the climate conditions expected at the end of a project’s useful life, not just at the start, to help ensure the project can withstand those conditions.

4. Public utility regulation – Other states should follow the lead of the New York Public Service Commission in requiring major utilities (in this case, Con Edison) to study expected future climate conditions going out decades, and prepare plans to cope with those conditions in order to maintain reliability.

5. Permit conditions – Several statutes require permit holders to have and implement plans to prepare for extreme events – e.g., Clean Air Act; Clean Water Act; Oil Pollution Act; Resource Conservation and Recovery Act. The Conservation Law Foundation is pushing these requirements in lawsuits in Massachusetts and Rhode Island.

6. Securities disclosure – As required (but not enforced) by the Securities and Exchange Commission, and as advanced by the Task Force on Climate-Related Financial Disclosures, public companies should disclose the physical risk to their facilities and operations from climate change.

7. Heat – To cope with the dangerous heat conditions to come, cities should require landlords, including of public housing, to provide air conditioning or otherwise keep apartments cool enough to not endanger health.  They should also require suitably-shaped roofs to be white, green, or topped with solar panels; and they should require large-scale tree planting.

8. Building codes – Codes should require buildings to be designed and built so as to withstand anticipated flooding, wildfires, and other risks.

9. Inspections – Flooding-vulnerable infrastructure such as levees and dams should be inspected frequently and repaired when needed.

10. Toxic sites – The remediation of contaminated sites under the Comprehensive Environmental Response, Compensation and Liability Act and other programs should reflect future flood risk.

11. Architects’ training – The states’ architects licensing boards should require architects to take continuing education courses on climate risks.

12. Managed retreat – Though politically toxic almost everyone, cities that are vulnerable to future extreme flooding should begin planning to retreat from shorelines and riverbanks that will become uninhabitable, and to relocate uses to safe areas.

No Right Way to Do the Wrong Thing

Posted on December 3, 2019 by Krista McIntyre

“If we lose all wild species we’re gonna lose ourselves,” Patagonia CEO, Yvon Chouinard, says at the close of the movie Artifishal: The Fight to Save Wild Salmon, produced by Patagonia Films. The film grabbed my attention for three reasons. First, Patagonia makes movies? Second, I live in Idaho and I eat a lot of salmon. And third, the film made me very mad.

Artifishal explores the extinction threat to wild salmon posed by fish hatcheries and fish farms. The unintended consequences to ecosystems of mixing fish hatchery populations with wild species populations extend far beyond the fish. Killer whales are threatened by declining wild salmon population and human communities are impacted by scarcity. It’s all connected and it’s all a big mess.

“The road to extinction is paved with good intentions,” reads the trailer for Artifishal. The good intentions to farm and restock hatchery fish among wild populations represent a twentieth century solution for a twenty-first century reality. This is the part that makes me mad. Although the data reveals that hatchery fish are devastating to wild populations and the data reveals that if left alone wild populations recover on their own, humans can’t get out of the way.

On the contrary, Artifishal reveals that we trust the controlled, engineered solutions conceived in modern times by humans more than we trust the repeated, demonstrated success of millions of years of natural evolution. Artifishal makes the case persuasively for scrapping taxpayer supported hatchery projects in favor of reestablishing natural conditions conducive to wild evolution. Chouinard effectively punctuates this theme of the film: “There’s no right way to do the wrong thing.”

Artifishal exposes deeper conflicts facing humans since the very beginning. Nature diversifies, humans simplify. Nature nourishes, humans consume. Nature evolves, humans engineer. Wild salmon populations cannot keep up with human population demands. And so far our solution to the problem we created are only creating new threats. So, what can we do to help?

Buy more Patagonia gear. Support the projects and organizations Patagonia supports. Years ago, the privately held company committed to support grassroots environmental organizations and the planet as the company grows. The company distributes one percent of annual sales to local organizations, it’s called the “earth tax.” Chouinard’s environmental values are woven into the company’s DNA. Artifishal is not a movie made to sell product, it was made to expand our thinking. Check it out on YouTube, iTunes, and Amazon Prime.