DATA TO THE PEOPLE!

Posted on January 29, 2021 by Ronald R. Janke

In the twilight of the Trump Administration, the Environmental Protection Agency issued an internal procedural rule entitled “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.”  The rule which is focused on EPA’s consideration of dose-response data, is widely predicted to have a limited shelf life.  Congressional veto under the Congressional Review Act; EPA reconsideration, revocation and amendment or successful court challenges in already pending litigation can be anticipated.  Nevertheless, the goals enunciated in the rule are worth pursuing, as they point the way to better EPA decision-making through greater science transparency.  As the references cited and listed in the preamble reflect, the call for greater science transparency pre-dates the Trump Administration and extends well beyond EPA and the federal government.

The rule establishes how EPA will consider dose-response data that are crucial to decisions in issuing significant regulatory actions and influential scientific information, such as Integrated Risk Information System (IRIS) profiles, which characterize hazards from chemical exposures.  The most vehement and widely-cited criticism of the rule is that it will prevent EPA from considering important dose-response studies because they cannot be made publicly available or submitted for independent validation due to  privacy considerations preventing human health data from being shared.  In the rulemaking, EPA responds to this concern initially by stating that all relevant scientific studies are in the scope of its review.

The rule identifies nine non-exclusive factors EPA will  take into account when evaluating the consideration to afford studies with underlying dose-response data unavailable for independent validation.  EPA’s rule calls for giving “greater consideration to pivotal science where the underlying dose-response data are publicly available in a manner sufficient for independent validation.”  The preamble notes that if based on these factors two studies are “relatively equal,” both may be considered; but “other things being equal” greater consideration should be given to the one whose underlying data and models are publicly available and can be independently validated.  Even this requirement is flexible in that the rule authorizes the EPA Administrator to grant on a case-by-case basis an exemption from any part of the rule if any of five listed circumstances exists.  Furthermore, the rule requires EPA, whenever it does make available to the public dose-response data, to do so in accordance with legal protections on privacy, confidentiality and confidential business information and with a sensitivity to national security. Lastly, human health privacy concerns are irrelevant to a vast quantity of non-human dose-response data, such as animal feeding or aquatic toxicity studies, on which EPA bases IRIS toxicological profiles, water quality criteria and standards, drinking water standards and other decisions.         

While the rule may encourage the public sharing of data by researchers, the rule does not necessarily result in disclosure of dose-response data to the public.  The rule requires EPA to ‘identify the science that serves as the basis for informing a significant regulatory action and to make it “publicly available to the extent permitted by law.” However, as EPA notes in the preamble, “the rule does not obligate it to “collect, store or publicly disseminate dose-response data underlying pivotal science.”   

Making scientific data publicly available lies at the core of the science transparency movement, and it is unfortunate the rule does not do more to make data publicly available.  To a large degree, EPA has not analyzed data when issuing rules and influential scientific information.  Rather, it relies on studies by researchers who summarize their methodology, data and analysis and who present their conclusions.  Published, peer-reviewed studies are regarded as the gold standard, but a peer-reviewed study is not necessarily pure gold.  Researchers rarely submit the underlying data with their manuscripts and these data are not seen by peer reviewers. 

As the preamble notes, “Peer review does not typically include reanalysis of the underlying data . . . and thus peer review is not considered a replacement for the data availability requirements of this rule.”    Moreover, as good as peer review may be, something more can be gained when any interested person can review data, replicate the researcher’s analysis or conduct additional analysis.  This process may lead to greater confidence in the researcher’s own conclusions, produce additional findings or present a new hypothesis and additional research.  Especially where data are generated with EPA’s funds, EPA should make data publicly available.  Other federal and state research-funding agencies should do the same in the ordinary course.  “Data,” according to Lawrence Summers, former Secretary of the Treasury and president of Harvard University, “is the ultimate public good.”  If the public paid for the data, they should be able to see it when a public agency uses it. 

A Personal Note: My View of Environmental Justice Through the Lens of Covid-19

Posted on January 27, 2021 by Earl Phillips

As Covid-19 swept through our country, I was struck by this virus’s patterns of spread and severity, which challenged its supposed impartiality.

Latino and African-American residents of the United States have been three times as likely to become infected as their white neighbors, according to the new data, which provides detailed characteristics of 640,000 infections detected in nearly 1,000 U.S. counties. And Black and Latino people have been nearly twice as likely to die from the virus as white people, the data shows.

Months earlier, statistics had shown that residents of majority-black counties were three times more likely to be infected with the virus, and suffer six times the rate of deaths as residents in majority-white counties. The virus itself has been constant across our minority communities, but as Dr. Fauci explained in a White House briefing, these results are a function of our country’s already-existing disparities in access to healthcare being exacerbated by the stresses of a global pandemic. These communities suffer from a lack of resources and protections, resulting more broadly in impacts to environmental health, safety, and welfare.

Environmental justice (EJ) is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.  Fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.

Unfortunately, the failure of the federal government to adequately protect EJ communities from Covid-19 is far from unique, and instead merely the latest chapter in a long and shameful history of neglect. For many different reasons, we lack any strong federal program or template to address environmental justice considerations and as a result we are left with a patchwork quilt of state programs - some strong, some weak, some non-existent.

In this relative vacuum, there are some states that have stepped forward (or are in the process of enacting or upgrading programs) in significant ways. Without getting into the specifics of any particular state’s program, the common elements of these programs tend to be:

A clear definition of what is and is not an EJ community; 

  • What actions, events, or decisions do or do not trigger an EJ program;
  • What is required of an applicant, respondent, and/or State to effectively notify and engage an EJ community;
  • What resources, benefits, or opportunities will be provided to an EJ community so that the community can meaningfully review the proposed triggering event and thoughtfully participate in any proceedings, and who will provide those resources; and
  • What burdens of proof must be met for decisions to be made that might further impact a host EJ community. 

The Biden-Harris campaign made addressing the absence of federal leadership part of their pitch last July when they released their “Plan to Secure Environmental Justice and Equitable Opportunity,” which promised voters an administration that would: (i) work with EJ community leadership to establish meaningful metrics; (ii) establish regular performance reviews to track progress; (iii) revisit and rescind certain Trump-Era actions that were presented as stream-lining but that had the effect of limiting opportunities for community engagement; (iv) reinvest in science and data gathering efforts; and (v) establish offices of Environmental Justice in the DOJ and White House while at the same time reforming EPA’s External Civil Rights Compliance Office. Unfortunately for this planned-for aggressive “whole of government” upgrade to the Environmental Justice commitment, a divided congress could slow or stall much of the Biden-Harris presumptive legislative agenda. That said, Executive Orders (again, and hopefully only for the time being) may be seen as a viable workaround solution in the interim.

FINAL REFLECTIONS

Like many of you, I feel extremely fortunate to have had the opportunities that I have had along the way.

Like some members of the American College of Environmental Lawyers (ACOEL), I regularly represent companies looking to build facilities, manufacture products, mine raw materials, conduct research for new products and solutions, and/or generate energy. A number of these efforts have taken me to communities in states with more robust Environmental Justice programs. 

While the EJ process can be unsettling as you and your client work to alert and engage the community, and/or satisfy additional requirements, it has been my experience that effective EJ programs can lead to a better understanding of differing perspectives, an improved community/company relationship, a more thoughtful outcome, and in some instances, a better way to proceed. As we turn the page to 2021 I encourage you to think about the EJ programs in your regions or states, consider the potential value and importance of these programs, and HAVE A SAFE AND HEALTHY NEW YEAR.

A FLORID (AND POSSIBLY SIGNIFICANT?) ACE DISSENT

Posted on January 26, 2021 by Dick Stoll

On January 19, 2021, the D.C. Circuit issued its long-awaited decision on the Trump EPA’s Affordable Clean Energy (ACE) rule.  American Lung Assn. v. EPA, No. 19-1140.  The ACE rule was the Trump EPA’s repudiation of the Obama EPA’s Clean Power Plan (CPP) under the Clean Air Act. 

Two spoiler alerts:

(1)    I will not in this blog even begin to analyze the extremely lengthy and complex majority and dissenting opinions.  I am too retired for that.  Hopefully an unretired Fellow will be helping us with that soon. 

(2)   I will not offer any views on which of the opinions is more meritorious, because I really don’t know.   I will conclude by saying, however, that new legislation would sure be nice. 

The most critical issue in both the ACE and the CPP is fairly simple.  In regulating coal-burning electric power plants under the CAA for climate purposes, is EPA authorized to impose “beyond-the-fenceline, generation shifting” measures?  These measures will hereafter be referred to as “BTFGS.” 

Or put another way, may EPA go beyond plant-specific emission controls, and impose measures that effectively require power companies to secure emission reductions on a company-wide or grid-wide basis?  If so, power companies may be forced to shift some (or all) of their capacity to non-coal-fired generation (such as natural gas) or even shut down some (or all) of their coal-fired generation.

The Obama EPA based its CPP on BTFGS requirements.  The Trump EPA repealed the CPP and issued ACE, which imposed no BTFGS measures.  In doing so, the Trump EPA took the position that the CAA’s plain words did not authorize BTFGS measures.

The D.C. Circuit’s new 2-1 American Lung decision — joined by Judges Millet and Pillard — rejected the Trump ACE.  The majority fully embraced the Obama CPP position that the CAA authorizes BTFGS measures.  Judge Walker dissented (more on that below).

The majority decision was hailed by many as giving the Biden EPA a “green light” to fashion effective climate regulations that the Trump EPA would never entertain.  This may or may not prove to be correct, however, if the Biden EPA decides to require BTFGS measures in future climate rules.  For even though the new decision may stand as binding in the D.C. Circuit, we must consider the U.S. Supreme Court (SCOTUS).

Two points on SCOTUS.  First, recall that in totally unprecedented fashion, SCOTUS in 2016 stayed the Obama CPP pending review, with the result that the CPP never came into effect before the Trump EPA repealed it.   The stay was issued by a 5-4 Court that included five conservative leaning and four liberal leaning Justices.  No opinion accompanied the stay, but it is fair to assume the conservative majority was skeptical of the Obama BTFGS position.  If any rule that relies on BTFGS comes before SCOTUS in the next few years, it will presumably face a Court that includes six conservative leaning and three liberal leaning Justices.

Second, and now I get to the Walker dissent.   Judge Walker, a recent Trump appointee, was well known on Fox News and other outlets for his strong conservative views before his appointment.   His dissent is a testament to those views.  

Whether you agree with Judge Walker or not, you may have fun reading his florid opinion.  I have attached a copy, in which I have highlighted various notable passages.  He throws in cites to Arthur Conan Doyle (p. 9), Shakespeare (p. 33), and Lawrence of Arabia (the movie, p. 14).  He explains that the U.S. Senate is designed to protect small States (pp. 3, 5).   He postulates that the doomed Obama 2009 legislative climate effort would have succeeded if there were proportional representation in both Houses of Congress (p. 6).  He engages in amusing word play (pp. 3, 35).

But why am I even bothering with Judge Walker’s dissent?   Recall that in 2014, then-D.C. Circuit Judge Kavanaugh filed a dissent in a CAA case against a majority opinion favoring stronger environmental controls.  White Stallion v. EPA, 748 F. 3d 1222 (2014).   On review, a 5-4 SCOTUS (with the conservatives in the majority) reversed the D.C. Circuit ruling, adopting and quoting from the reasoning in Judge Kavanaugh’s D.C. Circuit dissent.  Michigan v. EPA, 576 U.S. 743 (2015).

So not too long ago, a narrow conservative SCOTUS majority adopted the reasoning of a dissent from a conservative D.C. Circuit Judge to reverse a more environmentally protective D.C. Circuit opinion.  I suppose it could happen again, with an even more conservative SCOTUS now.  And by the way, Judge Walker clerked for Judge Kavanaugh when Kavanaugh was on the D.C. Circuit. 

Again, I offer no view on what I think the courts should do with BTFGS.  What I really hope is that Congress will enact CAA amendments to clarify EPA’s climate authorities.   Now that we have a Democratic President, House, and (barely) Senate, maybe this can finally happen.  Maybe the Senate will do away with the filibuster, or — even without that — enough Republicans in the Senate could come along?  There’s always hope. 

What a Difference a Day Makes

Posted on January 26, 2021 by Brian Rosenthal

Co-authored by Brian Rosenthal and Timothy Webster

On Day One, the 46th President of the United States signaled his focus on climate, the environment, and energy in executive orders, official correspondence, and memoranda.  In a few strokes of his pen, the President undid much or all of what his predecessor had done, also largely by executive order, and cast into doubt many of the prior administration’s environmental and energy policies and rules.

As has been widely reported, the new administration’s Day One executive actions established and implemented a broad range of policy objectives, several of which were environmental, that immediately start to make good on some of the commitments of candidate Biden during his campaign and President Biden in his inaugural address:

While unable to change substantive rules, the administration’s memorandum “Modernizing Regulatory Review” weaves themes together of environmental justice and equality. It supports the administrative agencies recommending steps for “improving and modernizing regulatory review” in order to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”  Among other things, this memorandum order seeks to review the regulatory process by 

(i) identifying ways to modernize and improve the regulatory review to reflect current science and economics considerations even where “difficult or impossible” to measure; and 

(ii) considering the regulatory impact on disadvantaged communities.

Similar themes are presented in the administration’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government.”  The order imposes equitable assessment benchmarking across agency programs to examine barriers in and to federal programs. 

Perhaps the boldest order for environmental lawyers was President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”  The order directs executive agency heads to review hundreds of agency actions implemented during the Trump Administration, including more than 120 related to energy and the environment.  In addition, the order suspends or revokes, in whole or in part, nearly one dozen Executive Orders issued by the prior president that were directly tied to energy infrastructure.

The order includes the phrases “listening to science” and “holding polluters accountable.”  It also emphasizes reviewing all regulations of the last administration for disproportionate effects on low-income areas.  Parenthetically, as noted in Seth Jaffe’s Law & the Environment Blog—the line between legitimate environmental concern based on cost benefit and NIMBY reactions is narrow but must be drawn.   

Opposition has already been expressed to many of these measures, several of which will surely spur litigation.

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Posted on January 25, 2021 by Seth Jaffe

Last week, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

keystone pipeline protestors in silhouette with man holding ‘NO XL’ sign (XXXL)

Why start here?

Well, it’s a big deal, any way you look it.  It’s pretty much the end for large fossil fuel pipeline construction in the US.  According to Bloomberg (subscription required), here’s what Alan Armstrong, CEO of the Williams Companies, had to say about it:

"I can’t imagine going to my board and saying, ‘we want to build a new greenfield pipeline’. “I do not think there will be any funding of any big cross-country greenfield pipelines, and I say that because of the amount of money that’s been wasted."

OK.  But there’s also another reason why this is important. Creating a new, renewable electricity grid is going to require substantial new transmission capacity.  In terms of direct impacts, there isn’t necessarily much difference between siting a pipeline and siting a transmission line.  They can both cause damage to wetlands and endangered species.

The difference between them is simple and stark.  Fossil fuel pipelines lead to greater GHG emissions, while new transmission is necessary to reduce GHG emissions.  And so much for the Trump administration’s efforts to minimize consideration of indirect impacts from infrastructure projects.  It’s all about the indirect impacts!

It can be a fine line between one person’s NIMBY and another person’s legitimate environmental concerns.  I sure hope we figure out how to assess environmental costs and benefits in infrastructure siting sooner rather than later, or that grid we’re all counting on to deliver zero-carbon electricity won’t be there when we need it.

Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

Leaving on the Midnight Train to Maui (Going Back to Find a Simpler Place in Time)

Posted on January 21, 2021 by Allan Gates

With apologies to Gladys Knight & the Pips:

https://www.youtube.com/watch?v=HwbmufPphP0

It is not unusual for a lame duck administration to issue a flurry of midnight rules and administrative actions shortly before leaving office, and the Trump administration is no exception.  One of the last minute actions by President Trump’s EPA is a draft guidance document signed on December 4th regarding application of the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund.

Much of the draft guidance document reviews in unexceptional terms the threshold conditions that must be satisfied before an NPDES permit is required, namely:

  • There must be an actual discharge of a pollutant;
  • The discharge must be from a point source; and
  • The pollutant must reach a water of the United States.

The last page and a half of the draft guidance is where things get interesting.

The majority opinion in Maui identifies seven specific factors to consider in determining whether a point source discharge to groundwater that reaches navigable waters requires an NPDES permit.  The last page and a half of EPA’s draft guidance adds an eighth factor to the list.  The new factor is consideration of system design and performance.

According to the draft guidance document, the design and performance of a system should be viewed as something of a higher-order consideration that “can affect or inform all seven factors identified in Maui.”  Thus, if a system’s design and performance slows transit time of the pollutant, increases distance the pollutant travels, promotes dilution, or otherwise affects one of the Maui opinion’s seven enumerated factors, the fact that the system is designed and performing to achieve that result apparently should weigh against requiring an NPDES permit.  The draft guidance then proceeds to identify a number of specific systems that would be less likely to require an NPDES permit based on the new eighth factor:

  • Septic systems, cesspools, settling ponds and similar systems designed to provide storage or treatment;
  • Stormwater controls, infiltration or evaporation systems, green infrastructure, and other runoff management systems; and
  • Water reuse, recycling, or groundwater recharge facilities.

The draft guidance document implicitly acknowledges that its addition of an eighth factor to the Maui opinion’s list of seven goes beyond mere interpretation of the Court’s decision.  The guidance document notes, perhaps somewhat defensively, that the majority opinion in Maui expressly invites EPA to develop interpretive guidance that would illuminate application of the Court’s “functional equivalence” test.  The draft guidance document then goes on to claim that the agency’s eighth factor should be given deference under National Cable & Telecomm. Ass’n v. Brand X Internet Serv. even if it is deemed inconsistent with the Court’s opinion in Maui:

Even when an agency’s interpretation of an ambiguous statutory provision differs from a court’s interpretation, an agency may take such a construction because it remains the authoritative interpreter of the statute it administers.

EPA’s explicit call for Brand X deference to the agency’s draft guidance is particularly ironic because the government’s briefs in Maui did not ask for deference to EPA’s interpretation of the statute, and they did not even cite Chevron or Brand X.  Moreover, the Court in Maui summarily rejected the formal interpretive statement on discharges to groundwater that EPA issued one month before the government’s merits brief was due.

It is not clear whether the draft guidance will ever be finalized or otherwise survive the transition to the Biden administration.  But if it survives, the new eighth factor is likely to be the target of a number of questions.  For example, why should a system that is deliberately designed and operated in a manner that delivers pollutants to waters of the United States be given more lenient regulatory treatment than a less deliberate activity that delivers the same amount of pollutants to jurisdictional waters in an otherwise similar manner?  Isn’t a system with deliberate design and identifiable performance expectations exactly the kind of operation that fits logically into the scheme of NPDES individual and general permits?  And what are we to make of the list of specific systems that are to be given special consideration under the eighth factor?  Is this list anything more than a last minute attempt to put a finger on the scales whenever one of the enumerated systems may come under scrutiny for adding pollutants to waters of the United States?

Against this backdrop it is fair to ask whether the draft guidance document offers the kind of assistance in applying the functional equivalence test the Maui Court invited EPA to provide.

There’s a First Time for Everything

Posted on January 21, 2021 by Robert M Olian

Anyone with even a passing interest in environmental law has seen numerous articles over the past four years noting the Trump administration’s efforts to roll back this or that environmental regulation. ACOEL’s blog contains dozens of such posts, and the New York Times is probably not far behind. The NYT aptly reflected the thrust of most such commentary in a recent article:

“All told, the Trump administration’s environmental rollbacks could significantly increase greenhouse gas emissions over the next decade and lead to thousands of extra deaths from poor air quality each year, according to energy and legal analysts.” (emphasis added)

“Environmental rollbacks lead to extra deaths” was a story line long before there was ever a Trump administration, of course, but never, until now, have I seen the reverse, namely “extra deaths lead to environmental rollbacks.”

On January 17, 2021, California’s South Coast Air Quality Management District issued Executive Order 2021-01, which notes:

  • “… the current rate of deaths in Los Angeles County is more than double that of pre-pandemic years ...”;
  • "… the growing backlog of cremation cases within the county constitutes a threat to public health …”; and
  • “… permits issued by South Coast AQMD and currently in effect for human crematoria contain limits on the number of cremations … that may be cremated each month ….”

SCAQMD then proceeded to roll back the permit limits on crematoria (on a temporary basis).

Normally I’d now offer a snarky comment, but this is all just so sad that I can’t bring myself to write it, so you’re on your own.

Environmental Justice: Where Are the Roadblocks?

Posted on January 19, 2021 by Jerry L. Anderson

We have known since the 1980s that people of color bear a disproportionate share of environmental harms.  In 1994, President Clinton issued Executive Order 12,898, which required federal agencies to develop policies incorporating the principles of environmental justice into their mission.  EPA, as well as many state environmental agencies, established an Office of Environmental Justice, to help communities of color gain a voice in environmental decisionmaking and integrate EJ policies into all facets of the agency’s work.

Despite these efforts (and many others), the U.S. Commission on Civil Rights concluded in 2016 that little progress had been made in reducing disparate environmental impacts based on race.  The report shows that broad directives promising to reduce discrimination cannot overcome the structural barriers that frustrate or prevent effective progress. Today, I want to point to two possible levers of change.

1.       Who is making the decision? The issue of equitable representation.

Decisions that cause environmental harm are often made either by local zoning boards or by state environmental agencies, in the form of citizen commissions.  For example, the local Planning and Zoning Commission will decide where to site Locally Unwanted Land Uses (LULUs), such as landfills, waste incinerators or factories.  State appointed bodies, such as the Environmental Protection Commission in my state, often decide questions of water or air pollution permitting and enforcement.

Who is making these decisions?  Do they represent the population that will be impacted the most?

In a 2008 study, my research team at Drake Law found that 84% of large-city zoning board members where white, over 20 percentage points higher than their demographic percentage.  In addition, board members skewed heavily toward white-collar professionals, particularly those with a vested interest in development. 

State environmental boards also often suffer from a lack of diversity.  Often, state statutes require that certain economic groups be represented (e.g., industry or agriculture), but do not mandate representation for those impacted by pollution.

Local officials should recruit zoning board participants from underrepresented populations, including those most affected by environmental harms. In addition, state statutes should be amended to ensure adequate representation from impacted low-income and minority communities.

2.       Who can participate in the decision?  The issue of fair process.

In order to oppose the siting of a highway or factory that will impact their neighborhood, minority and low-income groups face numerous barriers to mounting effective opposition. They typically suffer from a lack of resources, limited free time, and restricted access to political networks.  Collective action problems weigh down their attempts to marshall resources to hire legal counsel or expert witnesses.

Adding to their difficulties, many states do not allow opponents of an environmental permit an adversarial hearing, thereby preventing them from effectively making a record at the administrative level. In contrast, permit applicants who are either denied a permit or whose permit contains limitations they object to are allowed an administrative hearing or “contested case.” See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had no right to contested case proceeding).  Opponents can only file written comments. If they want to challenge the permit, they need to file a case in state court.  That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence.  The court will review based on the record made below, which the impacted citizens were not allowed to fully participate in.

Making participation by impacted communities easier and more effective will require statutory and regulatory changes to administrative hearing procedures.  In the meantime, however, environmental attorneys should consider pro bono opportunities to help level the playing field.

These recommendations address only two structural issues lying behind the racial disparities in environmental harm. For further discussion of those barriers, check out this podcast series on Racism in Administrative Law.

To examine environmental justice in your community, I highly recommend EPA’s Environmental Justice Screener, which allows you to compare environmental harms against demographic data.

"Keep Makin’ Bacon” Indiana’s Right to Farm Act Statute Upheld As Constitutional

Posted on January 11, 2021 by Chris Braun

Indiana, like every other State, has adopted a Right to Farm Act to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” Indiana Code § 32-30-6-9(b) (“RTFA”). The RTFA limits the availability of state-law nuisance actions with respect to agricultural operations.

The Plaintiffs’ residential properties are located in rural Indiana near land owned by a family of second- and third-generation farmers who decided to convert land that had been historically used to grow row crops to a state-of-the art concentrated animal feeding operation (“CAFO”) for raising 8,000 hogs. The farmers obtained the necessary zoning changes, construction and operation permits, and environmental permits to build two 33,500 square foot buildings with ventilation fans, slatted floors and concrete pits to store liquid waste and began operations in October 2013. Two years later, the Plaintiffs commenced the action alleging claims of nuisance, trespass, personal injuries and property damage based on the odors and airborne emissions produced by the hog-farming operation.

The lawsuit was dismissed on summary judgment, with the dismissal upheld on appeal. The lawsuit included several constitutional challenges to Indiana’s RTFA. The Indiana courts held that the Plaintiffs’ nuisance claims were precluded by the RTFA, ruled that their trespass claims should be treated as nuisance claims as a matter of state law because they were essentially a repackaged version of the nuisance claims, and determined that the application of the RTFA did not effect a regulatory taking of the Plaintiffs’ properties. 

As the Indiana Court of Appeals held, Indiana’s legislature has declared that the Indiana RTFA is vitally important to Indiana’s agricultural economy and the protection of farmers’ rights related to livestock agriculture and the use of their farmland. The Court held that the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.”  Indiana Code § 32-30-6-9(b). The purpose of the law is “to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” The Court of Appeals also recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology.”

During the litigation, the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment. The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

The Plaintiffs’ filed a petition for certiorari with the U.S. Supreme Court. The question presented by the Plaintiffs’ petition was whether the application of Indiana’s RTFA to preclude Plaintiffs’ nuisance claims constituted a regulatory taking without compensation violative of the federal Constitution.

The Plaintiffs argued that the Supreme Court should take the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants responded that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.

The Plaintiffs’ litigation came to an end on October 5, 2020, when the U.S. Supreme Court denied the Plaintiffs ’ petition. As a result, Indiana farmers are now permitted to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree. Janet L. Himsel, et al. v. 4/9 Livestock, LLC, et al., 122 N.E. 2d 935 (Ind. App. 2019), Petition to Transfer Denied (Ind. S. Ct., Feb. 20, 2020), Cert. Denied (U.S. S. Ct.., Oct. 5, 2020, page 27).

Agriculture is an important part of Indiana’s economy as it contributes approximately $31 billion to the State, with $3.55 billion of that revenue coming from animal and animal product production.  More than 85% of the livestock raised in Indiana are raised in confined feeding operations.  There are more than 56,000 farming operations in Indiana and 96% of those farms are family owned and operated.  This case was important because the Indiana courts recognized the Indiana Legislature’s statutory framework to protect farmers who are not negligent in operating their farms while rejecting the various constitutional challenges to the RTFA, including equal protection, due process and taking arguments.  This case provides the necessary assurances to Indiana’s farmers and the agricultural community that they have the right to choose how best to modernize their farming and livestock operations.  In addition, Indiana’s RTFA and this case provide a helpful guide to other states that are interested in updating their own RTFA statutes to ensure a proper balance is struck between the needs of the agricultural community and neighboring property owners when dealing with such land use issues.   

Paying More than Your CERCLA Fair Share

Posted on January 8, 2021 by David G. Mandelbaum

The rhetoric of enforcement under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, plays well in public.  The government seeks “cleanup” and makes “the polluter pay.”  Cf. S. Rep. No. 96-848 at 13 (1980); Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020).  Contrast that with mitigating climate change where, in the words of the Pogo Earth Day poster, “we have met the enemy, and he is us.”  Four years ago, then-new EPA Administrator Scott Pruitt described the Superfund program as the “cornerstone” of EPA’s “core mission” of protecting the environment and human health.  Memorandum on Prioritizing the Superfund Program (May 22, 2017).  (To be sure, as things turned out, emphasizing Superfund may not really have been what the last administration was about.  See, e.g., Rule on Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 5, 2021).) If this next administration succumbs to the temptation to feature Superfund, perhaps it and we might focus on some of the mess the statute as drafted and read by the courts has made of private contribution claims, or a small corner of that mess.

The rhetoric plays better when the costs are higher and the work is more impressive.  So, Superfund has become a tool used repeatedly to clean up sediments in industrial waterways, mining sites, and similar “mega sites.” By contrast, it does not even have a straightforward way to approach voluntary response to common problems that cause human exposure to hazardous substances, like PCB contamination within buildings to be redeveloped.  And, of course, the “polluters” who are paying are not really the human beings who caused the releases.  Even if the business entity remains the same, the shareholders, directors, officers, and employees who were associated with a release decades in the past are not the same as those who must pay today.

Large, complicated sites and a capacious notion of “polluter” lead, naturally, to a desire to reallocate costs through contribution or private cost recovery actions.  But sections 113(f) (dealing with contribution), 113(g) (dealing with limitations periods), and 107 (dealing with cost recovery), produce a maze of procedural incoherence.

A CERCLA contribution claim seeks reallocation of costs the contribution plaintiff has incurred in excess of its fair share of the total.  Arguably, then, the claim is premature until the plaintiff can allege that it has incurred that excess.  That requires the plaintiff to be able to allege something about the total costs.  But there is confusion – sometimes so profound that it is not expressed – among lawyers and courts about what actions or costs count as the total. 

One natural approach would be to consider the total to be all costs incurred or to be incurred with respect to that facility.  Indeed, one ordinarily would think that costs incurred during various stages of response would net against each other when deciding whether a party had paid more than its fair share.  If I buy the baseball tickets, you would naturally buy the beer (at least up to the price of a ticket); if one party overpaid on a removal, it might get a compensating discount on the remedial action.  So, under this approach, a party cannot recover in contribution unless it can allege that it has incurred more than its fair share of all costs.

But that might be very hard to do before a large portion of the remedial action had been completed.  Section 113(f)(1) allows a contribution claim “during or after” a claim for cost recovery, and the limitations period for a contribution claim runs from entry of the judgment or entry into the settlement.  See 42 U.S.C. § 113(f)(1), (g)(3).  Thus, arguably some level of legal undertaking to incur future costs may count as “incurring” those costs for purposes of satisfying the requirement that a contribution plaintiff incur more than its fair share.

But even that may leave timing problems.  The limitations period is three years from a trigger:  a judgment or judicially approved settlement for costs or damages, or an administrative order settling costs under section 122(g) or (h).  An early settlement for RI/FS costs, for example, could be more than three years before a record of decision, let alone entry into any sort of commitment by anyone to implement the remedy.  The remedy could be divided into operable units, and they could be separated in time by more than the limitations period.

Treating each separate action as a stand-alone total would deny the netting principle.  It will always be true that a party (other than a solely liable party) pays more than its fair share of every dollar that that party pays.  But if you don’t allow for tasks to be divided up, you make settlement of cases with the government, or even among private parties, quite difficult.

None of this would be overly troubling if one could have confidence that courts would treat separate actions as simply parts of a single whole.  If one knew that, then allowing the limitations period to expire on a small, early set of costs would simply mean that the settling up for those costs would occur in the contribution action for later costs. 

But courts have, in some circumstances, decided that contribution may not even be available for later actions if they are conducted under orders or agreements that do not meet the requirements of Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), and Atlantic Research Corp. v. United States, 551 U.S. 128 (2007).  That is, costs incurred complying with a Unilateral Administrative Order, for example, are not costs incurred “during or following any civil action” under section 106 or 107, nor are they incurred under a settlement.  42 U.S.C. §§ 9613(f)(1), (3)(B).  Those costs would be recoverable from a jointly and severally co-responsible party through a cost recovery claim under section 107(a)(1-4)(B). Although typically the defendant would have a section 113 counterclaim, it is not clear how that would play out if some of the defendant’s (or the plaintiff’s) costs were incurred in a separate response action as to which the limitations period had run and how the accounting of paying more than one’s fair share would be accounted.

Finally, note that most courts would take equitable account of payments by insurers, indemnitors, or other contribution defendants in determining whether a contribution plaintiff has paid more than its share.  If separate actions are separate totals for this purpose, then one must allocate those payments by action when the insurer or indemnitor did not allocate, and even if the contribution defendant was allocating, it may also have been netting.

There isn’t any reason for all this complexity.  It is all readily fixable.  We just haven’t fixed it. 

Showerheads: Untangling the Outgoing Administration’s Last Attack on Energy Conservation Standards

Posted on January 6, 2021 by Adam Kahn

Regulatory trackers from Harvard Law School, Columbia Law School, and the New York Times identify over 100 rule changes from the outgoing Trump administration that could increase greenhouse gas emissions or decrease other protections of  the environment. The weakening of conservation standards for showerhead flows will be one of the last of such rules to go into effect prior to January 20, 2021. The Department of Energy (DOE) promulgated the so-called “Showerhead Rule” on December 16, 2020, which becomes effective on January 15, 2021. (DOE also promulgated new rules that weaken efficiency standards for certain washers and dryers on the same schedule.) 

The Showerhead Rule amends the Energy Conservation Program for Consumer Products Rules, found at 10 CFR Part 430. Part 430 implements part of the “Energy Policy and Conservation Act or EPCA, as amended by the Energy Policy Act of 1992, and codified at 42 U.S.C. 6291-6309.  Specific to showers, Section 31(D) of 42 U.S,C. 6293 defines “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” And 42 U.S.C. 6295(j) imposes a maximum water use of 2.5 gallons per minute for “any showerhead” manufactured after January 1, 1994.  Since Congress passed EPCA in response to the 1973-74 energy crisis, the implementing rules have largely been viewed as a success, and a stepping stone to further conservation efforts.  In January 2017, DOE described the appliance efficiency standards as “highly effective -- achieving high bang-for-the-buck energy savings.”  In short, this rule cannot be good for the environment.

Application of EPCA to showerheads was admittedly the subject of complaints about inadequate flow, particularly in the years immediately following implementation of the standards.  President Trump got lathered up about this too.  As he explained in July, 2020:

We’re bringing back consumer choice in home appliances so that you can buy washers and dryers, showerheads and faucets. So showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect. (Laughter and applause.)

In response, the Showerhead Rule added two definitions to its Energy Conservation Program rules: “Body spray means a shower device for spraying water onto a bather from other than the overhead position.  A body spray is not a showerhead” and “Showerhead means any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term ‘showerhead’ to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” (emphasis added).

What is the effect of this rule?  For “ordinary” one-head showers, not much.  Flow from a single head shower “spraying device” is still limited by statute to 2.5 gpm.  The differences are for those who want a shower with multiple spraying devices (e.g., waterfalls, shower towers, rainheads, and shower systems) and/or “body sprays.”  The definitions change a longstanding DOE policy that considers each spraying device from a single pipe to be part of one “showerhead,” so they are collectively limited to 2.5 gpm.  Now each spraying device in a product containing multiple “heads” are considered separately for purposes of determining compliance with the 2.5 gpm limit.  Thus, a shower with four water spraying devices can use 10 gpm (until the hot water runs out), and Body Sprayer flow is unlimited.

The Showerhead Rule allows showers to consume more water and use more energy to heat water.  The increase could be significant: the U.S. Energy Information Administration reports that water heating consumes more household energy than anything but space heating, and showers are one of the largest consumers of hot water. Time will tell whether the additional water and energy wasted in the name of consumer choice is a relative drip or flood.

The incoming administration has options to rescind or reverse rules, including the Showerhead Rule.  But President Biden cannot issue an executive order to invalidate an existing regulation.  Nor can he “freeze” a rule that has been finalized and has taken effect.  Changing a rule requires the usual notice and comment periods, unless the “good cause” exception in the Administrative Procedures Act (APA) can be invoked.  

Litigation could also change or delay the effective date of the Rule.  The deadline to challenge the Showerhead Rule under the APA and EPCA is March 16, 2021.  Litigation can be slow, but if a challenge is brought, in the near term the Department of Justice could decline to defend the rule and request a stay to give DOE the chance to consider amendment or repeal. Similar lawsuits were brought at the end of December 2020 by 15 state attorneys general and NGOs challenging the October 2020 “Dishwasher Rule” which loosened dishwasher efficiency standards.

Showerhead manufacturers also need to contend with state and local law. Many state energy conservation standards are preempted by EPCA, but that law also allows or requires preemption to be waived is specified circumstances.  DOE waived preemption for showerheads in 2010.  Six states then adopted standards stricter than 2.5 gpm:  California, New York, Colorado, Washington, Hawaii, and Vermont.  These state standards, which likely will be interpreted under the superseded DOE policy, reduce the incentives for showerhead makers to sell products newly authorized by the Showerhead Rule.  As other states try to reduce GHG emissions, additional states may promulgate new rules to avoid the effects of a federal rule that does just the opposite.

Will manufacturers retool and remarket their product lines on the assumption that the Showerhead Rule will remain in place, at least for the states that have not adopted their own standards? The choice is theirs, but with increasing ESG considerations, the limited market, and a flood of uncertainty surrounding future of the Rule, many may wash their hands of this opportunity.   

The Showerhead Rule will hardly go down as the worst attack on the environment from the outgoing administration. There is simply too much competition.  There is also hope that a future regulator will consider the (paraphrased) advice of Rodgers and Hammerstein and conclude: “I'm gonna wash this [Rule] right outta my hair, and send [it] on [its] way.”  At 2.5 gpm or less.