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

Posted on May 30, 2018 by Kenneth Berlin

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on May 29, 2018 by Seth Jaffe

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

Why did EPA lose?

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

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

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

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

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

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

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

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

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

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

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

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

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

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

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

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

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

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

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

TSCA Implementation: A Catalyst for Litigation

Posted on May 22, 2018 by Lynn L. Bergeson

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

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

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

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

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

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

NOT VERY NEIGHBORLY

Posted on May 17, 2018 by Linda Benfield

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

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

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

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

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

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

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

Hoping All Your Consequences Are Happy Ones

Posted on May 3, 2018 by Kenneth Warren

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

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

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

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

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

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

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

A 2-Fer Update

Posted on May 1, 2018 by Mark Walker

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

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

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

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

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

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

How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

State Attorneys General Act as Checks and Balances on Federal Environmental Rollbacks

Posted on April 26, 2018 by Lemuel M. Srolovic

Three priorities of the Trump Administration are driving an effort to roll back federal environmental laws and regulations on an unprecedented scale. First, the President ordered executive agencies to rescind two existing regulations for every new one promulgated. At the end of 2017, environmental rollbacks won first prize, with EPA reporting 16 final deregulatory actions and the Department of the Interior reporting 12. Second, the administration has pursued a goal of energy dominance by the United States, with fossil fuel energy at the top of the list. This priority led the Secretary of Energy to issue an order directing the Federal Energy Regulatory Commission to adopt a tariff subsidizing the generation of electric power with coal. Third, the administration seems determined to reverse, to the extent possible, the regulations adopted by the Obama Administration, which was active in the environmental protection arena. While the Clean Power Plan and the Clean Water Rule are the marquee targets, many other rules have been delayed, suspended, and placed under reconsideration.

State attorneys general have a long history of pushing and pulling the federal government on environmental protection under law where federal regulation is needed to protect their citizens and the environment. Climate change, interstate air pollution, interstate water pollution, and energy efficiency standards for electrical equipment and appliances are primary areas for legal actions by state attorneys general against the federal government to hold it accountable for fulfilling its statutory duties to protect human health and the environment.

Now, in this period of federal environmental rollbacks, state attorneys general are performing a different function as well. As the federal government seemingly pursues a race to the bottom on environmental protection, state attorneys general are bringing legal actions to operate as checks and balances on federal environmental rollbacks. The list is long, and includes:

  • Opposing the repeal of the Clean Power Plan;
  • Challenging the suspension of the Clean Water Rule;
  • Challenging EPA’s delay of implementing the 2015 national ambient air quality standard for ozone;
  • Challenging EPA’s decision to allow tolerances on food for the neurotoxic pesticide chlorpyrifos to remain in effect;
  • Challenging the Department of Energy’s delay of national energy efficiency standards for ceiling fans, portable air conditioners, commercial boilers, air compressors, and backup power supply equipment;
  • Challenging the National Highway and Traffic Safety Administration’s delay of a rule adjusting for inflation the penalties levied on car manufacturers who violate the national corporate average fuel economy (CAFE) standards;
  • Challenging EPA’s delay of a rule requiring new oil and gas development sources to limit their emissions of methane and other pollutants; and
  • Challenging the Department of the Interior’s delay of a rule to augment federal royalty payments and to prevent waste of oil and gas extracted from federal lands. These and other actions by state attorneys general are discussed in more depth in a recent report for the NYU School of Law’s State Energy & Environmental Impact Center, State Attorneys General: 13 Months of Critical Actions (Feb. 2018).

A number of these actions already have been successful. The D.C. Circuit summarily vacated EPA’s 90-day stay of compliance deadlines in the Clean Air Act rule requiring new oil and gas facilities to limit emissions of methane and other pollutants, in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017). The day after the attorneys general filed an action challenging EPA’s 1-year delay of ozone non-attainment designations, the agency reversed course and withdrew the delay. Similarly, the Department of Energy released the national energy efficiency standards for ceiling fans a few weeks after attorneys general took legal action in the U.S. Court of Appeals for the Second Circuit, and subsequently, a federal district court in California ruled that the Department had acted unlawfully by not publishing final efficiency standards for the additional categories of electric equipment challenged by the attorneys general.

Many of the attorneys’ general actions remain pending in the courts. Others likely will be filed. Whatever the ultimate outcome in any particular matter, these legal actions by state attorneys general collectively will operate as checks and balances on the Trump Administration’s efforts to roll back federal laws and regulations protecting public health and the environment.

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

BROWNFIELDS ON STEROIDS

Posted on April 24, 2018 by George von Stamwitz

Everybody loves Brownfields. Local, State and Federal agencies provide an array of tax credits, grants, expert support, statutory liability protections and contractual liability protections to developers of contaminated land. Brownfield buyers generally are looking to avoid assuming liability for pre-existing conditions and for a few incentives to sweeten the pot. The public sector is eager to help.

Less well known, and virtually ignored by the public sector, is a small but growing segment of the Brownfield ecosystem where buyers of contaminated land “run to the fire.” These buyers willingly take liability for pre-existing conditions, known and unknown, and provide the seller with a broad, collateralized indemnity. From the public sector’s perspective, these buyers are user–friendly, as they rarely seek government grants, incentives or liability protections. In recent years these “risk transfer” transactions have been particularly popular with owners of decommissioned power plants with ash ponds.

Indeed, these transactions have ingredients that EPA and the States typically love: tons of financial assurance for the benefit of the seller, an accelerated schedule for demo and cleanup with sanctions, engagement with the local community regarding future use, and job creation. Sometimes the risk transfer buyer turns the project over to a Brownfields buyer once the liability is managed.

Perhaps EPA, the States and NGOs can get to know the risk transfer portion of the Brownfield ecosystem a little better, add their expertise, and help get more sites cleaned up faster.

THE GREAT LAKES OF NORTH AMERICA AND THE GREAT BARRIER REEF OF AUSTRALIA; MORE IN COMMON THAN ONE MIGHT THINK

Posted on April 18, 2018 by David Ullrich

Although separated by over 8,000 miles and representing vastly different ecosystems, the Great Barrier Reef of Australia and the Great Lakes of North American share much in common.  As globally significant resources, they not only help define the countries so fortunate to host them, they are major contributors to the social, economic, and environmental vibrancy of their cultures.  They are both very big and visible from space, with the Great Lakes having well over 10,000 miles of shoreline and the Great Barrier Reef stretching over 1200 miles of coast in Queensland.  At the same time, many similar challenges face the communities that are charged with the stewardship of the resources to make sure their integrity is preserved for future generations.

At the top of the list is climate change.  For the Great Barrier Reef, the warmer ocean temperatures have resulted in significant bleaching events over the past twenty years and have caused damage to major portions of the Reef, although much of its beauty remains intact. The increase in severity and intensity of cyclones has also caused major physical damage to the Reef all up and down the coast of the Coral Sea.  As the storms travel inland with heavy rains, the runoff from agriculture brings vast quantities of sediment and nutrients to the nearshore areas of the Reef.  The siltation can smother the coral and the nutrients are thought to contribute significantly to the explosion of the indigenous crown of thorns starfish that attack and destroy coral. 

Climate change is also putting extensive stress on the Great Lakes.  The warmer temperatures are leading to less ice cover, more evaporation, and lower lake levels.  However, the more frequent and intense rainfall events are putting more water back into the system.  Experts differ on the long term implications.  In the short term, lake levels seem to be going up and down more rapidly and to a greater degree than before, leading to navigational and erosion problems.  In addition, the heavy rains have increased nutrient runoff from agriculture and urban areas, leading to alarming algal blooms and drinking water crises like those in Toledo, Ohio and Pelee Island, Ontario on Lake Erie.  The nutrients also contribute to the formation of low oxygen dead zones that can result in fish kills.  In addition to climate change, the battle against invasive species such as sea lamprey and zebra and quagga mussels seems endless, while grass, silver, bighead, and black carp continue as major threats to the $7 billion fishery of the Great Lakes.

As strategies and approaches to dealing with these challenges are developed in Australia, Canada, and the United States, we would be well served to share ideas with one another on how best to meet them.  We have a tremendous responsibility as stewards of these global treasures to protect and preserve them for future generations.  It would be a tragedy to be resigned to renaming them the “Pretty Good Barrier Reef” and the “Pretty Good Lakes.”

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

Common Sense Species Mitigation Policy Shouldn’t Be Reversed By Trump DOI

Posted on March 29, 2018 by Melinda E. Taylor

Depending on one’s political persuasion, the Endangered Species Act is either a glaring example of federal overreach or a critical safety net for scores of plants and animals that are at risk of extinction. Its impact is felt across the country in regulations that protect the spotted owl and salmon in the Pacific Northwest, the red-cockaded woodpecker in the Southeast, the Mojave Desert tortoise in the Southwest, and the whooping crane on the Gulf Coast. 

Thanks to the act, over 220 species have avoided extinction and remain in the wild, including the bald eagle, brown pelican, American alligator, peregrine falcon, and northern right whale.

When Richard Nixon signed the law in 1973, few expected it to be as controversial as it eventually became. It was passed by Congress with little opposition, but by the 1990s, the Wise Use movement and extractive industries like forestry, mining, and oil and gas were bristling at the land use restrictions that accompanied federal decisions to list endangered species, while at the same time, environmental groups were filing lawsuits to force the federal government to use the law even more aggressively.

To varying degrees, the Clinton, Bush, and Obama administrations each adopted policies designed to reduce the conflicts between the warring sides and make it more appealing for private landowners to protect rare species. Those efforts were important, because 75% of endangered species occur on private land. Without the cooperation of landowners, their chances of rebounding were slim.

Because of incentive-based policies, over 130 conservation “banks” have been established on private lands to protect 70+ species, including the Florida panther, golden-cheeked warbler, American burying beetle, and gopher tortoise. Private investors, as well as ranchers, farmers, and forest owners, have invested millions of dollars in land management practices that help rare species in return for the right to sell “credits” to companies that destroy the species’ habitat elsewhere. Regulated industries benefit from a streamlined permitting process.

The Obama Administration crafted policies to clarify and improve the incentives. It also worked with states, ranchers, industries, and conservation groups to formulate ambitious, large-scale conservation plans intended to preclude the need for federal protection altogether and give more flexibility to state governments. Unfortunately, the Trump Administration appears determined to undermine these efforts.   

On March 28, 2017 President Trump signed an Executive Order on Energy and Climate Change that reversed key parts of the Obama Administration’s agenda. The intent was to unleash fossil fuel development, especially on public lands, by relaxing environmental requirements applicable to oil, gas, and coal that were supposedly holding the industry back.

Among the several actions that the executive order rescinded was a relatively obscure Presidential Memorandum dated November 3, 2015 titled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.”  Unlike the other actions rescinded by the order (Power Sector Carbon Pollution Standards, Climate Change and National Security, and Preparing the United States for the Impacts of Climate Change), the 2015 Obama Memorandum did not address climate change or energy development.

Rather, it directed federal agencies to formulate policies that would encourage private investment in natural resource conservation, a goal that should be appealing to conservatives and liberals alike.

The 2015 Obama Presidential Memorandum had ordered agencies to refine their species mitigation programs, including conservation banking, to ensure they produced measurable outcomes. It required an increased level of transparency and consistency for the regulated industries and landowners. It was designed to level the playing field among conservation bankers and other providers of species mitigation. In short, it was intended to create conditions in which the free market could work efficiently for endangered species. It is hard to imagine a rational justification for abandoning this common sense policy; like a number of other environmental decisions by the Trump Administration, this one appears to be driven by the notion that, regardless of the merits, if the previous administration put the policy in place, it must be reversed.

The Endangered Species Act has become highly politicized, despite the fact that polls show a core of strong, unwavering public support for the law. Republicans in Congress have introduced dozens of bills in the last year that would undermine its protections. A far better approach, a win-win for private landowners and industry, would be to fine-tune the tools developed by previous administrations to harness the power of the marketplace and the willingness of private landowners to protect the nation’s natural heritage.

Infrastructure, Deficits and Climate Change

Posted on March 28, 2018 by Mark R. Sussman

America’s infrastructure is deteriorating as the result of insufficient investment by federal, state and local governments.  In 2017, the American Society of Civil Engineers gave our Nation’s infrastructure a grade of D+, stating that “Deteriorating infrastructure is impeding our ability to compete in the thriving global economy, and improvements are necessary to ensure our country is built for the future.” The President and both the Republicans and Democrats in Congress seem to agree that we need to improve our Nation’s infrastructure.

The problem is “how do we pay for infrastructure improvements?”  In February, the President proposed a plan to invest $1.5 trillion in infrastructure improvements, but the plan relies mostly on privatization of government-owned infrastructure, and on state and local governments, whose resources are already stretched thin.  The federal government’s share of costs would be “only” $200 billion.  Congress is unlikely to agree to a significant investment in infrastructure given the massive deficits predicted to result from the recent Republican tax cuts and the bipartisan budget plan enacted in February.  The tax changes will reportedly increase the deficit by more than $1 trillion over the next ten years, and the bipartisan budget is expected to add at least $300 billion to the deficit.

Paying for the infrastructure improvements that almost everyone seems to agree upon will require either new sources of revenues, or enormous cuts in entitlements or other domestic programs.  Although Speaker Ryan and other proponents of smaller government might want to cut Social Security, Medicare and Medicaid, how likely are they to do so, especially in light of the huge tax give-away to our wealthiest citizens in the recent tax legislation?  Moreover, if they are successful in cutting the country’s safety net, what will that do to the tremendous income inequality that the United States is already experiencing?

One solution to this dilemma may be found in legislation optimistically called “America Wins Act” (H. R. 4209) proposed by Connecticut Congressman John Larson and 20 co-sponsors in November 2017. The bill, like the Carbon Dividends Plan offered by the Climate Leadership Council in February 2017, relies on a gradually increasing carbon tax of over $40 per ton, with some amount paid back to lower income Americans.  Our colleague and frequent blogger, Seth Jaffe, described the Carbon Dividend Plan in a post last year.  The main difference between the Carbon Dividend Plan, proposed by mainstream conservative Republicans, and the plan embodied by the America Wins Act, co-sponsored by Congressional Democrats, is that the former is specifically designed to be revenue neutral, while the later proposes to invest $1.8 trillion over ten years to fund infrastructure improvements.  Of course, since the Climate Leadership Council proposed its Carbon Dividends Plan, Congress blew a huge hole in the federal budget, so a completely revenue neutral plan no longer seems practical if we are to find revenues to support the rebuilding of our infrastructure.

The key elements of the “America Wins Act” include: (i) the imposition of a gradually increasing carbon tax imposed at the first point where fossil fuels enter the economy; (ii) a border adjustment fee on imports to maintain a level playing field with US producers; (iii) establishment of an infrastructure investment fund to finance highways, transit, airports, waterway and flood protection facilities, water pollution facilities, and broadband development; (iv) an energy refund program to provide “carbon dividends” to lower income households; and (v) a fund dedicated to supporting workers and communities heavily reliant on carbon-intensive industries, such as coal, to ease the transition to a new energy future. 

Unlike the Climate Leadership Council’s Carbon Dividend Plan, Congressman Larson’s proposal does not specifically include steps to reduce energy and climate change regulation that should not be needed if a market-based carbon fee program is adopted.  Nor does the “America Wins Act” contemplate the use of carbon offsets, like those suggested by our colleague, Jeffrey Fort, in his post of August 21, 2017.  These good ideas and others can certainly be incorporated into any legislation proposing to reduce carbon emissions, while simultaneously improving our Nation’s infrastructure without further exploding the deficit.  Such legislation offers a genuine opportunity for a true bipartisan approach to these critical issues facing the Nation.  Wouldn’t it be great if the President and our representatives in Congress actually worked in a bipartisan way to enact legislation that does not look to the past, but instead addresses policies that will strengthen our Nation’s economy and protect the World’s environment in the 21st Century and beyond?   Is it too much to ask our leaders to focus on implementing innovative, market-based solutions that can be supported by both conservatives and liberals, instead of spending all of their time trying to make partisan political points to be re-elected?

The Bible Tells Me What?

Posted on March 26, 2018 by Dennis M. Toft

Over the past few months the intersection of religious principles and environmental protection has become a topic of public dialogue.   Religious beliefs have also been invoked in recent cases seeking to block pipeline projects or protect endangered species.  Even more recently, the press has reported on statements by EPA Administrator Scott Pruitt which suggest that religious freedom could now form the basis of challenging permit denials.  Are we at the point where environmental lawyers need to study religion in order to represent their clients?

The recent public discourse about the intersection of environmental protection and religious principles started in 2015 when Pope Francis published his encyclical Laudato Si. The Pope explained that protection of the environment is part of God’s plan.  In this context the Pope argued that it is important to address global warming because of its impact on the planet and disproportionate effect on the poor and disadvantaged.

EPA Administrator Pruitt is reported to have a different view.   This is based upon a literal reading of the Book of Genesis.  It says God has given humans dominion over the earth, and the belief that as a result humankind has the right to manage and cultivate the earth’s resources for its benefit.   This New Republic explained these differing viewpoints in an article by Emily Atkin entitled “Scott Pruitt vs. The Pope” dated February 27, 2018.

The religious principles proffered by Pope Francis are reflected in legal theories advanced in a number of recent cases.  For instance in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission  (EDPA, Case No 5:17-cv-03163 JLS)  a religious order challenged FERC’s approval of a pipeline crossing the order’s  property by asserting that the property is sacred to their beliefs and that the pipeline would contribute to global warming.  Similarly, in Crowe Indian Tribe v. Zinke (D Mont. Case No. 9:17-cv-00089DLC-JCL) the plaintiffs challenged a regulation delisting the Yellowstone Grizzly Bear as an endangered species asserting the importance of that species to the practice of their religion.  These cases assert claims under the Religious Freedom Restoration Act, 42 U.S.C.  2000bb.  This statute prohibits the government from substantially burdening a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of furthering that interest.  Another example is Standing Rock Sioux Tribe v. Army Corps of Engineers, 239 F.Supp. 3d 77 (D.D.C. 2017).  In that decision, the Court rejected a request for an injunction seeking to block construction of a pipeline across a lake, finding that construction of the pipeline did not create a substantial burden on the plaintiffs’ exercise of their religious beliefs.

Looking at the legal theory in these cases and invoking the religious views attributed to EPA Administrator Pruitt, is it possible that someone could challenge the denial of a permit on the grounds that it imposes a substantial burden on their religious belief that natural resources are subject to human dominion and are there to be exploited? While case law to date would not seem to support such a theory, in 2018 it seems less farfetched than in the past.

LAND CONSERVATION AND THE NEW TAX LAW

Posted on March 20, 2018 by Philip Tabas

The sweeping tax law enacted last December changes the U.S. tax code in ways that affect individuals, businesses, corporations, and tax-exempt entities. The law, the Tax Cuts and Jobs Act of 2017 (TCJA), enacts comprehensive tax reform and was crafted and passed by Congress along party lines. What will it mean for charitable giving and particularly for land conservation?

Tax policy has long been an important incentive to foster land conservation in the US. Indeed, there is evidence to show that the tremendous growth of the land trust conservation community resulted largely from the enactment of the 1980 Federal tax deduction for conservation easements. The TCJA retains that deduction but alters the incentive to use it and other tax strategies for land conservation.

Here’s how:

The charitable deduction:  The TCJA retains the charitable deduction but increases the standard deduction while repealing and limiting many itemized deductions, all while reducing marginal tax rates for individuals, corporations, and certain pass-through business entities. The Act raises the percentage limit on cash donations for those who itemize deductions to 60% of adjusted gross income (AGI), up from the current 50% of AGI. Finally, the “Pease rule” limiting all itemized deductions, including but not limited to charitable deductions, by certain high-income earners is repealed. No specific changes were made to IRC section 170(h) regarding gifts of conservation easements or to the ‘enhanced’ tax deduction for gifts of conservation easements (designed to encourage conservation easement donations by enhancing the ability of “land rich, cash poor” taxpayers to claim a tax deduction for such gifts).

What are the implications?

These changes have given rise to significant speculation that the TCJA will reduce charitable giving in general and adversely impact the charitable sector, including land trusts and conservation organizations. Gifts of land or easements for conservation are likely to continue to be made but the changes in marginal tax rates may diminish the after-tax value of such gifts.

It is likely that higher income taxpayers will continue to have financial incentives to donate easements while taxpayers of more modest means could have the tax value of their easement gifts reduced; this might alter the types of land conservation and ecological outcomes that can be incentivized by easement donations.

Estate tax changes: The TCJA also doubled the credit against the estate, gift, and generation skipping transfer tax effectively eliminating many estates from being subject to tax, although this provision will only be in effect from 2018 through 2025. Consequently, the Act is likely to weaken the tax incentive to make charitable contributions at death, including gifts of land or conservation easements, at least during that period.

Real estate changes: The TCJA retains the like-kind exchange tax deferral for real property under current law, but repeals such treatment for exchanges of personal property. Thus, easements or land with conservation significance may continue to be exchanged for other like kind property enabling the landowner to defer the recognition of otherwise taxable gain.

Syndicated conservation easement transactions: Over the past few years, there has been a dramatic increase in the number and valuations involved in so-called syndicated conservation easements transactions. These arrangements essentially are tax shelters designed to generate profits to investors in pass-through entities from a charitable donation of a conservation easement typically at inflated appraised values. The IRS recently issued Notice 2017-10 describing these transactions as “listed transactions” and requiring disclosures by participants and material advisors involved in these transactions. 

While It remains to be seen whether anything in the new tax law will affect such tax shelter transactions, the reduction in the highest marginal individual income tax rates and a new deduction for partnerships, Subchapter S corporations, and sole proprietorships are likely to combine to mean that syndicated easement promoters will have to have more aggressive easement valuations to make the after-tax returns comparable to what they were under the old law. This may make it harder to find investors. Hence, buying into one of these tax shelters may not bring the tax savings it used to, but that may simply prompt promoters to rebut that with bigger write-offs.

The conservation community is working to address such syndicated easement transactions by advocating for a bill currently before Congress (S. 2436, Charitable Conservation Easement Program Integrity Act) which would directly target the abusive transactions while continuing to reward true philanthropy that helps to conserve farms, ranches, working forests, wetlands and wildlife habitat for future generations.

STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 19, 2018 by ACOEL Admin

The American College of Environmental Lawyers announces its annual Stephen E. Herrmann Environmental Writing Award for the 2017-18 academic year.  The Herrmann Award is a stipend of $3,500 to the author of the winning submission (whether an article, note, case comment or essay) and $500 to the submitting law journal. The winner of this year’s Herrmann Award will be invited to present his or her submission to the Fellows at the 2018 ACOEL Annual Meeting in Jackson Hole, Wyoming.

We urge College members – particularly our members in academia – to spread the word on this opportunity.  In addition to the amount of the award, those interested should know the following:

  • Submitting Candidate Notes/Articles:  Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible to submit annually a single student authored candidate article, note, case comment or essay selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.

  • Evaluation Criteria:  The prize will be awarded to the author of a student article, note, case comment or essay published by the submitting law journal during the current academic year, or scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law.  Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee.

  • Submission Logistics:  Those interested in participating should email one electronic copy of their submissions to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, c/o J.B. Ruhl and Mary Ellen Ternes with the email addresses below.  Entries must be received no later than June 10, 2018.  Each entrant should include with the entry a cover letter or e-mail message stating the name of the submitting law journal, email address(es) of author (with post-graduation email address(es) if applicable), year of author’s graduation, and a statement that the submission was not written as part of paid employment.

Anyone having questions about the award or process for submitting a piece for consideration should contact J.B. Ruhl (jb.ruhl@Law.Vanderbilt.Edu) or Mary Ellen Ternes (Maryellen.ternes@earthandwatergroup.com). To ensure a prompt response, please reference the Stephen E. Hermann Environmental Writing Award in your communication.

Federal Common Law Controls California Climate Actions: Never a Dull Moment

Posted on March 12, 2018 by Seth Jaffe

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v. Connecticut and subsequent decisions, such as Native Village of Kivalina, it seemed pretty clear that the federal Clean Air Act had displaced federal common law, leaving only potential state law claims in its place.

Judge Alsup had a different idea.  The cities’ claims were only brought against fossil fuel producers, not electric generators.  The claims were based on the allegations concerning the companies’ conduct in selling fossil fuels into the stream of commerce, while at the same time allegedly making misrepresentations concerning the risks of climate change.

Judge Alsup concluded that this was a distinction with a difference.  The Clean Air Act displaces federal common law regulating operations that emit GHGs.  The Clean Air Act, however, does not regulate the sale of fossil fuels.  Thus, it does not displace the type of public nuisance action at issue in this case.  (Of course, this leads to the odd result that the companies’ sale of fossil fuels is subject to public nuisance claims, even though methane emissions from oil wells and refineries are not, because those are subject to regulation under the CAA!)

Having made this critical distinction, the rest of the decision was relatively easy.  As Judge Alsup noted:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making. The range of consequences is likewise universal. Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is not to say that the ultimate answer under our federal common law will favor judicial relief. But it is to say that the extent of any judicial relief should be uniform across our nation.

I’m not sure that Judge Alsup is right, though I appreciate his creativity.  And if appellate courts decide he is right, the defendants may come to regret removing the action from state courts.

FERC Diverts the Rubicon

Posted on March 9, 2018 by Eugene Trisko

In the last decade, every aspect of the electric utility business has changed except one.  We’ve experienced a revolution in how and where electricity is generated, consumed, and distributed.  What hasn't kept up are the rules governing the market. They haven’t adapted to changing technologies, fuels or consumer demands, and they are leading us toward a future electric supply mix dominated in many markets by intermittent renewable generation backed up by natural gas power plants.

Hundreds of coal-fueled generating plants have closed over the past several years due to lower natural gas prices and the costs of compliance with EPA's 2012 mercury regulations.  Some nuclear units in competitive power markets also have shut down prematurely, and many more are at risk because they cannot recover their costs under current electricity market rules. Illinois, New York, and Pennsylvania have each turned to legislative and regulatory remedies to shore up the economic viability of their nuclear plants.

To help ensure fuel diversity and resilience of the electric power grid, the U.S. Department of Energy transmitted a proposed rule to the Federal Energy Regulatory Commission in September 2017 to provide full cost recovery for coal and nuclear units operating in competitive power markets. FERC issued the DOE proposed rule in a Notice of Proposed Rulemaking (NOPR) on October 10, 2017 (82 Fed. Reg. 46940). energy.gov/sites/prod/files/2017/09/f37/Notice%20of%20Proposed%20Rulemaking%20.pdf

The basic premise of FERC's Grid Resiliency Pricing Rule was that baseload coal and nuclear units provide unique benefits to the electric grid due to the security of their "on the ground" fuel supplies and their inherent stability and reliability.  Most natural gas generation relies on "just in time" gas deliveries through pipelines, and much of the gas supply is subject to interruptible contracts. Intermittent renewable sources such as wind and solar do not provide the same grid stability as 24/7 baseload power units.

FERC's proposal sought to correct a deficiency in the way that power producers are compensated. Current market rules shortchange baseload generators and overpay variable and marginal producers that piggyback on the reliability, voltage smoothing and other services provided by baseload coal and nuclear plants.  Ensuring fuel diversity in the power generation fleet is an effective way to minimize risks to the electric grid posed by extreme weather events, fuel supply interruptions, terrorist acts, and other unplanned disruptions.

The NOPR generated a firestorm of opposition in comments filed by state regulators, utilities, regional power grid operators, natural gas and renewable energy interests, and environmental advocates. Numerous comments argued that existing market structures were adequate to prevent threats to electric reliability, and that the rule was not based on substantial evidence. Several former FERC chairmen spoke publicly in opposition to the rule for its "interference" with market mechanisms.

Faced with this opposition, a prominent FERC member floated a proposed "interim rule" allowing regional grid operators to provide rate adjustments sufficient to avoid the retirements of additional baseload power units while FERC initiated a longer-term study of grid resilience and electric market design.  But with two new members being added to the Commission in late 2017 following Senate confirmation - including a new Chairman - the interim rule failed to gain traction.

On January 18, FERC rejected the DOE rule in an order calling for the creation of a new docket (No. AD18-7-000) "to holistically examine the resilience of the bulk power system." The new docket will assemble data and analyses by regional grid operators and others "to provide information as to whether FERC and the markets need to take additional action on resilience of the bulk power system." Meanwhile, grid operators such as PJM are considering their own pricing reform measures.

As the NOPR debate was unfolding, the eastern electric grid was challenged by the "Bomb Cyclone" that sent temperatures plunging across the eastern seaboard. New England power generators ran low on natural gas supplies and had to switch to highly-emitting oil generators, nearly exhausting their available "on the ground" oil supplies. Both natural gas and coal units in the Midwest and Mid-Atlantic regions experienced some power interruptions, with gas units experiencing a larger degree of unavailability. With the support of the remaining coal and nuclear baseload fleets, the East Coast and Midwest avoided catastrophic service interruptions.

The question left unanswered by the Bomb Cyclone was how a future eastern grid with much higher dependence on gas and renewable generation, and lower availability of coal and nuclear baseload generation, would perform under similar or more severe conditions. In late February, DOE announced that it will develop a quantitative model for assessing long-term reliability risks based on regional changes in generation portfolios. The DOE modeling effort should provide key inputs to FERC's examination of reliability issues. In its order rejecting the NOPR, FERC "recognize(d) that it must remain vigilant with respect to resilience challenges, because affordable and reliable electricity is vital to the country’s economic and national security." https://www.ferc.gov/CalendarFiles/20180108161614-RM18-1-000.pdf

A long-term reliability study will shed needed light on the multiple risks to electric reliability associated with the loss of coal and nuclear baseload generating plants. Once baseload power resources are shut down, they cannot be reactivated.  Turbines warp under their own weight. Recent FERC projections show the loss of an additional 26,000 Megawatts of coal and nuclear baseload capacity by 2020 (FERC Infrastructure Update, Nov. 2017). https://www.ferc.gov/legal/staff-reports/2017/nov-energy-infrastructure.pdf

FERC's "holistic" assessment of the long-term risks confronted by our rapidly changing power generation industry cannot be completed soon enough. While the Commission's study process has avoided any hard decisions on reforming market pricing rules for the time being, the ongoing trend of baseload capacity retirements is likely to continue for the indefinite future.

------

The writer is an adviser to labor unions concerned about electric reliability and fuel diversity issues.

The Struggle Between Conservation and Exploitation in Napa Valley

Posted on March 8, 2018 by Ridgway Hall

Book Review

Your favorite wine regions? Napa Valley is probably somewhere on your list. Ever since at least 1976, when Napa chardonnay and cabernet sauvignon won a blind taste testing in Paris, Napa’s vineyards have been producing large quantities of these and other wines, and business has been booming. The number of wineries in the roughly 25-mile-long Napa Valley, once just a handful, is now over 400. This is because the climate, soil and weather are uniquely suited to the production of wine grapes. In 1968, recognizing the importance of protecting the character of the valley, the county established the first agricultural preserve in the country, restricting the land use to farming and related activities.

But bucolic places where money can be made are attractive. Located northwest of San Francisco between two sets of mountains and bisected by the Napa River, Napa Valley has experienced rapid development and new building. This has resulted in habitat destruction, such as the cutting of thousands of century-old oaks, erosion, and pollution of the river (once home to salmon and steelhead, but no more) and the traffic, noise and dust of construction. Development is proceeding at a rate that threatens to destroy the natural beauty of the area that brought people there in the first place.  Not surprisingly, there has been pushback from conservationists and other residents who are not part of the wine industry.

This struggle between developers and those who want to preserve the valley’s pastoral charm is the subject of an excellent new book by James Conaway entitled Napa at Last Light: America’s Eden in an Age of Calamity (Simon & Schuster, 352 pages, $26). (Disclosure: I read and provided comments on an early draft of the book). This is the third book in a trilogy which began in 1990 with Conaway’s Napa: The Story of an American Eden, a New York Times best seller describing the 19th century origins of winemaking in the Napa Valley and its rediscovery starting in the 1960s.  This was followed in 2003 with The Far Side of Eden: New Money, Old Land and the Battle for Napa Valley.  It described the growing conflicts between winery owners, some of them by now-absentee corporations and investors eager to reap profits, and the local citizens and environmentalists who were becoming increasingly upset by the destructive results.

Napa at Last Light recaps the past and then brings this struggle current, including a hotly contested vote on a proposed woodland protection ordinance on the county ballot for June.  Conaway has traveled throughout the Napa region for more than 30 years getting to know the people, their values and concerns. As a result, the book is far more than just a chronology of events.  You get to know several generations of grape growers and winemakers along with the county officials and a variety of other residents and their families, the circumstances that brought them there, their hopes for the future and their interactions.  You meet winery owners who care a lot about preservation, have donated funds to protect fragile land and carried out streambank restoration efforts.

What is going on in the Napa Valley is a microcosm of conflicts over land use that are being played out across the country. The corrosive influence of money, and the power and abuses it brings, is never far from the surface. Nor is the philosophic struggle between those who believe they should be able to do whatever they want with their land, and those who believe they are part of a community in which what one person does with his or her land may adversely affect others.  It’s freedom vs regulation. Napa at Last Light is a timely and thoughtful portrayal of critical issues we are familiar with and will be dealing with for the foreseeable future. It’s also a great read.

 

Note: Ridge Hall has written a more extensive review of this book in the March-April issue of The Environmental Forum published by the Environmental Law Institute.

Takings Math for Dummies: When 1+1=1

Posted on March 7, 2018 by Mary K. Ryan

One benefit of preparing an annual review of last year’s important cases, as I just did for MCLE, is that you may have missed a significant case when it came out. That’s why I’m writing now about Murr v. Wisconsin, 137 S. Ct. 1645, decided on June 5, 2017. Murr, which incorporates the mathematical conundrum in the title, expands the Supreme Court’s regulatory takings jurisprudence by asking a preliminary question—what parcel or parcels of land are at issue? The Court held that this question must be answered before reaching the ad hoc case-by-case analysis established by Penn Central Transportation Co. v. New York City, Lucas v. South Carolina Coastal Council, and Palazzolo v. Rhode Island which examines the economic impact of the challenged regulation, the investment-backed expectations of the landowner, and the character of the government action.

Murr involved the owners of two adjacent waterfront properties on the St. Croix River in Wisconsin which, given their location, were subject to numerous regulations, including a one acre buildable lot requirement. The properties lost their original grandfathered protection from that regulation when they were put into common ownership. The county denied requests for variances and the owners filed a regulatory takings claim, which they lost at the state level.

In a 5-3 opinion written by Justice Kennedy, the Court developed a new, three-factor test for determining the “denominator” in the regulatory takings analysis—in other words, the unit of property against which a court must assess the effects of the challenged governmental action. First, courts must assess the treatment of the land under state and local law, in particular how state law bounds and divides the land. Second, courts must look at the physical characteristics of the landowner’s property, e.g., whether the land is subject to further environmental or land use regulations due to the nature of the land or adjacent natural resources. Third, courts must consider the value of the property under the challenged regulation. Under this test, there was no regulatory taking. The Court rejected the bright line tests offered by the state (state law controls) and the landowners (lot lines define the relevant parcel) as too easily subject to manipulation. The Court defined the relevant parcel as a single combined lot based on several factors:  (1) that merger as a result of common ownership is a reasonable and usual zoning and land use control and there was a voluntary merger; (2) riverside property is often subject to restrictions on development; and (3) treatment as one lot did not substantially diminish the value of the land without the regulation.    

Murr may be an example where the “no harm, no foul” rule led to the right result. But generally speaking, the government’s defenses just got better, and the landowner’s burden tougher, in regulatory takings cases. And while there were three dissenters (Justice Gorsuch did not participate in the case), without two more votes, Murr will be the law for the foreseeable future.

The Power of Pension Funds: How to Win Friends and Influence Others

Posted on March 6, 2018 by Gail Port

While both tout their desire to reduce the State’s carbon footprint and address climate change,  New York Governor Andrew Cuomo and State Comptroller Thomas DiNapoli have  their differences when it comes to  New York State pension fund’s fossil fuel investments.   

The New York state pension fund (known as the New York State Common Retirement Fund) is the third largest pension fund in the United States, with an audited value as of March 2017 of $192.4 billion in assets.  The pension fund holds and invests assets of over one million state and local government employees, retirees, and beneficiaries. At issue are holdings of at least 50 oil and gas companies with significant carbon-intensive operations.  Comptroller DiNapoli is the sole trustee of the pension fund, and is advised by several independent advisory committees.

DiNapoli is under pressure from Cuomo, State Senator Liz Krueger, and certain environmental groups to divest the pension fund from fossil-fuel investments.  DiNapoli has pushed back on immediate divestment on several grounds, most importantly, that as a fiduciary his first priority is to earn a good return for the approximately 1.1 million New Yorkers who rely on the state pension system for their retirement security.  While recognizing that the effects of climate change represent a systemic risk to the returns of the pension fund, the economy and the welfare of the people of the State, DiNapoli believes that he can be more effective in managing those systemic climate change risks by the use of the significant power of the pension fund to influence the policies of oil and gas companies.  That includes shareholder activism (i.e., filing shareholder resolutions), voting proxies, investor collaborations and corporate engagement programs.

On the latter point, Comptroller DiNapoli has cited ExxonMobil’s agreement to implement a shareholder proposal, co-filed by the state pension fund and the Church of England, which caused ExxonMobil to agree to assess how it might be impacted by the Paris Agreement goals to reduce global warming. Duke Energy has responded to a similar shareholder resolution seeking to require it to analyze how the Paris Agreement will impact its business and plans to produce a climate risk assessment in the first quarter of 2018. DiNapoli asserts that because these oil and gas companies will not go out of business as a consequence of divestment of the pension fund’s holdings, he can be more effective by having a seat at the table as a shareholder to influence companies’ actions and disclosures.  Critics of this view, including State Senator Krueger, believe the shareholder influence is limited and that divestment sends a stronger message than does the Comptroller’s more nuanced and varied approach. 

Another investment strategy recently employed by the Comptroller was to double the pension fund’s investment-- to $4 billion-- in a low-emissions index designed by Goldman Sachs Asset Management.  That index is more geared toward stocks, such as Apple Inc. and Microsoft Corp., than higher carbon-emitters, such as ExxonMobil and Chevron.  DiNapoli has said that since 2016 the Goldman Sachs designed index has delivered returns comparable to the Russell 1000, thereby yielding strong investment returns with the benefit of significantly reducing the carbon footprint associated with that investment.

Although DiNapoli has expressed reservations about allowing pension fund investments to be influenced by political forces, he recently agreed to join forces with Governor Cuomo and others on decarbonization strategies for the pension fund investment portfolio.  While there are no immediate plans to divest the energy holdings of the pension fund, DiNapoli and Cuomo have agreed to create an independent advisory committee to develop a low carbon future roadmap for the fund.  In his January 2018 State of the State Address, Cuomo called for an end to fossil fuel related activities in the pension fund and stated his intent to work with DiNapoli so New York can “put our money where our mouth is.” Cuomo then asked for a round of applause for Comptroller DiNapoli and his efforts.

Regardless of whether DiNapoli takes immediate moves to decarbonize the portfolio, the movement towards divestment is gaining momentum. California ended its pension fund investments in coal companies in 2015 and is facing pressure to decarbonize its portfolio. On January 10, New York City Mayor Bill de Blasio and Comptroller Scott Stringer announced that NYC plans to divest its five pension funds from fossil fuel investments, which will be the largest divestment of any municipality to date. Stringer stated, “[T]his a first-in-the-nation step to protect our future and our planet – for this generation and the next. Safeguarding the retirement of our city’s police officers, teachers, firefighters and city workers is our top priority, and we believe that their financial future is linked to the sustainability of the planet.” De Blasio and Stringer were praised by environmental activists after the announcement and by State Senator Kruger who continued her call for State Comptroller DiNapoli to follow suit with respect to the New York State pension fund investments.

Lots of good intentions, lots of ideas and a bunch of strange bedfellows--only time will tell if these investment (and divestment) initiatives will continue to gain traction and make a difference. And what about us-- shouldn’t we too be employing low-emissions/decarbonization investment strategies with our portfolios?

Border Wall Waivers—A Continuing Problem

Posted on March 5, 2018 by Robert Uram

In January 2017, I warned that it was not too soon to begin thinking about reining in the Trump administration’s ability to use the waiver authority that the Congress adopted in 2005 to carry out its program to build new border facilities.  The 2005 waiver authority allows the Secretary of the Department of Homeland Security to unilaterally waive the federal government’s obligation to comply with any law that he feels will get in the way of building border walls. The grant of the waiver authority was a mistake. It is an affront to the rule of law, treats the residents of border areas as second-class citizens, and undermines the environmental laws that have been so successful in making America a great place to live.

My warning has not been heeded. The waiver authority issue has been lost in the raucous debate over immigration and border walls. None of the bills that were considered in the Senate during the week of February 12-16 proposed to change or reduce the waiver authority. Republicans in the House are actually seeking to expand the waiver authority. Democrats seem incapable of making the waiver issue a part of the conversation. This is inexcusable.

 Dozens of laws have been waived since 2005. These include waivers of the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, and laws that protect national parks and wildlife refuges.   The Trump administration continues to assert the right to exercise the 2005 waiver authority including waivers for walls near San Diego and for walls in New Mexico near the Texas Border.  Additional waivers are planned for the Rio Grande Valley in Texas, most likely including a wall through Santa Ana Wildlife Refuge. Established in 1943, the Refuge provides important habitat for more than 400 species of birds and would be devastated by a wall through its boundaries.  

I have practiced environmental law for more than 40 years. I know first hand that the environmental laws are not perfect, but there is no question that they are effective. Our air is cleaner and the water quality in our rivers and streams is vastly better. We are no longer creating toxic wastes sites and old dumps have been remediated. We have protected wildlife and ensured the continued existence of many species that would have been forever lost. We have saved billions of dollars on health problems that have not occurred because we have cleaner air, water, and land.  We have done all of this and have continued to prosper economically.  You only have to read the reports of air and water pollution in countries like China and India to appreciate how much our environmental laws have benefitted us. Application of the full suite of environmental laws to any new border facilities that may be built is needed to ensure that their environmental effects will be properly identified and addressed. 

New border walls and conversion of existing vehicle barriers to border walls will cause local residents grave economic, environmental, and social harm.   Border walls have divided farms and ranches, caused flooding in Texas and Arizona, and destroyed sensitive habitat for endangered species and other wildlife.  More than 90 endangered and threatened species including jaguars, ocelots, snowy plovers, pygmy owls, and the rare Mexican gray wolf use habitats on both sides of the 2,000-mile border. Without the protection of the Endangered Species Act, these species will be much more likely to become extinct.

Lawsuits now pending before Federal Judge Curiel in San Diego have been the only tangible effort to stopping the use of the 2005 waiver authority. The lawsuits challenge three waivers on a number of grounds, including arguments that the waiver authority has expired, that its use does not apply to the work covered by the waiver, and that the waiver is unconstitutional. Because the Congress has severely restricted judicial review of waivers, these kinds of lawsuits are difficult to win. On February 27, 2018, Judge Curiel rejected the challenge to three waivers.

Judge Curiel’s decision will likely be appealed. But it is more likely than not that litigation will be unable to block waivers. The Congress will have to act to rein in waivers.  A responsible Congress would address this issue decisively and head on. If the waiver remains on the books, it will not only lead to harm to border communities and the environment, it will also be a precedent to excuse compliance with other laws for other reasons. Protecting our legal system should be of bipartisan concern. The Congress is likely to return to the border issue in the weeks ahead. When it does, the Congress should set aside its past mistakes and revoke use of the waiver for any future repair or construction of border facilities of any kind and should decline to repeat its mistake with new, additional executive branch waiver authority.  

If Jimmy Fallon Was an ACOEL Member, Here is What He’d Sing

Posted on March 1, 2018 by Jeff Thaler

While many in Philadelphia were in the streets after the end of Super Bowl LII, and New Englanders promptly went to bed after the last pass hit the Minneapolis turf, the Doppelgänger of a native-born Minnesotan made a national appearance in the middle of that long, cold night.

By now, many have seen the 2018 version of “The Times They Are a-Changin,’” performed by someone born 10 years after the original version was created—one Jimmy Fallon. According to my consultation with Dr. Google, the only time Mr. Fallon has talked about environmental issues was back in May 2016 when he did a segment on Sarah Palin, climate change and climate scientists.

Therefore I think it is time that ACOEL commissioned Mr. Fallon to perform an updated version of that and another Dylan song, ones many of us could probably sing by heart (with a refresher class) even though written in the early ‘60s—that pre-NRDC/CAA/CWA/ESA/et.seq. classic, “Blowin’ in the Wind.” The original lyrics for both songs need to be refreshed, as do all of us who were alive and kicking back then, so here they are:

The Times They Are A-Changin'

Come gather ’round people                                                       

Wherever you roam                                                                           

And admit that the waters                                                               

Around you have grown                                                               `                   

And accept it that soon                                                                     

Under water will be our coast and flood zones                       

If our kids’ future to you is worth savin’                                   

Then you better start swimmin’                                                  

or you’ll sink like a stone                                                              

For climate times they are a-changin’

 

Come federal and state legislators

Please heed the call

Don’t stand in the doorway

Don’t block up the hall

For those who should be ashamed

Will be those who have stalled

Weather extremes are outside and they’re raging

Floods, fires and storms will break down your walls

For climate times they are a-changin’

 

Come bloggers, reporters, and skeptics

Throughout the land

Please don't criticize

What you refuse to understand

Rising CO2 levels and temperatures

Are getting beyond our command

Your old fossil-fueled road is

Rapidly agin'.

Please embrace a clean energy new one and

Vote out of office resisting government hands

For climate times they are a-changin'.

 

Blowin’ in the Wind

How many droughts & fires must the world endure                                  

Before we know they are a warning?

Yes and how many seas must flood our shores                        

Before we seek a solution?                                                           

Yes and how many times must the fake news fly                     

That climatic disruption is not real?                                                

The answer my friend is blowin' in the wind                              

The answer is blowin' in the wind.                                                    

 

How many years will our beaches and airports exist

Before they are washed into the sea?

Yes and how many years can the glaciers survive

Before they are just memories?

How many heads must be buried in the sand

So that people can deny what should be seen?

The answer my friend is blowin’ in the wind

The answer is blowin' in the wind

 

How many more years must we create greenhouse gases

Such that too many species can’t survive?

Yes and how many times will clean energy projects be held up

Before too many people have died?

How can we power our cars, lights and heat pumps

Without harming the world for our kids?

The answer my friend is blowin' in onshore winds

The answer is blowin' in offshore wind.

 

So break out your harmonicas and guitars, and we will sing the songs of climate changes while working to change our laws and policies for the benefit of all.