Are Obama’s Climate Pledges Really That “Legally Durable”?

Posted on December 21, 2015 by Richard G. Stoll

In his December 16 ACOEL post Professor Robert Percival concludes that President Obama’s Paris GHG reduction pledges are most likely “legally durable.”  Two of his key points:  (1) EPA’s Clean Power Plan (CPP) – from which the bulk of the Obama pledges are comprised – will likely survive judicial review; and (2) any effort by a new President to undo the CPP would require a lengthy rulemaking process that could be rejected on judicial review.  

The CPP may ultimately survive judicial review, and any attempt by a new President to undermine the CPP may ultimately fail.  But with due respect to Professor Percival, I submit the GHG reduction pledges may be far less “legally durable” than he suggests.  

Judicial Review Prospects.

Professor Percival notes that the Supreme Court has “repeatedly upheld EPA’s authority to regulate GHG emissions.”  But EPA’s authority to regulate GHG emissions is not at issue in the challenges now pending in the D.C. Circuit.  (Consolidated under the lead case West Virginia v. EPA.) 

Rather, the issues relate to how far can EPA go with the words of the Clean Air Act (CAA) to regulate GHG emissions.  I think most would agree that EPA seeks to go pretty far with a few words in CAA 111.   One key issue is whether the words authorizing imposition of “best system” emission limits upon “stationary sources” confer authority to require owners of coal-fired stationary sources to replace their plants with solar and wind energy sources.

In my view, whether the CPP will survive in the D.C. Circuit may well depend upon the composition of the 3-judge panel selected by lot.  The 17 active and senior judges on that Court represent an amazingly wide spectrum of philosophies.  But the cases will probably then go to the Supreme Court – and there, I think EPA will have a pretty tough (but maybe not impossible) time.  Last year, the Court rejected parts of EPA’s GHG regulatory scheme in its UARG opinion.  The Court  expressed strong distaste for EPA regulations with questionable grounding in the CAA’s words  – particularly “where an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”

A New President’s Prospects.

Virtually every Republican Presidential candidate has vowed to undo most or all of the CPP (assuming it has not been rejected on judicial review).  I take no position on whether he or she should do this.   But I do believe it could be done fairly quickly and in a manner likely to survive judicial review.

I direct your attention to Nat'l Ass'n of Home Builders v. EPA.  Writing for a unanimous panel in an EPA case, Chief Judge Garland (an Obama appointee – joined by Judge Rodgers, a Clinton appointee) quoted extensively from recent Supreme Court opinions.  In Part II(A) of Judge Garland’s opinion (pages 1036-38) and Part IV (page 1043), the following points come through strong and clear:

a.  A new administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, even where there are no new facts or information, so long as the new administration adequately explains the basis for the reversal;

b.  There is no heightened standard of judicial review when an agency reverses course; and an agency need not convince the court that the reasons for the new policy are better than the reasons for the rejected one.

Thus the “lengthy rulemaking process” envisioned by Professor Percival need not be so lengthy.  A new administration would not need to develop a new factual record – it would merely have to carefully explain in its rulemaking the legal and policy reasons why it was undoing parts or all of the CPP.  There is no reason this could not be accomplished within a year or two, and reductions required under the CPP do not begin kicking in until 2022.

Sackett Redux?

Posted on December 17, 2015 by Patrick A. Parenteau

As Annette Kovar recently predicted in her blog, the Supreme Court granted cert in United States Army Corps of Engineers v. Hawkes Construction., Inc. (15-290) to resolve a split in the circuit courts on the question whether a jurisdictional determination (JD) under the Clean Water Act constitutes “final agency action for which there is no other adequate remedy in a court" and is therefore subject to judicial review under the Administrative Procedure Act.

In Hawkes , the Eighth Circuit held that the JD was a final agency action subject to the APA. The case arose after a company sought to mine peat from wetland property owned by two affiliated companies in northwestern Minnesota. The Corps’ JD found that the wetlands onsite were "waters of the United States" and were therefore subject to the permit requirements of section 404 of the CWA. This decision runs counter to the Fifth Circuit decision in Belle Co., LLC v. U.S. Army Corps of Eng’rs.

Both courts evaluated the reviewability of JD’s in light of Sackett v. EPA, which held that property owners may bring a civil action under the APA to challenge EPA's issuance of a CWA §309 compliance order directing them to restore their property immediately pursuant to an EPA work plan and assessing penalties of $37, 500 per day for failure to comply. The Fifth Circuit in Belle declined to apply Sackett on the ground that a JD does not have the same legal consequences as a 309 compliance order. The Eighth Circuit disagreed and held that a JD presents landowners with a Hobson’s choice requiring them “either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties.”  

In my view the Fifth Circuit has the better reading of Sackett and the governing law on what constitutes final agency action. The Supreme Court uses a two prong test to determine finality:  first the action must “mark the consummation of the agency’s decision making process;” and second “the action “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear There is no question that a JD satisfies the first prong. But a JD does not meet the second prong for at least three reasons. First, a JD does not determine the rights and obligations of the landowner for the simple reason that the statute has already done that. Section 301 of the CWA prohibits any discharge by any person to a water of the US without a permit.   The landowner’s legal obligations are exactly the same with or without the JD. 

Second, unlike the compliance order in Sackett, a JD does not compel the landowner to take any action at all. Nor does it expose the landowner to penalties, let alone the double penalties at issue in Sackett. The JD notifies the landowner that a permit may be required for discharging dredge or fill material into the wetland unless one of the statutory exclusions such as prior converted cropland apply.  However as the Fifth Circuit said, “even if Belle had never requested the JD and instead had begun to fill, it would not have been immune to enforcement action by the Corps or EPA.” 

Third, the Eighth Circuit was simply wrong to equate the practical consequences of a JD putting the landowner on notice that a permit was required with Bennett’s requirement that the action must have legal consequences. In Bennett the action at issue was a biological opinion issued under section 7 of the Endangered Species Act. The Court found that under the ESA “the Biological Opinion at issue here has direct and appreciable legal consequences;” namely, that it curtailed the authority of the Bureau of Reclamation to provide water for irrigators from federal reservoirs in order to protect endangered fish. Nothing remotely similar to that follows from the issuance of a JD.

Finally the Court ought to be leery of broadening the reach of the APA to include actions having practical effects but not actual legal consequences. That could sweep in a large number of federal actions that have never been thought of as justiciable controversies—for example notices of violations which arguably trigger even more immediate and serious consequences than JD’s. Regulated entities are not the only ones who might benefit from a relaxation of the APA’s finality requirement. Environmental plaintiffs would gain increased access to the courts as well.   

Promises, promises: how legally durable are Obama's climate pledges?

Posted on December 16, 2015 by Robert Percival

As part of a global agreement on climate change, the US has pledged, among other things, to reduce its greenhouse gas (GHG) emissions by 26%-28% compared to 2005 levels by the year 2025. But opponents of President Obama argue that he cannot keep his promises made at the Paris climate summit.

The Obama administration is confident that the US can meet its promise based on the regulatory actions already taken by the US Environmental Protection Agency (EPA) and other federal agencies to reduce GHG emissions, part of a broad Climate Action Plan announced by President Obama in June 2013.

In transportation, US fuel economy standards set by the EPA have been raised dramatically. And earlier this year the EPA issued regulations to control GHG emissions from power plants, which led to a final rule known as the Clean Power Plan.

The Clean Power Plan will require states to reduce GHG emissions from existing power plants by 32% by the year 2030. It is expected to accelerate the retirement of coal-fired power plants as electric utilities increasingly shift to natural gas and renewable sources of energy.

Yet even as US negotiators arrived in Paris for the climate summit, Obama's political foes were questioning his authority to sign an international agreement on climate change.

Senate Majority Leader Mitch McConnell argued that the US cannot meet its promises to the global community because the Clean Power Plan is "likely illegal" and will either will be struck down in court or be revoked by a new Republican president.

So how strong is the legal defense of Obama's signature climate initiatives?

Going to the Supreme Court?

Having the Clean Power Plan struck down in court seems unlikely for a number of reasons. These include the fact that the US Supreme Court repeatedly has upheld EPA's authority to regulate GHG emissions under the Clean Air Act, beginning in 2007 with its decision in Massachusetts v EPA.

On the other hand, a new president working with congressional opponents of climate action could undermine the US commitment. Let's consider the legal possibilities.

The Congressional Review Act provides special fast-track procedures that allow Congress to veto regulations issued by federal agencies within 60 legislative days of their issuance. But before such a joint resolution of disapproval can take effect, it requires either presidential approval or the override of a presidential veto by a two-thirds majority in each house of Congress.

The signature policy of Obama's climate strategy is the EPA Clean Power Plan to regulate CO2 from power plants. Opponents are already challenging it in court. haglundc/flickr, CC BY-NC

As a result, the only time this procedure has been used successfully was shortly after a change of administration. In March 2001 new President George W Bush signed a disapproval resolution blocking regulations issued at the end of the Clinton administration to protect workers from repetitive motion injuries.

Congress is trying to use the Congressional Review Act to disapprove EPA's greenhouse gas regulations, but such a vote is entirely symbolic because President Obama has promised to veto the disapproval resolution and the 60 legislative day period will end long before the 2016 election. Thus, as long as a president committed to climate action remains in office, the Congressional Review Act is not a promising option.

Dramatic versus piecemeal attacks

A new president opposed to climate action could direct EPA to repeal its regulations, but this would require the agency to undertake a lengthy rulemaking process to comply with the Administrative Procedure Act that governs how agencies adopt regulations. Any agency decision to revoke the regulations would be challenged in court and could be overturned.

The courts have played a role before in attempts to reverse regulations. When President Reagan's Department of Transportation rescinded its air bag regulations, the Supreme Court held that it had acted arbitrarily and capriciously because the decision was not supported by the factual record showing that air bags save lives.

 

There will be legal challenges to the EPA Clean Power Plan, but the Obama administration thinks it's on solid legal ground. vagueonthehow/flickr, CC BY

And when the Supreme Court in 2011 rejected state efforts to hold electric utilities liable for climate change under the federal common law of nuisance, it pointedly noted that any future EPA decision not to regulate GHG emissions would be subject to judicial review.

Working with a new president sympathetic to opponents of environmental regulation, Congress could repeal or amend the Clean Air Act, the legal foundation for EPA's regulations of GHG emissions. However, the Clean Air Act has been remarkably resistant to past legislative onslaughts. It is, after all, thanks to the Clean Air Act that the "airpocalypses" choking major cities in China and India right now do not happen in the US.

Another option for a future Congress would be to adopt targeted amendments to deprive EPA of authority to implement the Clean Power Plan and other GHG regulations if there are enough votes in the Senate to overcome a filibuster. Congress also could use the power of the purse to withhold funds for actions necessary to implement any Paris agreement, including US promises of financial aid to help poor countries adapt to climate change.

Post-Paris

The Paris climate conference is being conducted pursuant to the UN Framework Convention on Climate Change, a treaty signed by President George H W Bush in June 1992 and ratified unanimously by the US Senate on October 7 1992. President Obama believes he already has sufficient legal authority to implement any agreement made in Paris and thus he does need not to ask Congress for new approval.

There is precedent for this. In 2013 the US was able to accede to the Minimata Convention on Mercury without congressional approval because existing law already provides the president with sufficient legal authority to implement its requirements.

For decades, the principal argument by opponents of US climate action has been that the US should not act until developing countries agreed to control their GHG emissions. That argument was dramatically undermined in November 2014 when China agreed to control its emissions, in a joint announcement with the White House.

The claim that other countries will not control their emissions has now been laid to rest in Paris with a new global agreement requiring all countries to do so. Now that the entire world has recognized that all nations must act to combat climate change, it would be the height of folly for a new president and Congress to reverse course.

The Conversation

This article was originally published on The Conversation. Read the original article.

Paris to Earth: Act Locally Within a Global Framework

Posted on December 15, 2015 by John Dernbach

Paris—In the run-up to the Conference of the Parties to the Climate Change Convention, a short humorous video, “Earth to Paris,” was widely viewed.  It was a call to delegates for take serious action on climate change at the conference.

The Paris Agreement is being hailed as an historic breakthrough by political leaders, nongovernmental organizations, and the business community. It represents the first time since the Framework Convention on Climate Change was opened for signature in 1992 that all 196 parties have agreed to take  actions to reduce their greenhouse gas emissions.  The only prior agreement even remotely comparable to the Paris Agreement—the Kyoto Protocol—limited only developed country emissions.

Not only was there unanimous approval of this agreement—a remarkable feat in itself—but its overall goal is ambitious. Countries agreed to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels.”  They also agreed to “to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”  The parties thus increased somewhat the level of ambition from limiting warming to 2 °C, which had been the consensus objective.

They also agreed to “aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter.” That, too, is new.

And unlike Kyoto, this agreement puts primary responsibility for what happens in particular countries where it has always been—with the countries themselves. This is through the mechanism of nationally determined contributions (NDCs)—public commitments that nearly all countries made prior to Paris to reduce their greenhouse gas emissions to some extent.  The Paris agreement affirmed those agreements and made them central to the global climate change effort.

But what also sets the Paris Agreement apart—and will ultimately determine whether humanity averts or limits the worst effects of climate change—are processes that the agreement puts in place to periodically increase national ambition, assist countries in meeting their objectives, share information, and ensure methodological consistency in accounting for emissions reductions. These processes should greatly enhance the likelihood that the Paris Agreement will actually work.

Processes in the Paris Agreement that embody this approach include the following:

  • Beginning in 2020, and every five years afterwards, each country is to “communicate and maintain successive nationally determined contributions that it intends to achieve.” These, of course, are in addition to those that countries already submitted. Each “successive nationally determined contribution” is to “represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition.”
  • While financial assistance to developing countries has always been part of the international framework to address climate change, developed countries agreed to increase their level of financial support from previous levels by a nonspecific amount. Developed countries also agreed to communicate “indicative quantitative and qualitative information” about their financial support to developing countries, including projected future levels of public finance.
  • Beginning in 2023, and every five years afterwards, the conference of the parties is to “take stock of the implementation of this Agreement to assess the collective progress towards achieving” its purpose. The outcome of this “global stocktake” is to “inform Parties in updating and enhancing, in a nationally determined manner,” including enhanced “international cooperation for climate action.”
  • The agreement creates “an enhanced transparency framework for action and support.” This framework is partly to understand what NDCs actually mean and achieve. NDCs from different countries use different assumptions and baselines, and enhancing their comparability is essential. This transparency framework is also to better understand what financial contributions developed countries are actually making to developing countries.
  • Recognizing that “[a]ccelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development,” the agreement creates a Technology Mechanism. The purpose of the mechanism is to facilitate technology development and the transfer of technology to developing countries. The “global stocktake” is to consider this and other efforts to support “technology development and transfer for developing country Parties.”

These processes are different from the kind of obligations we are used to in environmental law–obligations, for example, to reduce greenhouse gas emissions by a certain amount by a certain date.  Rather, these processes may be understood in terms of reflexive law and governance. Reflexive approaches are not substantive rules: they improve the capacity of governmental institutions and other entities to learn about themselves and their actions.  Reflexive approaches also stimulate them to use this information to make appropriate changes.  They create spurs to action.

In the context of the Paris agreement, reflexive governance seems intended to perform at least four key tasks. First, it should encourage or prod governments to be more ambitious over time, without being prescriptive about what they should do.  This is true not only of emissions reductions but also, for developed countries, of their efforts to provide financial and technological resources to developing countries.  Second, it will provide information to governments and others about what other governments are actually doing, as well information about the effectiveness and impacts of particular laws and policies.  This information can then be used to modify those laws and policies.   Third, because this information will be public, it means that governments are more likely to honestly and openly share what they are doing, and be responsive to the views of nongovernmental organizations and businesses as well as the public in general.

Finally, there are few areas in law and policy in which the playing field is changing faster than in climate change.   The changes are not just new agreements, but also the rapid upscaling of renewable energy as its price drops, the wide variety of international coalitions working to accelerate greenhouse gas emission reductions in particular areas or sectors, changes in the emissions profiles of China and India over the past decade, improvements in our understanding of the science, and the greater availability of private finance.  The Kyoto Protocol, hailed as an advance when approved in 1997, looks like a relic less than 20 years later.

These and other processes in the Paris Agreement are more likely to survive, accommodate, and address this shifting landscape in the years ahead.  One could wish for a stronger agreement, but these processes are likely to make the global partnership to address climate change stronger and more effective over time. And they are particularly likely to do so because every country agreed to the ambitious goals toward which they are aimed.

 

Orginially posted on www.johndernbach.com

Doin the Dunes – Part VII

Posted on December 11, 2015 by Joseph Manko

In my latest blog, I related that New Jersey Superior Court Judge Julio Mendez had taken under advisement the City of Margate’s request for an evidentiary hearing on the reasonableness of the state’s condemnation of easements on 87 City-owned lots.  The request had stressed the public’s express opposition to dunes (2 referenda) and the alleged superiority of bulkheads and seawalls for both bay and ocean front properties. 

Well, the Judge ruled on Tuesday, December 8, to grant Margate’s Motion to hear its argument in a February hearing on alleged abuse of the state’s eminent domain power.  Margate also challenged the Corps of Engineers’ reliance on a 20-year old study, claiming that the study was outdated and its beach protections were as good as, if not better than, dunes. 

If Margate’s arguments are successful, Governor Christie’s 127 mile Sandy Relief Act program would have an approximate 1½ mile gap in continuity (its neighbors Ventnor and Longport have agreed to give the state easements to build dunes). 

Next month look for the lowdown on Judge Mendez’ decision in Part 8 of my series, “Doin the Dunes.”  

DUE PROCESS TRUMPS DEFERENCE? JURIDICTIONAL QUIBBLING?

Posted on December 10, 2015 by Annette Kovar

The U.S. Supreme Court will likely agree to review the decision of the Eighth Circuit Court of Appeals in Hawkes Co. v. U.S. Army Corps of Engineers. So said John Cruden, Assistant Attorney General for Environment and Natural Resources and College Fellow, to the 2015 National Clean Water Law Seminar. He described the Hawkes case as the second generation of the U.S. Supreme Court’s Sackett v. EPA decision in 2012.

As noted here, the Hawkes case is another wetlands case, this time about a Minnesota peat farming company that applied for a permit from the U.S. Army Corps of Engineers under the Clean Water Act to expand its peat mining operation. The Corps advised Hawkes that it had made a preliminary jurisdictional determination (JD) that the property on which the expansion was planned included regulated wetlands requiring a more extensive environmental assessment. Despite Corps staff attempts to dissuade continuing with the permitting process, Hawkes challenged the preliminary JD. The Corps subsequently prepared an Approved JD and ultimately issued a Revised JD after its own internal review raised issues of concern. The Eighth Circuit Court of Appeals held that the Corps JD was a judicially reviewable final agency action under the Administrative Procedure Act (APA). Previously, the Fifth and Ninth Circuit Courts of Appeal had ruled that a Corps JD was not a judicially reviewable final agency action. The Hawkes case sets up a split in the Circuit Courts making Supreme Court review more likely.

One might recall that the Supreme Court’s unanimous Sackett v. EPA decision held an EPA compliance order, alleging the Sacketts had violated the Clean Water Act by placing fill material on their property without a permit and requiring restoration of the property, was a final agency action and subject to judicial review under the APA. The Supreme Court concluded the Sacketts had no other adequate remedy at law and further stated that the APA creates a “presumption favoring judicial review of administrative action.” Justice Scalia, writing for the Court, said this “presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.” He continued that nothing in the CWA can be read to enable or condone “the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within EPA’s jurisdiction.” Clearly, principles of fundamental fairness and due process underlie the Sackett decision.

If one goes back to the Hawkes case, note that the Corps describes its preliminary and Approved JDs as tools-- i.e. guidance, to help implement the Clean Water Act, and not orders. JDs probably do streamline the permitting process because an applicant will know what the Corps’ position is before investing heavily in a permit process and may decide to abandon the project. But, there is a hint of “strong-arming” tactics in the Hawkes case that does not bode well for a deferential decision by the Supreme Court to the Corps. However, even if Corps’ JDs become subject to judicial review in the future, won’t a reviewing court still ascribe a certain amount of deference to the Corps’ expertise under APA standard of review precedents? Wouldn’t the Corps have to defend its JD at some point if challenged? Will the Corps really lose much by defending its JD sooner rather than later?

Does Colorado Support the Clean Power Plan? Yes. And No.

Posted on December 9, 2015 by Seth Jaffe

 

I have never understood why 43 states – including the great Commonwealth of Massachusetts – have independent elected attorneys general.  I’m sure my new colleague, former Massachusetts Attorney General Martha Coakley, would disagree with me, but I just don’t think that the value of having an AG independent of the Governor is worth the lack of policy consistency.  Exhibit A to my argument is the current dispute in Colorado between Governor John Hickenlooper and Attorney General Cynthia Coffman concerning EPA’s Clean Power Plan.  What’s the problem?

Hickenlooper supports the CPP; Coffman opposes it.  Indeed, Coffman does not just oppose it; on behalf of the State of Colorado, she’s joined the litigation seeking to stop the rule.  Excuse me, but shouldn’t the Governor speak for the citizens of Colorado on such matters?  Absent some kind of conflict of interest requiring independent counsel, the Governor has to be the boss.  I’m sure most citizens see it that way; it would be nice if reality mirrored perception.

I’d assume that the Colorado Governor has authority to retain separate counsel – and I hope my friends in Colorado will tell me if I’m wrong.  I’d love to see Governor Hickenlooper retain his own counsel and intervene in the litigation on the side of EPA.  What would the Court do if Colorado appeared on both sides of the V?

hickenloopercoffman

What’s Historic Preservation Got to Do With Environmental Law?

Posted on December 7, 2015 by John A. McKinney Jr

To answer the question posed above - in New Jersey, plenty!  Under several New Jersey environmental statutes regulating, inter alia, development, the least that can happen if historic preservation issues are overlooked is a delay of the project.  The worst is a criminal indictment of the developer and/or its consultants.

Regulations implementing the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.), the Waterfront Development Law (N.J.S.A. 12:5-3), the Wetlands Act of 1970 (N.J.S.A. 13:19-1 et seq.)  and the Freshwater Wetlands Protection Act (N.J.S.A. 58:10A-1 et seq.) in effect require a historic preservation analysis in order to obtain approvals.  Using as an example the Freshwater Wetlands Protection Act Rules, (N.J.A.C. 7:7A-4.3(b)5), an applicant must first determine if the property to be developed and the surrounding properties that may be adversely affected are listed on the New Jersey or the National Register of Historic Places listed or are eligible for listing.  “Adversely affected” can be as little as compromising the view from a neighboring property.

            Anyone can look at the registers of historic places to see if a property is listed.  More often, properties are not so listed.  But an analysis cannot stop there, since an applicant must determine if the property is “eligible for listing”.  That often takes an analysis, not by an environmental engineer, but by a “cultural resources consultant” working with the developer’s counsel.  Determining if a property is eligible for listing is more of an art than an engineering analysis, as illustrated by the following highly subjective criteria for evaluation which are set forth in rules implementing the New Jersey Register of Historic Places Act (N.J.A.C. 7:4-2.3(a)(1)):

Criteria for Evaluation:  The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:

(Criterion A) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(Criterion B) That are associated with the lives of significant persons in our past; or

(Criterion C) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(Criterion D) That have yielded, or may be likely to yield, information important in history or prehistory.

As you can see from reading the criteria above, concluding that a property is or is not eligible for listing is a whole lot harder than determining if it is within a specific distance from the middle of a stream or from the edge of a wetland.  However, failure to make the determination correctly can result in significant delays and penalties. 

The upshot?  Before the applicant can obtain the necessary state approval, the applicant must demonstrate that an unlisted property is or is not eligible for listing.  That in itself can be a resource intensive effort. If it is eligible, the lawyer’s and cultural resource consultant’s real work is just beginning.  Describing that work and the legal issues arising from it may be the subject for a future blog post. 

After 15 Years, EPA Finally Moves to Ban Brain-Damaging Pesticide Chlorpyrifos

Posted on December 4, 2015 by Peter Lehner

Nearly 15 years have passed since the EPA effectively banned the residential use of the pesticide chlorpyrifos (often marketed under the name Dursban), which causes brain damage in children. Kids were exposed at home when they played on pesticide-treated rugs, or hugged pets wearing flea collars containing chlorpyrifos. Yet the agency’s decision left farmworkers and children in rural areas unprotected, as chlorpyrifos was still allowed in agriculture (often marketed under the name Lorsban). This organophosphate pesticide was, and still is, one of the most widely used in agriculture.

Last month, after a decision by the 9th Circuit Court of Appeals that called the EPA's delay "egregious," the EPA at last proposed to ban most agricultural uses of this toxic pesticide.  If the ban on food use applications is finalized -- and it will surely be fought by the agricultural industry-- it will be a major victory for public health and farm communities.

Back in 2007, Earthjustice (which under full disclosure is my employer) began legal action to protect children, farmworkers, and rural communities from chlorpyrifos. Despite the clear evidence of harm, more than five million pounds of toxic chlorpyrifos were still being sprayed every year on soybeans, fruit and nut orchards, and other crops, putting hundreds of thousands of people at risk of exposure. Farmworkers who handled chlorpyrifos, even with safety gear, had been poisoned. (The new farmworker protection standards, which required more vigilant training and monitoring, among other things, should reduce such harms.)  Their children risked exposure at home, as chemicals can linger on clothing. Not only farmworker communities, but anyone living downwind of farms could be exposed when the wind carried the toxic spray into their neighborhoods. Community monitoring even found chlorpyrifos in schoolyards. 

The EPA was failing to protect children from pesticide drift; nor did the agency recognize the growing body of peer-reviewed, published research that found children exposed to the pesticide in the womb had serious brain impairments, including lower IQs and attention deficit disorder.

Over the next nine years, the EPA repeatedly missed deadlines to respond to the petition, and it relied on a questionable exposure model created by Dow, the manufacturer of the pesticide. (In 1995, Dow was fined $732,000 by the EPA for concealing more than 200 reports of poisoning related to chlorpyrifos.)

Only in response to multiple lawsuits, and a court decision that set a mandatory deadline for response, did the EPA at last take action. The public comment process and the finalization of the rule still remain, but at least the process has started. This is a great step forward. Moreover, the EPA is also reviewing all organophosphate pesticides, which are used in the United States and worldwide on a wide variety of crops from corn to cotton to nuts. The decision on chlorpyrifos should set a strong example. 

Qué SRRA SRRA

Posted on December 3, 2015 by Kenneth Mack

Now six years old, the New Jersey Site Remediation Reform Act, (“SRRA”) was intended (among other things), to privatize most site remediation in the State.  To that end, it empowers private, licensed individuals called “Licensed Site Remediation Professionals” (“LSRPs”), to conduct most site remediations and issue the administrative imprimatur of remediation completion (“Response Action Outcomes” or “RAOs”), without prior New Jersey Department of Environmental Protection (“NJDEP” or “DEP”) approval.  Before SRRA was enacted, such certification was the exclusive province of the NJDEP. 

The SRRA mandates LSRPs “exercise individual professional judgment”, which, in the view of LSRPs, actually empowers them to use such judgment.  Underlying DEP regulations, however, require persons responsible for conducting remediations (i.e., the LSRP’s clients) to follow “any available and appropriate technical guidance concerning site remediation issued” by NJDEP, or provide a “written rationale and justification for any deviation from guidance.”  In a blog posted June 20, 2013 dealing with a then-newly issued, quite prescriptive vapor instrusion guidance, I raised concerns that that guidance could indicate DEP was seeking to limit the ability of LSRPs to exercise professional judgment, by invoking the regulatory requirement to follow “guidance” (See A Case of the Vapors – Does New Jersey’s Newest Vapor Intrusion Technical Guidance Foreshadow a Return to the “Old Days” of Environmental Regulation in New Jersey?).  Although detailed “guidance” is not promulgated by DEP in accordance with the same notice and comment process as are regulations – it can nonetheless constrain LSRPs from following the SRRA’s individual judgment mandate.

Unfortunately, more recent events seem to indicate NJDEP is, in fact, following such a restrictive policy.  Whether it is doing so wittingly is open to question.

In fact, the DEP has found new ways to circumscribe the ability of LSRPs to perform remediations that do not follow DEP’s preferred script.  For example, many remediated sites in New Jersey are subject to “restricted use” remedies which, most often, bar residential and similar uses of a site, in return for lesser cleanup standards.  Such restrictions are most often accompanied by an “Institutional Control” containing a “use” prohibition and, often entail an “Engineering Control”, such as a cap.  Both Institutional and Engineering Controls must be embodied in “deed notices” which must be filed in local property records.  Ostensibly to ensure continuation of funding for such controls, SRRA established a requirement for obtaining Remedial Action Permits for soil, groundwater, or both, as a pre-condition to issuance of an RAO for the remedial action selected by the LSRP.  Recently however, it appears that DEP has adopted a policy which holds that it must examine the entire remedy of a site for which controls are required before such permits will be issued, notwithstanding the fact that such sites will be the subject of an RAO provided by the LSRP.  Such a review of remedies selected by the LSRP for RAOs on every site for which a Remedial Action Permit is required is antithetical to both the letter and spirit of the SRRA: it simply reproduces the pre-SRRA DEP way of doing things for such sites. 

The LSRP community perceives this course of conduct by DEP as undermining LSRPs’ ability to exercise professional judgment, one of the key aspects (to them) of LSRP rights under the SRRA.  Thus, there is talk of seeking the State legislature’s consideration of passage of an SRRA “2.0” that will curb these and other contrary policies initiated by the DEP.  But the problem would seem to be one that cannot be addressed by legislation alone.  That is, one wonders how any legislation, however mandatory or precise, can negate what is essentially an (understandable) antipathy by DEP personnel to a law that curbs their power and threatens to render many aspects of their programs superfluous. 

One of the goals of the SRRA was to ameliorate the injury done to New Jersey’s image by the perception that the DEP was a rigid, unreasonable, and delay-ridden institution, constituting one reason why the State’s business climate has often been annually ranked at or near the bottom when compared to other states.  Any return to the DEP’s prior “command and control” site remediation regime is contrary to that goal; but the old system is not going away gently, if it is going away at all.

Some Hard Truths About Addressing Climate Change

Posted on December 2, 2015 by Seth Jaffe

Last week, the Boston Globe had an op-ed by Joshua Goldstein and Steven Pinker concerning some “Inconvenient truths for the environmental movement.”  I’m sorry to say that I agree with pretty much every word of it.  Why am I sorry?  Because Goldstein and Pinker make clear – even though they don’t mention his name – that the Pope was completely wrong in his prescription for addressing climate change.  How so?  It’s really pretty straightforward.

People want more economic development, not less.  They want more markets, not less.  It may be that some wealthy societies could still have a relatively smooth transition to renewable fuels without sacrificing economic growth.  Unfortunately, that’s not where we have to address the demand for fossil fuels.  We have to do so in China and India and other developing countries.  I’m sorry, but I’ve seen the projected demand for fossil fuels outside the US and Europe and it’s not pretty.  Anyone who thinks that we can quickly and easily eliminate fossil fuel use in those countries and still allow them the economic growth that their citizens demand is delusional.

Which brings us to Goldstein’s and Pinker’s second inconvenient truth; nuclear power has to be a large part of the solution.  And I’m afraid that’s probably the end of the conversation for many of my environmental friends, so I’ll cut this short.

I’m still an optimist.  I believe that we can still solve climate change.  We can do so however, with more use of markets, not less.  And we must do so with more economic growth, not less, because the rest of the world won’t be satisfied with less.

DOIN’ THE DUNES – PART VI

Posted on November 30, 2015 by Joseph Manko

As we left off, the New Jersey Supreme Court ruled that in obtaining easements to build dunes, the amount of compensation for the partial loss of ocean view would have to take into account a credit for the benefit afforded by the dunes’ protection. 

When the New Jersey Department of Environmental Protection, in carrying out Governor Christie’s program to construct a $3.5 billion dune system to protect its 127 mile coastline, decided to acquire the necessary easements by administrative actions, the City of Margate in Atlantic County challenged the failure to proceed by eminent domain:  U.S. District Judge Bumb agreed with Margate and invalidated this mechanism, ordering the Department to proceed with eminent domain in state court. 

Ten months later, New Jersey Superior Court Judge Mendez took under consideration two issues:  (1) the reasonableness of the use of eminent domain to acquire easements from 10 private lot owners and 87 city-owned lots, and (2) instead of his making a summary ruling, the need to allow Margate to have an evidentiary hearing, citing the two referenda in which Margate’s voters voted to oppose the dunes. 

Once Judge Mendez rules, I will update this matter, keeping in mind that the author owns a 10th floor condominium in Margate, the Municipality Governor Christie calls the most “selfish” municipality in New Jersey.  

Petitioner Beware: A Shift in Industry Standing Doctrine in the D.C. Circuit

Posted on November 17, 2015 by Ray Ludwiszewski

In a string of recent decisions, the U.S. Court of Appeals for the District of Columbia Circuit appears to be shifting away from the long-standing general presumption that standing is self-evident for target entities  of a regulatory program — Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, Alliance of Automobile Manufacturers v. EPA, and Delta Construction Company v. EPA.  

In Coalition for Responsible Regulation v. EPA, the D.C. Circuit held industry had “failed to establish that the [Greenhouse Gas] Rules caused them ‘injury in fact,’ [or that] injury … could be redressed by the Rules’ vacatur.” The court found that although “Industry Petitioners contend[ed] that they are injured because they are subject to regulation of [GHGs],” they lacked standing because several aspects of “the … Rules … actually mitigate Petitioners’ purported injuries.”

In Grocery Manufacturers and Alliance of Automobile Manufacturers, EPA decisions concerning the ethanol regulatory program were challenged by a multitude of trade groups – automakers, oil companies, food suppliers – each claiming  its  members were harmed by the regulations.  In twin decisions separated by over two years, the D.C. Circuit held  none of this broad universe of industry petitioners had standing to challenge EPA’s actions.   

In Delta Construction Company v. EPA, the D.C. Circuit held all petitioners lacked standing to seek remand of EPA’s Greenhouse Gas (“GHG”) emission standards for heavy-duty trucks.  Some Petitioners had attacked the Rule because the emission standards would drive up the price of the trucks they purchased; another Petitioner alleged the rule made its products—modified diesel engines to run on vegetable oil —“economically infeasible.”  The Court found the Purchaser Petitioners’ standing failed on both the causation and redressibility prongs of the standing test.  The Manufacturer Petitioner was determined not to fall within the “zone of interests” intended to be protected by the Clean Air Act. 

These four D. C. Circuit rulings all found technical defects in the industry petitioners’ standing.  They may signal a lasting shift away from the basic  assumption that a regulated industry has standing to challenge regulations aimed at its activities.  

Given this new, strict scrutiny of industry standing, practitioners would be well advised not to take for granted the standing of their clients.  In the docketing statement for a regulatory challenge, industry counsel should substantively focus on the “brief statement of the basis for the … petitioner’s claim of standing” and reference materials in “the administrative record supporting the claim of standing.”

Developments in the Science of PCBs

Posted on November 13, 2015 by Angus Macbeth

For those of you who are becoming exhausted by the opinions in the Fox River case, it is time to suggest that the fundamental underpinning of the case – the toxicity of PCBs to humans and to fish – may be in jeopardy.

Twice under the auspices of the World Health Organization “consensus toxicity factors” for dioxin-like compounds including PCBs have been published. These factors were based on analysis of laboratory animals, typically rodents. The lead author of both reports was Martin van den Berg.

Recently an article was published in Chemical Research in Toxicology, “Consensus toxicity factors for PCPDs, PCDFs, and PCBs combining in silico models and extensive in vitro screening of AhR-mediated effects in human and rodent cells,” where van den Berg was the second author on the article who reported on the results of dosing human cells with PCBs and found that PCB 126 was the only PCB congener that produced a measurable response from human cells and that the result was more than 30 times lower than the WHO TEF value for PCB 126. Similar results have been reported in other papers.

As to fish, T.B. Henry has recently published analysis  in Critical Reviews in Toxicology , “Ecotoxicology of polychlorinated biphenyls in fish – a critical review.” He concludes: “Biological activity of PCBs is limited to a small proportion of PCB congeners [e.g., dioxin-like PCBs…] and occurs at concentrations that are typically orders of magnitude higher than PCB levels detected in wild fish… Overall, there appears to be little evidence that PCBs have had any widespread effect on the health or survival of wild fish.”

What would the District Court and the Seventh Circuit make of this adjustment to the facts of the case?

Presidential Directive Mandates Expansive and Likely Unlawful No Net Loss Compensatory Mitigation Requirement for Most Federal Development Permitting

Posted on November 12, 2015 by Jeffrey Lepo

 

On November 3, 2015, President Obama issued a Presidential Memorandum establishing policies that are a significant departure from existing practice regarding compensatory mitigation for effects to natural resources from most federally approved projects.  The Memorandum, entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment,” applies to all permits and authorizations issued by the Department of Defense (e.g., the U.S. Army Corps of Engineers), the Department of Agriculture (e.g., the Forest Service), the Department of Interior (e.g., BLM, USFWS, Bureau of Ocean Energy Management, etc.), EPA and National Oceanic and Atmospheric Administration  (e.g., National Marine Fisheries Service (NMFS) ), including actions taken by USFWS and NMFS pursuant to the Endangered Species Act.  Although it cannot be known today how the new policies will ultimately be implemented, the Memorandum is, at least as written, both anti-development and potentially draconian. 

 

The new Memorandum states that it is establishing certain policies premised upon “a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.”  In furtherance of this moral obligation, the President has established it to be the policy of the identified federal bodies (and all bureaus and agencies within them):

 

·         To avoid and to minimize harmful effects to land, water, wildlife and other ecological resources (natural resources), and to require compensatory mitigation for, the projects they approve.

 

·         To establish a net benefit goal or, at a minimum, a no net loss goal for mitigation of the natural resources each agency manages that are important, scarce or sensitive.

 

·         To give preference to advance compensation mechanisms in establishing compensatory mitigation.  “Advance compensation” is defined to mean a form of compensatory mitigation for which measurable environmental benefits (defined by performance standards) are achieved before a given project’s harmful impacts to natural resources occur.  This policy preference appears to somehow contemplate that compensatory mitigation will be achieved before the project is constructed and operated.

 

·         To use large-scale plans to identify areas where development is most appropriate, where natural resource values are irreplaceable and development policies should require avoidance, and where high natural resources values result in the best locations for protection and restoration.

 

The Memorandum also establishes certain deadlines for action, principally by the agencies of the Department of Interior (e.g., one year deadline for BLM to “finalize a mitigation policy that will bring consistency to the . . . application of avoidance, minimization and compensatory actions [f]or development activities and projects impacting public lands and resources.”; one year deadline for USFWS to finalize compensatory mitigation policy applicable to its Endangered Species Act responsibilities).

 

Some federal laws (e.g., Clean Water Act Section 404 permitting for filling of waters of the United States) already have well-developed compensatory mitigation programs; however, most federal permitting schemes have not been interpreted or implemented to authorize or require compensatory mitigation, let alone at no net loss or net benefit levels.  Accordingly, to the extent that the Memorandum is intended to require net benefit or no net loss compensatory mitigation through many/most federal permitting programs, such a directive would be a significant departure from existing practice, of untested legality, and arguably contrary to existing law.

 

Moreover, to demonstrate that compensation has occurred at a net benefit or no net loss, unless the adverse effects are offset through generation or preservation of in-kind resources (e.g., a duck for a duck), the “damage” to affected natural resources must first be valued.  Accordingly, if implemented so that compensatory mitigation is broadly required, the policy could lead to an extensive, time consuming and complicated valuation process.  One worst case scenario would be for this policy to result in some form of new natural resources damages assessment, the time and expense for which would be challenging to rationalize in the context of a development proposal where cost and time are relevant (i.e., for every development project).

 

Unless the Memorandum is rescinded or feebly implemented, or its implementation is held unlawful, it has significant strategic, permitting, legal and financial implications for many, if not most, major development projects.  Of course, it is likely to be difficult or impossible to challenge the new policies established in the Memorandum, except on a project-by-project permit-by-permit basis.  As such, the pressure for project proponents to navigate (rather than litigate) the new policies will be substantial. 

Waters of the United Chaos

Posted on November 3, 2015 by Richard Horder

                The Clean Water Act’s judicial review provision is bizarrely phrased and at times impenetrable.  It can force litigants into lengthy threshold battles over jurisdiction that delay and sideline the actual challenges to EPA’s action.  Nowhere is this better showcased than in the recent litigation over EPA’s new definition of “waters of the United States” (“WOTUS”).  Companies, industry groups and public interest organizations have filed dozens of suits in district and circuit courts across the country to cover all the possible jurisdictional possibilities.  The circuit court cases were filed under the Clean Water Act’s judicial review provision that automatically centralizes the cases in a randomly selected circuit court (here, the Sixth Circuit).  The district court cases were filed under the Administrative Procedure Act, which contains no mechanism for consolidating the numerous cases.

                In a heroic attempt to combine the district court cases and litigate in only one court, EPA looked to the multidistrict litigation process designed for coordinated discovery among cases sharing common facts.  The circus that ensued was a mini-caricature of the WOTUS litigation and highlighted the intrinsic problems with the Clean Water Act’s judicial review process.  The hearing before the multidistrict litigation panel began at 8:00 a.m. in a large courtroom filled beyond capacity with hundreds of lawyers representing the litigants in the fifteen matters scheduled for oral argument that day.  Clerks of the court spread across the room calling each matter, and lawyers fought through the crowd to form a bunch in front of their clerk, struggling to hear over the noise.  The clerks doled out oral argument time in minute increments, giving some lawyers as few as two minutes of argument time.  Once the schedule was set and after a brief recess, the panel called each of the thirteen cases preceding the WOTUS matter on the docket – the Amtrak derailment, airline anti-trust, various medical device and product liability matters, etc. – moving from one matter to the next with seamless agility.

                DOJ (Martha Mann) presented oral argument for EPA, and met with stiff resistance from the panel.  The panel challenged EPA’s attempt to fit an APA case, to be decided on the record and the law with minimal discovery, into the MDL process designed mostly for coordinated discovery.  Ultimately the panel commended Ms. Mann for a noble effort in an exceptionally uphill battle.  Elbert Lin, the Solicitor General of West Virginia, presented argument for the plaintiffs and, sensing the favorable persuasion of the panel, highlighted only the diverse procedural postures of the various matters.  The various jurisdictional and preliminary injunction rulings in the district courts and an appeal already before the 11th Circuit would all greatly complicate any attempted consolidation.

                On October 13th, the panel issued its ruling, deciding not to consolidate the district court cases.  The panel agreed that not only was the MDL process not applicable to the predominantly legal WOTUS challenges, but consolidation would only further complicate the already chaotic litigation.

                Jurisdictional questions are now pending before the 6th and 11th Circuit Courts of Appeals.  The 6th Circuit offers EPA its last hope of litigating the WOTUS challenges in one court.  If the 11th Circuit were to disagree, the jurisdictional issues could continue to eclipse the merits of the litigation for months, if not years, pending final resolution by the Supreme Court.

EPA To Rename OSWER: How About “The Office That Should Be Eliminated As Soon As Possible”?

Posted on November 2, 2015 by Seth Jaffe

According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management.  What a grand name; surely it is an improvement.

I don’t think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace), but one does get the sense of a bureaucracy beginning the long, hard, slog of trying to figure out how to perpetuate its existence as Superfund – mercifully – begins to fade away.

It’s probably a vain hope, but mightn’t EPA determine instead how to reallocate those functions of OSWER that need to continue, but actually try to figure out a way to shrink this element of the bureaucracy, instead of repurposing it?

titanic

EPA RELEASES FRAMEWORK FOR FUTURE CERCLA 108(b) FINANCIAL RESPONSIBILITY RULEMAKING

Posted on October 26, 2015 by Ronald R. Janke

The Environmental Protection Agency has released a framework for its future financial responsibility rulemaking under CERCLA 108(b).  Although this framework states EPA’s current thinking only in general terms, this document represents the clearest public statement of the agency’s intentions since it announced its intention to develop such rules for hardrock mining facilities in 2009.  This framework also informs of EPA’s intentions toward other classes of facilities in future rulemakings under this authority.  This framework appeared as part of a court filing on August 31, 2015 and was the subject of an EPA webinar on September 29, 2015.

EPA states that the regulatory approach it is considering has five foundational components. First, the universe of facilities to be regulated are hardrock mines and “primary processing activities located at or near the mine site that are under the same operational control as the mine.”  Second, the flow of funds from the financial responsibility instrument to the CERCLA would supplement existing CERCLA sources of funding, as EPA intends to use its existing CERCLA enforcement processes first to clean up sites.  Third, the scope and amount of financial responsibility would consist of three components: (1) response costs, calculated based on a model being developed by EPA to reflect the primary site conditions; (2) a fixed amount for natural resource damages and (3) a fixed amount for health assessment costs.

Fourth, EPA does not intend to preempt state, tribal and local government mining and reclamation closure requirements.  EPA intends to avoid preemption under CERCLA 114(d) by adopting financial responsibility requirements that are “in connection with liability for a release of a hazardous substance” in contrast to “many” state regulatory requirements designed to assure compliance with reclamation and closure requirements.  Fifth, EPA likewise intends that its CERCLA financial responsibility requirements will be distinct from federal closure and reclamation bonding requirements imposed by other federal agencies under other laws with jurisdiction over mining on federal lands.

The morsel of information provided in EPA’s framework leaves interested parties hungry for more information by what is left unsaid.  Particular concerns are the response cost model and its inputs and the path that EPA intends to tread around the multitude of existing financial assurance mechanisms that already apply to hardrock mining to avoid duplication and preemption.  In this regard, EPA could not have picked a more difficult place to begin drafting CERCLA 108(b) rules than for this industry, which has in place many and extensive financial assurances governing the impact of its operations.

What Do Opponents of the Clean Power Plan and the Oklahoma Sooners Have In Common?

Posted on October 23, 2015 by Seth Jaffe

So the Clean Power Plan has been published in the Federal Register.  For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP. 

Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue.  West Virginia apparently won the race and is the named plaintiff in the main petition filed so far. 

Perhaps because Oklahoma has been one of the most persistent, and vocal, opponents of the CPP, this called to mind the origin of the Sooner State’s nickname – which seems particularly apt, since Oklahoma was one of the states that couldn’t wait for the rule to be promulgated to sue.

Sooners

Oklahoma is not actually among the plaintiffs in the West Virginia suit.  Oklahoma filed its own petition today.  One wonders whether Oklahoma was banished from playing with the other states as a result of its impatience.  Unlikely, since most of those in the West Virginia suit also filed early, but it did call to mind that other famous event in the history of the west, as recorded in Blazing Saddles.

Is It Time To Re-Think Additionality?

Posted on October 14, 2015 by Wendy B. Jacobs

Many organizations have announced voluntary greenhouse gas emission reduction goals by which they aim to reduce their emissions of greenhouse gases despite the absence of any legal requirement to do so.  Meeting these goals implicates the concept of additionality when the goals are to be met, in part, through off-site actions, such as the purchase of carbon offsets, retirement of renewable energy credits, or construction of off-site renewable energy projects.  The concept of additionality seems simple: in principle, emission reductions attributable to an organization’s actions should only be recognized or “counted” if such reductions are more than what would have been achieved absent the action.  Applying the concept of additionality in the real-world, however, is complicated. Perhaps unnecessarily so? 

First, the “proof” of additionality required by many of the certifying bodies can be confusing and conflicting.  For the faint of heart, the concern about proof discourages any action other than the purchase of “certified” paper offsets.  A second, confounding problem results from the greening of the grid itself.  Emissions have been falling for many organizations simply because the electricity they procure from the grid is becoming less carbon intensive.  How to square these emission reductions with the concept of additionality leads one to question how the concept of additionality should be applied to voluntary emission reduction goals. 

In the context of regulated organizations, the idea of additionality makes sense.  Organizations that must comply with a regulatory scheme to reduce their emissions of greenhouse gases should not be allowed to claim credit for off-site actions if such actions do not, in fact, lower emissions beyond what they would have been absent the organization’s actions.  No organization (regulated or unregulated) wants to waste money paying for off-site actions that do not in fact lower emissions.  Establishing that a particular organization’s action will, in fact, lower emissions more than would have occurred absent that organization’s action turns out to be much more difficult than it at first appears given the multiplicity of variables that come into play:   who else might be inclined to take the same action?  When?  For what reason? Is the action occurring in an area governed by a renewable portfolio standard or not?  Many different criteria are used by regulatory agencies and voluntary verification programs.  Three examples are helpful.

The California Air Resources Board treats emission reductions as “additional” if they exceed what would be required by law or regulation and if they exceed what would “otherwise occur in a conservative business-as-usual scenario.”  17 CCR § 95802(a)(4).  The American College & University Presidents' Climate Commitment (“ACUPCC”) replaces “conservative business-as-usual” with “reasonable and realistic business-as-usual.” The Verified Carbon Standard adds a requirement that the reductions are additional only if they would not have occurred “but for” the offsite organization’s investment.  These different definitions have real consequences for the types of offset projects (i.e., emission reductions) qualifying as “additional.”  Energy efficiency projects at a school in an economically disadvantaged city might count as additional under ACUPCC’s definition because the schools are unlikely to undertake the energy efficiency measures themselves.  In contrast, such measures are unlikely to count as additional under the Verified Carbon Standard definition because the schools would save money from the efficiency measures if undertaken by themselves.

For unsophisticated organizations with limited resources, using the most conservative criteria for additionality that have been developed by other parties, whether regulatory agencies or voluntary verification programs, makes sense – emission reductions are assured and at minimal transactional cost to the organization.  For more sophisticated organizations with resources to experiment and innovate, strict adherence to conservative additionality criteria can be counterproductive.  Many large municipalities, large research universities and corporations have the in-house capacity to invest in bold and innovative experiments and to assess whether a given project or investment is in fact reducing emissions. Organizations such as these could use their in-house talent and money to develop creative, bold, innovative and novel projects that could reduce emissions, but will they do so if such projects might fail a strict additionality test?  At a university, such projects have the added benefit of complementing the core mission to teach, research, and demonstrate ideas that others beyond the university could leverage.  Should an organization abstain from pursuing such projects simply because they would fail a strict additionality test, which the organization is not legally obligated to apply?  Should we re-think the circumstances in which strict observance with additionality is necessary to avoid a public relations nightmare (i.e. being accused of not really meeting the voluntary goal)?

The application of additionality in the context of voluntary goals is also complicated by the fact that the electric grid itself is becoming greener.  Most organizations include in their greenhouse gas emission calculation the emissions resulting from their electricity consumption.  Many organizations first announced their voluntary emission reduction goals five to ten years ago when few predicted that the electric grid would become significantly greener so fast.  Here in Massachusetts, largely because of the increased use of natural gas, the electric grid now emits 20% less carbon dioxide per MWh consumed than it did ten years ago.  That means that an organization in Massachusetts that has not taken any action designed to reduce its emissions will nevertheless have lowered its emissions by consuming electricity from the local grid.  Crediting such emission reductions towards a voluntary goal is in tension with the concept of additionality because the reductions occurred without the need for the organization to take any action designed to reduce its emissions.   

Hence, the greening of the grid should cause an organization to re-think the nature of its voluntary emission reduction goal:  is the goal simply an accounting objective that can be met by actions external to the organization, such as the greening of the grid by electric utilities, or is it a a bigger, perhaps even moral, commitment to undertake a minimum level of effort to reduce emissions in addition to those resulting from the greening of the grid?  If the former, an organization committed to a voluntary goal can celebrate that the utilities have made its commitment cheaper to attain.  If the latter, perhaps an organization should make its goal even more stringent to avoid taking credit for emission reductions achieved by others.  Is this second approach more consistent with the concept of additionality?  Should we applaud an organization that is not required by law to make any emission reductions but that purchases some carbon offsets and declares it has accomplished its voluntary goal of emission reductions?  Should we applaud an organization that designs, invests in or otherwise makes an effort to create a project that actually achieves emission reductions even though it is possible that someone somewhere might also have the same idea and be willing to make the same investment?

I do not pretend to have the answers to these questions.  But, I do know that many organizations that have set voluntary goals are grappling with these questions now, and others will face them in the future.  I welcome your comments.  

EPA Proposes Changes to Hazardous Waste Generator Rules and a new Management of Hazardous Waste Pharmaceuticals Rule – One Step Forward, One Step Back?

Posted on October 12, 2015 by Kenneth Gray

The U.S. Environmental Protection Agency (EPA) is proposing two new hazardous waste rules that EPA believes will strengthen environmental protection and reduce regulatory burdens.  The first is an update to the hazardous waste generator rules; the second is a new set of management standards for hazardous waste pharmaceuticals. 

These proposed rules have had a long gestation, and the generator proposals have been decades in the making.  Both proposed rules were signed by EPA on August 31, 2015 and will be published in the Federal Register for public comment within the next few weeks.  

While touted as providing needed flexibility, the rules are far from simple.  The axiom of environmental regulation holds true: complex rules only become more complex over time.

Hazardous Waste Generators

The proposed updates to the Hazardous Waste Generator Rules include more than 60 changes. Among the more notable changes is EPA’s proposal to allow a waste generator to avoid changes in generator status when generating larger amounts of waste only occasionally, provided the episodic waste is properly managed and additional notifications are submitted.  In addition, the rules would explicitly allow a conditionally exempt small quantity generator facility to send hazardous waste to a large quantity generator facility under common control.  In this case, a company could transfer waste from one of its locations to another.  That sounds logical, but there are “strings attached” to both proposals in the form of additional requirements or conditions for access. 

There are numerous other changes proposed, or highlighted for comment, some of which are likely to make waste management and compliance more complicated.  These provisions include:

  • New provisions on documenting waste determinations
  • Regular reporting by Small Quantity Generators
  • Additional labelling of containers for contents and hazards
  • Longer record keeping period for inspection logs
  • Required arrangements with responders (not just attempts)
  • Additional procedures for closure
  • Additional training for employees at Satellite Accumulation Areas 

These proposed changes are sure to provoke comments and controversy. In several of these areas, there will be more “opportunities for environmental excellence” (also commonly referred to as opportunities for violations).

Hazardous Waste Pharmaceuticals

The newly proposed Hazardous Waste Pharmaceuticals Rule includes a tailored, sector specific set of regulations for the management of hazardous waste pharmaceuticals by “Health Care Facilities” (including pharmacies) and “Reverse Distributors” (businesses that accept the return of pharmaceuticals). The rule would only apply to pharmaceuticals that already meet the definition of RCRA hazardous waste and that are generated by health care facilities.  However, for the first time, “Reverse Distributors” would be regulated under hazardous waste rules.

EPA is not proposing to change the list of pharmaceutical wastes that are considered hazardous wastes, with the exception of possible changes to address low-concentration nicotine products.  The Agency is also generally requesting comment on what criteria it might use to identify new pharmaceutical wastes.  The Agency abandoned its 2008 proposal that would have added new pharmaceuticals and applied new universal waste standards.  In fact, EPA has announced that universal waste management is prohibited.

Although already prohibited under most circumstances, EPA is adopting an explicit ban on flushing pharmaceuticals down the sink and toilet.  The Agency estimates that this will prevent the flushing of more than 6,400 tons of hazardous waste pharmaceuticals annually.  (Really? That seems pretty high…)  

EPA hopes that the new rule will make hazardous waste management easier for health care professionals by removing the traditional manufacturing-based hazardous waste generator requirements and instead providing a new set of regulations that are “designed to be workable in a health care setting.”  The Agency was sympathetic to the view that the existing hazardous waste rules were viewed as complex and difficult to comply with in a health care setting.  (Gee, haven’t all generators reached that conclusion for their industries?)  While these may be simplified as compared to existing hazardous waste rules, complying with the management standards will still require effort and diligence.  

The pre-publication versions are available on EPA’s website:

http://www2.epa.gov/hwgenerators/pre-publication-version-hazardous-waste-generator-improvements-proposed-rule

http://www2.epa.gov/hwgenerators/pre-publication-copy-management-standards-hazardous-waste-pharmaceuticals-proposed-rule

Curiouser and Curiouser: Sixth Circuit Not Sure of Jurisdiction but Stays WOTUS Rule Anyway

Posted on October 9, 2015 by Rick Glick

Does this make sense to you?  Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act.  Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule.  And then, the court acknowledges it may not have jurisdiction but issues the stay anyway!  That is exactly what Sixth Circuit did in the case published today.  

This case is among many seeking to block the rule.  The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.”  But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation. 

The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly.  The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.

The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination.  The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making.  Pants first, then shoes.

Did the majority consider the situation an emergency that required immediate action?  No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule.  The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation. 

Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal?  Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing.  Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record.  Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.

Is Our Diet Healthy if it Threatens the Planet? Environmental Sustainability and the Dietary Guidelines for Americans

Posted on October 8, 2015 by Lisa Heinzerling

This week, the Obama administration passed up an opportunity to promote environmental sustainability by incorporating sustainability into the Dietary Guidelines for Americans. The Secretaries of the Departments of Agriculture and Health and Human Services, Tom Vilsack and Sylvia Burwell, announced in a blog post that they would not follow the recommendation of their scientific advisory committee by incorporating environmental sustainability into the dietary guidelines. Their decision is unfortunate, and reflects a crabbed understanding of their authority under the law.

Experts on food systems have long drawn a connection between a healthy environment and food security. The representatives of the 185 countries present at the first-ever World Food Summit in 1996, for example, observed the links between food insecurity and environmental problems such as the loss of biodiversity, desertification, overfishing, degradation of land, forests, water, and watersheds, and ecological changes brought on by global warming. A substantial impetus behind the contemporary food movement is the conviction that our food system, and the security of the food supply it creates, is only as stable as the environment from which it comes. Even the Pope is onto the intimate connection between food security and the environment: the 2015 papal encyclical on the environment and poverty, Laudato Si', emphasizes the importance of a healthy environment to a secure food system. As Wendell Berry, the great agrarian and essayist, has put it, "What is good for the water is good for the ground, what is good for the ground is good for the plants, what is good for the plants is good for animals, what is good for animals is good for people, what is good for people is good for the air, what is good for the air is good for the water. And vice versa."

Federal agencies in the United States have increasingly been urged to recognize the relationship between a healthy environment and secure food. A recent entry in this field is the 2015 recommendation from a scientific advisory committee to the Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), urging that these agencies revise the Dietary Guidelines for Americans to take into account the environmental consequences of industrial agriculture and their implications for future food security. 

The Dietary Guidelines for Americans are, as USDA and HHS have described them, "intended to be used in developing educational materials and aiding policymakers in designing and carrying out nutrition-related programs, including Federal nutrition assistance and education programs," and they "also serve as the basis for nutrition messages and consumer materials developed by nutrition educators and health professionals for the general public and specific audiences, such as children." Previous iterations of the Dietary Guidelines for Americans have contained recommendations on intake of fat, sodium, alcoholic beverages, physical activity, and more. The influence of the Guidelines on food assistance programs and educational initiatives has long made them a focal point for political and scientific controversy.

The statutory basis for the Dietary Guidelines for Americans is the National Nutrition Monitoring and Related Research Act of 1990. The Nutrition Monitoring Act requires the Secretaries of Agriculture and Health and Human Services to "publish a report entitled 'Dietary Guidelines for Americans'" every five years. This report is to contain "nutritional and dietary information and guidelines for the general public." The information and guidelines must be "be based on the preponderance of the scientific and medical knowledge which is current at the time the report is prepared." 

Information and guidelines concerning the environmental sustainability of our present diet are assuredly "dietary information and guidelines for the general public." The exhaustive report prepared by the scientific advisory committee, reflecting current evidence on the link between dietary choices and environmental sustainability, certainly reflects "the preponderance of the scientific … knowledge which is current" at this time. The secretaries of USDA and HHS would have been well within their range of legal discretion in deciding that environmental sustainability – no less than advice on alcohol consumption or physical activity – should be considered in developing food assistance packages and educational programming for Americans. Indeed, given the huge contribution of agriculture to climate change, incorporating environmental sustainability into the dietary guidelines could well have become an important feature of the Obama administration's legacy on climate change – if the secretaries of USDA and HHS had had the vision and will to make it so.

A Brief Rant on Cost-Effectiveness Analysis

Posted on October 2, 2015 by Seth Jaffe

On September 29, 2015, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP.  Although I think that the decision was important and largely unobjectionable, it did get one issue wrong, and it happens to be an issue near and dear to my heart – cost-effectiveness analysis.  I am regularly surprised by the number of people who oppose its use and the number of people who just plain don’t get it.  The 3rd Circuit (and EPA and the plaintiffs) fall into the latter category in this case.

The issue here was what metric to use in measuring the cost-effectiveness of technologies intended to reduce regional haze.  Since this case involves compliance with a rule intended to reduce haze, I would have thought it self-evident that cost-effectiveness would be measured by the dollars spent divided by the amount of haze reduced.  Silly me.

For those of you who don’t know, there is a measure of visibility; it is known as a “deciview.”  Pennsylvania, to its credit, indeed measured cost-effectiveness on a dollars/deciview metric.  The plaintiffs argued that cost-effectiveness should be measured on the basis of dollars/ton of pollutant removed.  EPA waffled, first agreeing with the plaintiffs, but then concluding that, while its guidelines call for $/ton, it is acceptable to use $/dv.  The Court, following the rule of decision that it must evaluate EPA’s decision based on the reasoning used in the rule, rather than on a rationale first provided in litigation, concluded that, because EPA’s own guidelines found the $/dv metric to be “flawed”, EPA’s approval of the $/dv metric was unjustified and must be remanded.

I am not sure I can count the ways this was screwed up, but let me put it simply.  If we’re assessing cost effectiveness, and we have a measure of the outcomes we care about, we should use it.  To use a proxy – emissions – instead of the actual outcome the rule is intended to affect – visibility – is just plain nuts.

And I have to add that, not only did the Court get this 180 degrees wrong, but it did not even seem to be aware of just how bizarre it is to reject the metric that actually measures the outcomes the rule is trying to achieve.

UTAH, CHILE, PM2.5 AND THE RULEMAKING PROCESS

Posted on September 29, 2015 by James Holtkamp

My wife and I are 6 months into an 18-month adventure in South America.  Although we are roaming around a bit, most of our time is spent in Santiago, Chile, a city of 5 million nestled in a valley between the Andes to the east and coastal mountains to the west.  Santiago is a modern city, with a highly educated population.  It has lots of cars and lots of wood-burning fireplaces and stoves and the typical assortment of manufacturing and power generation facilities for a city of its size.  In the winter, high pressure settles in over the valley and the fine particulate pollution builds up, creating serious public health emergencies in which driving is restricted, industrial activities are curtailed, and people are urged not to engage in strenuous activities outside.  

In a sense I feel right at home, because along Utah´s Wasatch Front, winter inversions trap emissions from cars and wood burning to create grungy, unhealthy spikes in PM2.5 for days or even weeks at a time much like Santiago.  In Utah the issue is addressed through the Clean Air Act, with Salt Lake City and the associated metropolitan areas designated as non-attainment areas for the short-term national ambient air quality standards for fine particulate matter and a comprehensive State Implementation Plan (SIP) developed by the Utah Department of Environmental Quality with thorough stakeholder involvement.  

At the beginning of the SIP process, most of the public blamed the relatively few but highly visible industrial facilities (the refineries, the big Kennecott operations, etc.) as the principal culprits.  However, as the stakeholder process evolved, public awareness shifted dramatically, with most Utahns now acknowledging that vehicle use and the aggregate effect of individual small sources are major contributors to the problem, and that individual personal choices with regard to vehicle use and lifestyle habits will be key to improving the wintertime air quality.

In Chile, the legal requirements to address winter inversion pollution are just as sophisticated and detailed as those under the U.S. Clean Air Act.  The government has identified pretty much the same causes of the pollution as in Utah, i.e., cars, wood-burning, a variety of small businesses, and some but not many larger manufacturing sources.  Also, Chilean law specifies a rulemaking process analogous to that in the U.S., with scientific studies, technical and economic analyses, and stakeholder consultation before finalizing an environmental rule.  As a result, as in Utah, there is more public awareness in Chile of the role that individual choices play in environmental degradation which in turn leads to more of a shared sense of responsibility for dealing with it.

However, in my conversations with South American environmental lawyers outside of Chile about the legal systems for addressing environmental issues, I have found that they are not so much concerned about the substantive requirements on the books – those are not much different than those in the U.S. – but rather, are concerned that there are not always well-developed mechanisms for participation by the affected stakeholders in the development of environmental requirements. 

ACOEL is reaching out to entities around the world to make available the considerable expertise of its members to address environmental challenges.  In Latin America, ACOEL can play an important role in helping develop robust participatory processes which will yield great benefits in the development and enforcement of environmental requirements and the broader strengthening of participatory democratic institutions in this part of the world.