AND NOW FOR SOME GOOD NEWS

Posted on June 27, 2018 by Leslie Carothers

ACOEL blog readers sorry to see the U.S. retreat from international leadership on the environment may be encouraged to learn that, on the other side of the world, the government of China is determined to copy some signature U.S. strategies to accelerate pollution control in their country.  Specifically, the National People’s Congress enacted comprehensive revisions to its Environmental Protection Law in 2015, including provisions to increase public reporting of pollution releases to accompany many existing regulatory laws. The revisions, along with other recent legislation, also empowered public interest plaintiffs from non-governmental organizations (NGOs) registered with the government, as well as prosecutors to engage in aggressive public interest litigation, to enforce anti-pollution and clean up requirements.

Many countries have strong environmental laws, but most struggle to build and maintain effective programs to implement and enforce them.  For many years, China has stressed the overriding importance of economic and employment growth.  Provincial governments with major responsibility for enforcement have been measured on economic indicators and not by success in abating pollution.  But the growing level of public protest over worsening pollution and waste disposal practices has compelled the national government to add environmental performance to the priorities of provincial and local governments and to experiment with new legal tools to improve it.

The Environmental Law Institute is playing an important role with a Chinese partner, the China Environmental Protection Foundation (CEPF), in providing training to environmental lawyers and others from NGOs, as well as prosecutors and judges, to help educate them on the new Chinese laws and to share the U.S. experience with public interest litigation and statutory citizen suit provisions in environmental cases.  The impact of NGO and other citizen plaintiffs on implementing U.S. environmental law has been immense.  During the 1970s and 1980s, suits against companies where government had not acted against permit violations and suits against government for failure to meet statutory deadlines for other requirements channeled strong public pressure and achieved significant results. The most notable recent example is the petition by environmental NGOs, renewable energy firms, and states to require the U.S. EPA to make a finding that motor vehicle emissions of greenhouse gases could be “reasonably anticipated to endanger public health and welfare” under Title II of the Clean Air Act.   This lawsuit produced the Supreme Court decision in Massachusetts v. EPA, Massachusetts v. EPA, 549 U.S. 497 (2007), requiring EPA to make a finding whether or not an endangerment was presented.  The evidence, most people would agree, supported only one answer. The endangerment finding was made, upheld by the D.C. Circuit, Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (D.C. Cir. 2012), and left standing by the Supreme Court, which declined to review the finding.

The five workshops on public interest lawsuits organized by Tianjin University Law School, CEPF, and ELI have each assembled around 50 NGO staff, prosecutors, judges and other lawyers for three days of teaching on Chinese law by Chinese experts and officials and one day by ELI lawyers, including volunteers like me, and ELI’s Chinese- and U.S.-trained lawyer, Zhuoshi Liu, who also coordinates the planning.  Language challenges notwithstanding, I can attest that the Chinese participants show keen interest in the presentations and ask many thoughtful questions of the speakers.  It is too soon to know whether this new initiative to take more problems to court will succeed. Certainly, the Chinese plaintiffs do not yet have the body of public reports disclosing violations that made U.S. cases easier to develop, and they and China’s well-educated judges need greater access to scientific and technical support to find violations and order appropriate relief.  The NGOs could also use the help of private law firm lawyers in China willing to undertake cases pro bono as some do in the U.S.  In any case, it is exciting and encouraging to be able to work with dedicated Chinese lawyers and other professionals in the early stages of a serious drive in China to rank environmental protection much higher on the nation’s agenda and to gain clearer skies and cleaner land and water for its people.

A SEP in the Right Direction: The Path Toward Win-Win Scenarios

Posted on August 23, 2016 by Scott Fulton

One of the interesting questions that emerged in the strategic planning process for the Environmental Law Institute is whether ELI could offer more support in the development and/or administration of supplemental environmental projects, or “SEPs”. 

Having played a role in the birthing of the original SEP framework in the early 1990s while at EPA, and through my own experience as a practitioner, I am convinced that penalty mitigation through the performance of SEPs can come as close to a win-win as is possible in the enforcement context.  Rather than having penalties, payable as they are only to the U.S. Treasury, lose their site-specific identify and value, SEPs allow diversion of some of those resources to projects geared toward environmental or process improvements that not only achieve compliance, but also provide discrete and measurable environmental benefits. 

Development and implementation of a suitable SEP can at times be challenging.  For these reasons, companies sometimes opt in favor of paying a large penalty rather than a reduced penalty with a SEP.  Meanwhile, the government appears to be keener than ever about utilizing this tool.  EPA’s draft Environmental Justice Plan 2020 Action Agenda, for example, observes that “when these types of projects are feasible, they can play an important role in cases that raise environmental justice concerns. Thus, EPA is setting the goal of increasing the number of SEPs and mitigation projects affecting overburdened communities.” 

So here’s the thought.  Perhaps to lighten the SEP load for defendants and government alike, an entity like ELI could help in the conceptualization and, in appropriate cases, the administration of SEPs.  As it happens, ELI already has experience in this area.  For example, in the context of settlement negotiations between a state environmental regulatory agency and a defendant (I’ll not disclose identities here), ELI was brought in to help shape and then implement a SEP to develop a training module on the regulations at issue in the case.  Under the SEP, in addition to developing the training materials, ELI is to deliver at least two in-person classes to targeted audiences comprised of manufacturers and/or consumers, and to make these informational briefings more broadly available online (via, e.g., webinars, and audio-video recordings suitable for posting, including on the ELI website).

And this SEP is not a one-off.  As a research and education institute, a convener experienced in community outreach and engagement, and a non-partisan presence having affinities with both regulators and the business community, ELI is well-suited to work with companies and their representatives to craft and execute approvable SEPs.  These range from education of stakeholders about regulatory requirements and measures that go beyond compliance; to research, analysis, and publication of information on best practices for compliance and beyond; to monitoring and evaluating the success of on-the-ground SEPs undertaken by other organizations.  Also, it probably goes without saying, but because we’re a non-profit, we can and must do our work on a cost-basis.  In other words, we’re cheap. 

Just a thought to tuck away for the next time a SEP enters your or your client’s equation.