Glider Kits and The Thrill of Defeat

Posted on September 4, 2018 by Samuel I. Gutter

Twice in my career, I’ve had a case cut out from under me, the result of withdrawal of final EPA action that I was prepared to defend.  In the first case, I was in the Office of General Counsel at EPA, working with a DOJ lawyer who was to become my career-long friend and colleague, ACOEL fellow Dave Buente.  We were nearing oral argument to defend EPA’s noise regulation for garbage trucks (a case we would have won!) when EPA Administrator Anne Gorsuch revoked the regulation as part of EPA’s dismantling of the noise program. 

The second instance occurred a short time later.  EPA had granted a waiver that would have allowed high levels of methanol to be blended with gasoline.  The waiver was by all indications a political favor for a Utah company that was close to the administration, and was challenged by the major auto companies who feared damage to the rubber gaskets and hoses in car engines.  When Administrator Gorsuch departed EPA, it wasn’t long before the new leadership reversed the waiver decision, summarily ending the litigation.

Having your client reverse course is a jarring experience, but I must admit that there’s something liberating about shutting down your own case.  So I know firsthand how lawyers in OGC and DOJ likely felt last month when EPA reversed Administrator Scott Pruitt’s final action – lifting limits on glider kits – and reinstated the restrictions imposed by the Obama Administration.

For those who haven’t followed this mini-series, here are the basic facts.  A glider kit is a heavy-duty highway truck without an engine.  A company then takes an engine pulled from a wreck or junk yard, rebuilds it, and installs it in the truck.  In general, a rebuilt engine installed in a vehicle only has to meet the emission standards to which it was originally certified.  So, the result is a “new” truck that is less expensive than a current-technology vehicle (including avoidance of costly federal excise taxes), but that pumps out a lot more emissions – 44 to 55 times more, according to a New York Times article published last February.

The Times article included another claim:  that that dominant manufacturer of glider kits, Fitzgerald Glider Kits of Crossville, Tennessee, was run by a family that had powerful connections in Tennessee Republican circles and that had curried favor with Mr. Pruitt and President Trump (displaying, on a Trump campaign visit, baseball caps with the slogan, “Make Trucks Great Again”).

Seeking to limit the number of such rebuilds – estimated to comprise up to 4% of new truck sales – the Obama EPA had imposed a cap of 300 glider kits per year on any one manufacturer, a move that would have effectively shut down Fitzgerald, with annual sales in the thousands.  But on his last day in office, July 6, 2018, Administrator Pruitt issued a “no action assurance,” stating that EPA, in its enforcement discretion, would no longer enforce the cap.

Environmental NGOs and the states pounced, and in a rare and stunning move, the DC Circuit granted an administrative stay of Pruitt’s action on July 18, only one day after petitioners moved for that relief.  Equally remarkable, on July 26 new EPA Administrator Wheeler announced that EPA was reversing Pruitt’s action, reinstating the cap on glider kits.  Finally, on August 22, the DC Circuit dissolved the stay and dismissed the case as moot.

And with that conclusion, a small group of government lawyers got to experience for themselves not “the thrill of victory” or “the agony of defeat,” but rather “the thrill of defeat.”

The Bible Tells Me What?

Posted on March 26, 2018 by Dennis M. Toft

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

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

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

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

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

WHEN SCOTT MET JANUS

Posted on January 16, 2018 by Robert M Olian

The amateur horologists among you will recall that all of the calendar months are named after fabric fresheners (February - Febreze), gods (March - Mars, April - Aphrodite, May - Maia, June - Juno), emperors (July - Julius, August - Augustus), or simply their place in the calendar - Sept, Oct., Nov. and Dec. for the seventh, eighth, ninth, and tenth…. Whoa, wait a sec!  (I could explain, but instead that issue is left as an exercise for the reader).

We are interested in January, named for the god of beginnings, Janus, who is always depicted as facing in two directions.  Could one write a blog post about the current state of environmental law based on the theme of a two-faced ruler who thinks he’s one of the gods?

OF COURSE one could! But that would be too easy. Instead, how about a blog post to make everyone happy, while the festive warmth of the holidays is still washing over us? Using the game of MadLibs as our inspiration, first complete the following phrase by choosing either Answer A or Answer B.

“I {insert answer} vote for Donald Trump in the 2016 Presidential election.”

A. did not

B. did

If you picked answer A, read the following blog post using the phrases from option A. If you picked answer B, read the post using the phrases from option B. Make sure you use the correct option, or you will be an unhappy reader instead of a happy reader, and we don’t want that.

*******************

The environmental trade press is replete with top ten lists at this time of year —top ten judicial rulings, top ten regulatory decisions, etc. — but the goal here is to step back and look at things from the 50,000-foot level. Here’s the shorter meta list:

1.  EPA Administrator Scott Pruitt installed a Sensitive Compartmented Information Facility (SCIF) costing nearly $25,000 in his personal office (EPA already had another secure room in the headquarters building) and is the only EPA Administrator to ever request a 24/7 security detail. The 18-member security detail cost taxpayers more than $830,000 in Pruitt’s first three months at the helm and required that EPA agents be pulled away from ongoing criminal investigations to staff the security detail. These actions suggest that EPA is being run by someone who is

1A. self-aggrandizing to the point

1B. appropriately conscious

of

2A. paranoia.

2B. security risks that are increasingly important at a time where environmental issues intersect those of national security.

2. “More than 700 people have left the Environmental Protection Agency since President Trump took office, a wave of departures that puts the administration nearly a quarter of the way toward its goal of shrinking the agency to levels last seen during the Reagan administration,” (NYT, 12/22/17), including a disproportionate number of scientists. The brain drain is intentional according to:

1A. Obama science adviser Thomas Burke

1B. Trump OMB Director Mick Mulvaney

who added,

2A. “The mission of the agency is the protection of public health. Clearly there’s been a departure in the mission.”

2B. “You can’t drain the swamp and leave all the people in it. So, I guess the first place that comes to mind will be the Environmental Protection Agency.”

3. The United States withdrew from the Paris climate accords, a move that was

1A. denounced

2A. praised

by many, ranging from:

2A. the Pope to the head of Goldman Sachs.

2B. Charles Koch to David Koch.

4. The United States was battered by record flooding, hurricanes and forest fires, all of which were

1A. substantial evidence suggesting the existence of

1B. a bizarre coincidence.

2A. anthropogenic climate change.

2B. [Sorry, there is no phrase to describe something whose existence is denied]


But wait, you say, that’s only four items, not a top ten. Sorry, but there are eight; you only read four. If one of you As will add another to the comments, and one of you Bs will do likewise, that will get the total to 10.

The Truth about Sue and Settle that Scott Pruitt Ignores

Posted on December 4, 2017 by Jonathan Z. Cannon

Seth Jaffe’s post about EPA Administrator Scott Pruitt’s sue and settle directive is right on. As he notes, the Administrator punts on the question at the core of his holy war against sue and settle: that is, what is the evidence that sue and settle has been abused in the way he presumes?  In particular, was sue and settle systematically used during the Obama administration as a vehicle of collusion between environmental groups and sympathetic agency officials, catering to the greens through rulemaking in secret? That was the characterization advanced by the Chamber of Commerce and other pro-business and anti-regulatory groups that made sue and settle a battle cry in their war against Obama’s environmental policies. Without citing any evidence, Pruitt has proceeded as if that characterization is correct.

A careful, fact-based, analytically disciplined examination of the practice of sue and settle during the Obama administration shows that this characterization is not correct.  That examination appeared in a law review note by a former law student of mine, Ben Tyson, who went on to clerk for Chief Justice Roberts on the Supreme Court.  I recommend that anyone who is interested in this issue -- and who delights in careful research and analysis – read the entire article. But here’s a brief summary for those who don’t have the time.

Tyson’s analysis is based on eighty-eight sue and settle cases arising under the Clean Air Act, Clean Water Act, and the Endangered species act during the Obama administration.  This data set includes twenty-eight cases that were missed by the Chamber of Commerce in its 2013 report, Sue and Settle: Regulating Behind Closed Doors.  In his analysis Tyson is careful to distinguish between decision-forcing consent decrees, which simply require the agency to do what it is statutorily required to do and do not have a potentially adverse effect on public participation in rulemaking, and substantive consent degrees, in which the agency agrees to propose a particular regulatory change, with dismissal of the litigation dependent upon adoption of that change after public notice and comment. Of the total eighty-eight sue and settle suits, seventy-nine were brought by environmental groups.  But all but four of these suits by environmentalists sought decision-forcing consent decrees, not substantive outcomes. And in three of those four cases, there was at least one industry intervenor that had a right to be heard on the proposed decree.  Tyson concludes: “Sue-and-settle, when used by environmental group plaintiffs, is not principally about secret, backdoor rulemaking.” Instead, overwhelmingly, environmental groups used litigation to enforce existing statutory requirements. 

Ironically, although industry brought far fewer sue and settle suits overall (only nine compared to the environmental groups’ 79), five of those suits resulted in consent decrees with substantive terms. And there was no environmental intervenor in any of those cases to contest entry of the consent decree. Based on the data, industry used sue and settle to achieve substantive outcomes more often than environmental groups. And the total number of substantive sue and settle suits by industry and environmental groups was relatively small (9, or 10% of the 88 cases). Improving public participation is always worth attention, but one wonders what all the fuss was about.

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

Posted on November 27, 2017 by Seth Jaffe

EPA Administrator Scott Pruitt earlier this month issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support.  These include:  (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.

So far, so good.  However, at a certain point, the Administrator seems to have gone off the rails.  First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.”  Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?

What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.”  Instead, the Directive merely states that:

"It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups."

The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”

The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson.  I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water.  Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.

HOW DOES A DEMOCRACY DECIDE SCIENTIFIC FACTS? SCOTT PRUITT’S RED TEAM/BLUE TEAM CLIMATE REALITY SHOW

Posted on July 19, 2017 by Karl Coplan

Reuters reports that EPA Administrator Scott Pruitt, responding to a suggestion in a Wall Street Journal editorial, is planning to set up a “red team/blue team” war-game style debate to resolve the question in his mind about the validity of scientific predictions of catastrophic anthropogenic global warming. According to Administrator Pruitt, this “debate” would be televised. Pruitt said that this debate was “not necessarily” meant to undermine EPA’s 2009 Endangerment Finding that triggers Clean Air Act regulation of greenhouse gases, and added that he would prefer that Congress weigh in on the matter.

The prospect of a reality television show style competition designed to resolve for the United States a matter of scientific consensus reached by just about every other nation in the world should concern anyone hoping that EPA’s initial moves to regulate greenhouse gases might survive the Trump administration. But this prospect also illustrates tensions between the administrative state that allows a coherent system of environmental regulation to exist, and the American polity’s identity as a self-governing democracy where political truth is determined by trial in the “marketplace of ideas” guaranteed by First Amendment freedom of expression.

This “marketplace of ideas” metaphor, of course, was first voiced by Justice Oliver Wendell Holmes in his eloquent dissent in Abrams v. United States :

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In a later dissent, in Gitlow v. United States, Holmes expressed that his commitment to the results of this free competition in ideas was so strong that should the arguments in favor of a proletarian dictatorship gain majority approval, he must accept that result.

The foundations of the administrative state are in tension with this notion of popular resolution of scientific and economic truths. Administrative agencies are given authority to resolve scientific and technical issues while carrying out broad Congressional mandates, such as the Clean Air Act mandate to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” The basic theory behind this delegation of authority is threefold – 1) that agencies will be staffed by experts better able to resolve technical and scientific issues than Congress; 2) that Congress lacks the resources and attention to engage in the details of regulatory decisionmaking; and 3) that some policy decisions must be at least partially insulated from the political process.

But this delegation of scientific and economic factfinding is always conditional – Congress always retains the power to withdraw the delegation or overrule agency determinations through affirmative legislation.

Is the urgency of climate change a political truth on the order of the choice between socialism and capitalism? Is our commitment to the verdict of the marketplace of ideas in a democracy stronger than our commitment to urgent action to address climate change?

On the other hand a television reality show format may not be what Justice Holmes had in mind when he posited his marketplace of ideas. Further thoughts on this topic appear in an article I wrote a few years back, “Climate Change, Political Truth, and the Marketplace of Ideas.”

The Yanomami Model for Superfund

Posted on June 16, 2017 by Rick Glick

In a recent editorial, the Wall Street Journal celebrates the new priorities being set by Scott Pruitt’s EPA.  Mr. Pruitt, in the Journal’s opinion, is properly elevating the “more immediate” problem of Superfund sites over the “religion” of climate change.  Sadly, it seems, the misguided and naïve Obama Administration preferred “symbolic” climate measures over the more prosaic but urgent cleanup of Superfund sites. 

This of course is a false choice, since the country—and planet—must confront a wide array of pressing environmental problems.  Implementation of the Clean Power Plan doesn’t have much bearing on Superfund administration; both climate change and environmental cleanups need attention.  But aside from the Journal’s gratuitous trolling of climate policy, they are correct that Superfund is a program in need of reform.

One of the examples cited in the editorial is the Portland Harbor Superfund site, comprised of about 10 miles of contaminated river sediment.  Prior to listing, Oregon DEQ’s approach was to control potential ongoing contributions from upland sites, coordinate with the Army Corps of Engineers to remove the most serious pockets of contamination in the course of routine maintenance dredging, and then let natural riverine processes bury the rest.  There is a lot of science to support the notion that this approach would be plenty protective of human health and the environment.

Alas, EPA Region 10 added Portland Harbor to the National Priority List in 2000.  Seventeen years and over $100 million later, Region 10 issued its Record of Decision, but then hit the pause button because much of the data supporting the ROD had become stale.  A new round of sampling is soon to begin.  In the meantime, scores of PRPs are locked into the process with no way out until costs are fixed.  EPA currently pegs the cost at $1.05 billion, a figure no one but Region 10 believes to be close to the actual cost.

EPA’s selected remedy relies much more heavily on contaminant removal and capping, and less on natural processes, than the remedy proposed by the PRPs.  Unfortunately, EPA’s remedy does not reflect the enormous body of data that indicate such an aggressive approach is not necessary to protect people or the environment.  A prime driver for EPA is that it assumes a much higher rate of resident fish consumption by humans than do the PRPs’ scientists.  The region’s iconic salmon species migrate through the Portland Harbor without bioaccumulating toxins in the sediments.  Never has so much money been deployed to produce so little environmental benefit.

In his book In Trouble Again, the English gonzo explorer Redmond O’Hanlon describes his adventures trekking the Amazon rainforest and his encounter with the Yanomami people.  O’Hanlon witnessed the Yanomami blowing a hallucinogen called yoppo up each other’s noses and decided to give it a try.  What could possibly go wrong?  It turned out that the drug induced excruciating pain and that the only high he realized was relief when the effects wore off. 

As administered, Superfund is much like taking yoppo.  The process is so time consuming, expensive and uncertain that its chief benefit is to induce PRPs to enter state voluntary cleanup programs to avoid a federal Superfund listing.  Many more sites have been remediated, and I would bet at much lower cost, through such state programs than ever will through the formal Superfund process.

Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Posted on May 30, 2017 by Seth Jaffe

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites.  Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation.  While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.

Let’s start with the basics.  Superfund is a mess.  It’s one of the most poorly written statutes in Congressional history, and Superfund cleanups take way too long, are way too expensive, and fail to deliver bang for the buck in either risk reduction or productive reuse.

In a perfect world, Superfund would be amended to privatize cleanups and put cost-effective risk-based cleanups at the center of the program.  However, Scott Pruitt cannot unilaterally amend Superfund.  Heck, he may not realize it, but even Donald Trump cannot unilaterally amend Superfund.

Given this reality, Pruitt’s memorandum identifies all of the appropriate goals for meaningful administrative reform.  They include:

  • a focus on identifying best practices within regional Superfund programs, reducing the amount of time between identification of contamination at a site and determination that a site is ready for reuse

  • overhaul and streamline the process used to develop, issue or enter into prospective purchaser agreements, bona fide prospective purchaser status, comfort letters, ready-for-reuse determinations

  • Streamline and improve the remedy development and selection process, particularly at sites with contaminated sediment, including to ensure that risk-management principles are considered in the selection of remedies

  • Reduce the administrative and overhead costs and burdens borne by parties remediating contaminated sites, including a reexamination of the level of agency oversight necessary.

The last is my personal favorite.

I somehow expect I’m not going to be praising this administration on a regular basis, but I can still acknowledge when they get something right.  Let’s just hope that the task force is for real and comes up with a set of meaningful administrative improvements.

Fingers crossed.