DAYS OF FUTURE PASSED…OR PAST

Posted on November 17, 2014 by Jeff Thaler

November 1967: The Moody Blues release their second album, Days of Future Passed, said to be an influential work of the countercultural, psychedelic era. May 2014: Wolverine goes back in time to rally the X-Men against the Sentinels in Days of Future Past. In between: Ed Muskie and Leon Billings roamed the Earth, particularly the U.S. Senate, and modern-day environmental law was born and thrives.

2014 also is the centennial of the birth of Muskie in the old mill town of Rumford, Maine. On November 15, almost exactly 47 years after release of Future Passed, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, spoke on a panel looking back and to the future of laws like the Clean Air and Water Acts that were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s insistence of and ability to achieve bipartisanship, with allies for the CAA and CWA efforts including such Senators as Baker, Eagleton, Cooper, Bayh, Boggs and Dole, as well as the exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings.

The second concept is that of climate change and the Clean Air Act. Billings was very clear: Section 111(d) was no accident, is not being misinterpreted, and Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, what Billings now calls the “epitome of the precautionary principle”.  The phrase “selected air pollution agents” almost never made it out of the House-Senate Conference in December 1970, but a compromise was struck so late at night it never made it into the Conference reports. And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts as the font of legislative intent underlying many environmental laws, including frequent references to Muskie in court opinions and during oral arguments at the Supreme Court. He also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue for a short time as a defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Richard then showed slides of handwritten notes made by Nixon’s Chief of Staff, H.R. Haldeman of three discussions with the President: in February 1971, even when they thought environmental protection “has to be done”, at the same time they thought it “is not worth a damn”; in June “should take on environment—it’s not a sacred cow”;  and by July 1971 they wanted to put the “brakes on pollution bills…when we can without getting caught”, and to “reexamine all pollution bills in terms of current economic impact”.

Richard also discussed the current EPA rulemaking under 111, especially referencing the term “best system of emission reduction”; EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just controls. He said that for EPA, Muskie is its “Mr. Clean”.

During Q&A, both panelists discussed the partisanship of the past 10-20 years contrasted with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying, “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.” Turning to NEPA, the concept of an” environmental impact statement” developed through a personal compromise Muskie struck with Senator Jackson.

Afterwards I asked Billings, “If Ed Muskie and you were in the Senate now, what would you be doing?” He said, “If we were the majority party, holding a lot of oversight hearings to bring in all the scientists and evidence; if the minority party, writing speeches.”

And that is how the Past (or Days Passed) in Environmental Law still have major force in today’s many controversies. Oh, by the way: The Moody Blues recently released a new box set, “Timeless Flight”, and are still touring. Long live rock and environmental laws!

Section 316(b) of the Clean Water Act: Cooling Water Intake Requirements

Posted on June 30, 2014 by Philip Ahrens

On May 19, 2014, EPA issued its long-awaited rule establishing requirements under the Clean Water Act for existing power-generating facilities and manufacturing and industrial facilities that withdraw more than 2 million gallons per day from waters of the United States and use at least 25% of the withdrawal exclusively for cooling purposes.  The stated purpose of the Rule is to reduce injury and death to fish and other aquatic life caused by cooling water intake structures at existing power plants and commercial and industrial facilities.  The rule covers approximately 1,065 existing facilities of which slightly more than half are power-generating facilities.  

The Rule as adopted is 559 pages long.  Summarizing a very complex rule of that length is virtually impossible.  Those facilities covered by the Rule will need to study the Rule carefully to learn exactly how it affects their facility.  At the great risk of over-generalization, there are three broad components to the final Rule which are highlighted in the EPA Press Release of May 19, 2014:

Existing facilities that withdraw at least 25% of their water from an adjacent water body exclusively for cooling purposes and have a design intake flow of greater than 2 million gallons per day are required to reduce fish impingement.  To ensure flexibility, the owner or operator of the facility will be able to choose one of seven options for meeting best technology available requirements for reducing impingement.

Facilities that withdraw at least 125 million gallons per day are required to conduct studies to help the permitting authority determine what site-specific entrainment mortality controls, if any, will be required.  This process will include public input.

New units at existing facilities that are built to increase the generating capacity of the facility will be required to reduce the intake flow to a level similar to a closed-cycle recirculation system.

Any facility not covered by EPA’s rules governing cooling water intake structures will continue to be subject to Section 316(b) requirements set by the EPA, state or territory NPDES permitting director on a case-by-case, best available judgment basis.

EPA began its Section 316(b) rulemaking pursuant to a 1995 Consent Decree with a number of environmental organizations.  Whether environmental organizations, the regulated community or anyone else with standing will appeal this latest rulemaking by EPA is anyone’s guess.  Certainly there have been statements made that one or more appeals will be filed.  Who thinks that a rulemaking 20 years in the making will end quietly?

EPA’s RDA Math: 3 + 9 ≠ 1

Posted on June 20, 2014 by David Van Slyke

In a surprising turn of events, on March 12, 2014 EPA Regions 1, 3 and 9 each simultaneously but separately responded, and each in a somewhat different way, to three virtually identical NGO petitions asking those Regions to use their Clean Water Act (“CWA”) Residual Designation Authority (“RDA”) to require that stormwater discharges from impervious surfaces at existing commercial, industrial and institutional (“CII”) sites be permitted under CWA Section 402.  The three petitions were filed in July 2013 by several different and somewhat overlapping consortia of environmental organizations.

The three Regions’ responses were all signed by their respective Regional administrators, each was worded differently, and each included a somewhat similar -- yet somewhat different --explanatory enclosure that detailed the basis of each respective Region’s response.

EPA Region 3’s response is a flat out denial of the petition, citing existing tools and programs already in place to address stormwater pollution (e.g., MS4 permits, TMDL implementation and strong state programs).  The enclosure with the Regional Administrator’s letter denying the petition also states that “Region III declines to begin a process for categorical designation of discharges from CII sites to impaired waters since … the data supplied by the Petitioners to support the exercise of RDA is insufficient.”  The enclosure does note that if the existing programs ultimately do not meet their objectives, alternate tools, including RDA, will need to be considered.

Similarly, EPA Region 9’s response “declines to make a Region-wide designation of the sources” in the petition specific to Region 9.  That response also concludes in the enclosure that “we currently have insufficient information to support a Region-wide designation” of the CII sites specified in the petition, “that effective programs are already in place that address the majority of the sites identified in the petition,” and that the Region will keep designation in their toolbag as they “continue to evaluate currently unregulated sources of stormwater runoff.”

However, Region 1’s response states that it “is neither granting the petition … nor is it denying the petition.”  Instead, the Region is going to evaluate individual watersheds in its six states to look at the nature and extent of impairment caused by stormwater, and then “to determine whether and the extent to which exercise of RDA is appropriate.”

Given the identical language in certain portions of all three of the Regional response enclosures (e.g., Statutory and Regulatory Background; Petition Review Criteria), it is clear that EPA Headquarters was in the thick of the discussions regarding the responses to these three RDA petitions.  However, the apparent autonomy afforded each Region in determining how to deal with the issue is remarkable, and the discussions ultimately may have centered (as they often do at EPA HQ) on resource allocations nationally and within each Region. 

The responses of Regions 3 and 9 imply that their current respective paths, with time, will get results without diverting resources.  EPA Region 1 appears to more fully embrace RDA as a near-term viable tool to more aggressively control stormwater runoff from CII sites.  Apparently, the New England regulators’ successful experience with the Long Creek Watershed RDA and their efforts relative to the RDA process for the Charles River has only whetted their appetite for further candidate areas at which to employ this model to address impaired stormwater. 

Whether the NGOs will seek judicial relief from the denial of their Petitions, whether the states in the USA’s upper right hand corner will be supportive of EPA New England’s continued utilization of this tool, as well as how this issue ultimately will be played by EPA HQ, is fuzzy math.

“Waters of the U. S.” - What’s Not to Understand?

Posted on November 26, 2013 by Rick Glick

EPA and the Army Corps of Engineers continue their ongoing effort to bring clarity to the tangled mess wrought by the Supreme Court in Rapanos v. U. S. In that 2006 case, a fractured Court issued five separate opinions on the jurisdictional reach of the Clean Water Act.  Congress didn’t help in the first place by extending such jurisdiction to “navigable” waters, defined in the Act as “waters of the United States” without further elucidation.  EPA and the Corps have developed new rules now under review by the Office of Management and Budget prior to release for public comment.

The agencies and the courts have long struggled with a workable definition of “waters of the United States,” particularly in the context of filling wetlands.  The Supreme Court previously held that wetlands adjacent to navigable waters are jurisdictional because of their ecological connection to those waters, but isolated wetlands in the Pacific Flyway are not.  In Rapanos, a four member plurality in an opinion by Justice Scalia limited jurisdiction to areas that are wet with flowing or standing water on a more or less regular basis, which would exclude many areas that appear dry but meet the agency definition of wetlands.  The determinative fifth vote, however, was from Justice Kennedy, who applied a different test, requiring only a “significant nexus” between the navigable waterways and the wetland. 

Since Rapanos, many courts have been unable to discern guiding precedent and adopted hybrids of the Scalia and Kennedy tests. In the meantime, the agencies on two occasions have adopted guidance to help permit writers and the regulated community recognize jurisdictional wetlands.  The agencies’ latest effort would go beyond guidance to rules having the force of law. 

The rules define jurisdictional waters of the United States to include categories of wet areas, such as tributaries of navigable waterways.  The rules would exclude drainage ditches excavated on uplands or other artificially wet areas, such as waste treatment systems or irrigated lands.  The expectation is that by establishing by rule categories of jurisdictional waters that per se have a significant nexus to navigable waters, the cost of permitting and litigation would decrease, while certainty for land developers would increase. 

The rules are based on a report by EPA staff that compiles and synthesizes peer-reviewed scientific research on the relationship between tributaries, wetlands and open waters.  The report is under review by EPA’s Science Advisory Board, and EPA has said the rules would not be released for public comment until that review is complete. 

Still, the fact that the rules were developed before the report and Science Advisory Board review is complete has drawn criticism from Congressional Republicans.  They charge that the report is just window dressing for EPA doing what it wants.  In a letter dated November 13 to EPA, the Senate and House Western caucuses urge EPA to withdraw the rule “based on the devastating economic impacts that a federal takeover of state waters would have.”

The prospect of having rules in place to define jurisdictional waters is, on its face, a positive development because of the uncertainty that now pervades this area.  However, in addition to Congressional resistance, the goal of avoiding litigation will likely prove elusive.  If challenged, the agencies will be entitled to a measure of deference once the rules are adopted, but we can safely predict there will be many challenges.  

Once the rules clear OMB and the Science Advisory Board, they will be published for public comment.  Watch this space for updates.

Hail to the Chief

Posted on November 6, 2013 by Steve McKinney

On November 1, President Obama issued an executive order organizing several task forces and coordinating councils to focus on climate change adaptation.  Among the necessary and appropriate beltway benefactions was Section 3, which orders federal departments and agencies to “complete an inventory and assessment of proposed and completed changes to their land- and water-related policies, programs and regulations necessary to make the Nation’s watersheds, natural resources, and ecosystems, and the communities and economies that depend on them, more resilient in the face of a changing climate.”  That’s quite an assignment.

The order applies specifically to Defense, Interior, Agriculture, EPA, NOAA, FEMA, and the Army Corps of Engineers. The CEQ and OMB Co-Chairs can spread the assignment to other federal agencies as need be.  If you are left out of this list, you must not be very important.  The required inventory must also include a “timeline and plan for making changes to policies, programs and regulations.”  This is all supposed to happen in the next 9 months, a rather pregnant period of time in a variety of ways. 

The scope of the task catches your attention, but perhaps the limitations should also be of interest.  The inventory assignment is not supposed to include “wish lists” that have not yet been proposed or completed.  It is supposed to focus on resiliency-enhancing land and water programs, rather than air programs that are usually the target of any climate change discussion. However, “agencies shall, where possible, focus on program and policy adjustments that promote the dual goals of greater climate resilience and carbon sequestration, or other reductions to the sources of climate change.”

It’s a big job.  It imposes new priorities for all federal departments and agencies.  Sounds almost like an Act of Congress.  Come to think of it, I wonder what Congress thinks about this?  I mean… I’m just sayin’...

Illicit PCB Dumping Prompts Emergency Regulation

Posted on October 1, 2013 by Thomas Lavender

On September 25, 2013 the South Carolina Department of Health and Environmental Control (SCDHEC) filed an emergency regulation in response to multiple occurrences of illegal dumping of substances containing polychlorinated biphenyls (PCBs) into multiple sewer systems across the State. The Emergency Regulation took effect immediately upon filing and remains in effect for ninety (90) days.  SCDHEC acknowledged the existence of an ongoing investigation into the origin of the materials, including state and federal authorities.  SCDHEC noted that there was currently no known impact to public health or any confirmed discharge to surface water bodies.  It is also believed that publicly-owned treatment works (POTWs) in states bordering South Carolina have recently detected PCBs in their systems.

In August, SCDHEC had acknowledged that PCBs had been detected in several POTWs in the Greenville-Spartanburg area of the State.  Concurrent with the filing of the Emergency Regulation, the agency announced that PCBs had now been detected in a POTW in the Columbia, SC area.

Some South Carolina wastewater treatment systems are permitted for the land application of their sludge.  Based on the suspected criminal activity, DHEC has determined the need for specific regulations limiting the land application of sludge containing detectable levels of PCBs.  The Emergency Regulation addresses the land application of sludge from wastewater treatment systems and specifically limits land application to sludge containing no detectable levels of PCBs and requires increased testing of sludge, regardless of disposal method, to aid in identifying illegal dumping suspects.  SCDHEC has also informed all of the state’s class III landfill operators and waste water treatment plants of the matter, and provided them guidance regarding proper disposal and reporting any suspicious activity.

SCDHEC issued a Be On the Lookout (BOLO) alert through the State Law Enforcement Division to heighten awareness among law enforcement of illegal dumping and solicit the help of local law enforcement agencies.

Retroactive Stormwater Permitting – Coming to a Parking Lot Near You?

Posted on September 18, 2013 by David Van Slyke

On July 10, 2013, several different consortia of environmental organizations simultaneously filed petitions with three EPA Regional Offices asking the respective Regional Administrators to make determinations under the Clean Water Act (“CWA”) that unpermitted stormwater discharges from impervious surfaces at existing commercial, industrial, and institutional sites be required to obtain stormwater permits and to conduct remedial actions.  The three petitions (Region 1, Region 3, Region 9), jointly filed by American Rivers, Conservation Law Foundation (“CLF”) and Natural Resources Defense Council (along with different regional NGOs on each petition), ask EPA to use its CWA Residual Designation Authority (“RDA”) to require property owners in EPA Regions 1, 3 and 9 to capture and treat their stormwater runoff, which the petitioners allege is impairing waterbodies in those parts of the U.S.

Currently, in the absence of residual designation, only new construction projects, industrial sites falling within certain limited categories, and municipal stormwater sewer systems are required to obtain stormwater permits and manage stormwater runoff.  The Petitioners allege that stormwater discharged from impervious surfaces on commercial, industrial, and institutional sites are significant sources of pollutants – specifically, metals (lead, copper and zinc), sediments, phosphorus, nitrogen, and oxygen-demanding compounds that cause water body impairments – and therefore should be regulated.   

In 2008, CLF successfully petitioned EPA to use RDA to require stormwater discharge permits for existing impervious surfaces in an urban/mall area near Portland, Maine.  Property owners with an acre of more of impervious surface in that watershed are now required to control their stormwater runoff either on an individual basis (by retrofitting their property to control pollutants in runoff) or by obtaining coverage under a general permit and paying an annual fee per acre of impervious cover.  A similar NGO petition was granted by EPA Region I with regard to limited areas within the Charles River watershed near Boston.

The current petitions represent an effort to force expansion of EPA stormwater runoff control regulation in New England, the Mid-Atlantic States and California/Nevada/Arizona.  The petitioners recommend remedial actions such as conservation of natural areas, reducing hard surface cover, and retrofitting urban areas with features that detain stormwater runoff and treat pollutants in stormwater. 

EPA has 90 days to act on the petition, although action within this time frame is doubtful given the scope of the requests and the pace at which EPA has acted upon other much more limited RDA petitions.  With the very recent U.S. District Court decision in American Farm Bureau v. EPA upholding the Agency’s Chesapeake Bay TMDL for nitrogen, phosphorus and sediment, however, EPA may feel somewhat more emboldened to embrace these broad-reaching petitions.  To date, however, the Agency has been mum regarding the petitions.

Great Lakes – Great Waste

Posted on September 13, 2013 by David Ullrich

The world’s largest source of surface fresh water is surrounded by a number of nuclear plants that have been generating power and waste for well over 30 years.  Although the region has had the benefit of the power, it also has the legacy of low, medium, and high level waste that has been accumulating at these plants over the years.  There is great concern over this situation because the lakes are the source of drinking water for over 30 million people.

Currently, Ontario Power Generation (OPG) has a proposal for a deep geologic repository (DGR) for low and intermediate level radioactive waste at their Bruce Nuclear facility near Kincardine, Ontario.  The waste comes from the Bruce facility, as well as OPG’s Darlington and Pickering plants.  It is currently stored above ground    The DGR would be 680 meters below the surface of the ground and about one kilometer from the shores of Lake Huron.  Kincardine offered to serve as a host community for the DGR, and no other potential sites have been considered.  There has been extensive outreach in the Kincardine area over the past 10 years about the proposal, and some limited amount in Michigan.  Only recently has the broader Great Lakes community become aware of the proposal and some significant concerns have been raised, primarily the proximity to Lake Huron and the lack of consideration of other sites.  In addition, there is concern that this would be a precedent for more disposal sites for not only low and medium level waste, but also the high level waste from spent fuel.  The proposal is under review by a Joint Review Panel formed by the Canadian Nuclear Safety Commission and the Canadian Environmental Assessment Agency.

Although OPG has done extensive engineering and geological work, the fundamental question is whether a disposal site should be located so close to one of the Great Lakes, the source of drinking water for over 30 million people.  Also, should just one site be considered for something as significant as this?  Some have argued that there should be no more nuclear plants on the Great Lakes until an acceptable disposal solution has been found.  The reason the nuclear plants are there in the first place is the abundance of available cooling water.  It seems ironic that the convenience of locating the disposal site next to the plant to limit transportation of the waste, also results in the waste staying close to Lake Huron.  We should be able to do much better than this in the 21st Century.

Tenth Circuit to Decide Whether NEPA Requires Impacts from Water Diversion Project to Be Analyzed Based On Maximum Achievable Diversions

Posted on May 13, 2013 by Thomas Hnasko

On February 11, 2013, the United States District Court for the District of New Mexico denied a Motion for Preliminary Injunction filed by the Village of Logan, seeking to compel the Bureau of Reclamation (“BOR”) to perform an environmental impact statement (“EIS”) for the Ute Lake Diversion Project in eastern New Mexico.  The BOR issued an environmental assessment (“EA”), which analyzed the impacts from the diversion project based on the withdrawal of only 16,450 acre-feet per year (“af/yr”), despite the fact that the intake structure capacity is 24,000 af/yr.  The BOR contended that the intake structure did not have sufficient pumping capacity and other infrastructure to achieve 24,000 af/yr.

At the preliminary injunction hearing, Logan presented evidence that the Interstate Stream Commission of New Mexico (“ISC”), as the putative owner of the water rights within Ute Lake, had contracted to sell 24,000 af/yr and that the engineering analysis demonstrated sufficient existing capacity within the intake structure to accommodate withdrawals of 24,000 af/yr.  Consequently, similar to analyses required under other environmental laws, including the Clean Air Act, Logan argued that the impacts from the proposed project must be analyzed based on the maximum achievable withdrawal capacity of the intake structure.

The difference in the severity of impacts, based on 24,000 acre-feet withdrawals and 16,450 acre-feet withdrawals, was significant.  The EA conceded that, at 24,000 acre-feet per year, the minimum fisheries pool in Ute Lake – established to provide a minimum necessary habitat for recreational fishing – would be breached at least 20% of the time over a 30-year period.  Allowing the fisheries pool to be breached for at least 6 years over the life of the project created inter-related economic impacts, including significantly decreased property values on the shoreline, decreased tax receipts for the community, lost jobs, and significantly declining revenue for the New Mexico Department of Game and Fish.

The district court ruled that the EA, together with its finding of no significant impact (“FONSI”), was not arbitrary and capricious based on the assumption that the withdrawals would only reach 16,450 af/yr.  The Court stated that, “If in the future, more infrastructure is added to facilitate further withdrawals, primary analysis of the environmental impact may be undertaken then.”  The Court did not state whether such a “primary analysis” would occur within or outside of NEPA, and who would be responsible for initiating such an analysis.  Moreover, assuming that the Court meant an analysis of “direct impacts” by the phrase “primary analysis,” it is unclear how such an analysis would not suffer from predetermination under NEPA.  After all, the intake structure would already be built and there could not be any serious consideration of viable alternatives to the project.

The central issue on appeal is whether a federal agency may postpone part of its NEPA analysis to some unspecified time in the future, despite the fact that the capacity of the project, and the ability to withdraw 24,000 af/yr, is likely a “foreseeable” impact as defined in the Council on Environmental Quality regulations.

Alaska Courts Clarify Application of Antidegradation Procedures

Posted on April 8, 2013 by Eric Fjelstad

Courts in Alaska issued two decisions upholding agency practice in carrying out antidegradation review under the Clean Water Act.  The federal court concluded that adoption of water quality standards does not, itself, require antidegradation review.  In the second case, a state court concluded that guidance may be developed to implement antidegradation regulations and need not be promulgated as a regulation provided it does not contain substantive criteria.

In Native Village of Point Hope v. U.S. Environmental Protection Agency, Alaska native and environmental organizations challenged EPA's approval of the State of Alaska's adoption of a site-specific water quality criterion ("SSC") for total dissolved solids ("TDS").  The SSC was challenged on a number of grounds, including on the basis that neither the State of Alaska nor EPA analyzed the SSC under the relevant antidegradation policy.  The issue before the U.S. District Court for Alaska was whether antidegradation review applied to the adoption of water quality standards ("WQS") or, conversely, only when WQS are translated into permits through effluent limitations.  In a case of first impression in the federal courts, the court ruled for EPA, holding that agencies are not required to undertake antidegradation review for the adoption of WQS; the obligation is only triggered when a WQS is incorporated into a permit through effluent limitations.

In Alaska Center for the Environment v. State of Alaska, environmental organizations challenged the State of Alaska's adoption of antidegradation implementation procedures through guidance, arguing that the procedures should have been promulgated as regulations.  As background, several NPDES permits in Alaska were withdrawn by EPA in the face of arguments from environmental organizations that the State of Alaska lacked antidegradation implementation procedures.  To address this alleged deficiency, the State of Alaska developed a guidance document  which EPA found was consistent with EPA's own antidegradation regulation.  The primary issue in the litigation was whether the State of Alaska was required to promulgate the guidance in the form of a regulation or whether it was permissible rely upon guidance to implement its regulations.  In a decision that turned largely on the State of Alaska's Administration Procedures Act, the court held that it was appropriate for the State to develop the guidance to implement its regulatory program, reasoning that the guidance did not add substantive requirements to existing regulations.

New Hampshire's Great Bay, Nitrogen, and the Limits of Technology

Posted on December 26, 2012 by Gregory H. Smith

As the Clean Water Act celebrates its 40th anniversary, it has ignited a controversy in New Hampshire with potentially hundreds of millions of dollars at stake.  In the law’s early days,  publicly owned treatment works (“POTWs”), mandated and financed in large part with federal funds, were viewed as the “good guys” in the national effort to restore quality in receiving water bodies into which raw sewage was being discharged.  That view of POTWs seems to have changed in New Hampshire, at least as relates to the State’s largest saltwater estuary; the Great Bay.  Faced with the potential need to finance significant POTW upgrades or reconstruction, New Hampshire POTWs are challenging EPA’s permitting decisions in the courts, through administrative channels and in the press.

As we know, POTWs are regulated through National Pollutant Discharge Elimination System (“NPDES”) permits that monitor and control a variety of effluent criteria.  Interestingly, however, New Hampshire was and remains one of the few states that has not obtained authority to issue new and renewed NPDES permits.  Because of this status as a non-delegated state, dischargers in New Hampshire with expiring permits must apply to the federal government for renewal.  As environmental regulation has progressed, however, and as federal funds have diminished or disappeared, POTWs and the towns and sewer districts that operate them have found themselves opposed to the EPA’s efforts to impose stricter standards  to address pollutants that were not of primary concern when the POTWs were constructed and initially permitted.

In New Hampshire, this is seen vividly in NPDES renewal efforts EPA is undertaking for several POTWs that discharge under expired and expiring permits, directly or indirectly, into the Great Bay estuary located on the State’s coast.  Once a rich habitat for oysters, eel grass and other sea life, Great Bay is now stressed by a variety of factors including both point and non-point discharges as well as other environmental factors.   At the heart of the controversy  in New Hampshire is EPA’s intention to reduce effluent limitations for nitrogen to as low as three parts per million (the limits of technology) in order to ameliorate nitrogen related problems in Great Bay.  From the municipalities and POTWs perspective, the costs to comply with these new lower limits are exorbitant.  One widely cited study estimates that, for the Great Bay estuary POTWs to comply with the new nitrogen limit, it will cost in excess of one half billion dollars in capital,operation and maintenance expenses.  Those costs will, of course, be passed along to a relatively small population of ratepayers. 

A coalition of communities with affected POTWs has joined forces in response, proposing “adaptive management programs” combining somewhat lower discharge limits with comprehensive non-point controls aimed together at achieving EPA’s stated goals.  It is unclear at this time whether those efforts will be successful.  The coalition communities certainly have in mind the experiences in Chesapeake Bay, or closer to home in neighboring and similarly non-delegated Massachusetts, where EPA is using its  Residual Designation Authority (“RDA”) to require permits in the Charles River watershed.  EPA has been public with its view that the Charles River RDA program may become a model for watersheds elsewhere in New England and nationwide.  It is thought that an adaptive management program as proposed by New Hampshire’s coalition communities would obviate the need to utilize RDA for Great Bay, but that issue remains to be addressed in the future.

Cool Water

Posted on December 11, 2012 by Paul Seals

The song “Cool Water” was written and recorded in 1936 by Bob Nolan, an original member of the Sons of the Pioneers along with Len Slye, better known by his film name, Roy Rogers.  “Cool Water” could be the theme song for Texas and other water-short western states.  The Texas Water Development Board recently compiled “Water for Texas 2012 State Water Plan”.   Quite simply, Texas does not have enough water to meet its current needs, much less its future needs, during periods of serious drought conditions.   Texas is searching for cool, clear water.

Texas continues to grow.  According to the Plan, the population of Texas is expected to increase 82 percent between 2010 and 2060, from 25.4 million to 46.3 million.   Water needs are projected to increase by 22 percent, from 18 million acre-feet per year to 22 million acre feet per year in 2060.  At the same time as water demand is rising, existing water supplies are diminishing by almost 2 million acre feet per year.   Where will the additional water supplies be found to meet the identified needs?

The State Water Plan includes recommended water management strategies developed by regional planning groups, which include: conservation, drought management, conjunctive use of surface and groundwater, surface water reservoirs, aquifer storage, groundwater development, water reuse, desalination plants.  In addition to addressing surface and groundwater water rights, water planners and users will need to confront the environmental implications of these strategies.  What are the environmental regulatory constraints and impediments?

The implications and potential conflicts are far-reaching.  We can all anticipate the obvious regulatory hurdles,  contested procedures and property rights obstacles that projects to develop new surface reservoirs will confront.  But what of other strategies like water conservation and reuse?    Proposing water conservation (e.g. increased cooling water cycles) and reuse (e.g. use of treated municipal wastewater effluent) at a natural-gas fired power plant may  threaten surface water quality as the total dissolved solids to be discharged are concentrated through these strategies.   Also, what kinds of measures and alternatives under other environmental regulatory programs (e.g. Endangered Species Act) will need to be considered as these strategies are proposed?

The history of Texas is growth.   To do nothing to meet its increasing  water needs would result in staggering economic losses.    Texas met the challenge after the drought of record in the 1950s.  Texas will do it again!   The question is:  “how happy will the trails be?”

THROWING WESTERN WATER LAW ON ITS EAR?

Posted on December 5, 2012 by Martha Pagel

How far can affected stakeholders go in fashioning local, “place-based” solutions to water management problems?  In other words, is it OK to throw western water law out on its ear – a little bit -- if no one complains?

The policy question arises in Oregon in connection with recent efforts to balance the need for increased water supply to support the potential for substantial agricultural-based economic growth in the Umatilla Basin – a major Oregon tributary to the Columbia River system – with competing water demands to comply with the Endangered Species Act by restoring and protecting instream flow for listed salmon.  The balancing act also seeks to support treaty-based instream water rights for the Confederated Tribes of the Umatilla Reservation (CTUIR) and restore severely depleted ground water supplies (See CRUSTaskforce). The desire of stakeholders to explore new ideas that go beyond the boundaries established by existing water law is a foreseeable consequence of Oregon’s long-standing commitment to locally-based collaborative efforts to resolve complex natural resource issues  (See Oregon Solutions and http://www.oregon.gov/owrd/LAW/docs/i_Chapter_4_Final.pdf). Just how far should state bureaucrats be willing to go in bending or changing traditional programs and policies to make way for customized, place-based solutions?

The specific example in the Umatilla Basin relates to proposals for establishing a water bank and brokerage system.  (See http://orsolutions.org/beta/wp-content/uploads/2012/06/Oregon-Solutions-Presenation-6_18_2012-CRUST.pdf). A broad-based coalition of local interests including individual farmers, irrigation districts, the CTUIR, conservation interests, local governments and agri-businesses have jointly proposed an option for collaborative water management.  Under their concept, each year a water management plan would be filed with the state to describe how water would be used, and possibly redistributed under existing water rights.  The concept includes a bottom line requirement that the water management changes not result in injury to any water user not participating in the plan, and not diminish instream flows.  No harm, no foul.  However, in preliminary discussions, the Oregon Water Resources Department – the state agency in charge of allocating and administering water rights -- has balked at the plan because it could allow water users to ignore priority dates and “spread” water – concepts traditionally abhorred in Western water law.

So, the question is:  Should government get out of the way to let water users figure out their own strategies for managing water – even if it would throw certain principles of Western water law out on its ear? Why not, if it reflects a local consensus and no one complains?

Flooding the High Court’s Docket With Water

Posted on November 12, 2012 by Richard Lazarus

Written October 3, 2012

Water, lots of it, promises to dominate the Supreme Court’s October Term 2012 with three significant environmental cases already on the docket and potentially a couple more looming on the horizon.

In Arkansas Fish & Game Commn v. US, No. 11-597, argued on October 3rd, the Court will decide a Fifth Amendment Takings claim against the Army Corps of Engineers for temporarily flooding downstream riparian property.  The parties and their supporting amici proffer competing per se “takings” and “no takings” tests.  The Court seems likely to reject each in favor of the Justices’ preferred ad-hoc balancing approach.  The other two cases, set for argument on consecutive days in December, are Decker v. Northwest Environmental Defense Center, No. 11-338 (consolidated with Georgia-Pacific v. Northwest Environmental Defense Center, No. 11-347) and LA County Flood Control Dist v. NRDC, No. 11-460 (I am co-counsel for respondents in the LA County case).  Both cases concern the application of the Clean Water Act to storm water discharges: logging in Decker and municipal storm water in LA County.  The cases are the Court’s first opportunity to address storm water issues.  The environmental respondents plainly have reason for concern in both cases.  They won in the Ninth Circuit, the Supreme Court’s favorite circuit for reversal in environmental cases.  One sign of potential trouble for the respondents:  The Court asked the Solicitor General in both cases whether the cases warranted review.  The SG said no, that neither case presented an important legal issue.  Typically, the Court will take a case despite the SG’s negative view only if there are at least four Justices (the number required to grant review) contemplating reversal.  Of course, Justices can and do change their minds once they have the benefit of full briefing and oral argument.  For both Decker and LA County, environmental respondents are plainly hoping for just that.

Whether the October Term 2012 is a true blockbuster for environmental law may depend on the fate of petitions, should they be filed with the Court, seeking further review of the D.C. Circuit’s recent Clean Air Act rulings in Coalition for Responsible Regulation v. Jackson (EPA’s greenhouse gas regulations) or EME Homer City Generation v. EPA (EPA’s Cross-State Air Pollution Rule).  EPA won the first in June and lost the second in August.  Should the losing parties in either case successfully petition for Supreme Court review, the promise of a blockbuster Term will likely materialize.

REP. BLUMENAUER INTRODUCES WATER INFRASTRUCTURE BILL—THERE’S A GROWNUP IN THE HOUSE

Posted on August 6, 2012 by Rick Glick

On August 1, Oregon Congressman Earl Blumenauer introduced the Water Protection and Reinvestment Act (HR 6249) to address the nation’s aging water infrastructure.  The bill would use excise taxes targeted at industries that are dependent upon and impact safe and reliable water to reinvigorate the Clean Water State Revolving Loan Fund (CWSRF).  The CWSRF awards grants to states to capitalize loans to publicly owned treatment works in accordance with the Clean Water Act.  Under the bill, the funds would be available for “green infrastructure” and water efficiency initiatives as well. 

Initial funding sources identified in the bill include a 3 cent per container excise tax on water-based beverages, a 3% excise tax on items disposed of in wastewater, such as toothpaste, cosmetics, toilet paper and cooking oil and a 0.5% excise tax on pharmaceutical products.  The Congressional Budget Office is directed to identify additional funding sources.

The need for action is real as our water infrastructure has been badly neglected and underfunded over the last couple of decades.   As the congressman’s bill summary indicates, the American Society of Civil Engineers said that “if current trends persist, by 2020, unreliable infrastructure will cost businesses $147 billion and households $59 billion.” 

But it’s hard to see the bill getting anywhere in the current political environment, especially in an election year.  Although such an infusion of resources would certainly create a lot of jobs, and although the bill is presented as “deficit-neutral”, House Republicans would almost certainly paint it as just another Democrat tax and spend bill.  Too bad.  Rep. Blumenauer has consistently been one of the few grownups in the Congress focused on the basic underpinnings of any successful economy—transportation and water systems that work.

Encouraging the Use of Abandoned Coal Mine Drainage for Hydraulic Fracturing in Pennsylvania through a Good Samaritan Statute

Posted on June 21, 2012 by Chester Babst

The development of natural gas shale formations, such as the Marcellus and the Utica in Pennsylvania, Ohio and West Virginia, requires reliable sources of water for hydraulic fracturing that makes gas extraction from tight shale possible.  In Pennsylvania―a state with relatively plentiful ground and surface water sources―there are water sourcing challenges presented by various regulatory frameworks as well as withdrawal limitations in sensitive headwater areas of the state that coincide with current oil and gas activities. 

One alternative to using fresh water for hydraulic fracturing is the use of water supplies affected by acid mine drainage (AMD), which are also plentiful in Pennsylvania.  While the use of AMD by the oil and gas industry offers many potential benefits, operators are reluctant to become entangled in long-term liabilities created by the current legal framework for such pre-existing contamination.

Recognizing the need to encourage the treatment of abandoned AMD, Pennsylvania adopted the Good Samaritan Act, 27 Pa. Cons. Stat. §§ 8101 et seq., in 1999 to provide liability relief for various stakeholders, volunteers and watershed groups to undertake cleanup efforts of pre-existing contamination from AMD.  One recent legislative proposal would amend the Act to allow relief from liability for the use of mine drainage, mine pool water, or treated mine water for the development of a gas well.  This amendment, which has bi-partisan support in the Pennsylvania legislature, provides relief from third party claims as well as enforcement under various liability schemes.

On a parallel track, the Pennsylvania Department of Environmental Protection (PADEP) has been investigating means by which it could encourage the use of AMD by oil and gas operators.  See PADEP’s draft White Paper: Utilization of AMD in Well Development for Natural Gas Extraction, November 2012.  PADEP is engaging in ongoing discussions with stakeholders regarding possible processes and solutions for the treatment, storage, and liability issues associated with such an undertaking. 

At the federal level, the United States Environmental Protection Agency (EPA) has developed a Good Samaritan Initiative to protect volunteers from liability for the remediation of drainage from abandoned hard rock mines.  EPA’s program, however, does not encompass coal mine drainage, which is the primary source of AMD in Pennsylvania.  Short of legislative changes to the Clean Water Act or CERCLA to protect operators from potential liability, an expansion of EPA’s initiative to encourage the use of AMD for hydraulic fracturing in Pennsylvania would provide greater confidence to the oil and gas industry that both state and federal agencies are willing to provide appropriate relief to encourage the use of AMD.

While it seems like a win-win-win for the environment, industry and the Commonwealth, it remains to be seen if workable solutions will be found to encourage the use of AMD while limiting long-term liability related to that use.

Here's a Suprise -- A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay

Posted on May 8, 2012 by Seth Jaffe

Yesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay. Pardon me if I seem to be posting a lot of dog bites man stories recently.

Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively, the scope of the benefit is worth noting. If trading were allowed basin-wide, and among both point and agricultural non-point sources, costs are projected to decrease by about 50% of the non-trading compliance costs.

Since I have faced this issue in Massachusetts, I found it even more noteworthy that, if trading were expanded to include regulated urban stormwater sources, compliance costs are expected to be reduced by about 80% over the non-trading scenario. The report’s explanation is both simple and cogent:

Implementing urban stormwater BMPs tends to be a much less cost-effective way of reducing nutrient loads than agricultural BMPs.

To which I say, you could have knocked me over with a feather. I just hope that EPA does not limit its review of this report to the Chesapeake Bay itself, but considers its implications more broadly in the context of stormwater regulation in other areas.

Ecosystem Services – A New Tool for Mitigating Water Development?

Posted on April 9, 2012 by Martha Pagel

The use of ecosystem services as a tool for compensatory mitigation is off to a slow start in Oregon.  It remains to be seen whether state agencies will effectively embrace and implement this relatively new approach to setting priorities and standards for mitigation programs. A specific question from the standpoint of water use and development is whether a wide range of ecosystem services can be used as an alternative to “bucket-for-bucket” in-stream flow replacement as mitigation to offset new water development.

The concept of ecosystem services – defined as “the benefits human communities enjoy as a result of natural processes and biodiversity” – has been recognized in Oregon law since 2009. (ORS 468.581(3)). The law establishes a general policy to support the maintenance, enhancement and restoration of ecosystem services in Oregon (ORS 468.583). Agencies are “encouraged” to use ecosystem services markets as a means to meet mitigation needs for various programs, and are directed to consider mitigation strategies that recognize the need for biological connectivity and ecological restoration efforts at a landscape scale rather than exercise an “automatic preference for on-site, in-kind mitigation” in making mitigation decisions (ORS 468.587(2)). See “Adventures in Water Quality Mitigation” for additional background.

Despite this policy and directive, the Oregon Water Resources Department (OWRD) has not yet taken any actions to modify its mitigation policies relating to issuance of new water right permits.  Under long-standing procedures, OWRD requires mitigation for new uses that are determined to have the potential to interfere with in-stream flows needed for fish that are listed as sensitive, threatened or endangered under state or federal programs.  (OAR Chapter 690, Division 33).

The need for mitigation arises most often in the context of reviewing applications for new ground water use. When the ground water source is determined to be in hydraulic connection to surface waters providing habitat for the listed fish species, mitigation may be required to offset the expected surface water depletion. Based on guidance from a biological opinion issued in a specific water right permit matter some years back, OWRD typically requires “bucket-for-bucket” mitigation in the form of in-stream flow restoration at or above the stream reach that will be affected by the ground water use. 

Applicants generally obtain mitigation water by acquiring and cancelling other existing water rights for surface water use.  In practice, the system results in a de facto cap and trade program, conditioning approval of new water rights on the cancellation of existing rights. 

In a few regions of the state – most notably the Deschutes Basin in Central Oregon – the bucket-for-bucket replacement approach works because mitigation water is generally available through voluntary markets.  This somewhat unique set of circumstances arises because of population growth and land use changes in an area of relatively marginal farming productivity.  As farm lands are converted to housing and urban uses in and near the cities Bend, Redmond and Prineville, the existing water rights become available for mitigation purposes.

In other parts of the state – most notably the highly productive and water-efficient farming region in the mid-Columbia Basin – the fact situation is quite different.  There is very little mitigation water available because existing water rights are needed to maintain existing agricultural production levels.  The frustration for economic development interests is exacerbated by the enormous volume of flow in the Columbia River and huge reservoir pools created by the federal hydropower system, both of which are untouchable because of the regulatory limitations on new withdrawals.   

The issue of ecosystem services as a potential alternative for mitigation took center stage briefly in the 2012 legislative session – but the discussion resulted in no action. HB 4126 would have spurred availability of ecosystem services markets by focusing on improved methodologies for quantifying and applying ecosystem services “credits.” Another bill that was hotly debated but eventually died in committee was focused directly on the Columbia Basin problems.  HB 4101 would have required OWRD to “consider new mitigation options for new surface water diversions” in the Columbia River Basin. The mitigation wording was specifically intended to open the door for alternatives to the “bucket-for-bucket” approach.  By putting the ecosystem services concept to work, mitigation alternatives could reasonably include investment in high value habitat restoration, including temperature reduction or other water quality improvements in priority tributaries to offset direct withdrawals from the Columbia River. 

For many of us directly involved in the Columbia River debates in Oregon, this new approach could be a key to unlocking access to the river for new economic use.  Without this policy change, Oregon water uses will continue to see little or no new irrigation development in the area because of the lack of traditional mitigation sources.  The Governor and legislative leadership are already working on a revival of the HB 4101 discussion in 2013.

The Sackett Effect

Posted on April 6, 2012 by Paul Seals

On Friday, March 30, the United States Environmental Protection Agency (“EPA”) announced that the agency was withdrawing its December 7, 2010 Imminent and Substantial Endangerment Administrative Order (“AO ”) issued unilaterally to Range Resources Corporation and Range Resources Production Company (“Range”).  With much fanfare and national media attention, EPA issued the AO to address the contamination of two water wells in North Central Texas.  EPA alleged that the source of the contamination was from Range’s oil and gas activities, including hydraulic fracturing, in the Barnett Shale Formation.  Range has challenged EPA’s action with pending litigation in the Northern District of Texas and in the Fifth Circuit.  Was EPA’s decision to withdraw its AO an outgrowth of the recent unanimous Supreme Court decision in Sackett v. EPA?

In addition to ordering replacement water supplies to the recipients of water from the affected water well, the AO included the requirements that Range study a twenty-county aquifer, identify gas flow pathways anywhere within that aquifer regardless of their source, and prepare a plan to eliminate those flows and remediate any area of the aquifer that has been impacted by gas from any source.  Range was to identify and sample all private water wells within 3,000 feet of their two suspect gas wells, as well as all the water wells serving a subdivision in Parker County.  Range informed EPA that it disputed the validity of the AO and would not comply with some of its terms.

In addition to Range’s challenge to the AO, the Railroad Commission Texas, the state agency with sole jurisdiction and responsibility for the control and disposition of waste and the abatement and prevention of pollution of surface and subsurface water resulting from oil and gas activities, called a hearing to consider whether Range’s operations caused or contributed to the contamination of the water wells in question.  Based on the evidence presented at the hearing, conducted on January 19-20, 2011, the Railroad Commission found that the contamination of the water wells came from the shallower Strawn gas field, which begins about 200 to 400 feet below the surface.  Geochemical gas testing demonstrated that the natural gas seeping into the water wells did not match the gas produced by Range from the much deeper Barnett Shale field, which is more than 5.000 feet below the surface in that area of Parker County.  The evidence showed that hydraulic fracturing of gas wells in the area could not result in communication between the Barnett Shale gas field and the shallow aquifers from which water wells in the area produce.  EPA chose not to participate in the state hearing process.

EPA brought a civil enforcement action in the Northern District of Texas against Range on January 18, 2011, Case No. 3:11-cv-00116-F, seeking injunctive relief and civil penalties for Range’s failure to comply with the AO.  Range filed a petition for review on the AO with the 5th Circuit on January 20, 2011, Case No. 11-60040, challenging the AO and the constitutionality of the AO statutory scheme as interpreted and applied by EPA.

The district court in its Order Denying Without Prejudice Defendants’ Motion to Dismiss and Staying Case, 2011 WL 2469731 (N.D.Tex.), struggled with EPA’s claim that it only has to prove noncompliance with the AO and the Court has no jurisdiction to review the factual and legal basis of the AO. The Court found that the AO was a final agency action, but stayed the case pending the 5th Circuit decision.

The issues before the 5th Circuit included whether the AO was final agency action and, if so, has Range been provided due process. Oral argument was considered on October 3, 2011.

On March 21, 2012, a unanimous Supreme Court held in the Sackett case that AOs issued under the Clean Water Act constitute final agency action. Under the Administrative Procedure Act, Respondents, like Chantell and Michael Sackett, are afforded pre-enforcement review of the factual and legal basis of the AO and may bring a civil action under the APA to challenge the AO.

Given the opinion for a unanimous Supreme Court in the Sackett case, EPA must have felt less than enthusiastic about its prospects in the pending Range cases. On Friday afternoon, March 30 with no fanfare and limited media attention, EPA announced the withdrawal of the Range AO. In a letter to EPA on the same date, Range confirmed the withdrawal of the AO and a related joint stipulation to dismiss EPA’s enforcement action and committed to sample twenty private water wells located in southern Parker County on a quarterly basis for one year, a substantial reduction in the scope and magnitude of the terms in the AO.

EPA’s hasty dismissal of the Range case raises some interesting questions. Did EPA agree to withdraw the Range AO in order to minimize the litigation risk of establishing pre-enforcement review rights of respondents to unilateral AOs under the Safe Drinking Water Act?  How extensive will the Sackett case be applied to unilateral AOs authorized under other non-Clean Water Act statutes administered by EPA and other federal agencies? What are the implications to EPA’s ability to react quickly to bonified public health emergencies? Will Congress need to overhaul statutory AO provisions to avoid the problem confronted in Sackett?

The Process Continues: Savannah Harbor Expansion Project (SHEP)

Posted on August 1, 2011 by Drew Ernst

The deepening of the Savannah Harbor, now estimated to cost $588 million, was conditionally approved in part when Congress passed the Water Resources Development Act of 1999 (“WRDA99”). Those conditions included finalizing an environmental impact statement for the project as well as other supporting studies and completion of the permitting process. The act also required the selected plan for this project, which is known as SHEP, to be jointly approved by the Secretary of Interior, the Secretary of Commerce, the Administrator of the Environmental Protection Agency, and the Secretary of the Army, pursuant to § 101(b)(9)(B(ii) of WRDA99.

On April 15, 2010, I posted a blog entitled “In Search of Mitigation” on the ACOEL website (see Archives) which outlined the history and need for SHEP, as well as various proposals for mitigating the project’s adverse environmental impacts. A Draft Tier II EIS and Draft General Re-Evaluation Report for SHEP were released in November 2010. The public comment period closed in January of 2011 and the Corps of Engineers has been analyzing comments and undertaking additional studies.

Because of the unique language in WRDA99, EPA, U.S. Fish and Wildlife and NOAA individually have a “kill switch” (a term coined by Savannahians) on key issues regarding SHEP. Fish and Wildlife is concerned that the proposed five years of post-construction monitoring is not adequate, and that ten years of monitoring should be required to ensure that proposed mitigation procedures are working. As discussed in my earlier posting, SHEP incorporates an Adaptive Management Plan (“AMP”) which in itself is somewhat unique. The AMP, one of the first ever implemented for a harbor project, is designed to evaluate whether the measures undertaken to mitigate adverse impacts are performing as predicted and provide for changes to those mitigation measures if needed. And it's worth noting that those mitigation measures represent a very substantial share of the total project costs - 41.6 percent according to a March 2011 update from the Corps.

Of great concern to Fish and Wildlife is preservation of areas of tidal freshwater marsh found in the Savannah National Wildlife Refuge adjacent to the Savannah harbor. Fish and Wildlife also wants a guaranty that the money will be readily available to implement the AMP if mitigation measures need to be modified during post-construction monitoring. Mitigation efforts will include acquisition of freshwater wetlands across from and upriver of the Savannah National Wildlife Refuge (approximately 2,680 acres of wetland preservation) to replace freshwater acres which will be lost in part to increased salinity as a result of future rising tides, whether or not SHEP is implemented.

NOAA also remains concerned about SHEP’s impacts, particularly on the endangered shortnose sturgeon. Many of NOAA’s concerns could be alleviated if an out of service lock and dam system located upriver in Augusta, Georgia, were removed. However, such action would not be popular with residents in and about Augusta who use the impoundment for recreational purposes. EPA, in turn has requested a better explanation from the Corps of the impacts of harbor deepening on future harbor growth and on increases in air pollution and other collateral impacts.

Watching every move the agencies make is the Southern Environmental Law Center (“SELC”) and the Coastal Conservation League. Both have threatened to sue if their environmental concerns are not resolved. SELC advocates a systematic by the Corps that would include consideration of all ports located on the Eastern Seaboard as “alternative sites” in order to determine which port best warrants deepening after considering environmental impacts and construction costs at each location.

Another player to watch is South Carolina, which shares the Savannah River as a common boundary with Georgia. South Carolina appears to be doing everything it can to stop or slow down SHEP in an effort to protect the competitiveness of the Port of Charleston.

Given the size of SHEP and its potential impacts, we can expect that other parties may join the action, and I in turn expect to be reporting again on SHEP as the project progresses into its second decade.

 

Maryland Issues Notice of Intent to Sue for Pennsylvania Fracking Fluid Release

Posted on July 26, 2011 by Chester Babst

The increasingly controversial issues surrounding the extraction of natural gas by “fracking” took an unusual turn on May 2, 2011 when the Attorney General for the State of Maryland notified Chesapeake Energy Corporation and its affiliates of the State’s intent to sue for violations of the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”). The notice letter followed from the alleged release of “thousands of gallons” of hydraulic fracturing fluids (“frack fluids”) from the failure of a natural gas well located in Bradford County, Pennsylvania on April 19, 2011. The frack fluids reportedly entered Towanda Creek, a tributary of the Susquehanna River, which eventually flows into Maryland and empties into the Chesapeake Bay. According to the May 2, 2011 press release from the Attorney General’s office, “at the close of the required 90-day notice period, the State intends to file a citizen suit and seek injunctive relief and civil penalties under RCRA for solid or hazardous waste contamination of soils and ground waters, and the surface waters and sediments of Towanda Creek and the Susquehanna River. The State also intends to seek injunctive relief and civil penalties under the CWA for violation of the CWA's prohibition on unpermitted pollution to waters of the United States.” The press release noted that “the Susquehanna River supplies drinking water for approximately 6.2 million people and sensitive fish populations like the American shad and striped bass are moving into the Susquehanna flats at this time of year. Exposure to toxic and carcinogenic chemicals in unknown quantities creates a risk of imminent and substantial endangerment to humans using Pennsylvania and Maryland waterways for recreation and to the environment.”


The notice of intent to sue is another example of the increased scrutiny directed toward hydraulic fracturing activities associated with the Marcellus Shale, an enormous geological formation underlying much of Pennsylvania and portions of West Virginia, Ohio and New York. Hydraulic fracturing refers to the process by which water, sand and a limited amount of chemicals are injected into a rock formation to fracture it, allowing the natural gas to be released and extracted. Much attention has been directed toward the chemicals used during the fracking process. U.S. EPA recently issued its plan to study the effects of fracking, with the initial report due in 2012 and the final report due in 2014. It also issued information requests earlier this month to six large natural gas producers in Pennsylvania, asking for information regarding how wastewater will be recycled or disposed. In addition, plaintiffs’ lawyers and citizens have begun filing toxic tort claims for alleged property damages and personal injuries caused by fracking, and Marcellus Shale activities in general.


Bradford County is located in north central Pennsylvania and borders New York State. The prospect of a suit by Maryland for a release in Pennsylvania at a significant remove from Maryland raises many novel issues, not the least of which is the question of standing.

Supreme Court to Give Unilateral Administrative Orders a Constitutional Checkup

Posted on July 22, 2011 by Donald Fowler

Yesterday, Ted Garrett posted a blog on the Supreme Court’s grant of certiorari in Sackett v. EPA, 2011 WL 675769 (No. 10-162, June 28, 2011) which involves appeal of an EPA enforcement order under the Clean Water Act (CWA). His blog notes that the Court declined to review a similar appeal brought by GE under CERCLA. In an earlier blog post I summarized that GE petition which posed the following questions with respect to CERCLA’s unilateral administrative order (UAO) provisions:

  1. Does a UAO’s imposition of either significant response costs or significant decreases in a PRP’s stock price and credit rating constitute a deprivation of property under the Due Process Clause?
  2. Does CERCLA’s UAO scheme impermissibly coerce compliance in violation of the Due Process Clause by conditioning any judicial review of a UAO upon the threat of treble damages and fines that accumulate at EPA’s sole discretion?

Given the Supreme Court’s denial of the GE petition on June 6, 2011, it is somewhat surprising that the Court granted certiorari on June 28 in the Sackett appeal where the issues to be considered are:

  1. May Petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. §704?
  2. If not, does Petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the due process clause?

 

Sackett v. EPA, S. Ct. No. 10-1062. In fact, that second question, which was drafted by the Court itself and not by the Sackett petitioners, is uncannily similar to the second issue raised in the GE petition. What’s going on here?


The facts in Sackett are these. Mr. and Mrs. Sackett bought a small parcel of property – roughly ½ acre – near Priest Lake, Idaho for the purpose of building a house. Although the lots on either side were undeveloped, the lots between the Sacketts’ property and the lake were developed with permanent structures, and the entire area was a built out area zoned for residential use, with sewer hookups and local building permits. The Sacketts began earth moving work with permits in hand, only to receive an order from EPA pursuant to the CWA telling them that they had illegally filled jurisdictional wetlands and that they were required not only to cease further filling but to remove the prior fill and replant the area with indigenous wetland plants. The effect of the order was to preclude any development of the Sacketts’ property.


Upon receiving the order, Mr. and Mrs. Sackett asked EPA to conduct an administrative hearing to contest whether their property in fact contained wetlands within EPA’s jurisdiction. When EPA ignored their request, the Sacketts sued EPA, challenging EPA’s exercise of jurisdiction. EPA moved to dismiss, arguing that pre-enforcement review of compliance orders is precluded by the CWA. In response, the Sackett’s argued that they were entitled to seek review of EPA’s exercise of jurisdiction under the Administrative Procedure Act (“APA”). The district court agreed with EPA, reasoning that pre-enforcement review of administrative compliance orders is barred by the Clean Water Act’s statutory scheme and that preclusion of pre-enforcement review did not violate the Sacketts’ due process rights.


On appeal, the Ninth Circuit affirmed. It held, first, that review under the APA is not available where the relevant statute precludes judicial review, and – though the CWA does not expressly preclude review of administrative compliance orders – it found a clear intent to preclude such review in the statutory scheme. In so holding, the Ninth Circuit joined the ranks of the four other circuit courts that have considered the question, as well as the majority of district courts that have ruled on the issue.


The court then considered and rejected the Sacketts’ due process argument. The Sacketts had argued that, absent pre-enforcement judicial review, their only avenue to judicial review was to defy the order and await an EPA enforcement action. That course of action, however, carries with it the risk of large daily civil penalties (up to $37,500 per day) and potential criminal sanctions as well – in short, penalties so onerous as to foreclose access to the courts as a practical matter in violation of Ex Parte Young, 209 U.S. 123 (1908), and its progeny. The Ninth Circuit nonetheless found the consequences of noncompliance with a CWA order were not so onerous as to create a constitutionally intolerable choice for two reasons:

 

  • First, the court concluded that the Sacketts could avoid potential penalties by applying for a permit to fill their property and then immediately appeal the agency’s permit denial to district court. Setting aside the oddity of a proceeding to contest a permit denial where the primary argument is that the agency lacked jurisdiction to issue the permit in the first place, the Court’s conclusion ignores two important practical realities – (1) EPA and the Corps of Engineers typically will not act on a permit application while a compliance order is outstanding, and (2) as the Supreme Court observed in Rapanos v. U.S., 547 U.S. 715,721 (2006), the permit application process typically takes years to conclude and costs the applicant hundreds of thousands of dollars, none of which is likely to be reimbursable even if the applicant later prevails on its jurisdictional challenge.
  • Second, the court noted that the award of civil penalties is ultimately committed to judicial, not agency, discretion and that a court must take into account a wide range of equitable factors in determining the amount of the penalty. Thus, the Ninth Circuit reasoned, the Sacketts can refuse to comply and have their day in court before any penalties are assessed. However, absent some guarantee that no penalty will be assessed where an order recipient has presented a substantial, good faith, albeit unsuccessful, challenge to the order, the fact that it will be a court, rather than EPA, that considers whether to assess potentially ruinous civil penalties offers scant comfort to folks in the Sacketts’ position.

Against this backdrop, the Supreme Court granted certiorari. There had been some indication in recent decisions that the Court was interested in revisiting Ex Parte Young, which has received scant attention in many decades. See, e.g., Free Enterprise Fund v. Public Accounting Oversight Board, 130 S. Ct. 3138, 3151 (2010) (“[w]e normally do not require plaintiffs to ‘bet the farm by taking the violative action’ before ‘testing the validity of the law,’” citing Ex Parte Young). But why this case and not GE’s challenge to CERCLA’s UAO provisions? Two differences between the CWA and CERCLA may provide an explanation. First, section 106(b)(1) of CERCLA permits imposition of penalties for violations of a UAO only where the violation (or failure to comply) is willful and “without sufficient cause.” The CWA contains no similar “defense”, which the government argued in the GE case was a constitutionally significant escape clause under Ex Parte Young. Second, Section 106(b)(2) of CERCLA gives a UAO recipient who chooses to comply with an unlawful order the opportunity to seek reimbursement of its costs of compliance, at least in certain circumstances. Again, the CWA contains no such provision, and again the government argued in the GE case that the reimbursement provision had constitutional significance. Whether or not those differences do, indeed, rise to constitutional significance, it is true that they would have made the constitutional analysis in the GE case more complicated than in Sackett.


Of course, the Court may well avoid the due process issue in Sackett by ruling that the CWA does not preclude pre-enforcement review. Should it reach the due process issue and decide in favor of petitioners, however, its opinion will bear close examination, as it may have significant implications for recipients of administrative compliance orders under CERCLA, the Clean Air Act, and many other statutes.


Watch this space.
 

Supreme Court to Review Lawfulness of EPA Enforcement Orders

Posted on July 21, 2011 by Theodore Garrett

The U.S. Supreme Court will hear a lawsuit challenging the constitutionality of EPA compliance orders under the Clean Water Act. Sackett v. EPA, 2011 WL 675769 (No. 10-162, June 28, 2011). The petition for a writ of certiorari was granted to consider: “(1) whether petitioners may seek pre-enforcement judicial review of the order pursuant and (2) if not, does the unavailability of such review violate petitioners’ rights under the Due Process Clause?” Because of EPA’s broad authority to issue orders under the Clean Water Act and other statutes, the Sackett case will be of broad interest to environmental lawyers.

The facts are as follows. The Sacketts graded a lot in a residential subdivision in order to build a home. Thereafter, EPA issued an order to the Sacketts claiming that they violated the Clean Water Act by filling a wetland without a permit. The order directed the Sacketts to remove the fill, replace lost vegetation, and monitor the site for three years. The Sacketts did not agree that their property was a wetland and asked EPA for a hearing, which EPA allegedly ignored. The Sacketts then filed suit demanding an opportunity to contest the basis for the compliance order, which was dismissed by the district court. The Ninth Circuit affirmed the dismissal on appeal, holding that the Clean Water Act precludes review of pre-enforcement actions, such as compliance orders. The Ninth Circuit rejected the Sackett’s due process argument, noting that the Sacketts can raise their defenses if and when EPA seeks to enforce the compliance order in federal court.

The Sackett’s petition for certiorari argues that the Ninth Circuit’s decision leaves property owners like the Sacketts in an impossible situation: “either go through with the permit process that you believe is completely unnecessary and spend more money than your property is worth to "purchase" your chance at your day in court; or invite an enforcement action by EPA that may give you your day in court but only at the price of ruinous civil penalties and, depending on EPA's ire, criminal sanctions for underlying violations of the CWA.”

The Sackett case raises significant issues applicable to the Clean Water Act that may have implications for other environmental statutes such as the Clean Air Act under which EPA may issue enforcement orders and that do not expressly bar pre-enforcement review.

General Electric unsuccessfully challenged EPA’s use of enforcement orders issued under CERCLA. Although the Supreme Court declined to review the GE case, CERCLA practitioners will be interested to see if the Court’s opinion has implications for EPA Superfund orders. Stay tuned.

Permit as Shield Against Environmental Claims Under State Tort Law - At Least in the Fourth Circuit

Posted on July 20, 2011 by Allan Gates

In the 1980s a group of Vermont landowners challenged the legality of a New York paper mill’s wastewater discharges into Lake Champlain. The Vermonters argued that the paper mill’s discharges in New York constituted a nuisance because of the injuries they caused in Vermont. They sought monetary damages and injunctive relief under Vermont tort law. The paper company argued that the discharges from its mill were authorized by its NPDES permit, and the company contended that the Clean Water Act preempted state tort claims of this sort – at least when the tort claims challenged conduct authorized by a permit issued pursuant to the Act. The U.S. Supreme Court sided with the Vermont landowners, but with a twist. The Court held that the Clean Water Act preempted tort claims based on Vermont law against a source permitted in New York, but it did not preempt tort claims based on New York law, the law of the state where the source was permitted. The Court rejected the notion that the paper mill’s permit was a complete shield against all state law tort claims. The Court reasoned that the savings provision of the Clean Water Act left New York free to impose legal restrictions under state law –including state tort law— that were more stringent than the requirements of the Clean Water Act. International Paper Co. v. Ouellette, 479 U.S. 481 (1987).


For more than twenty years following the Supreme Court’s decision in Ouellette, the law on this question seemed well-settled: federal environmental statutes do not preempt the state tort law of the “source” state; and permits issued under federal environmental programs do not provide a shield against tort claims based on the law of the source state. The recent decisions in the Second Circuit and the Supreme Court in American Electric Power v. Connecticut did not disturb this view of the law because the tort claims in AEP were based on federal common law, not state law of the source state.

A recent decision in the Fourth Circuit has turned the seemingly well-settled view of the law on its head. The Fourth Circuit’s decision arose out of a suit by the State of North Carolina against TVA. North Carolina claimed that NOx and SOx emissions from TVA coal-fired electric generating stations located in Tennessee and Alabama were causing health problems and other environmental damage in North Carolina. The state alleged that TVA’s emissions constituted a public nuisance under the tort law of the states where the facilities were located; and North Carolina sought injunctive relief requiring the prompt installation of more advanced emissions controls than required by the facilities’ air permits. The district court ultimately found TVA liable and ordered injunctive relief with respect to the four TVA facilities closest to North Carolina. In a remarkably strident decision, the Fourth Circuit reversed the district court and remanded with instructions to dismiss the case. North Carolina v. TVA, 615 F.3d 291 (4th Cir. 2010).


The Fourth Circuit’s opinion examined at length the regulatory structure created by the Clean Air Act and concluded that Congress intended to preempt state tort law claims of the sort asserted by North Carolina, even when those claims were based on tort law of the source state. In so holding, the Fourth Circuit made no attempt to distinguish Ouellette. Nor did it suggest that the Clean Air Act differed in any material respect on this point from the statute involved in Ouellette, the Clean Water Act. Indeed, the Fourth Circuit repeatedly cited those portions of the majority opinion in Ouellette which found that Vermont law was preempted, but the Fourth Circuit largely ignored the portion of Ouellette which held New York tort law to be intact and available.


The Fourth Circuit also concluded, ostensibly as an independent ground for its decision, that the district court erroneously applied North Carolina law rather than the law of the source states. One cannot help but question the strength of the court’s conviction in this conclusion, however, because the proper remedy for application of the wrong state’s law would be to remand the matter for further consideration based on the correct state law, not to direct dismissal of the action as ordered by the Fourth Circuit.


The Fourth Circuit also found that even if the district court did apply the correct state law, it reached the wrong conclusion. According to the Fourth Circuit, it was inconceivable that the source states would have concluded that the TVA facilities in question constituted a nuisance since those states had issued permits allowing TVA to operate in the manner challenged by North Carolina. The Fourth Circuit’s opinion on this point relied on Alabama and Tennessee cases which held that conduct expressly authorized by law would not constitute a nuisance; but the Fourth Circuit did not address the savings clauses in the Alabama and Tennessee environmental statutes, nor did it discuss decisions in those states which held that environmental permits did not block nuisance claims under their respective state’s laws.

North Carolina filed a petition for certiorari. Amici briefs in support of the petition were filed by the American Lung Association, the American Thoracic Society, Defenders of Wildlife, National Parks Association, Parks Conservation Association, Natural Resources Defense Council, Sierra Club, a group of environmental and administrative law professors, and the states of Maryland, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, and Vermont. Among other things, the petition argued that the Fourth Circuit’s decision was contrary to Ouellette and conflicted with decisions in the Second and Sixth Circuits. Not surprisingly, North Carolina’s cert. petition attracted significant attention from those who follow the Supreme Court docket. In the end, however, the Supreme Court will never have a chance to act on North Carolina’s petition for certiorari. After repeated extensions of the time for it to respond to the cert petition, TVA entered into a settlement with North Carolina and other parties that resolved the merits of North Carolina’s claims. As part of the settlement, North Carolina agreed to withdraw its petition for certiorari.


The net result for Ouellette is that the Fourth Circuit’s opinion North Carolina v. TVA is left standing as a significant obstacle to any environmental tort claim that challenges activities authorized by an environmental permit, even if the tort claim is based on the law of the source state. Stated differently, environmental permits may now serve as shields against all tort claims, including claims based on the law of the source state, despite the presence of any savings provisions in the state and federal environmental statutes in question.


As a minor footnote, the Fourth Circuit’s revisionist treatment of Ouellette is particularly ironic because the author of the Fourth Circuit opinion, Judge J. Harvie Wilkinson, once served as a law clerk to Justice Lewis Powell, the author of the majority opinion in Ouellette, and even wrote a flattering memoir of his clerkship entitled Serving Justice.

New Flow Control Decision in New York Examines Constitutionality of Ordinance

Posted on June 28, 2011 by Karen Aldridge Crawford

The United States District Court for the Northern District of New York recently took at least a small bite out of the legacy established by the 2007 U. S. Supreme Court decision in United Haulers Association v. United Herkimer Solid Waste Management Authority which first allowed flow control by a county under the unique circumstances set forth in that case.

Emboldened by the 2007 decision, several counties in various states have enacted flow control ordinances that require solid waste to be disposed only at county owned facilities. Not surprisingly, private waste management companies have systematically challenged those laws. In JWJ Industries, Inc. and Jeffrey Holbrook v. Oswego County, 5:09-CV-0740 (NPM/DEP) (N.D.N.Y. June 13, 2011), the district court addressed the narrow question of whether the flow control ordinance adoped by Oswego County was unconstitutionally vague and overbroad, both on its face and as applied. As an initial matter, the court, citing to United Haulers, noted that "the County was unquestionably within its right to implement a flow control ordinance directly affecting the operation of [Plaintiffs' facility]." However, after subjecting the ordinance to the two-pronged analysis set forth in Thibodeau v. Portuondo, 486 F. 3rd 61 (2d Cir. 2007), the court determined that the ordinance was unconstitutionally vague.

The Second Circuit in Thibodeau set forth two independent grounds recognized by the U.S. Supreme Court to determine whether a law is so vague as to deny due process of law:

 

  1. Fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct the law prohibits.
  2. Authorizes or even encourages arbitrary and discriminatory enforcement.


Applying this two-pronged analysis, the court in JWJ Industries determined that the ordinance at issue failed both prongs. As to the first prong, the court found specifically that portions of the ordinance were contradictory and could be read to both require and prohibit the same exact actions, while also prohibiting inaction. As to the second prong, the court determined that the ordinance failed to take JWJ’s status or prior existence into account, providing no explicit standards on how it would treat existing private transfer facilities or processing facilities within the county; that scrutiny of letters and directives from the County and its director of solid wastes revealed that the flow control ordinance in question authorized and encouraged arbitrary and discriminatory enforcement; and that such arbitrary enforcement was manifest. Accordingly, the Court granted Plaintiffs' motion for judgment on the pleadings, set aside the ordinance as unconstitutionally vague and otherwise dismissed the case.

Of note, the court also admonished the county, stating that, if the county government was basing its ordinance on a template obtained from elsewhere or was adopting an ordinance from another municipality (which often is done), it needed to at least try to conform the law to the conditions in that specific county.