Looking for an outlet? The EVs are Coming, the EVs are Coming!

Posted on February 2, 2021 by Samuel I. Gutter

On January 29, General Motors stunned the vehicle world by announcing that by 2035, its goal is to phase out all vehicles powered by internal combustion engines, selling only zero-emission cars and trucks.  Given the long lead time to develop new vehicles and bring them to market, that is a stunningly short timeframe.

Why would GM make this bold move?  Is it to stay a step ahead of California and federal regulators who, in the Biden administration, will continue to push emission reductions?  Perhaps in part, but the core reason is simple:  competition.  Governments around the globe are legislating future bans on fossil fuel cars, most notably China, which has mandated that most vehicles be powered by electricity in 15 years. And China plans to make many of those vehicles itself.  At least six Chinese manufacturers are introducing EVs in Europe, with eyes on the U.S.  German manufacturers like Porsche are selling electric vehicles, and Toyota and other Asian-based manufacturers have cars in development.  Here at home, Ford is pushing its new all-electric Mustang.  In simple terms, GM doesn’t want to miss out.

That’s not the only force driving the electrification of the fleet.  Consumer demand is leading to more sales.  To disclose, when my family gathers it looks like a Tesla showroom.  My wife was an early adopter, still driving her 2015 Model S.  One daughter owns a Model X and the other drives a Model 3.  As we and other owners will tell you, electric vehicles are a hoot to drive:  they’re absurdly fast off the line or accelerating onto the highway, and they’re quiet and loaded with technology.  Ranges of close to 500 miles are coming to the market, and fewer moving parts (including no transmissions) means less maintenance.

The Biden administration is leaning into the EV market, as well.  Among other initiatives, President Biden has ordered that all vehicles purchased for the large federal fleet will soon be U.S.-made electric vehicles.

Other impediments are falling.  The argument that electric vehicles just shift pollution to coal-fired power plants wanes as renewable energy generation expands.  And while Tesla has its own network of proprietary charging stations, companies like Electrify America – funded by the VW defeat device settlement – are launching thousands of universal chargers nationwide.

Is the coming EV boom bad for Tesla?  Perhaps, but recall that in 2014 Tesla took the extraordinary step of opening its patents to other manufacturers.  Elon Musk might be one weird dude, but his vision of a world-wide fleet of commercially viable cars and trucks is becoming real within his lifetime.

What a Difference a Day Makes

Posted on January 26, 2021 by Brian Rosenthal

Co-authored by Brian Rosenthal and Timothy Webster

On Day One, the 46th President of the United States signaled his focus on climate, the environment, and energy in executive orders, official correspondence, and memoranda.  In a few strokes of his pen, the President undid much or all of what his predecessor had done, also largely by executive order, and cast into doubt many of the prior administration’s environmental and energy policies and rules.

As has been widely reported, the new administration’s Day One executive actions established and implemented a broad range of policy objectives, several of which were environmental, that immediately start to make good on some of the commitments of candidate Biden during his campaign and President Biden in his inaugural address:

While unable to change substantive rules, the administration’s memorandum “Modernizing Regulatory Review” weaves themes together of environmental justice and equality. It supports the administrative agencies recommending steps for “improving and modernizing regulatory review” in order to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”  Among other things, this memorandum order seeks to review the regulatory process by 

(i) identifying ways to modernize and improve the regulatory review to reflect current science and economics considerations even where “difficult or impossible” to measure; and 

(ii) considering the regulatory impact on disadvantaged communities.

Similar themes are presented in the administration’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government.”  The order imposes equitable assessment benchmarking across agency programs to examine barriers in and to federal programs. 

Perhaps the boldest order for environmental lawyers was President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”  The order directs executive agency heads to review hundreds of agency actions implemented during the Trump Administration, including more than 120 related to energy and the environment.  In addition, the order suspends or revokes, in whole or in part, nearly one dozen Executive Orders issued by the prior president that were directly tied to energy infrastructure.

The order includes the phrases “listening to science” and “holding polluters accountable.”  It also emphasizes reviewing all regulations of the last administration for disproportionate effects on low-income areas.  Parenthetically, as noted in Seth Jaffe’s Law & the Environment Blog—the line between legitimate environmental concern based on cost benefit and NIMBY reactions is narrow but must be drawn.   

Opposition has already been expressed to many of these measures, several of which will surely spur litigation.

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Posted on January 25, 2021 by Seth Jaffe

Last week, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

keystone pipeline protestors in silhouette with man holding ‘NO XL’ sign (XXXL)

Why start here?

Well, it’s a big deal, any way you look it.  It’s pretty much the end for large fossil fuel pipeline construction in the US.  According to Bloomberg (subscription required), here’s what Alan Armstrong, CEO of the Williams Companies, had to say about it:

"I can’t imagine going to my board and saying, ‘we want to build a new greenfield pipeline’. “I do not think there will be any funding of any big cross-country greenfield pipelines, and I say that because of the amount of money that’s been wasted."

OK.  But there’s also another reason why this is important. Creating a new, renewable electricity grid is going to require substantial new transmission capacity.  In terms of direct impacts, there isn’t necessarily much difference between siting a pipeline and siting a transmission line.  They can both cause damage to wetlands and endangered species.

The difference between them is simple and stark.  Fossil fuel pipelines lead to greater GHG emissions, while new transmission is necessary to reduce GHG emissions.  And so much for the Trump administration’s efforts to minimize consideration of indirect impacts from infrastructure projects.  It’s all about the indirect impacts!

It can be a fine line between one person’s NIMBY and another person’s legitimate environmental concerns.  I sure hope we figure out how to assess environmental costs and benefits in infrastructure siting sooner rather than later, or that grid we’re all counting on to deliver zero-carbon electricity won’t be there when we need it.

Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

There’s a First Time for Everything

Posted on January 21, 2021 by Robert M Olian

Anyone with even a passing interest in environmental law has seen numerous articles over the past four years noting the Trump administration’s efforts to roll back this or that environmental regulation. ACOEL’s blog contains dozens of such posts, and the New York Times is probably not far behind. The NYT aptly reflected the thrust of most such commentary in a recent article:

“All told, the Trump administration’s environmental rollbacks could significantly increase greenhouse gas emissions over the next decade and lead to thousands of extra deaths from poor air quality each year, according to energy and legal analysts.” (emphasis added)

“Environmental rollbacks lead to extra deaths” was a story line long before there was ever a Trump administration, of course, but never, until now, have I seen the reverse, namely “extra deaths lead to environmental rollbacks.”

On January 17, 2021, California’s South Coast Air Quality Management District issued Executive Order 2021-01, which notes:

  • “… the current rate of deaths in Los Angeles County is more than double that of pre-pandemic years ...”;
  • "… the growing backlog of cremation cases within the county constitutes a threat to public health …”; and
  • “… permits issued by South Coast AQMD and currently in effect for human crematoria contain limits on the number of cremations … that may be cremated each month ….”

SCAQMD then proceeded to roll back the permit limits on crematoria (on a temporary basis).

Normally I’d now offer a snarky comment, but this is all just so sad that I can’t bring myself to write it, so you’re on your own.

EPA’s Ozone NAAQS Decision — Perhaps the Statute Itself Deserves Some of the Blame

Posted on December 28, 2020 by Seth Jaffe

Last week, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb.  I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS.  After all, only one decision can be the single worst environmental policy of an entire administration.

I’m not that close to the science on the ozone NAAQS, but I have the sense that the ozone evidence is just more of the same in the past four years; it’s nothing like the seeming flood of evidence we’ve seen concerning the risks of PM2.5 at sub-NAAQS exposures.  We do need to remember that there was some substantial evidence in 2015, when EPA adopted the 70 ppb standard, that there are risks at concentrations below 70.

The real question is what we mean by an “adequate margin of safety.”  As I have previously noted, this is really a policy question, not a scientific question.  On the other hand, it’s not an infinitely malleable concept and it’s pretty clear that questions of background or the cost-effectiveness of the controls necessary to get to a level below 70 ppb are not relevant to whether a NAAQS set at an particular level in fact attains an “adequate margin of safety.”  The adequate margin of safety is what it is; whether we as a society want to spend the money necessary to ensure that there is an adequate margin of safety is a different question.

Conceptually, I understand why Congress made the choice that it did.  Let’s first answer the scientific question regarding what level is “safe.”  Then we can figure out how we get to that “safe” level and whether society is prepared to spend the money to do so.  Unfortunately, the structure of the Clean Air Act – not to mention the state of our politics in 2020 – doesn’t permit a rational discussion regarding the policy choices that flow from the “how safe is safe” decision.

And so we end up with what’s supposed to be a scientific question becoming infected with implicit policy questions, which perverts the answer to the scientific question.  From a legal point of view, it’s the conservative justices, who say that they care about what words Congress actually uses in writing legislation, who should be the quickest to reverse both Trump NAAQS decisions.  From a purely etymological point of view, it’s difficult to conclude that either the PM2.5 NAAQS or the ozone NAAQS currently protect the public health with an adequate margin of safety when there is substantial – even if not definitive – evidence that there is significant morbidity and mortality associated with exposures below the current NAAQS.

Do I expect the current conservative Supreme Court majority to do as I suggest?  No, but it would not be a bad litigation strategy for the public health advocates who will inevitably challenge both decisions to focus really sharply on just how much flexibility there can be in the definitions of the words in the phrase “adequate margin of safety”.

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Posted on December 10, 2020 by Seth Jaffe

On Tuesday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually.  That hardly seems consistent with the Clean Air Act, which requires that NAAQS be set at the level requisite to protect public health “with an adequate margin of safety.”

As the Trump administration winds down, I think we can start the discussion of the single worst environmental decision made in the last four years.  There’s a lot of competition, and I welcome reader submissions, but for my money, this may well be it.

I understand that there is discussion among the Biden transition team regarding how much to prioritize action to lower the PM2.5 NAAQS.  At some level, it’s a heavy lift, because a lot of work goes in to revising a NAAQS.  The administration may conclude that its climate efforts will address particulate matter as a co-benefit.  That would certainly be true, but the NAAQS are important.  To me, they are still the core of the CAA.  That should be particularly true as a heightened focus on environmental justice emphasizes the link between environmental issues and public health.  Many of those tens of thousands of excess deaths take place in EJ communities.

Retaining the existing PM2.5 NAAQS – worst environmental decision ever by the Trump administration.  And that’s saying a lot.

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

Posted on December 7, 2020 by Seth Jaffe

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue.  It went on to review the decision by the North Dakota Department of Health, which concluded that the emissions should be excluded and CCMC did not require a permit.  The Court held that the NDDOH decision was entitled to deference, stating that:

"The process for NSPS enforcement would be significantly impaired if the state authority did not have the ability to make determinations based on application of given facts to the SIP and EPA framework."

There was a vigorous dissent by Judge Stras, who found it incomprehensible that a federal court would defer to a state agency interpretation of federal law.  In his pithy introduction, Judge Stras asserted that:

"Most Americans would be surprised to learn that state bureaucrats can play an even larger role than federal judges do in interpreting federal law."

I’m inclined to put a pox on the houses of both the majority and the dissent.  The problem with the majority is that it is too cavalier in asserting that, under the CAA’s cooperative federalism regime, states have the responsibility to implement the permitting regime.  That’s true, but it’s not obvious that the states get to make major interpretive decisions, such as what EPA’s own regulations actually mean.  I think that the majority also wrongly gives short shrift to the problem of inconsistent decisions being made by different delegated states.

On the other hand, Judge Stras relies on a mode of constitutional interpretation that is void of any basis in the Constitution or our political history.  He also seems far too quick to reach a constitutional question that should not even be at issue.  First, I think Judge Stras is correct that the regulation is not in fact ambiguous in these circumstances.  I would have found that, even if NHDOH was entitled to some deference, its decision that the emissions did not come from a coal processing plant was plainly wrong.

Second, the real solution, not discussed by the majority or the dissent, should have been that this case should not be a dispute between the authority of a federal court and a state agency, but a dispute between EPA and a state agency.  SCOTUS already ruled, in Alaska Dep’t of Envtl. Conservation v. EPA, that EPA has authority under the CAA to override state agency permitting decisions.  The plaintiffs should have asked EPA to override the NHDOH decision.  I don’t know why that did not happen here – perhaps it was because the plaintiffs assumed (probably correctly) that EPA would not rule against CCMC, since EPA had embarked on a mission to save coal.  Even if that were the case, however, the plaintiffs could then have appealed EPA’s decision to federal court and the case would have been presented in the proper way.

Finally, I’ll reiterate that this case really may be important.  Judge Stras is a Trump appointee and I wouldn’t be shocked if some of the recent appointments to SCOTUS were sympathetic to his arguments.  What makes the case really interesting is that those same judges are also those most sympathetic to the state side of cooperative federalism issues.

If this issue were to make it to SCOTUS, it would be fascinating to see if Justice Gorsuch rules for the coal company, because federalism gives decisional authority to the states, or for the plaintiffs, because the Constitution precludes state agencies from interpreting federal law.

As a lawyer I once dealt with was fond of saying, “that’s what makes a horse race!”

HAS THE TIME COME FOR A GREENHOUSE GAS NAAQS? LAW STUDENTS WILL ARGUE THE ISSSUE AT THE 33RD ANNUAL NATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

Posted on November 19, 2020 by Karl Coplan

One thing that is clear from the 2020 election: the Senate will remain closely divided, with slim majority control to be determined by the two January Senate runoff races in Georgia. President Elect Biden has announced the most aggressive climate policies of any major party climate candidate ever, but the prospects of achieving these goals through climate legislation are slim as long as Republicans maintain majority control or a bare Democratic majority lacks the votes to eliminate the filibuster (or to vote in strong greenhouse gas emissions controls). The likely continued lack of legislative action on climate is refocusing attention on measures EPA can take under existing Clean Air Act (CAA) authorities.

One potent EPA option in the Clean Air Act toolkit is the authority to add greenhouse gases  (GHGs) to the CAA § 108 list of criteria pollutants. A pollutant is eligible for listing as a criteria pollutant once EPA has found that that the pollutant “may reasonably be anticipated to endanger public health or welfare.” EPA made that finding for GHGs back in December, 2009, when the Obama administration invoked CAA § 202 to regulate new motor vehicle GHG emissions based on the identical endangerment criteria of § 202. Environmental groups 350.org and Center for Biological Diversity filed a petition with EPA, also in December 2009, demanding that EPA list GHGs as a criteria pollutant. But the Obama administration chose not to invoke the NAAQS program for GHGs, fearing the severe regulatory repercussions. Once EPA lists a criteria pollutant, it must propose primary and secondary National Ambient Air Quality Standards (NAAQS) within twelve months (§§108, 109), and establish final NAAQS within another ninety days (§ 109). Promulgation of final primary NAAQS triggers a three-year compliance deadline for states – after which States risk loss of all federal highway funding and EPA imposition of emissions control measures within the State. And since no State could realistically meet this three-year deadline for a climate protective GHG NAAQS, adoption of the primary NAAQS would be a recipe for draconian federal enforcement measures.

Fearing this regulatory morass, the Obama administration chose to put the U.S. on track to meet its Paris Agreement climate goals through a combination of motor vehicle mileage standards, new source standards, and invocation of CAA § 111(d) authority to require States to develop Best Systems of Emissions Reductions standards for existing power plants through a combination of emissions reductions, renewable energy development, and regional trading systems. EPA called this the “Clean Power Plan.” EPA’s § 111(d) authority for the Clean Power Plan was sufficiently uncertain that the Supreme Court took the unprecedented action of enjoining the implementation and enforcement of the Clean Power Plan before any judicial challenge actually reached the Court. The Trump administration withdrew the Clean Power Plan in favor of much weaker plant-by-plant GHG emissions controls.

Unlike § 111(d) authority, EPA’s authority to list GHGs as a criteria pollutant could not be more textually clear. Indeed, the phrasing of § 108 seems to make a pollutant’s listing mandatory upon a finding of endangerment, directing that EPA “shall” list, as a criteria pollutant, a pollutant that “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.” 

A 1976 Second Circuit case, NRDC v Train, held that § 108 imposes a mandatory obligation on EPA to list a pollutant as a criteria pollutant for the CAA Title I NAAQS program once it has made a determination that pollutant may present an endangerment to public health or welfare under the Title II provisions governing motor vehicle emissions. The facts of Train are highly analogous -- EPA made the endangerment finding for lead additives in fuel but had not planned to list lead as a criteria pollutant. Until the court ordered it to do so.

Would a court apply Train to order EPA to list GHGs as a criteria pollutant subject to the NAAQS? What if a hypothetical 2009 petitioner for a GHG NAAQS tried to enforce that theory in court? That’s the question presented in the 33rd running of the 2021 Jeffrey G. Miller National Environmental Law Moot Court Competition, to be conducted by the Elisabeth Haub School of Law at Pace University in February and March, 2021. You can view the problem here. Due to COVID restrictions, all rounds up to the Final Round will be conducted virtually this year. This may be a climate blessing in disguise, as running the competition as a virtual event will vastly reduce the travel related carbon emissions associated with the competition. This year’s virtual event may provide a template for the more climate friendly moot court competitions of the future. Licensed attorneys can sign up to judge here (CLE credit is available).

NASA Satellite Data May Provide A Glimpse into the Future

Posted on May 12, 2020 by Todd E. Palmer

NASA's Earth Observing System Project gathers data from a fleet of satellites orbiting the planet.  This system of satellites is playing an increasingly important role in measuring air pollution and informing regulatory policy on a global scale. Dr. Tracey Halloway at the University of Wisconsin – Madison leads the NASA Health and Air Quality Applied Sciences Team (HAQST) which is doing extensive research in this area.   HAQST is staffed by air quality and public health scientists from government offices and universities across the country. Their wide-ranging projects include measuring and tracking global pollution levels, climate change indicators, and regional haze.  HAQST has created a website summarizing available satellite resources which can be accessed by stakeholders and the general public for making better informed air pollution policy decisions. I encourage those of you with an interest in this area to explore the research being undertaken by this group.

Most recently, NASA released satellite data documenting the dramatic reduction in nitrogen dioxide (NO2) emissions measured in the United States since shelter-in-place orders went into effect to quell the COVID-19 pandemic.  This data was collected from instruments on NASA's Aura and the European Space Agency's Sentinel-5 satellites. NASA has compared the average levels of ambient NO2 experienced in the United States between March 2015 through 2019 with those experienced in March 2020.  The comparison is striking:

These reductions, ranging from 30% to 50%, correlate with the significant decline in the combustion of fossil fuels during the pandemic, primary in mobile sources. Similar reductions where observed in China when it cracked down on combustion sources in advance of the 2008 Olympics.  This data provides a glimpse into what might be achieved if the United States were to adopt more aggressive policies encouraging alternative fueled vehicles and expanded renewable energy generation. However, the dire financial impacts associated with these reductions must also be considered as we contemplate the implications of the emission data gathered during this unusual situation. 

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

EPA Remains the “Anti-Environmental Protection Agency”; Wheeler Refuses to Tighten the PM 2.5 NAAQS

Posted on April 16, 2020 by Seth Jaffe

After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined.  Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3

In the long-gone days prior to January 2017, this would be short and easy.  The Clean Air Science Advisory Committee would have said that the current standard is not protective.  NGOs and states would have sued, the D.C. Circuit would have vacated EPA’s decision, and even a right-leaning Supreme Court probably would not have thought it necessary to hear a further appeal.

Now, however, the Chair of CASAC doesn’t believe that epidemiology provides a basis for setting NAAQS and CASAC recommended keeping the current standard.  What happens when EPA’s owns science advisors don’t believe in science?  And what happens when the most outcome-based Supreme Court in living memory lies in wait?

I truly don’t know.  I suspect that the D.C. Circuit, depending upon the panel, might still find a decision to keep the current standard to be arbitrary and capricious, but I would not count on the Supreme Court affirming that decision.

In the meantime, I am curious about Administrator Wheeler.  Does he really believe what he is saying or does he just not care that this decision will fairly directly lead to thousands of additional deaths?  As EPA’s proposed rule acknowledges, NAAQS are standards,

"the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health."

Greenwire reports that Administrator Wheeler told reporters that “there’s still a lot of uncertainty” surrounding the research supporting the lower PM2.5 NAAQS.  Of course, since the statutory standard requires “an adequate margin of safety,” one would have thought that the uncertainty supports more stringent standards, rather than less stringent ones. Indeed, ever since Ethyl Corp. v. EPA, courts have been clear that EPA must be prepared to regulate even in the face of uncertainty if it is to fulfill its mission to protect the public.

I may not be able to predict what the courts will do, but I’m confident that history will not treat this Administration kindly.  Over time, there is little doubt that the evidence against PM2.5 is only going to grow stronger.  However, by the time a future administration acts on that accumulated weight of data, thousands of people will have died needlessly.

Well done, Mr. Wheeler.

If You Thought That COVID-19 Was Bad, Try It Mixed With Some PM2.5!

Posted on April 9, 2020 by Seth Jaffe

Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating.  While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.

study released earlier this week by researchers at the Harvard T.H. Chan School of Public Health concludes that an increase in the ambient PM2.5 concentration of just 1 ug/m3 causes an increase of 15% in the death rate from COVID-19.  And lest you think that the results stem from other factors unique to New York City and other places particularly hard-hit by the virus, the authors took into account all of the obvious confounding factors, including:

"population density, percent of the population ≥65, percent living in poverty, median household income, percent black, percent Hispanic, percent of the adult population with less than a high school education, median house value, percent of owner-occupied housing, population mean BMI (an indicator of obesity), percent ever-smokers, [and] number of hospital beds."

A 15% increase in the COVID-19 death rate for a 1 ug/m3 increase in PM2.5 is an extraordinary result.  At some level, we knew it already, but let me summarize very simply.  PM2.5 is really, really, bad for you.

And so we come back to this administration.  I’ll pass over the enforcement discretion memorandum and focus instead on EPA’s apparent decision not to change the current national ambient air quality standard for PM2.5.  Of course, the current chair of the SAB doesn’t believe in basing NAAQS on epidemiological studies, but for those of us who still believe in science, this study certainly only strengthens the case for reduction in the PM2.5 NAAQS.

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

IMO 2020 – A Strikeout for Sulfur, but Black Carbon Is Still on Base

Posted on November 7, 2019 by Susan Cooke

Greenhouse gas (GHG) emissions from international shipping supposedly represent 2% to 3% of the world total, about on par with those emitted by Germany.  However, there are no GHG emission restrictions covering ships on the high seas.  Moreover, even the current limits on sulfur and NOx are far less stringent than those imposed in many developed countries, although things are about to change on the SO2 front.

That is about to change.  The International Maritime Organization (IMO), which is part of the United Nations, recently announced a new and more stringent standard, set forth in Annex VI  of the International Convention on the Prevention of Pollution from Ships (MARPOL).  On January 1, 2020, marine vessels must meet a 0.5% (by weight) sulfur-in-fuel standard or install scrubbers to meet that standard.  In addition, starting March 1, 2020, such vessels without scrubbers may no longer carry heavy fuel oil on board.  Even more stringent standards are already in place within so-called Emission Control Areas.  For example, there is a 0.1% sulfur-in-fuel limit for vessels operating within the territorial waters of Canada, the continental U.S., Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. 

Annex VI also contains provisions for lowering NOx emissions.  Marine diesel engines above 130 kW installed on a ship constructed on or after January 1, 2011 must meet so-called Tier II standards, and such diesel engines installed on vessels constructed on or after January 1, 2016 and operating in the U.S. and Canadian waters described above must meet the more stringent Tier III standards. 

It is expected that most vessels will utilize lower sulfur fuel rather than employ scrubbers.  This move away from residual fuel oil (known as heavy fuel oil or HFO) toward low sulfur blended intermediate fuels and lighter, more refined grades will have another salutary effect – a reduction in the emission of black carbon, the sooty material resulting from incomplete combustion of fossil fuel, which comprises a significant portion of particulate matter, an air pollutant.  And while black carbon has a lifetime of only days to weeks after its release into the atmosphere, its warming impact on climate, per unit of mass, is 460-1,500 times stronger than CO2.

In 2018 the IMO adopted an initial climate strategy targeting a 50% reduction in GHG emissions by 2050 from 2008 levels through a mix of proposed measures ranging from efficiency improvements to existing vessels, speed reductions, use of lower carbon fuels, methane and VOC emission controls, national action plans, and GHG reduction initiatives implemented at ports.  While black carbon is estimated to account for 7%-21% of the overall climate impact of international shipping, this initial strategy does not include any specific measures for reducing black carbon emissions.  However, an IMO subcommittee is now considering what action might be undertaken to address this pollutant beyond the ancillary effect of the new sulfur standard. 

One particular concern is the increased shipping anticipated in Arctic waters as ice recedes, and the deleterious impact of black carbon emissions from an increased number of vessels plying those waters.  Indeed, the impact of black carbon emissions is specifically noted in Par. 70, ANNEX 2, of the IMO Note regarding adoption of its Initial Strategy.   

A new ball game – or at least the warm-up for that game – is about to commence where various measures to control black carbon emissions will be tossed out for consideration.  While the winning strategy is expected to be several years in the making, one proposal garnering interest is the mandated use of distillate fuel in lieu of HFO, which can be paired with mandated use of diesel particulate filters to remove most of the black carbon.  But this strategy will be costly and may not make it to first base.  Consequently, in the inimitable words of Yogi Berra: “It’s tough to make predictions, especially about the future”.

Will The PM NAAQS Be the Real End of Agency Deference?

Posted on October 31, 2019 by Seth Jaffe

According to Bloomberg Environment (subscription required), EPA’s Clean Air Science Advisory Committee cannot reach agreement whether to recommend that the NAAQS for PM2.5 be lowered.  Even after two years, I guess I had not realized the extent to which the scientists relied on by this administration are willing to ignore what used to be generally known as the “scientific consensus.”

As I reported last month, EPA’s Office of Air Quality and Standards released a draft reassessment of the adequacy of the PM2.5 NAAQS.  The draft states that:

"The risk assessment estimates that the current primary PM2.5 standards could allow a substantial number of PM2.5-associated deaths in the U.S.

When taken together, we reach the preliminary conclusion that the available scientific evidence, air quality analyses, and the risk assessment, as summarized above, can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards."

Based on the analysis in the draft, it seemed obvious to me that EPA would have to lower the NAAQS to somewhere between 8.0 ug/m3 and 10.0 ug/m3.  I assumed and predicted that EPA would propose to lower the standard as little as possible, to 10.0 ug/m3. 

It turns out that four out of six members of EPA’s significant reconstituted Clean Air Science Advisory Committee think that the current standard should be retained.  I doubt that the American Lung Association will agree.

I have previously speculated, in connection with matters ranging from BLM standards for methane emissions on federal lands to the EPA/DOT decision on CAFE standards, that, if this administration consistently flouts the scientific consensus on appropriate regulatory standards, then, at some point, courts will stop deferring to agency “scientific” conclusions.  I now wonder whether the PM2.5 rule will be the breaking point.

It’s still more likely that a court would simply rule within the confines of existing jurisprudence that a decision by EPA to retain the current PM2.5 standard would be arbitrary and capricious, even given traditional deference.  However, I wouldn’t rule out the possibility that a court will at some point conclude that the administration has forfeited the deference it would otherwise have gotten.

When agencies just make up the science, Chevron seems almost beside the point.

COAL

Posted on October 8, 2019 by Donald Stever

My blog posts have, in the past, largely focused on this or that regulation or some legal development or other dealing with chemical regulation or environmental statutes or rules in general. This one is different.

I grew up in Pennsylvania coal country. Well, actually on the border between the coal mines on the Piedmont Plateau (CO2 precursors) and the big dairy farm (methane emitters) region in the wide valleys that stretched along the Allegheny Mountains. My father was a veterinarian. As a kid I was his unpaid assistant. One vivid childhood memory I have is of going down into a deep shaft coal mine with my father; I lay on my back in an electric rail car, traveling nearly a mile into the earth where my father was called to treat an injured mule. You see, mules pulled the coal cars from the active extraction shafts to the main mine shaft. Oh, and the mules were blind. They were blinded intentionally because (a) there was no light anyway and (b) they learned to know the labyrinth by senses other than sight. Then there was the coughing. The mules coughed. The miners coughed. All were covered with coal dust. My father returned to the mine from time to time. I demurred.

Which brings me to my point. When I retired from my full-time litigation-heavy law practice I started to read books, a pastime that I had largely been denied for lack of time during the fifty-odd years of environmental law practice. Not pulp novels. Mostly not “best sellers.” Nope. I read science-based books, many of which address the environment. Two of these dealt in part with the subject of coal.  Peter Brannen, in The Ends of the World: Volcanic Apocalypses, Lethal Oceans, and Our Quest to Understand Earth's Past Mass Extinctions, neatly explains the primary cause of the last five extinctions of nearly all life on Earth, discernable from analyses of geologic strata. The culprit? Carbon dioxide emitted by the combustion of coal (fossil vegetable matter accumulated over eons of time) caused by massive flows of volcanic magma which ignited enormous coal deposits, which in turn heated up the atmosphere, which in turn heated up and acidified the oceans. So, burning coal pushes carbon dioxide into the atmosphere, which traps solar heat, heats up the earth and oceans and every complex living thing (or almost every living thing) dies.

Sound familiar? In his most recent book, Falter, Bill McKibben points to irrefutable scientific analyses concluding that human combustion of coal and its cousin oil, abetted by human agricultural emissions of methane, is on track to raise carbon dioxide levels in the  atmosphere to a concentration that is higher than the carbon dioxide levels that triggered all of the prior mass extinctions.

I have to ask: are the Trumps and the Wheelers and the McConnells and their counterparts in Asia and South America who simply deny the obvious consequences of their refusal to deal with the issue of runaway combustion of fossil carbon unable to read? Obviously, they can read, but I dare say that inability to read would at least give them an excuse for denying my three-year-old granddaughter a habitable planet on which to live.

Singer-songwriter and distinguished member of the New Hampshire Bar John Perrault perhaps says it best in his song, Carbon the Garden:

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

Oh, the oceans in the kitchen and the desert’s at the garden gate.

Song lyrics by John Perrault © 2013 John Perrault

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Posted on August 23, 2019 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Whatever Happened to the Conservative Belief in Markets?

Posted on May 3, 2019 by Seth Jaffe

After receiving an analysis showing that shutting the Jim Bridger and Naughton coal-fired electric generating plants in Wyoming would save ratepayers money, PacificCorp, the owner of the plants, announced that it would shut the plants and the mines that supply them as early as 2022.  Mark Gordon, the Republican Governor of Wyoming is not happy.

According to Greenwire (subscription required), Gordon said that:

I will advocate for a positive path where this utility and others are part of developing solutions rather than destroying communities and delaying progress on meaningful technological advances that keeps coal as part of a diverse energy portfolio and also address climate change.  The potential for early retirements of some coal-fired power plants means we drift further away from finding solutions for reducing carbon emissions.  (Emphasis very much added.)

If we stop burning coal, we’ll never figure out how to reduce carbon.  Rats.  Why didn’t I think of that?

However, I’m not here to criticize Gordon for thinking that we need to burn coal in order to reduce CO2 emissions.  I’m here to criticize him for thinking that it is reasonable for the Republican-led government of Wyoming to criticize private companies for taking economically rational decisions to reduce costs for ratepayers.  Indeed, Wyoming has not just criticized PacificCorp.  Wyoming has apparently enacted legislation requiring a utility that wants to close a coal plant to search for a buyer.  It apparently also would require the utility to purchase electricity from such a new buyer, so long as it does not increase customer bills.

Since when did Republicans start second-guessing private sector economic decisions?  Conservatives should stop worrying about the green new deal and start worrying about socialism in Wyoming!

New UN Special Rapporteur Links the Right to a Healthy Environment to Air Pollution’s Deadly Impact Across the Globe

Posted on April 12, 2019 by Susan Kath

Professor John Knox, former UN Special Rapporteur for Human Rights and the Environment, began in 2012 to study the obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, as part of the United Nations Human Rights Council special procedures. When his two terms ended in 2018, he had mapped the statements of human rights bodies on human rights obligations relating to the environment, and produced thematic reports covering human rights obligations relating to climate change, biodiversity, and children’s rights. Knox also compiled more than 100 good practices in fulfilling those obligations and helped to establish a website for environmental defenders. His capstone contribution, the Framework Principles, identifies 16 principles relating to human rights and the environment and explains how existing human rights obligations should be applied in the environmental context.

The ultimate goal, UN recognition of the human right to a healthy environment, has now been put before the General Assembly by Knox’s successor, Professor David Boyd, who presented a comprehensive argument for the right to that body in the fall of 2018. Boyd, a champion of the right, will be vigorously campaigning for its recognition over the next three years, along with other projects for his mandate.

With the issuance of his most recent report in February, Boyd looks beyond the general right and focuses on the components of the right---in this case, the right to breathe clean air. Around the world, air quality is degraded by both ambient and household air pollution, with the adverse health effects highest in low- and middle-income countries. Notably, more than 90 percent of the world’s population lives in regions that exceed World Health Organization guidelines for healthy ambient air quality, specifically with respect to fine particulate matter (PM 2.5). What does this mean in real terms? It means that over 6 billion people, including 2 billion children, are breathing polluted air with adverse consequences: taken together, ambient and household air pollution contribute to 7 million premature deaths annually, including the deaths of approximately 600,000 children.  Unsurprisingly, most of those impacted are also the most vulnerable—women, children, the elderly, minorities, indigenous peoples and members of traditional communities, and people living in poverty.

So what does Boyd offer as the way forward? First, he observes that poor air quality has implications for an array of human rights: the rights to life, health, water, food, housing and an adequate standard of living. Second, he reaffirms the position advanced by Knox that States have obligations to protect the enjoyment of human rights from environmental harm. As embodied in Knox’s Framework Principles, that means States have procedural, substantive, and special obligations towards those in vulnerable situations. Third, he identifies the seven key steps that States must take in fulfilling the right to breathe clean air:

  • monitor air quality and impacts on human health
  • assess sources of air pollution
  • make information publicly available, including public health advisories
  • establish air quality legislation, regulations, standards and policies
  • develop air quality action plans at the local, national, and, if necessary, regional levels
  • implement an air quality action plan  and enforce the standard
  • evaluate progress and, if necessary, strengthen the plan to ensure that the standards are met

With each of these steps, States must fully inform the public and provide an opportunity to participate in the decision-making process. Businesses, a major source of air pollution, should comply with the UN Guiding Principles on Business and Human Rights and the Children’s Rights and Business Principles. Boyd also notes that special attention must be paid to environmental defenders engaged in activities to protect the right to clean air.

Boyd also explains that not all the news is bad, sharing a number of good practices, such as laws, policies, programs and initiatives that are lessening the impact of human rights violations caused by air pollution. These include establishing or improving air quality monitoring networks in places like Morocco and Azerbaijan and decreasing the proportion of households using solid fuels for cooking and heating in Latin America.

Boyd closes the report with a list of 20 recommendations that States should consider as part of their national air quality action plans, and he also implores us to act:  

The failure to respect, protect and fulfill the right to breathe clean air is inflicting a terrible toll on people across the world. The statistics presented in the present report depict a public health catastrophe, yet the numbers fail to capture the magnitude of human suffering involved. Each premature death, every illness and every disability afflicts an individual with hopes, dreams and loved ones. Air pollution is a preventable problem. The solutions-laws, standards, policies, programmes, investments and technologies-are known. Implementing these solutions will of course entail large investments, but the benefits of fulfilling the right to breathe clean air for all of humanity are incalculable.

Incalculable, indeed. And worth our collective effort to pursue at every level.

Carrying Coals to Newcastle … and Katowice

Posted on January 3, 2019 by Zach C. Miller

When Newcastle was the largest British exporter of coal, talk of “carrying coals to Newcastle” meant engaging in something senseless, superfluous, or foolish.  The Trump administration’s recent actions on coal use and climate change have taken the expression to new heights – or depths.

In June 2017, the Trump administration isolated the U.S. by making it the only country in the world to announce plans to withdraw from the 2015 Paris Agreement on climate change.  Last month the administration made things worse by its actions at the U.N. climate conference in Katowice, Poland – an historic, heavily polluted coal mining area.  Instead of joining the signatories to the Paris Agreement in negotiating the “rule book” for implementing that Agreement, the U.S. delegation presented a “side-event” (some say “side-show”) promoting the use of coal and fossil fuels.  Use of innovative, cleaner technologies to burn coal and fossil fuels would be laudable if combined with sound strategies to transition to cleaner, sustainable energy sources, but that was not the thrust of the side-show.  The coal “pep rally” in Katowice thus highlighted that the U.S., as represented by the current administration, is tone-deaf and no longer a leader in international climate discussions. 

The Trump administration staged a similar coal-booster event at the 2017 U.N. climate conference in Bonn, but with important differences.  In Bonn, U.S. representatives worked extensively with other countries on the Paris Agreement’s rule book, with an eye towards the U.S. possibly not withdrawing from the Agreement.  But most of the key Trump administration insiders who then favored staying in the Paris Agreement are now gone, including Secretary of State Rex Tillerson, national security advisor H.R. McMaster, energy adviser George Banks, and economic advisor Gary Cohn.  They’ve been replaced by Paris Agreement opponents:  Mike Pompeo, John Bolton, Wells Griffith, and Larry Kudlow.  As a result, the participation and influence of the U.S. in international climate discussions has become increasingly leaner, weaker and less relevant.

Meanwhile, at the G-20 Summit last month in Buenos Aires, countries led by France and China further isolated the U.S. when the Summit’s final communique stated that all 19 other countries “reaffirm that the Paris Agreement is irreversible and commit to its full implementation.”  The U.S. stuck out like a sore thumb by reiterating there its decision to be the sole nation to withdraw from the Paris Agreement, and instead touting “its strong commitment to economic growth and energy access . . . .”

These U.S. actions come directly on the heels of three significant studies, two from the Trump administration itself, that directly refute the administration’s positions.  The October 2018 Report of the U.N. Intergovernmental Panel on Climate Change warned that the world’s use of coal for generating electricity will need to be reduced dramatically by mid-century – from 40% down to 1-7% – to prevent catastrophic droughts, fires, floods, and storms resulting from climate change.  Then the recent report of DOE’s Energy Information Administration concluded that regardless of the climate debate, over 500 plants and 75 gigawatts of coal-fired power have been or soon will be retired and U.S. coal use is expected to continue to decrease (44% less than 2007 use), due mainly to market forces such as cheaper natural gas and renewable energy.  Finally, the November 26, 2018 Fourth National Climate Assessment – issued by 13 federal agencies and the Trump administration’s own White House – unequivocally states that climate change is already occurring, is partly caused by human activity, and must be urgently addressed to prevent catastrophic impacts.  President Trump’s only response to that overwhelming evidence from his own office: “I don’t believe it.” 

Why does this matter?  Two reasons.  First, if climate change is the severe and urgent problem virtually all climate scientists (and the White House’s own report) conclude it is, the failure of the U.S. to respond to it is an enormous and possibly irreversible blunder.  Second, taking such a position has caused the U.S. to cede its leadership role in the international debate on climate change and the design of creative and appropriate responses to it.  Because others – including China and Russia – are stepping into the resulting void and steering the direction of future actions in this and related environmental and economic fields, the U.S. may never recover that leadership role. 

The Trump administration’s Katowice side-show and similar superfluous actions may pander to the administration’s base.  But these senseless acts are merely “carrying coals to Newcastle” and accomplish nothing, while our most critical environmental problem goes unaddressed by the federal government.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

A Sliver of Hope for the Government’s Remaining NSR Enforcement Cases?

Posted on October 16, 2018 by Seth Jaffe

Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative.  The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.

However, the Court then surprised most observers by holding that expiration of penalty claims did not doom the government’s claim for injunctive relief.  Specifically, the Court ruled that the “concurrent remedies doctrine,” which bars equitable remedies when no legal remedy is available, cannot be applied to a sovereign.

I’m not going to provide an exegesis of the doctrine, which carries more than a whiff of Jarndyce v. Jarndyce.  I’ll settle for three points.  First, it may not be a legal doctrine, but I’d apply the doctrine of common sense, rather than the doctrine of concurrent remedies.  Given that all courts agree that NSR does not impose ongoing operational requirements, it doesn’t even make sense to me to think of ongoing forward-looking injunctive relief with respect to a one-time violation that may have occurred twenty years or more ago.

I’ll add to that a related point.  As other NSR cases have noted, many of these facilities have changed hands since the projects at issue were constructed.  In those cases, the former owners aren’t subject to injunctive relief, because they don’t own the facilities and thus have no ability to install BACT.  The new owners aren’t subject to injunctive relief, because they did not violate the Clean Air Act.  In these circumstances, are we really going to make the availability of injunctive relief subject to the random circumstance of which facilities have been sold and which have not?  That just seems nuts.

Finally, I’ll emphasize that EPA and DOJ shouldn’t get too excited over this decision.  The Court was very clear that it was not deciding whether injunctive relief was appropriate, only that it wasn’t barred by the statute of limitations.  The Court’s language was unlike any I’ve ever seen before and is worth a read:

On remand, the district court must further consider whether any equitable relief is appropriate and proper under the legal and factual circumstances of this case in which the legal relief has been time barred. We recognize that we are not giving the district court much guidance in this task. … Perhaps the answer to this knotty question of injunctive relief will reveal itself after a full hearing and the presentations of the parties. And we hope that we are not being too cowardly when we sincerely wish the district court good luck.

And I’m sure that the District Court will appreciate the 5th Circuit’s good wishes.