Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

Posted on April 13, 2017 by Seth Jaffe

On Tuesday, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations.  The Court found that EPA had no statutory authority to exempt AFOs from the reporting regulations.

The decision is also important because it is another in a recent line of cases regarding the extent of agency authority to interpret statutes.  The issue was whether EPA had authority to exempt smaller AFOs from reporting requirements, on the ground that it could not:

foresee a situation where [it] would take any future response action as a result of such notification[s].

Although EPA did not explicitly justify its rule on de minimis grounds, the Court understood EPA to be making a de minimis argument and analyzed the rule in that context.  The Court concluded that EPA had not justified a de minimis exception, because:

an agency can’t use it to create an exception where application of the literal terms would “provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.”

Here, the Court found that there were benefits to requiring reporting without a de minimis exception.  That was enough to vacate the rule.

It is worth noting the concurrence from Judge Janice Rogers Brown, who agreed that EPA had overstepped, but was concerned about the panel opinion’s summary of Chevron as being focused on whether the agency’s interpretation is “reasonable.”  Stoking the anti-Chevron flames, Judge Brown wrote to make clear that the “reasonableness” inquiry does not apply at step one of Chevron.  Ever-vigilant, she wants to be certain that courts do not abdicate their duty to state what the unambiguous language of a statute means.

I don’t have any problem with that.  Phase I of Chevron is an important bedrock principle.  If there’s no ambiguity, there’s no deference.  However, it’s worth noting that Judge Brown also stated that:

an Article III renaissance is emerging against the judicial abdication performed in Chevron’s name.

Notwithstanding the congressional discussion of this issue, I remain skeptical that any such “Article III renaissance” is occurring.  One concurrence from one appellate judge who happens to be named Gorsuch does not a renaissance make.

Of course, the really important part of Judge Brown’s concurrence was her citation to Luck Be a Lady, from Guys and Dolls, the greatest musical of all time.

Trump’s “Tortured” Maneuvering Can Be Legal Maneuvering

Posted on April 11, 2017 by Richard G. Stoll

Bob Sussman is a former high-ranking Obama and Clinton EPA official with a stellar academic and professional background.  He recently published in Inside EPA a thought-provoking piece entitled “Trump’s Tortured Maneuvering on Climate Change.”

No matter what your views on climate, Bob’s piece is worth reading.  I find much to agree with in Bob’s observations, but would respectfully disagree with one. 

Focusing on the president’s March 28 Executive Order (EO), Bob raises the valid question of why Mr. Trump touted it on job-saving, energy independence grounds.  Bob makes a strong case (as if he really needed to) that coal mining jobs are dwindling due to market forces and that the U.S. energy outlook is just fine. 

Bob posits that Trump’s job-energy independence focus reveals a divide and major discomfort within the Administration on whether and how much to deny that humans are involved with climate change.  He notes that the March 28 Order side-steps any position on both the “Endangerment Finding” and the Paris Accords.   

So far so good.  My respectful disagreement relates to Bob’s argument that the Trump EPA would have a difficult time sustaining major cutbacks to the Obama Clean Power Plan (CPP) on judicial review.  He speculates that a new Trump CPP might simply retain “building block 1” (plant efficiency improvements) from the 3-block “beyond-the-fenceline” Obama CPP.  He argues that “the courts may well balk at this approach as a contrived effort to duck the challenge of climate change by taking refuge in narrow legal arguments.”

Here is why I disagree:

a.  Following the 2007 Supreme Court Massachusetts ruling and EPA’s subsequent Endangerment Finding, EPA is not required by the Clean Air Act (CAA) to issue GHG rules with any particular degree of stringency – EPA must just issue rules.

b.  The “beyond-the-fenceline” features of the Obama CPP are based upon truly adventurous interpretations of the words of the CAA.  There is certainly nothing in the CAA that requires those interpretations.  (Recall the U.S. Supreme Court has taken the unprecedented step of staying the Obama CPP throughout the entire judicial review process.)  Even if the D.C. Circuit were to uphold these interpretations, it would only be upholding the Obama EPA’s discretion to adopt them; the Court could not rule that such interpretations were mandated by the CAA.

c.  The Supreme Court and D.C. Circuit case law are clear on the following points:

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

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

See my recent ACOEL blog for the citations to the cases.

d.  Because the statutory interpretations supporting beyond-the-fenceline requirements are so adventurous (and stayed by the Supreme Court), it should be easy for the Trump EPA to defend a new CPP as a matter of policy based on CAA interpretations that are far less adventurous.

e.  If and when the new CPP reaches the Supreme Court, it is difficult to see the Court departing from the precedents of the cases cited in my ACOEL blog, particularly with Justice Gorsuch filling Justice Scalia’s seat.

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Posted on April 6, 2017 by Seth Jaffe

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there.  It also noted that courts are particularly deferential when reviewing agency scientific determinations.  Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding?  Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks?  Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Just asking.  It’s purely a hypothetical, of course.

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

The Conservative Uphill Slog for a Carbon Tax

Posted on February 9, 2017 by Seth Jaffe

Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!).  It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.

Here are the highlights:

  • A gradually increasing carbon tax, starting somewhere around $40/ton.
  • Return of all revenue from the tax to citizens through dividend checks.  The CLC predicts that the 70% of Americans with lowest income would receive more in dividends than they would pay in taxes.
  • Border carbon adjustments.
  • Elimination of existing carbon regulations.  It’s not clear what this would cover, but it would include at least the Clean Power Plan.  It would also include elimination of tort liability (presumably limited to tort liability related to claims concerning climate change).

I’d sign up for this today, but I’m not exactly one of the people that needs convincing.  According to GreenWire (subscription required), former Secretary of State James Baker, who led the public presentation of the report, acknowledged that attaining enactment of the proposal would be an “uphill slog.”  I think that’s putting it mildly.  The CLC members are basically a who’s who of the old-line GOP mainstream – precisely the types that President Trump appears to have consigned to the dustbin of history.

Nonetheless, hope springs eternal and we have to start somewhere.

The NSR Regulations Still Make No Sense: The 6th Circuit Reverses the DTE Decision Based on a 1-Judge Minority Opinion

Posted on January 17, 2017 by Seth Jaffe

Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations.  According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.

One might well be surprised by the result, but the result itself is not the most surprising part of the case at this point.  What’s really surprising is that the United States won the case even though only one of the three judges on the panel agreed with EPA’s position.

How could such a thing happen, you might ask?  Here’s the best I can do.  Judge Daughtrey, author of the panel opinion, believes that EPA has the authority to second-guess DTE’s estimates if they are not adequately explained.  Judge Rogers disagreed and dissented.  Judge Batchelder also disagreed with Judge Daughtrey’s views, pretty much in their entirety.  However, Judge Batchelder concluded that she had already been outvoted once, in the first 6th Circuit review of this case and she felt bound to follow the decision in DTE 1.  The law remains an ass.  

Even were Donald Trump not about to nominate a Supreme Court justice, I’d say that this case is ripe for an appeal to the Supreme Court and, if I were DTE, I’d pursue that appeal vigorously and with a fairly optimistic view of my chances.

And once again, I’ll suggest that the very fact that the NSR program can repeatedly thrust such incomprehensible cases upon us is itself reason to conclude that the entire program is ripe for a thorough overhaul – or perhaps elimination.

For PEAT’s Sake! Another Pathway Averting Climate Change

Posted on December 1, 2016 by Nicholas Robinson

After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times  (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere.  Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.

Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.

Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.

Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore.  Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.

Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.

Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions.  Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain. 

Some countries are taking steps to limit disturbance of peat deposits.  Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming.  Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions  of carbon dioxide from mining peat for use in compost remain at 400,000 tons.  To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats.  Peat is protected in federal parks lands of Alaska.

Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally.  Emission-trading schemes can help finance transitions from peat abuse to peat preservation.

Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change.  Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity.  Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases.  Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.

United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.”  It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.

This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.

Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030.  For peat’s sake, let us get on with it.

Trump’s Impact on Environmental Law? Let the Speculation Begin!

Posted on November 15, 2016 by Seth Jaffe

What will a Trump Presidency mean for environmental law?  trump-climateI’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:

  • It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules.  I don’t see Clean Air Act amendments happening.  Significant amendments might be possible to the Endangered Species Act and Superfund.
  • Changing regulations is more difficult than one might think.  As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives.  For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it.  The Clean Power Plan is another matter.  All Trump needs there may be a new Supreme Court Justice.
  • The easiest target is executive orders.  The social cost of carbon?  Toast.  Guidance on incorporating climate change into NEPA?  Toast.

Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.

Trump Presidency?

Deep-six the Clean Power Plan

Goodbye to winter

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

Posted on October 6, 2016 by Seth Jaffe

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.

Coming Soon to a Jurisdiction Near You—Mandatory Radon Testing?

Posted on October 3, 2016 by James B. Witkin

Starting October 1, 2016, Montgomery County, Maryland, requires that before a single family home is sold, it must be tested for radon.  The law applies both to existing homes and newly constructed homes being sold for the first time. The law permits either the seller or buyer to perform the test, but both parties must receive a copy of the results, and the test must be performed using a County-approved device. The law does not require that action be taken, or any remediation be performed, regardless of the test results.

Radon hasn’t been in the news much recently, so here’s the CliffsNotes summary: radon is a naturally occurring, odorless and colorless gas that results from the decay of certain radioactive soils and rocks, including uranium and radium.  Those substances are present in many areas of the country, including those that have never had a working uranium mine (such as Montgomery County, Maryland, which abuts Washington, DC). People exposed to high levels of radon are at a higher risk for lung cancer, especially if they also smoke. According to the National Cancer Institute’s website, radon is the second leading cause of lung cancer in the United States, and scientists estimate that 15,000 to 22,000 lung cancer deaths in the United States each year are related to radon.

Although the EPA has established guidance levels for radon--currently the agency suggests that people consider taking action if the level of radon in their home exceeds 4 picocuries per liter (pCi/L) of air--there are no enforceable federal radon law laws, and a quick review of state and local laws did not reveal any other jurisdictions that require testing or abatement.  Some laws do require disclosure if the seller of a home has knowledge of the presence of radon.  The Montgomery County mandatory testing law appears to be one of the first—if not the first--in the nation.

So why is Montgomery County a radon pioneer?  The County is affluent, its population  well educated, its politicians usually progressive, and as it is home to offices of agencies such as National Institutes of Health (NIH), and National Oceanographic and Atmospheric Administration (NOAA), it has been generally been receptive to environmental concerns. While the County is classified by the EPA as being located in an area with the highest potential for radon (compared to the rest of the country), radon has not been much in the local news.

At the Federal level, in 2015, a number of federal agencies and some private groups (including the American Lung Association) launched the National Radon Action Plan, a long range strategy with the goal (among others) of mitigating 5 million high radon homes by 2020. Still, in the country as a whole, publicity and awareness about radon appears relatively low, compared to other environmental health issues, such as the public water crisis in Flint, Michigan.

So:  is the Montgomery County radon law a harbinger of things to come nationally, or it is an outlier?  Take a deep breath, then take a guess. 

RGGI Is a Success Story. When Will It Be Obsolete?

Posted on September 29, 2016 by Seth Jaffe

When RGGI rggilogo2was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model, to be the laboratory of a GHG allowance system.  The hope was certainly that RGGI would succeed its way into obsolescence.  Surely, by 2016, there would be a federal statutory basis for GHG regulation.

It’s now September 2016 and a federal statutory basis for a GHG trading system remains a seemingly distant hope (this post is definitely not about the Clean Power Plan).  We may still be waiting, but we do at least have substantial data from the laboratory that is RGGI.  In fact, yesterday, RGGI released its analysis of The Investment of RGGI Proceeds through 2014.  Some highlights:

  • Power sector GHG emissions have decreased by more than 45% since 2005, while regional GDP has increased by about 8%.
  • The total value of RGGI investments reached $1.37 billion through 2014.
  • Energy efficiency has taken up 58% of RGGI investment. The report states that the expected return is $3.62 billion in lifetime energy bill savings.
  • Clean and renewable energy make up 13% of investments, with an expected return of $836 million in lifetime energy bill savings.

One can quibble with these numbers.  They don’t really provide a reliable comparison to what would have happened in the absence of RGGI.  Nonetheless, it’s pretty clear that RGGI does work.  We can reduce GHG emissions without giving up on economic growth, and we can use the regulatory process to move our energy economy where it needs to be.

Now, if someone could just figure out a way to make RGGI obsolete, that would be true success.

EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited

Posted on September 21, 2016 by Seth Jaffe

On Monday, EPA promulgated amendments to its “Exceptional Events” Rule.  The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS.  EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS.  The change is important for two reasons.  First, on the merits, EPA noted that:

"the “but for” criterion has often been interpreted as implying the need for a strict quantitative analysis to show a single value … of the estimated air quality impact from the event. As a result, some air agencies began using burdensome approaches to provide quantitative analyses in their exceptional events demonstrations to show that the event in question was a “but for” cause of a NAAQS exceedance or violation in the sense that without the event, the exceedance or violation would not have occurred. In many cases, the “but for” role of a single source or event is difficult to determine with certainty and it is more often the case that the impact of emissions from events and other sources cannot be separately quantified and distinguished."

I think that EPA got this exactly right.  As tort professors have always known, how a burden of proof is allocated is often outcome-determinative.

Which brings me to the second reason why the change is important – at least to me.  Just hearing the words “but for” causation triggers an uncontrollable wave of nostalgia.  In 1996, my client, New England Telephone, was keetenroberternesttnawarded summary judgment in a CERCLA contribution case.  It was then the first – and may still be the only – case in which a defendant who admittedly sent hazardous substances to a site was awarded summary judgment on the ground that its wastes had not caused the incurrence of any response costs.

I like to think that NET prevailed due to the fine lawyering of its counsel, but I have always known in my heart of hearts that the identity of the judge may have had something to do with the result.  The case was heard by Robert Keeton, distinguished judge, Harvard Law professor and – importantly – one of the authors of Prosser and Keeton on Torts.

At the summary judgment hearing, Judge Keeton did not want to hear from me, even though it was my motion.  He did not really even want to hear from the plaintiffs’ counsel.  Instead, he launched into an approximately 30-minute lecture on the role of causation in tort law, including, of course, a discussion of “but for” causation.  When he finished the discussion from Prosser and Keeton about the so-called “Minnesota fire cases”, Judge Keeton paused, looked up, smiled broadly, and said:  “I wrote that part.”

It was the best summary judgment argument I ever gave.  I never said a word.

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Posted on September 8, 2016 by Seth Jaffe

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source.  However, other types of facilities will get no comfort from the decision.

Helping Hands Tools involved a challenge to a PSD permit issued to Sierra Pacific for a cogeneration plant to be located at one of its existing lumber mills.  Under EPA’s BACT Guidance, Sierra Pacific stated that the purpose of the CoGen plant was to use wood waste from the mill and nearby facilities to generate electricity and heat. Relying in part on the 7th Circuit decision in Sierra Club v. EPA, which held that it would impermissibly redefine the source to require a mine-mouth coal generating plant to consider different fuels in its BACT analysis, the 9th Circuit found that EPA was reasonable in determining that, because a fundamental purpose of the CoGen plant was to burn wood waste, it would impermissibly redefine the source to require Sierra Pacific to consider solar power as part of its BACT analysis.

Importantly, the Court also rejected the plaintiffs’ request that Sierra Pacific consider greater use of natural gas.  The Court concluded that very limited use of natural gas for the purposes of startup, shutdown, and flame stabilization did not undermine the fundamental purpose to burn wood waste.  This is critical to source-located biomass facilities, because EPA’s GHG Permitting Guidance specifically says that greater use of an existing fuel should be considered in the BACT analysis:

"unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility."

Unfortunately, the language of the decision appears to me to give EPA substantial leeway in future BACT analyses to redefine the source in other cases.  It seems to me that, building on the 7th Circuit decision, the Court has simply created an exception to potential source redefinition in circumstances where the location of the facility justifies a very narrow fuel selection.  If a coal plant intends to burn coal from the mine next door, ok.  If a lumber mill intends to burn its own wood waste, ok.  Otherwise, however, all bets are off.

What is particularly troubling was the Court’s acknowledgement that the GHG BACT guidance is vague, and its deference to EPA’s application of its own vague guidance. This is precisely the concern I noted when the Guidance was first issued.  Time will tell, but I foresee some fairly extreme BACT determinations being blessed by some very deferential courts.

Flatulence Isn’t Super fun(d)

Posted on September 2, 2016 by Peter Hsiao

Do air emissions of pollutants constitute a “disposal” under the federal hazardous waste laws?  The Ninth Circuit said “no” in Pakootas, et al. v. Teck Cominco Metals, Ltd. based upon its reading of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  The decision both sets important precedent and showcases the judicial process to discern legislative intent when a statute’s plain language is stressed by an unusual fact pattern.  If air pollutants can create CERCLA disposals, then emissions from any stationary or mobile source, including animal emissions of methane (which is considered a pollutant subject to CERCLA by EPA), may be the basis of cleanup liability.

The decision involves a smelter located just north of the border with British Columbia.  An earlier decision in that case held that a foreign-based facility can be liable under CERCLA for slag discharges into a river running to the United States.  Plaintiffs then alleged the facility arranged for disposal by emitting hazardous air contaminants which were carried by the wind and deposited in Washington State.  The district court denied a motion to dismiss and certified the matter for immediate appellate review.

Reading the plain language of CERCLA, the Ninth Circuit found that “a reasonable enough construction” of the law would be that the facility “arranged for disposal” of its air pollutants.  No legislative history or EPA rules shed light on this subject.  However, the Court concluded it was not writing on a blank slate.  Noting that CERCLA incorporates the definition of “disposal” from the Resource Conservation and Recovery Act (RCRA), the Court cited its prior decision in Ctr. for Cmty. Action and Envtl. Justice v. BNSF Rwy. Co., which held that diesel particulate emissions “transported by wind and air currents onto the land and water” did not constitute “disposal” of waste within the meaning of RCRA.  To be a disposal, the solid or hazardous waste must first be placed into or on any land or water and thereafter be emitted into the air.  The Court also cited its en banc decision in Carson Harbor Vill., Ltd. v. Unocal Corp., holding that passive migration was not a disposal under CERCLA. 

The Court thereby found that arranging for “disposal” did not include arranging for air “emissions.”  This interpretation of “disposal” was largely consistent with CERCLA’s overall statutory scheme.  The Court expressed concern that plaintiffs’ more expansive reading would stretch CERCLA liability beyond the bounds of reason.  “[I]f ‘aerial depositions’ are accepted as ‘disposals,’” the Court said, “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense.” 

The Court did not discuss in detail the statutory interplay with the Clean Air Act, which regulates air emissions under a complex regulatory and permit scheme.  Under CERCLA, federally permitted releases are excluded from liability.  But because air permits often specify the control equipment parameters rather than an emission limit, a CERCLA plaintiff may allege that the mere existence of a permit does not provide a blanket immunity from liability and the facility would remain liable for any releases that were not expressly permitted, exceeded the limitations of the permit, or occurred at a time when there was no permit.  The Court in passing did note its skepticism that the federally permitted “release” exception evidenced any Congressional intent regarding the meaning of “disposal.”

The Ninth Circuit is the highest court to exclude air emissions from the reach of CERCLA and RCRA.  The Court’s citation to Carson Harbor does not provide an exact analogy since a passive landowner has not “arranged” for the initial release of hazardous substances, as compared to the smelter operations which result in air emissions.  But the Court’s unwillingness to create potentially unlimited CERCLA liability for air emissions is compelling.  Under CERCLA, liability is strict, joint and several and retroactive.  Air emissions are widely transported and dispersed in relatively small concentrations by large numbers of potential sources, making CERCLA liability findings and allocations difficult if not impossible. 

The Court thereby divined Congress’ intent to make CERCLA’s scheme workable, apart from a literal reading of its text.  For judges to “repair” statutory language in this way is controversial.  The decision is reminiscent of the U.S. Supreme Court holding that the Obama health care plan provides tax credits to millions of people who purchase insurance from a federal marketplace, even though the statute only provides credits for those who purchase from marketplaces “established by the state.”  According to Justice Roberts, that was the only way the law would work, and despite the plain wording in the statute, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”  CERCLA also is not a model of clarity, and the Ninth Circuit similarly incorporated practicality as a factor in discerning Congress’ intent to avoid overreaching in assigning liability for the cleanup of toxic chemical releases.

Does It Matter That Air Quality Is Improving?

Posted on August 3, 2016 by David Flannery

The Environmental Protection Agency is expected to announce its final Cross State Air Pollution Rule (CSAPR) update by the end of summer 2016.  But does the update account for the fact that several new regulatory programs that could significantly improve downwind air quality?

In his posts of August 3, 2015 and April 30, 2014, ACOEL Fellow Paul Seals likened the voyage of the interstate transport of air pollutants to “Homer’s Odyssey”.  He promised us all that the D.C. Circuit decision of June 24, 2015, in the case of EME Homer City Generation, L.P., v. EPA, concerning the CSAPR would not end the voyage of interstate transport – and indeed it has not. 

Critical to the development of a rule to address the interstate transport of air pollutants is that the rule not call for emission reductions that are more than necessary to achieve attainment in every downwind state.  EPA’s 2017 deadline for attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS) invites the question of what the ozone air quality is likely to be in 2017.  EPA’s proposed CSAPR Update identified only 4 monitors in the East that it predicted to be in non-attainment with the 2008 ozone NAAQS in 2017. 

EPA’s prediction of 2017 air quality, however, did not take into account several new regulatory programs that are either on-the-books or on-the-way. These programs are certain to continue to improve ozone air quality in the East.  Among the more significant of these programs are:  

-          Pennsylvania Reasonably Available Control Technology (RACT) II

-          Ozone Transport Commission Model Rules

-          Connecticut RACT

-          New York High Energy Demand Day (HEDD) controls; and

-          Connecticut High Energy Demand Day (HEDD) controls

To illustrate the significance of this point, Alpine Geophysics modeled the impact of only a portion of the Pennsylvania RACT II program on ozone concentrations at the nonattainment monitors downwind of Pennsylvania identified by in the CSAPR proposal.  The following results from the Alpine Geophysics report illustrate that even one of these new programs is likely to significantly improve ozone air quality at the critical monitors in the East:

EPA Nonattainment Monitors

Ozone Improvement needed (ppb)

Ozone Improvement Achieved By PA RACT Alone

Connecticut Fairfield (90013007) 1.2 83%
Connecticut Fairfield (90019003) 2.1 48%
Connecticut New Havens (90019003) 1.3 54%

Such improvement - related to only one of the unaddressed programs - raises the question about whether all of the EPA identified nonattainment monitors will, in fact, be in attainment with the 2008 ozone NAAQS when these on-the-books and on-the-way programs are implemented in 2017, even without the CSAPR update. 

The answer to this question, and to the merit of any new transport rule, lies with additional air quality modeling of these programs.  When EPA announces its final rule on the CSAPR update by the end of summer, we will see whether the agency has taken account of these additional programs and see the future direction of this on-going odyssey.  

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

Posted on August 2, 2016 by Seth Jaffe

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. boiler-mactThe industry challenges were a complete washout.  The environmental petitioners won one significant victory and a number of smaller ones.

The environmental petitioners’ one significant victory is important.  EPA included within relevant subcategories any source that burns a fuel containing at least 10% of the “subcategory-defining fuel.”  However, for defining MACT, EPA included only those sources that burn fuel containing at 90% of the subcategory-defining fuel for existing sources, and 100% for new sources.  The Court rejected this approach.

"The CAA, however, demands that source subcategories take the bitter with the sweet. Section 7412 mandates, without ambiguity, that the EPA set the MACT floor at the level achieved by the best performing source, or the average of the best performing sources, in a subcategory. It thus follows that if the EPA includes a source in a subcategory, it must take into account that source’s emissions levels in setting the MACT floor."

Which brings me to my big take-away from this decision.  Chevron lives.  By my count, The Court cited Chevron 30 times.  Chevron pervades the decision.  Even in the one big issue that EPA lost, the Court’s decision was based not on a rejection of EPA’s interpretation of an ambiguous provision under step 2 of Chevron, but on a plain meaning interpretation of § 112.  EPA defined what a source is, but it then refused to calculate MACT based upon the performance of all of the sources in a given subcategory.  The statute simply did not allow EPA that leeway.

Other than EPA’s attempt to avoid taking “the bitter with the sweet”, however, the Court’s deference – by three Republican appointees – to EPA’s technical decisions was notable.  Not every case is the Clean Power Plan.  Where EPA is not really pushing the boundaries, I don’t see the Supreme Court weakening Chevron any time soon.

What is in a reputation?

Posted on July 12, 2016 by Lee DeHihns

Events this year have made me wonder how important a corporation’s reputation is to its officers, customers and shareholders.  One example is Exxon’s climate travails with the New York Attorney General and other state AGs along with their much publicized climate laced 2016 annual shareholder meeting in May.

In the Harvard Business Review on April 3, 2015, Allen Freed and Dave Ulrich stated “in recent years, investors have learned that defining the market value of a firm cannot just be based on finances. GAAP and FASB standards require financial reporting of earnings, cash flow, and profitability – all measures that investors have traditionally examined. But recently, these financial outcomes have been found to predict only about 50% of a firm’s market value.”

Their conclusion is bolstered by another Harvard Business Review article on April 28, 2010 when Ron Ashkenas said “nobody knows how much a reputation is really worth, although many would say that it’s priceless. The one thing we do know, however, is that once a reputation is tarnished, it takes a lot of hard work, and a long period of time, to regain its luster.”

The Telegraph in January, 2016 said that “the total value of corporate reputation for all UK-listed companies topped £1.7 trillion at the close of last year. The recent emissions scandal wiped some €20bn (£15bn) off the value of Volkswagen in the weeks following the revelations.”  How much more loss will come from the June 28, 2016 Volkswagen AG’s $14.7 billion settlement with the U.S. government and consumers.  Deputy Attorney General Sally Yates said the settlement is only a “significant first step” toward holding Volkswagen accountable for its actions.  “Let me be clear: It is by no means the last step.”  Civil lawsuits and criminal investigations are still pending.

Fortune Magazine March 1, 2016 in a story headlined “Bitter Sweets” said that “for a decade and a half, the big chocolate makers have promised to end child labor in their industry—and have spent tens of millions of dollars in the effort. But as of the latest estimate, 2.1 million West African children still do the dangerous and physically taxing work of harvesting cocoa. What will it take to fix the problem?”

The main company engaged in the cocoa industry is Nestlé. Fortune went on to state “the multinational chocolate makers are heavily dependent on West Africa. More than 70% of the world’s cocoa is grown in the region, and the vast majority of that supply comes from two countries: Ivory Coast and Ghana, which together produce 60% of the global total. The two nations have a combined GDP of around $73 billion, according to the World Bank—or significantly less than Nestlé’s $100 billion in sales last year. The price of cocoa surged 13% in 2015 even as prices for most raw materials were dropping. Meanwhile the average farmer in each country still lives well below the international poverty line.”

In its defense Nestlé’s website states “Nestlé opposes all forms of child exploitation. We are committed to preventing and eliminating child labour in our supply chain, working with stakeholders to develop and implement meaningful solutions. We conduct comprehensive monitoring, implement remediation activities and provide targeted support to local communities.”

How one gauges and/or measures reputation is uncertain, but eating prunes and driving an electric vehicle would seem like a good first step.

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

Posted on June 17, 2016 by Seth Jaffe

If you needed any further proof that energyelec_mag_fieldlaw is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

"no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions."

Why, you ask?

  • The panel opinion, by Judge Loken, stated that the Minnesota statute violates the dormant Commerce Clause, by regulating purely “extraterritorial” economic activity.
  • Judge Murphy, in the first concurrence, disagreed with Judge Loken’s conclusion that the statute violates the dormant Commerce Clause, but joined the judgment, because she concluded that the statute is preempted by the Federal Power Act.
  • Judge Colloton, in the second concurrence, agreed with Judge Murphy that the statute does not violate the dormant clause, but also concurred in the judgment. Judge Colloton concluded that, to the extent that the “statute bans wholesale sales of electric energy in interstate commerce,” it is preempted by the Federal Power Act.  However, Judge Colloton wrote separately, because he at least partially disagrees with Judge Murphy (as well as with Judge Loken) and does not believe that the Minnesota statute constitutes a complete ban on wholesale sales of energy that increase CO2 emissions.  However, Judge Colloton concluded that, to the extent that the statute is not preempted by the Federal Power Act, it is preempted by the Clean Air Act.

Is that sufficiently clear?

I do feel compelled to add two final notes.  First, I don’t understand why Judge Loken wrote the panel opinion, when his rationale did not command a majority.  Indeed, as Judge Colloton pointed out, the Court should not even have reached the constitutional issue, since a panel majority existed that was prepared to strike down the Minnesota statute on statutory grounds.  (Preemption is considered a statutory, not a constitutional, rationale.)

Second, don’t analogize the electric energy transmission to the flow of water in a pipe, at least before Judge Murphy.  Here’s your electricity and magnetism primer for the day, courtesy of the Judge.

"In the electricity transmission system, individual electrons do not actually “flow” in the same sense as water in a pipe. Rather, the electrons oscillate in place, and it is electric energy which is transmitted through the propagation of an electromagnetic wave.

Certainly brought me back to course 8.02 at MIT.  Not one of my favorites.

The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!

Posted on May 23, 2016 by Seth Jaffe

On Tuesday, the Supreme Judicial Court of Massachusetts (SJC) ruled that MassDEP had violated the Global Warming Solutions Act progress-on-2020-planby failing

"To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year, and set limits that decline on an annual basis."

Phew.

The SJC gets the final word, so I won’t spend much time explaining why the SJC got it wrong, though I will note that to suggest that the legislature’s use of the phrase “desired level” of GHG emissions unambiguously requires MassDEP to establish hard targets was at best overenthusiastic.

The bigger question at this point is what the decision means.  First, it’s clear that MassDEP must establish hard declining emissions limits for more than one, but less than all, categories of GHG emitting sources.

Second, MassDEP must promulgate regulations that limit total emissions – not emission rates.

Third, the regulations must truly control Massachusetts sources.  The SJC specifically found that RGGI doesn’t satisfy the GWSA requirement, in part because Massachusetts sources can purchase allowances from out of state facilities.

But where does this leave MassDEP?  In a deep hole, for sure.  Unless it wants to ditch RGGI, it can’t regulate power generation, because the type of program that the SJC said is required would simply be incompatible with RGGI.

How about mobile sources?  They are the largest growing source of GHG emissions.  Unfortunately, we come back to the SJC’s injunction that MassDEP must regulate total emissions, not emission rates.  You tell me how MassDEP is going to issue regulations setting a cap on mobile source emissions.

The only obvious candidates I see are buildings and industrial sources other than power generation.

I don’t envy MassDEP – and the nature of the task only emphasizes the extent of the SJC’s overreach here – but I said I wouldn’t get into that.

Big Changes With Little Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

Posted on April 27, 2016 by Seth Jaffe

This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects.  The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21.  MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”  MAP 21

The NPRM addresses this criterion, focusing largely on emissions of criteria pollutants.  However, buried in the 423-page NPRM is a six-page section labeled “Consideration of a Greenhouse Gas Emissions Measure.”

And thus the FHWA drops a bomb that could revolutionize federal funding of transportation projects.  It’s important to note that this may not happen.  If the next President is Republican, it certainly won’t.  Even if the FHWA goes forward, there would be legal challenges to its authority to use GHG as part of the performance measures.

If it does go forward though, it really would be revolutionary.  As the NPRM states, transportation sources are rapidly increasing as a source of GHG emissions:

GHG emissions from on-road sources represent approximately 23 percent of economy-wide GHGs, but have accounted for more than two-thirds of the net increase in total U.S. GHGs since 1990.

The enormity of both the challenges facing the FHWA in attempting to establish a performance measure for GHG emissions and the potential impact implementation of a GHG performance measure would have is reflected in some of the 13 questions that FHWA posed for comment:

  • Should the measure be limited to emissions coming from the tailpipe, or should it consider emissions generated upstream in the life cycle of the vehicle operations?
  • Should CO2 emissions performance be estimated based on gasoline and diesel fuel sales, system use (vehicle miles traveled), or other surrogates?
  • Would a performance measure on CO2 emissions help to improve transparency and to realign incentives such that State DOTs and MPOs are better positioned to meet national climate change goals?
  • How long would it take for transportation agencies to implement such a measure?

Welcome to the brave new world of integrated planning to manage GHG emissions in a critical sector of our economy.

Emotional Distress Claims in Environmental Torts: Does the “Zone of Danger” Rule Allow Recovery for Fear of Future Injury?

Posted on April 26, 2016 by H. Thomas Wells Jr.

Two legal rules frequently come into play in environmental tort cases that are difficult to reconcile: the rule allowing recovery for emotional distress damages without physical injury if someone is found to be in the “zone of danger,” and the rule not allowing recovery for mere fear of a future injury.

Normally, recovery for emotional distress (sometimes called mental anguish) requires the plaintiff to suffer some actual physical injury, however slight.  But one exception allows someone who is in the “zone of danger” to recover despite the lack of any physical injury. Usually, the danger must be an immediate physical injury. For example, one case allowed recovery for emotional distress under a “zone of danger” theory for the driver at whom a gun was pointed, but not for the passenger in the same car. Another case allowed recovery to someone who had to escape his burning home, and then watched it burn to the ground, but not for someone who merely saw his house burning when he returned from work. Yet another case allowed recovery for floodwaters entering a home because the floodwaters were infested with snakes.  Presumably, without the snakes, there could have been no recovery for emotional distress for the flood.

How does this “zone of danger” rule square with claims in environmental tort cases?  Many courts do not allow recovery for a mere fear of an injury in the future, or so-called “cancerphobia” cases.  Despite this rule, can one recover for emotional distress in, for example, an air pollution case, arguing that the plaintiff is in the “zone of danger” despite no present physical injury?

Plaintiffs in environmental tort cases, such as flooding, air pollution, and others, have indeed been asserting “zone of danger” theories to avoid the physical injury rule, and are asking juries to award them emotional distress or mental anguish damages.  These claims must walk a fine line, since most courts do not allow recovery for mere fear of future injury. Where is that line drawn in an environmental tort case? For example, since presumably any amount of air pollution is bad for one’s lungs, is mere exposure to air pollution enough to recover for mental anguish for worrying about one’s self or one’s children?  Or is this argument simply an end run around the ban on recovery for fear of future injury?  Courts will have to draw lines in these environmental tort cases, and the lines they draw may not all be bright or easy to see.

Children’s Crusade to Combat Climate Change Continues

Posted on April 18, 2016 by Rick Glick

As reported by Seth Jaffe in this space, a federal magistrate judge in Oregon has kept alive the dreams of a group of young plaintiffs—aided by environmental advocacy groups—to compel government action against climate change.  Like a similar case brought by the same plaintiffs a few years ago in state court, discussed below, the federal case seeks a declaration that government inaction violates the public trust.  But in the federal case, plaintiffs added claims that their constitutional rights to life, liberty and property also are being violated.

The judge denied the government’s motion to dismiss on the basis that the matter is a political question better left to Congress.  Magistrate Judge Thomas M. Coffin reasoned that the pleadings were adequate on their face and that the substantive issues raised by the defendants should await motions for summary judgment or trial.  Still, the judge gave hope to the plaintiffs, which, I think will be short lived.  Climate change is simply too big, diffuse and complex an issue for the courts to try to fashion a remedy around.

This same group of plaintiffs has had mixed success in pursuing its objectives at the state level.  In June 2014 I posted about the Oregon Court of Appeals reversing and remanding a trial court’s dismissal of a similar claim against the state.  The appellate court concluded that the plaintiffs were entitled to a determination whether the atmosphere is a public trust resource and whether Oregon state government had breached its fiduciary responsibility by not adequately protecting it.  On remand, Lane County Circuit Court Judge Karsten H. Rasmussen granted the state summary judgment and dismissed the suit with prejudice.  The case is now again pending before the Court of Appeals.

In his 19-page opinion, Judge Rasmussen concluded that the public trust does not extend to the atmosphere.  The contours of the public trust are a matter of state common law, and Oregon law ties the public trust to title and restraints on alienation.  The court concluded that there could be no title in the atmosphere and therefore public trust fiduciary obligations do not exist.  The court also noted that traditional public trust resources, such as submerged lands, are exhaustible, which under Oregon law confers a fiduciary responsibility on the state.  While the atmosphere may be altered or even damaged, the court found that it is not exhaustible.

The court added the following thought, which I think will guide the U.S. District Court when it hears the current case:

The Plaintiffs effectively ask the Court to do away with the Legislature entirely on the issue of GHG emissions on the theory that the Legislature is not doing enough. If "not doing enough" were the standard for judicial action, individual judges would regularly be asked to substitute their individual judgment for the collective judgment of the Legislature, which strikes this Court as a singularly bad and undemocratic idea.

            Watch this space for further developments in Oregon state and federal courts.

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Posted on April 13, 2016 by Seth Jaffe

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust Mosaic_of_Justinianus_I_-_Basilica_San_Vitale_(Ravenna) (1)case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere.  Perhaps in response to that case, the plaintiffs here appear to have focused their arguments on the government’s public trust responsibilities with respect to various waters of the United States, though the opinion does not make clear precisely what the complaint alleges to be the subject of the public trust obligation.

The plaintiffs not only allege that the United States has violated its public trust obligations, but that that violation in turn constitutes a violation of the plaintiffs’ substantive due process rights.  Magistrate Judge Coffin takes pains to make clear that this is only about a motion to dismiss, but I still think he got it wrong.

Indeed, I think that Magistrate Judge Coffin ignored that well known latin maxim:  “Oportet te quasi ludens loqui.” (Which is how the on-line translator I used translated “You must be joking.”  I hereby disclaim any warranty that this is even close to correct.)

Call me old-fashioned, but I believe in judicial restraint.  And that applies to everyone.  Traditionally, conservatives have accused liberals of judicial activism.  To my totally objective mind, in recent years at least, it is the conservative judges who could more fairly be called activist.  For one case, at least, the shoe seems to be back on its original foot.  I just cannot see this decision standing.  The District Judge should reject Magistrate Judge Coffin’s Findings and Recommendation.  If he or she doesn’t, this case is sufficiently novel and important to warrant interlocutory appeal, and the 9th Circuit should reverse.  And if that doesn’t happen, it will be up to the eight (oops, I meant nine) members of the Supreme Court to get it right.  One of them surely will.

Okies from Muskogee 1; Sierra Club 0. Another NSR Case Goes Down on Statute of Limitations Grounds

Posted on March 10, 2016 by Seth Jaffe

The law is full of fine distinctions.  Today’s example?  A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s Muskogee plant muskogeebecause the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction.

I have not seen any other cases present this issue so squarely.  For the majority, the decision was relatively easy.  Because the CAA has no limitations provisions, the default five-year limitations period set forth at 28 USC § 2462 applies.  Section 2462 provides that suits must be brought “within five years from the date when the claim first accrued.”  That “first accrued” language was Sierra Club’s downfall.  The court decided that a claim “first accrues” when a plaintiff has a right to bring a claim.  In the PSD context, that is when a defendant commences construction or modification without a permit.  Because the Sierra Club did not file within five years after OG&E commenced construction, the complaint was late.

Not so fast, argued the dissent. As the dissent rightly noted, the CAA does not make commencing construction or modification without a required PSD permit a violation; it makes “the construction or modification of any source” without a permit a violation.  Thus, the dissent argued, OG&E was still “constructing” its project without a permit during a period less than five years before Sierra Club brought suit and was still in violation, so the suit was timely.

I should note that, whether the dissent is correct or not, it did rightly distinguish two other cases, United States v. Midwest Generation and United States v. EME Homer City Generation, which have been cited in opposition to “continuing violation” theories.  As the dissent emphasized, those cases concerned whether operation of the modified facility, after construction was complete, constituted continuing violations.  The dissent agreed that post-construction operations cannot effectively toll the statute of limitations. However, that is a different question than whether continuing construction keeps the limitations period open.  Indeed, the EME Homer City decision specifically contemplated the possibility that:

"the maximum daily fine accrues each day the owner or operator spends modifying or constructing the facility – from the beginning of construction to the end of construction."

That sounds like a basis for new claims accruing each day, thus triggering a new limitations period.  I think that this case is a close question. However, as interested as the Supreme Court seems to be in the CAA these days, I don’t see it taking this case, and certainly not before there is a circuit split on the issue.

What is impossible to determine is what caused the Sierra Club to wait.  Why take the chance?  It does seem a self-inflicted wound either way.

(Very quickly, I’ll note that the majority also dismissed Sierra Club’s injunctive relief claims under the concurrent remedies doctrine.  That’s an important issue, but not a difficult or interesting one, at least where the government is not a party.)