The Millennial Environmental Voice: We Can’t Hear You Now

Posted on June 8, 2017 by Linda Benfield

The United States’ environmental agenda shifted abruptly with the election. Instead of implementing greenhouse gas initiatives, bolstering incentives for renewable energy projects, and fine-tuning various air, water and waste standards, we are suddenly discussing the future of the Endangered Species Act, debating withdrawal from the Paris Accord, filing away the Clean Power Plan, and considering the limits of science in regulatory decision-making.

Through all the discord, angst and celebration of the changed focus of environmental regulation, the Millennials have yet to assert their generational voice. Born between 1981 and 1996, these citizens are 21-36 years old. In 2015, they became the largest share of the American workforce at 33%, and there are estimates that Millennials will make up 50% of the American workforce by 2020. With those numbers, and their age, they have the potential to significantly impact elections for the next 35 years.

But who are they, and how will they impact the environmental agenda?  Only 50% of Millennials voted in the 2016 election – the worst turnout of any voting-age generation, and a decrease in their voting participation from the 2012 election. The tropes for this generation peg them as “socially conscious,” and willing to deeply engage in causes they believe in. However, empirical “time-lapse” research comparing responses from different generations at the same point in the responders’ lives, actually indicates that Millennials are no more altruistic than previous generations, and no more determined to seek meaning in their work and lives or do work that is worthwhile to society. This generation also faces different economic and social challenges than their parents did, and it is not clear how that perspective will translate to addressing environmental challenges.  

In the last 50 years, we have fundamentally changed the environmental “baseline.” Millennials never experienced burning rivers, and they didn’t grow up underneath the Denver “Brown Cloud.” The Clean Air Act, the Clean Water Act, and 40 C.F.R. are their baseline - and that is a different perspective than their Baby Boomer parents had when they were fighting against tangible environmental degradation. The Millennials can fundamentally impact our election results – if they vote. And until they vote, we won’t know what the environmental voice of this powerful generation sounds like. 

Trump's "2 for 1" EO: Can You Say "Arbitrary and Capricious"?

Posted on June 6, 2017 by Seth Jaffe

Last month, Mark Walker posted about Executive Order 13771.  Mark’s post was generally favorable, noting that a number of other countries have implemented some version of what is known as a “regulatory budget.”  This post provides something of a counterpoint to Mark’s. 

Put simply, I think that the Order is indefensible.  It’s not about regulatory reform.  It’s a transparent attempt to halt environmental regulation in its tracks, without regard to the benefit those regulations provide.

This week, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging the EO.  One paragraph from the brief pretty much summarizes the argument:

It is important to note, as Executive Order 13771 acknowledges, that agencies are already required, where not prohibited by law, to ensure that the benefits of regulations exceed their costs. Thus, the only impact of the Executive Order is to prohibit agencies from promulgating regulations whose benefits exceed their costs, unless they eliminate two other regulations whose benefits also exceed their costs. This is the definition of unreasoned decisionmaking. It is also a thumb in the eye of Congress, which enacted public health and environmental statutes in order to benefit the public.

It is a bitter irony that the government is defending the EO in part on the basis that it is just another in a long line of regulatory reform EOs, even though the EO is in fact a repudiation of those prior orders, not an extension of them.  This order is not about cost-benefit analysis; it is about cost-only analysis.  By definition this approach ignores the public benefits that the underlying statutes are intended to provide.  Thus, the “savings clause” cannot save the EO, because there is nothing left to save.

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

Posted on May 30, 2017 by Seth Jaffe

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

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

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

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

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

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

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

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

The last is my personal favorite.

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

Fingers crossed.

A 2-Fer

Posted on May 25, 2017 by Mark Walker

Trump’s 2-for-1 Executive Order 13771 (January 30, 2017) requires that two existing regulations be eliminated for each newly enacted regulation in order to control regulatory costs and burdens.  The EO requires that the total incremental cost of all new and repealed regulations in FY 2017 be $0 or less.  The EO applies to most federal agencies, including the EPA.

Can anyone seriously contend that we cannot afford to get rid of some existing federal regulations?  Apparently yes - the idea was immediately dubbed by some as “ridiculous”.  A lawsuit has already been filed challenging the EO as facially arbitrary, capricious and an abuse of discretion. 

Fourteen States recently filed an Amici Curiae brief in the lawsuit supporting the EO, pointing out that numerous Presidents, Democratic and Republican alike, have previously issued executive orders seeking to reduce the number of federal regulations and the overall regulatory burden.

The notion of eliminating one or more existing regulations for each new regulation in order to reduce costs is nothing new.  The Netherlands, Canada, Australia and the United Kingdom have all previously enacted similar policies.  The UK currently has a 3-for-1 policy, which is estimated to have saved billions.

Certainly the 2-for-1 policy presents administrative and procedural challenges.  There is the sticky problem of estimating costs, as the EO is intended to address total opportunity costs (opportunities foregone by society as a whole - workers, businesses, consumers, households, etc.), and not simply business compliance costs.  In addition, the repeal of existing regulations must be done in accordance with the Administrative Procedures Act, which itself can be time consuming and costly.

The EO contains a savings clause that says no existing regulations can be repealed where prohibited by law.  Therefore, regulations expressly required by law without the consideration of costs cannot be repealed pursuant to the EO.  However, discretionary regulations are fair game.  Once again, we’ll have to wait and see how this EO holds up after court scrutiny.

Can We Really Expect An Administrator Not To Administrate?

Posted on May 19, 2017 by Jeffrey Porter

This month EPA Administrator Scott Pruitt announced that he will personally pass judgment on any Superfund remedy estimated to cost more than $50 million.  Revisions to CERCLA Delegations of Authority 14-2 Responses and 14-21A Consultations, Determinations, Reviews and Selection of Remedial Actions at Federal Facilities, May 9, 2017.

Administrator Pruitt’s announcement begins with his unequivocal assurances that the “Superfund program is a vital function” of EPA, and that he is taking this action “to facilitate the more-rapid remediation and revitalization of contaminated sites and to promote accountability and consistency in remedy selection.”

Skeptics fear that Administrator Pruitt has some other secret objective.   But no one can seriously argue that this isn’t Administrator Pruitt’s decision to make.  The Superfund statute unequivocally says “[t]he President shall select appropriate remedial actions determined to be necessary” in accordance with the statute and the implementing regulations, and “which provide for cost-effective response.”  42 U.S.C. §9621(a).  The implementing regulations unequivocally delegate that responsibility to Administrator Pruitt  (well, to be precise, it is theoretically possible that another federal agency or a state can be a “lead agency” under the regulations but, in that unlikely case, the Administrator’s May 9th decision presumably wouldn’t apply).  

After all, it was a perceived need for prompt federal action to clean up the most complex contaminated sites in our country that drove the enactment of the Superfund statute over thirty-five years ago.  Because Congress perceived that need, the statute limits the ability of anyone, including state and local governments, to interfere with the selection and implementation of a Superfund remedy.

Over the decades, the contaminated sites posing the most immediate concern have been addressed, sites that would never have been prospects for Superfund listing thirty years ago have found their way into the program, and the Superfund statute has been interpreted, and reinterpreted, in regulations, countless judicial decisions, and EPA guidance documents.   If those regulations, judicial decisions and guidance documents have one thing in common, it is that they vest in EPA the maximum decision-making discretion permitted by the statute.

Because the sites posing the most immediate concern have been addressed, and what was once new is now the subject of thousands of pages of regulations, judicial decisions and guidance documents, anyone familiar with the Superfund program has to agree that regional program staff have, over the decades, been increasingly left mostly alone to make remedial decisions costing hundreds of millions of dollars.

And, as someone who has practiced in this area of environmental law for almost thirty years, I think it is equally clear that regional decision-making has attempted to soften the effect of Congress’s unambiguous statement of its intention that no one, including state and local governments, stands in the way of Superfund remedies by local consensus building, and that what Administrator Pruitt calls “consistency” has suffered as a result.

As a life-long Democrat, I have plenty of concerns about the Trump Administration’s environmental agenda.  But Administrator Pruitt has been anything but obtuse about his support of aspects of that agenda that concern me so I’m going to take him at his word regarding his intentions for the Superfund program, including because increased accountability and consistency in the Superfund program would be a very good thing.

Scott Pruitt Just Solved All of the Problems with Superfund. Not.

Posted on May 17, 2017 by Seth Jaffe

Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator.  I’m not optimistic that this will cure, or even ameliorate, what ails CERCLA.  

First, the memorandum gets off on precisely the wrong foot.  Administrator Pruitt states that:

 The Superfund program is a vital function of the U.S. Environmental Protection Agency, and under my administration, Superfund and the EPA’s land and water cleanup efforts will be restored to their rightful place at the center of the agency’s core mission.

What’s the problem with this statement?  When EPA has actually looked at the top risks addressed by its programs, risks from Superfund sites never even make the list.  Except for a limited set of circumstances, Superfund has been a colossal waste of money, resources, and focus for EPA.  If Administrator Pruitt wants to reform Superfund, he shouldn’t be “placing it at the center of the agency’s core mission.”  He should be further deemphasizing it.

Even if one assumes that this is just puffery, the new approach is flawed on the merits, for at least two reasons.

First, the problem with Superfund is that it’s the last bastion of command and control regulation.  I understand that Pruitt may want to take the reins precisely to reduce the number of ukases issuing from the regional offices.  However, the underlying problem will remain; he just thinks he’ll be providing kinder, gentler, command and control.  Wouldn’t it be better to support fundamental reform of CERCLA, to create a privatized program, such as in Massachusetts and other states?

Finally, while PRPs might just wish Superfund went away, in the real world, PRPs just want certainty and timely decisions.  Aside from a few cases where Pruitt might put the kibosh on expensive remedies that don’t eliminate real risks, I fear that in the majority of cases, all that will happen will be that cleanup decisions will be delayed; PRPs will pay more as a result of such delays.

This administration continues to give regulatory reform a bad name.

RCRA 2020: Has That Vision Been Lost -- Or Has EPA Just Temporarily Misplaced Its Reading Glasses?

Posted on May 2, 2017 by David Van Slyke

The Government Performance and Results Act (GPRA) was enacted in 1993 to improve governmental performance by requiring federal agencies to (1) develop five-year strategic plans containing long-term, results-oriented goals; (2) prepare annual performance plans and goals; and (3) prepare annual performance reports that review the agency's success or failure in meeting its goals.

Relative to U.S. EPA’s responsibilities under RCRA’s corrective action efforts, GPRA has been implemented through the “RCRA 2020” program under which EPA established (via a 1999 guidance document) two Environmental Indicators (“EIs”) to measure its progress in achieving national cleanup goals:

  • Current Human Exposures Under Control - Ensures that people near a particular facility are not exposed to unacceptable levels of contaminants.
  • Migration Of Contaminated Groundwater Under Control -  Ensures that contaminated groundwater does not spread and further contaminate groundwater resources.

The RCRA 2020 Corrective Action Baseline List currently includes 3,779 RCRA facilities.  Initially introduced by EPA in 1999, that initial list (much smaller -- only 1714 facilities) became the basis for EPA’s 2005 GPRA performance goals.  The list has been updated in 2008, 2010, and most recently in April 2013.  The Baseline List includes properties that are heavily contaminated, others that were contaminated but have since been cleaned up, and properties awaiting full investigation that may require little or no future corrective action.

EPA’s overall “aspiration goal” is to “largely implement[ ] final remedies at 95 percent of facilities requiring corrective action by the year 2020.”  While it is not at all clear what “largely implement” means, in addition to that goal the following GPRA goals for 2015 apply to the 2020 Baseline list (in percentages of facilities meeting those goals):

  • human exposures under control
  • migration of contaminated groundwater under control
  • final remedy construction
  • performance standards attained

It is now unclear, however, whether EPA is actually on track to meeting its 2020 goals.  While the Agency has published national EI results for the 2005 and 2008 baseline lists, including then-current statements for each facility as to whether or not the two key EIs have been met, EPA appears not to have generated (or at least not made publicly available) similar compiled results for the much more expanded 2010 or 2013 lists of facilities.  

Further, EPA’s March 21, 2017 memorandum regarding the President’s 2018 budget for the Agency would reduce the Headquarters and Regional program office resources for the RCRA corrective action program by 33.4 FTEs.  That budget memo also reduces the Office of Enforcement and Compliance Assurance’s (OECA) civil enforcement and compliance monitoring budget by a total of 262 FTEs; some unknown portion of that cut will fall on the RCRA corrective action program.  (In an ironic and perhaps inadvertently amusing entry, that same budget memo proposes to increase the OECA budget by 10 FTE “to provide 24/7 security detail for the Administrator.”)

At best, given today’s state of play, the current vision for RCRA 2020 is blurry.  At worst, well…, um…, the year 2020 is only 975 (more or less) days away.

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.

Slashing EPA’s Budget Will Hinder Efforts to Improve Environmental Regulations

Posted on April 5, 2017 by Mark R. Sussman

          Since the election of President Trump and appointment of EPA Administrator Pruitt, more than a few articles and blogs have been written about the new administration’s plans to dismantle EPA, including the proposal to cut EPA’s budget by almost one third.   Even if one agrees that EPA needs to be “down-sized,” the massive cuts proposed by the Trump Administration are counter-productive.   If EPA fires thousands of environmental professionals, who will be left to repeal or revise unnecessary or unduly burdensome regulations?  Unlike Executive Orders, regulations cannot be rescinded or revised with the stroke of a pen.

          The hazardous waste regulations adopted to implement RCRA provide a case in point.  The Obama EPA adopted the final Hazardous Waste Generator Improvements Rule (discussed by a recent blog by Donald Stever) at the end of last year, acknowledging that the RCRA regulations are in many cases ambiguous, contain inconsistencies, and lack flexibility.  EPA took a year to address more than 200 comments before it finalized the rule.  Other aspects of the RCRA regulations also need to be modernized to encourage, rather than discourage, the reuse of materials derived from waste.

          Just one example involves the recycling of mercury-containing lamps, which have been regulated as Universal Waste since 1995.  Although fluorescent lamp manufacturers have reduced the amount of mercury in their lighting over time, such lamps are regulated as Universal Waste because many lamps exhibit the toxicity characteristic for mercury; and thus, would be classified as D009 hazardous waste.  While the Universal Waste Rules simplify the management of mercury containing lamps, the hazardous waste regulations and longstanding EPA interpretations of these rules impede the reuse of materials recovered through the recycling of universal waste lamps. 

          Two of the primary materials produced through lamp recycling are calcium phosphate powder and crushed glass.  Calcium phosphate powder removed from fluorescent lamps contains mercury at levels below the hazardous waste threshold, and the amount of mercury in such powder is typically further reduced by a retorting process.  Significantly, the phosphate powder also contains several rare earth elements, including Europium, Terbium and Yttrium, which are considered strategic materials by the United States Government, because of the need for such elements in many military and high-tech commercial products, such as cell phones, computer hard drives and other electronic equipment, and precision-guided munitions. 

          China controls about 95% of the production of rare earth elements.   Therefore, recycling calcium phosphate powder to produce rare earths provides a sustainable, domestic source of rare earths needed in the U.S. economy.  Unfortunately, as a waste derived material, regulators have limited the ability of businesses to stockpile calcium phosphate powder for future recycling, and much of this material is currently being disposed of in landfills, rather than being reserved for the recovery of rare earths.   

          Similarly, the crushed glass produced by lamp recycling has characteristics that make it a useful substitute for sand and other materials used in construction operations, such as for road sub-base and pipe bedding materials.  EPA’s view, however, is that since Universal Waste lamps would be considered D009 hazardous waste, glass produced as part of the recycling process is in the same hazardous waste treatability group as the initial universal waste lamps, and therefore, is subject to the Land Disposal Restrictions (LDR) for D009 –non-wastewaters. Thus, the glass must be tested to demonstrate compliance with the LDR standard of 0.025 mg/l for mercury using the TCLP test (designed to assess leachate in a landfill environment), before the glass can be used on land as a substitute for other products.  While the glass from lamp recycling typically complies with the LDR standard, the additional regulatory process discourages the reuse of this glass as a substitute for raw natural resources.

          If President Trump were truly interested in alleviating “unnecessary regulatory burdens placed on the American people”, EPA needs the resources to review specific regulations and identify those regulatory changes that will accomplish the President’s goals.  Slashing EPA’s budget, before identifying and promulgating the regulatory changes, will likely result in missed opportunities for improving environmental regulations.  Instead, massive reductions in staff and efforts to rescind many regulations without careful consideration will lead to mistakes and litigation, which is in no one’s interest.  Businesses need certainty, and the approach outlined by President Trump’s Executive Orders will instead result in more confusion and uncertainty.

TRUMP, TARIFFS, TERRA, and TWEETS

Posted on April 3, 2017 by Earl Phillips

Regardless of political leanings or perspectives held regarding this President and his administration or the likely effectiveness of tariffs in global trade, we likely agree that creating more good American jobs is a positive thing.  If his plan is successful, Donald Trump and this administration will, in part through the use of tariffs, reinvigorate domestic manufacturing. 

If willing to think more broadly, this may be achieved while at the same time improving (and setting the stage to further improve) the global environment and international worker safety.  These objectives need NOT be mutually exclusive.

Both the Republican and Democratic primaries featured unique candidates with compelling messages of creating and protecting jobs for Americans.  The Republican candidate survived his primary and went on to win the election, so let's consider the relevant promises and pronouncements of candidate, now president, Trump. His overarching refrain has been to "make America great again".  Consistent with this message, he has repeatedly assured the American public that he will promote, and ultimately increase, domestic manufacturing.  His vision is that this manufacturing, and the related jobs, will improve the lot of American workers.  While offering limited specifics, he has been unwavering in his commitment to level the economic playing field by imposing significant tariffs on goods and services manufactured abroad.

If President Trump is correct relative to the effectiveness of a tariff and willing to adjust this blunt tool to incorporate concerns for the global environment and humane working conditions, he can provide a path that leads to greater domestic manufacturing and jobs, as well as unparalleled international leadership with respect to the environment and worker safety.  This is possible provided President Trump is willing to leverage the appetite of overseas manufacturers to sell goods and services to Americans in return for a more level manufacturing playing field, as well as enhanced international Environmental Health and Safety (EHS) protections and benefits.

Assuming this administration does, in fact, look to tariffs as a means to stimulate domestic manufacturing, the following offers a path to proceed with the stated agenda while establishing a program designed to employ even more well trained Americans and improve the global environment:

 1. TARIFFs could be structured to afford the impacted offshore manufacturer with the following option: (A) PAY THE FULL TARIFF.  This option would presumably level the economic playing field between the offshore and domestic manufacturer of goods or provider of services; or (B) PAY A REDUCED TARIFF and EXECUTE AN EHS INSPECTION/ENFORCEMENT AGREEMENT.  This option would achieve not only the U.S. manufacturing and jobs agenda, but also would drive international EHS benefits.  A significant portion of the REDUCED TARIFF could be used to directly fund an environmental, health and safety inspection corps (EHS Corps).  This EHS Corps would be comprised of appropriately educated and trained American workers.  Notably, these EHS positions would be in addition to our domestic manufacturing jobs and represent even more American jobs for those with science, engineering, operations, and business and legal degrees.  THE INSPECTION/ENFORCEMENT AGREEMENT would also call for the participating company to submit to regular inspections, an enforcement regime and an administrative/judicial process similar to our federal template.  This Agreement would further level the manufacturing playing field while improving the global environment and driving international EHS performance to levels comparable to our federal programs.

 2. The EHS Corps would regularly inspect REDUCED TARIFF participants using a straightforward template approximating the United States federal EHS regulations.  This approach would not only compel offshore participants to achieve environmental protection and worker safety objectives similar to their U.S. counterparts, but also cause them to incur the same or similar resource and financial burdens to comply with this template or suffer enforcement consequences if they fail.  This compliance mandate when combined with the payment of the REDUCED TARIFF, would further level the playing field between offshore and domestic manufacturers.  Should a participant be a repeat or willful violator, then beyond the sanctions available within the REDUCED TARIFF inspection and enforcement regime, the U.S. would reserve the right to re-impose the FULL TARIFF or consider other import/export sanctions.

3. Strategically, the differential between the FULL TARIFF and the REDUCED TARIFF should motivate responsible corporations and businesses to elect the REDUCED TARIFF.  Beyond this, the REDUCED TARIFF should generate adequate revenue to fund the training and deployment of the EHS Corps as well as the inspection/enforcement process.

CONCLUSION:

President Trump and his administration can be true to their stated commitment to increase domestic manufacturing jobs through a more aggressive tariff while going one important step beyond, establishing the U.S. as an architect and catalyst for an improved, and more internationally uniform, approach to environmental, health, and safety concerns. 

 

NOTE:  THE CONCEPT OUTLINED ABOVE IS NOT AN ENDORSEMENT OF TARIFFS, BUT A REFLECTION OF ATTY. PHILLIPS BASED ON THIS ADMINISTRATION’S PRONOUNCEMENTS.  THIS IS NOT THE PRODUCT OF HIS LAW FIRM OR THE UNIVERSITY AT WHICH HE TEACHES.

 

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?

Earth Day Texas—People, Planet, and Profit—Key Legal Issues for a Protective and Productive Future

Posted on March 27, 2017 by Jeff Civins

On March 16th, Reuters reported that President Trump’s administration has proposed a 31 % cut to EPA’s budget, explaining: “Consistent with the President’s America’s First Energy Plan, the budget reorients the EPA’s air program to protect the air we breathe without unduly burdening the American economy.”  In this time of change and uncertainty, perhaps more than ever, there is a need for a measured dialog among diverse viewpoints. 

With over 130,000 participants attending last year’s  Earth Day Texas celebration in Dallas, its organizers decided a Legal Symposium of prominent representatives from environmental organizations, business, academia and the government might help policy makers grapple with fundamental environmental issues such as how best to balance economic development with environmental protection.  Several members of the College assisted the organizers in the development of that symposium.

On April 20-21, that Symposium will bring together those thought leaders to discuss: (1) how to integrate science into regulatory decision making; (2) how to reconcile energy and economic development with protection of public health and the environment; (3) how to facilitate environmental dispute resolution; and (4) how to integrate sustainability and ethical considerations into corporate decision-making. 

Consistent with the objective of having diverse viewpoints represented, the Thursday evening keynote speaker will be General Wesley K. Clark, discussing Climate Change as a Major Security Concern, and the Friday luncheon keynote speaker will be EPA Administrator Scott Pruitt, discussing the new administration’s objectives and goals.  For further information and to register, go to http://earthdaytx.org/legal-symposium/.

RULES ARE (APPARENTLY) MADE TO BE FRACKED . . .

Posted on March 23, 2017 by William Session

The news flies fast and heavy from Washington almost daily on the fate of every manner of environmental program, rule or regulation. An exciting time to be an environmental lawyer. The latest entrant into the “what’s next” sweepstakes came from the Tenth Circuit just a few days ago.

The Court of Appeals sent a pointed inquiry to the newcomers at the Department of Justice about the future of the federal government’s (recent) historic efforts to curb hydraulic fracturing:

Given the recent change of Administration and the related personnel changes in the Department of Justice and the Department of Interior, the Court is concerned that the briefing filed by the Federal Appellants in these cases may no longer reflect the position of the Federal Appellants. By statement filed electronically on or before March 15, 2017, the Federal Appellants are asked to confirm whether their position on the issues presented remain the same, or have now changed.

The DOJ’s response will very likely determine the fate of the Obama era Bureau of Land Management hydraulic-fracturing rule. That rule required drilling operators to follow “ . . . widely-accepted” best practices for preventing environmental or resource harm. 

In State of Wyoming et.al v. State of Utah et. al, that rule was set aside and its enforcement enjoined by a Wyoming district court in 2016. The district court set aside the rule, holding that the federal government had no authority to set the standards that federal lessees had to follow when extracting oil and gas from federally owned resources through hydraulic fracturing. The DOJ appealed and the Tenth Circuit subsequently instructed the district court to vacate its preliminary-injunction order.

The DOJ spearheaded the appeal of that ruling, asserting that the district court disregarded a central tenet of administrative law by substituting its own judgment for the government’s about the purview of the BLM’s regulatory reach. The DOJ argued that courts “must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority.”

So the obvious question of the day is, will the new administration drop the appeal? The newly appointed Interior Secretary Ryan Zinke has stated publicly he supports fracking. With daily pronouncements from the White House about the surfeit of regulations strangling the economic engines of the country, it’s a good bet that the rule has seen its best and last days.

Perhaps more intriguing, should the appeal go forward, will be the somewhat conservative Tenth Circuit’s take on the now “institutional” Chevron deference embedded in countless appellate decisions over the last thirty-four years. As recently posted by ACOEL Fellow Chris Schraff, the views of Tenth Circuit veteran and Supreme Court nominee Judge Neil Gorsuch on the Chevron question could prove central to the concerns of some about the future of the administrative state,. 

For those who might not be familiar with Judge Gorsuch’s perspectives on the subject, review again his concurring opinion in Gutierrez-Brizuela v. Lynch. His concurring opinion in that case begins:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. . . .

And continues in clearly provocative terms:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . .

So, what do we in the environmental business expect the position of the federal government to be going forward? Is federal environment protectionism on its way out of the door? Will the EPA be judicially branded a “politicized administrative agent” by courts across the land and denied deference even if the Chevron doctrine survives? Will the courts and the public allow the progress on cleaner air, water and earth we have all witnessed—and even helped bring about over the last fifty years—to be . . . fracked?

Deja Vu All Over Again!

Posted on March 14, 2017 by Paul Seals

Has it really been 36 years!  It seems like I have been here before.  In 1981, I was Assistant General Counsel with the Texas Department of Water Resources, a predecessor agency of the current Texas Commission on Environmental Quality.  Upon Ronald Reagan’s inauguration as the 40th President,  I was appointed Regional Counsel of the Environmental Protection Agency in Dallas. 

EPA was on the chopping block with proposals to drastically reduce its budget, positions, and programs.   The agency lawyers were an endangered species, targeted for elimination.   The agency was reorganized to do away with the Enforcement Division.  The administration supported the transfer of the implementation and enforcement of the environmental statutes to the states.   This was 1981 not 2017.

The early years of the new administration were filled with much anxiety based in part on proposed budgets that had no relationship to existing staffing.  Were we to go through a reduction in force and fire attorneys and staff?  Such a RIF was not necessary given the atmosphere and morale within the agency.  In early 1983, during a Regional Counsels’ meeting, an informal headcount showed that through attrition there had been over a 30% reduction of attorneys in the regional offices since the inauguration. 

The effort to dismantle and defang the agency was met by public outrage, and in the midst of the turmoil, Administrator Anne Gorsuch was cited for contempt of Congress.  Shortly thereafter, there was change in the agency leadership with the return of Bill Ruckelshaus, whose helmsmanship righted the agency and successfully refocused the agency’s staff on its critical mission.  

What did I learn from this experience?  Quite simply, don’t overplay your hand.  An election may give the President and a new administration a perceived mandate for change, but that mandate must be tempered with an appreciation of the overwhelming public support for the mission of the agency.  As my good friend, mentor, and former Regional Administrator, Dick Whittington, would say:  “we must be able to separate the public will from the public whim.”

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 Conservative Case For Chevron Deference

Posted on January 30, 2017 by Seth Jaffe

With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs.  Put simply, I don’t get it.  There are at least two good reasons why conservatives should prefer Chevron deference to no deference.

First, the alternative is for courts to decide all questions of agency authority.  But haven’t conservatives railed against unelected judges for years?  Bureaucrats are unelected, but at least they work for the elected President.  Isn’t EPA more likely to be responsive to President Trump than federal judges would be?

Second, the EDFs and NRDCs of this world would laugh hysterically at the notion that they have more sway with EPA than the regulated community.  Anyone ever heard of “Regulatory Capture”?

The argument in support of Chevron was made cogently by Ed McTiernan in a recent blog post, but the strength of the argument was really brought home by the decision this past week in Catskill Mountains Chapter of Trout Unlimited v. EPA, in which the 2nd Circuit Court of Appeals – to fairly wide surprise – reversed a district court decision that had struck down EPA’s “water transfer” rule.  

The rule was much favored by the regulated community, but there were very good jurisprudential reasons to affirm the District Court.  Indeed, the decision was 2-1 and even the majority opinion repeatedly noted that, were it writing on a blank slate, it might well prefer an interpretation that would strike down the rule.

Why, then, did the Appeals Court reverse the District Court and affirm the rule?  Chevron deference, of course.

Conservatives, be careful what you wish for.

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.

Playing Nice with Others – EPA and State Cooperation In Today’s World

Posted on January 12, 2017 by Robert J. Martineau Jr.

As the Obama Administration comes to an end and the Trump Administration is about to begin, I want to reflect on the current relationship between EPA and state environmental agencies.  I have been active in the environmental law arena for over 30 years, in private practice, in the Office of General Counsel at EPA, and for the past six years as a state environmental commissioner.  In addition, for four of the past six years, I served as an officer for the Environmental Council of States (ECOS).  In each of those roles, I have witnessed the give and take relationship between EPA and state environmental agencies. 

This has not been a static relationship.  Over the past few years, the working relationship between state agencies, ECOS, and EPA has improved substantially - even when strong differences concerning particular regulatory initiatives or policies exist.  For example, even those states opposed to EPA’s Clean Power Plan rule readily acknowledge that EPA’s outreach to stakeholders, and especially their state partners, was unprecedented.   In many other cases, Administrator McCarthy and her team worked collaboratively as partners with states in addressing an issue.   Indeed, it has become the way to do business.   This change in culture across EPA is due in large part to the efforts of EPA Administrator Gina McCarthy, and current and former Deputy Administrators Stan Meiburg and Bob Perciasepe.  Together they reached out to states, brought them to the table and found committed, willing partners in ECOS members.  They listened and treated states as equal partners.   Their leadership made clear that all parts of EPA should follow that partnership model.   

Truly, the relationship between EPA and the states has matured to a working relationship of joint governance.  One of my state colleagues has commented that if you said “co-regulator” to EPA ten years ago, they would flinch. Today, states and EPA leaders use that term freely and are engaged in many projects together as partners to protect public health and the environment in an efficient and cost effective way.   We have moved from a parent- child relationship to equal partners.   This has been a positive both for state and federal entities, but also for regulated industry, environmental organizations, and the public. 

As Administrator McCarthy and her leadership team prepare to depart, it’s clear that the new Administration will have different policy goals.  That is the consequence of elections and change of Administrations.   Regardless of the substantive policy decisions that will be confronted in the days ahead, I hope the efforts made over the past few years by Administrator McCarthy and her team to foster a more collaborative approach between EPA and the states will continue.   

“What’s past is prologue” —William Shakespeare, The Tempest

Posted on January 3, 2017 by Joseph Manko

I first began to focus on the need to protect our environment in the 1960’s, starting with Rachel Carson’s indictment of one particular pollutant, the pesticide DDT in her seminal work, “Silent Spring.”  As the decade of the ‘60’s proceeded, environmental protection began to focus on the local release/discharge of contaminants into the air, ground and water.  Each state dealt with these problems in a scattershot manner until the EPA was formed in 1970 to administer laws passed by Congress to be uniform – commonly called “command and control.” 

On Wednesday, October 17, 1973, the Arab-dominated Organization of Petroleum Exporting Countries (“OPEC”) decided to reduce the exports of the most basic transportable fossil fuel – oil - to the United States and other countries who aided Israel during the Yom Kippur.  This was commonly called the “OPEC Embargo” and exposed our national dependence on Mideast oil.  

Against this backdrop, on Monday, October 15, 1973, I left my corporate law practice and took my “Hamiltonian shot,” becoming EPA Region 3’s general counsel.  I joined the newly created EPA under Administrator Russell Train to implement, apply and enforce the new environmental statutes - the Clean Water Act (CWA–1972), Clean Air Act (CAA-1970) and National Environmental Policy Act (NEPA-1969).  Instead, because of the OPEC embargo, I was processing CAA variance requests to burn wood chips in furnaces in Philadelphia and fill my gas tank on alternative weekdays.  When the embargo ended the following year, we went about achieving EPA’s mission to protect the environment and coordinate the three E’s – the economy, ecology and energy – focus on the latter would grow in importance – and argument – in the years to come.   

I left my position in October 1975 and started a private practice in environmental law and later began to teach environmental law.  Along came the Safe Drinking Water Act, the Resource Conservation and Recovery Act (“RCRA”), and on the eve of President-Elect Ronald Regan’s inauguration, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”).  The federal government was clearly on track to achieve its mission.

In January 1981, however, President Regan determined to “reverse” environmental protection by the federal government and return it to “state control,” welcoming to this cause a number of inexperienced, unqualified and hostile political friends to dismantle the federal program.  The result – James Watt left his Secretary of the Interior post in disgrace on October 10, 1983; EPA Administrator Anne Gorsuch resigned in disgrace on March 9, 1983; Rita Lavelle, the EPA Assistant Administrator for Hazardous Waste and Superfund, wound up serving prison time for lying to Congress; and at least one Regan appointed EPA regional administrator was thrown out of office. 

During the twenty-eight Bush/Clinton/Bush/Obama scandal free years, EPA went about its business of environmental protection, leading up to the presidential election of October 2016.  The near unanimous global and scientific recognition that climate change was happening led to efforts to reign in carbon emissions primarily from the burning of fossil fuel (coal and oil), culminating this fall in the Paris Agreement.  President Obama and Secretary of State John Kerry led the successful fight to get the requisite number of countries to sign on with the United States.  Environmental protection became a global need, no longer a local problem.

And then came November 8, the election of Donald Trump. 

As he proceeded to name the people he wanted to make up his cabinet, speculation began as to whether as President-Elect he would actually activate his campaign attacks on environmental protection.  Now almost a month before his inauguration, he has actualized his campaign promises.  First, he selected Oklahoma attorney general Scott Pruitt as EPA Administrator, a climate change denier who led the attack in court on President Obama’s Clean Power Plan (the vehicle US planned to use to reduce carbon emissions from fossil fuel in fulfillment of its Paris Agreement commitment).  Second, he tapped Rex Tillerson, the CEO of ExxonMobil, the world’s largest fossil fuel producer and defendant in NY v. Exxon, to be his Secretary of State.  Third, for Energy Secretary, he has designated Texas Governor Rick Perry, the man who in his 2011 campaign famously forgot that the third federal agency he would abolish was the Department of Energy.  Finally, with these selections, he has made it abundantly clear that he meant what he said about reeling in the EPA. 

Will he succeed during his administration or will he fail in his efforts to reprise the Reagan assault.  Some of the big differences between the 1980’s and today are (1) environmental degradation is now understandably global, not just local, (2) the rest of the world is similarly impacted and is watching us, and (3) the stakes are much higher.  Will Congress permit a legislative dismantling of the statutory structure it put together over the past 45 years?  Will the myriad environmental NGOs be strong enough (and sufficiently funded) to take these attacks to court?  Will EPA be able to preserve its regulatory program to implement environmental protection?  Will the courts uphold these executive anti-environmental attack efforts or stop them?  And in that regard, who will be Trump’s selection of SCOTUS Justice #9? 

We wonder.  Many of us worry.  And all of us wait.

AN ANTIDOTE TO INERTIA?

Posted on December 2, 2016 by Annette Kovar

Let’s face it – most seasoned bureaucrats (I confess I am one) often don’t react well to change.  Over time, there just seems to be an intrinsic inertia that builds in all bureaucracies. Federal and state environmental agencies are, unfortunately, no exception. While we in government do strive to avoid this inherent danger (problem?), the comfort of a routine can sometimes be the enemy of innovation. The catchphrases getting a lot of attention, and gaining some real traction, in government circles these days are “process improvement” and “performance measurement”.

Many state environmental agencies and the US EPA have undertaken a variety of self-examination techniques which fall under the general rubric “business process improvement” (BPI), including Lean, Six Sigma, and Kaizen to name just a few. The articulated objective is to examine key functions and processes with a view towards achieving a host of goals such as reducing costs to the agency, optimizing agency resources, and realizing better value for the agency’s “customers”. BPI may also help transform an organization’s culture to help embrace change and communicate better with the regulated community, the public, and other governmental partners. The Environmental Council of the States (ECOS) recently released a report entitled “State Environmental Agency Business Process Improvement Activity 2010-2016,” which accompanied the launch of an online database describing state BPI activities.

Applying process improvement goals in a meaningful way and tracking performance measurement through metrics helps agencies answer the question, “How are we doing?” Performance metrics can track costs and time saved, and identify areas needing improvement. It is not measuring for the sake of measuring, but rather measuring progress toward achieving identified performance goals, such as issuing an air quality permit or awarding grants within a specified period of time.

While the decision to engage in BPI may come as a top-down mandate, the implementation of actual techniques used to arrive at new goals will have to be tailored to each program’s process and appears in practice to be largely collaborative and creative, encouraging a “think outside the box” mindset. There will always be challenges—that’s probably inherent in the nature of government with the prospect of new leadership every four years or so. Process improvement and performance metrics won’t automatically diffuse the inertia in an organization. Change just for the sake of changing isn’t all that appealing without seeing real progress towards a goal.  Working together, however, initiatives borrowed from business may foster an institutional culture and organizational climate in government where personnel are more willing to accept change and perhaps come up with innovative ideas of their own.

(The author is Legal Counsel for the Nebraska Department of Environmental Quality.)

MUSINGS ON THE FUTURE OF EPA ENFORCEMENT – WILL IT GET TRUMPLED?

Posted on November 28, 2016 by John H. Johnson

Speculation about the environmental implications of the impending Trump presidency is running rampant.  That was the case as well when Ronald Reagan was elected President.  I served as an attorney in EPA Region 4 during his administration so I have a sense of dynamics that will be in play at the regional offices during the Trump administration.  With this historical perspective, I offer the following thoughts on the potential impact of the Trump administration on EPA enforcement at the regional level. 

·         Initial Frontal Assault – The early years of the Reagan presidency were marked by a robust and concerted effort to declaw EPA, largely carried out through political appointments at Headquarters and at the Regional Administrator level (the oft-repeated refrain was “doing more with less”).  Based on his condemnation of the “Department of Environmental Protection” during the campaign, I’m inclined to expect the same from President-elect Trump.  However, the list of names currently being floated for the positions of EPA Administrator and Assistant Administrator ranges widely from a climate denier to well-respected former program managers at EPA.  So, at this point, the jury is out on whether President-elect Trump will follow the Reagan administration’s lead or, like the George W. Bush administration, take a more restrained approach to regulatory implementation and enforcement, while recognizing the Agency’s fundamental legitimacy.

·         Effectiveness of a Frontal Assault – The efforts of the Reagan administration were largely unsuccessful and relatively short-lived.  At the regional level, this was due in no small part to muted but resolute resistance to those efforts from career employees.  If the Trump administration pursues similar goals, I would expect similar results.  I anticipate that rank-and-file enforcement personnel in the regional offices will continue to pursue and prosecute instances of statutory/regulatory noncompliance (consistent with budgetary constraints).  In light of the largely completed trend of delegating environmental programs to the states, enforcement actions undertaken these days by the EPA regional offices frequently involve allegations of significant regulatory noncompliance that state programs are unable (or unwilling) to address effectively.  Regional political appointees will be hard-pressed to halt or forestall meritorious enforcement actions.  In addition to wanting to avoid any appearance of impropriety, those appointees will be subject to an NGO watchdog network that is considerably more developed and vibrant than it was during the Reagan years.  If EPA doesn’t enforce, the NGOs will. 

·         Times Have Changed – Like me, today’s regulatory enforcement landscape bears little resemblance to what it looked like 36 years ago.  I can well recall spirited conversations in the late 70’s/early 80’s with reluctant program managers for some of the Region 4 states concerning the states’ adoption and enforcement of a regulatory framework that mimicked the basic structure of the major federal programs (air, water, and waste).  Those days are long gone, and I would anticipate that any efforts to suppress enforcement at the federal level will have minimal impact in those authorized states that have active enforcement programs.  Also, while some NGOs (e.g., NRDC, Sierra Club, Environmental Defense Fund) were quite active during the Reagan administration, particularly in high profile enforcement matters, the proliferation since that time in the number and variety of well-financed NGOs at the national, regional, and state level will likely compensate for any decrease in EPA enforcement that may occur under President Trump.  Ironically, what we may see in some cases is initiation of enforcement actions by EPA that blunt the use of citizen suits by NGOs, followed by settlements on terms considered less stringent than the NGOs would prefer.

Given President-elect Trump’s penchant for unpredictability and the current uncertainties surrounding the ultimate composition of the Trump environmental team, I’m not confident in my predictive powers, other than to say that we are about to embark on what I will gently call an interesting time in the history of environmental regulation.  Whether it proves to be déjà vu remains to be seen.

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

Why You Should Pay Attention to ECOS

Posted on October 26, 2016 by Martha Rudolph

ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS?  And, why should you care?  As the current Past President of ECOS, I acknowledge upfront that I might be biased – but consider the following.  ECOS is the national non-profit, non-partisan association of state and territorial environmental agency leaders.  ECOS was founded in late 1993 at a time when the relationship between states and the EPA was strained.  As Mary A. Gade, then director of the Illinois Environmental Protection Agency, put it:  “The times called for states to assume primary responsibility and leadership for environmental protection.  As individual states began to articulate this new perspective, state commissioners realized the need to band together for information-sharing, strength, and support.” 

Today, reflected in the ECOS 2016-2020 Strategic Plan, much of ECOS’ original purpose remains:  “To improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of the United States of America. Our belief is that state government agencies are the keys to delivering environmental protection afforded by both federal and state law.”

While the purpose remains consistent, how ECOS achieves it has evolved.

One example lies in the ECOS-organized forums where states and EPA meet to discuss - and often debate - environmental concerns and our respective roles in implementing and enforcing environmental programs.  While the early ECOS years were not without success working with EPA, the tenor of the overall relationship with EPA was uneven.  Today, ECOS has a productive relationship with EPA.  We still discuss, debate, and disagree, but in a much more constructive way.  EPA representatives at all levels routinely attend and engage in the spring and fall ECOS meetings, as well as other ECOS conferences.  ECOS members have been invited to internal EPA budget meetings to share our budget concerns and needs.  ECOS and EPA have worked on several joint-governance projects, including the creation of E-Enterprise for the Environment.  Through E-Enterprise, state, EPA and tribal representatives work to streamline environmental business processes and share innovations across programs to improve environmental results, and enhance services to the regulated community and the public by making government more efficient and effective.

ECOS is fast becoming the “go-to” organization for Congress, the White House, federal agencies, national organizations, and the media to learn about state issues, concerns, positions, innovations and ideas regarding environmental matters.  Through engagement with senior government officials, testimony before Congress and many position letters, ECOS has expressed state perspectives on key legislative and regulatory issues, like reform of the Toxic Substances Control Act, funding for state environmental programs and water infrastructure, increased authority over coal combustion residual sites, workload flexibility in state-EPA agreements, enforcement training, expediting federal facility cleanups, and environmental justice tools. 

ECOS has developed relationships with the Department of Energy and the Department of Defense:  these agencies regularly participate in ECOS.    ECOS’ Legal Network brings state environmental agency counsel together with EPA counsel and DOJ’s Counselor, to explore lessons learned from successful enforcement and compliance initiatives, and to discuss best practices and enhanced collaboration. 

So, how about the relationship among the states themselves?  ECOS has also become a venue for states to explore differences in positions and ideas.  Not surprising, membership within ECOS is politically diverse.  ECOS has recognized and embraced this diversity by creating a space for states to express their opinions and positions, encouraging members to learn from each other, to reach “across the aisle” to understand differing perspectives, to compromise where needed and to develop strong and lasting relationships.  ECOS will pull in experts from within the states and from other organizations to provide valuable and sometimes critical perspectives and analyses on important issues, so that state environmental leaders can better understand the complexities and impacts of environmental programs and initiatives.  The lawyers of ACOEL are one source of that expertise, and they have provided valuable legal analyses to ECOS and its members on the Clean Power Plan and WOTUS.  ECOS is even reaching across state agency lines, as shown by this spring’s Memorandum of Agreement with ECOS, EPA, and the Association of State and Territorial Health Officials to advance cooperative initiatives pertaining to environmental health, acknowledging that the public health and well-being of U.S. citizens relies on the condition of their physical environment.

So, why should you care about ECOS?  Because the vast majority of day-to-day environmental program adoption, implementation and enforcement is done by the states.  As Mary A. Gade said when ECOS was first created: “Charged with advancing a state’s environmental agenda, state commissioners strategize daily with governors, state and national legislators, and local government officials to accomplish their goals.  State environmental commissioners have political access, substantive expertise and, most importantly, legislative combat experience.”  When you organize a group of battle-ready commissioners who lead state environmental programs, and who meet and work together on a regular basis, wouldn’t you want to know what they are doing?  My advice:  check out http://www.ecos.org and find out what you are missing.