Leaving on the Midnight Train to Maui (Going Back to Find a Simpler Place in Time)

Posted on January 21, 2021 by Allan Gates

With apologies to Gladys Knight & the Pips:

https://www.youtube.com/watch?v=HwbmufPphP0

It is not unusual for a lame duck administration to issue a flurry of midnight rules and administrative actions shortly before leaving office, and the Trump administration is no exception.  One of the last minute actions by President Trump’s EPA is a draft guidance document signed on December 4th regarding application of the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund.

Much of the draft guidance document reviews in unexceptional terms the threshold conditions that must be satisfied before an NPDES permit is required, namely:

  • There must be an actual discharge of a pollutant;
  • The discharge must be from a point source; and
  • The pollutant must reach a water of the United States.

The last page and a half of the draft guidance is where things get interesting.

The majority opinion in Maui identifies seven specific factors to consider in determining whether a point source discharge to groundwater that reaches navigable waters requires an NPDES permit.  The last page and a half of EPA’s draft guidance adds an eighth factor to the list.  The new factor is consideration of system design and performance.

According to the draft guidance document, the design and performance of a system should be viewed as something of a higher-order consideration that “can affect or inform all seven factors identified in Maui.”  Thus, if a system’s design and performance slows transit time of the pollutant, increases distance the pollutant travels, promotes dilution, or otherwise affects one of the Maui opinion’s seven enumerated factors, the fact that the system is designed and performing to achieve that result apparently should weigh against requiring an NPDES permit.  The draft guidance then proceeds to identify a number of specific systems that would be less likely to require an NPDES permit based on the new eighth factor:

  • Septic systems, cesspools, settling ponds and similar systems designed to provide storage or treatment;
  • Stormwater controls, infiltration or evaporation systems, green infrastructure, and other runoff management systems; and
  • Water reuse, recycling, or groundwater recharge facilities.

The draft guidance document implicitly acknowledges that its addition of an eighth factor to the Maui opinion’s list of seven goes beyond mere interpretation of the Court’s decision.  The guidance document notes, perhaps somewhat defensively, that the majority opinion in Maui expressly invites EPA to develop interpretive guidance that would illuminate application of the Court’s “functional equivalence” test.  The draft guidance document then goes on to claim that the agency’s eighth factor should be given deference under National Cable & Telecomm. Ass’n v. Brand X Internet Serv. even if it is deemed inconsistent with the Court’s opinion in Maui:

Even when an agency’s interpretation of an ambiguous statutory provision differs from a court’s interpretation, an agency may take such a construction because it remains the authoritative interpreter of the statute it administers.

EPA’s explicit call for Brand X deference to the agency’s draft guidance is particularly ironic because the government’s briefs in Maui did not ask for deference to EPA’s interpretation of the statute, and they did not even cite Chevron or Brand X.  Moreover, the Court in Maui summarily rejected the formal interpretive statement on discharges to groundwater that EPA issued one month before the government’s merits brief was due.

It is not clear whether the draft guidance will ever be finalized or otherwise survive the transition to the Biden administration.  But if it survives, the new eighth factor is likely to be the target of a number of questions.  For example, why should a system that is deliberately designed and operated in a manner that delivers pollutants to waters of the United States be given more lenient regulatory treatment than a less deliberate activity that delivers the same amount of pollutants to jurisdictional waters in an otherwise similar manner?  Isn’t a system with deliberate design and identifiable performance expectations exactly the kind of operation that fits logically into the scheme of NPDES individual and general permits?  And what are we to make of the list of specific systems that are to be given special consideration under the eighth factor?  Is this list anything more than a last minute attempt to put a finger on the scales whenever one of the enumerated systems may come under scrutiny for adding pollutants to waters of the United States?

Against this backdrop it is fair to ask whether the draft guidance document offers the kind of assistance in applying the functional equivalence test the Maui Court invited EPA to provide.

Environmental Justice: Where Are the Roadblocks?

Posted on January 19, 2021 by Jerry L. Anderson

We have known since the 1980s that people of color bear a disproportionate share of environmental harms.  In 1994, President Clinton issued Executive Order 12,898, which required federal agencies to develop policies incorporating the principles of environmental justice into their mission.  EPA, as well as many state environmental agencies, established an Office of Environmental Justice, to help communities of color gain a voice in environmental decisionmaking and integrate EJ policies into all facets of the agency’s work.

Despite these efforts (and many others), the U.S. Commission on Civil Rights concluded in 2016 that little progress had been made in reducing disparate environmental impacts based on race.  The report shows that broad directives promising to reduce discrimination cannot overcome the structural barriers that frustrate or prevent effective progress. Today, I want to point to two possible levers of change.

1.       Who is making the decision? The issue of equitable representation.

Decisions that cause environmental harm are often made either by local zoning boards or by state environmental agencies, in the form of citizen commissions.  For example, the local Planning and Zoning Commission will decide where to site Locally Unwanted Land Uses (LULUs), such as landfills, waste incinerators or factories.  State appointed bodies, such as the Environmental Protection Commission in my state, often decide questions of water or air pollution permitting and enforcement.

Who is making these decisions?  Do they represent the population that will be impacted the most?

In a 2008 study, my research team at Drake Law found that 84% of large-city zoning board members where white, over 20 percentage points higher than their demographic percentage.  In addition, board members skewed heavily toward white-collar professionals, particularly those with a vested interest in development. 

State environmental boards also often suffer from a lack of diversity.  Often, state statutes require that certain economic groups be represented (e.g., industry or agriculture), but do not mandate representation for those impacted by pollution.

Local officials should recruit zoning board participants from underrepresented populations, including those most affected by environmental harms. In addition, state statutes should be amended to ensure adequate representation from impacted low-income and minority communities.

2.       Who can participate in the decision?  The issue of fair process.

In order to oppose the siting of a highway or factory that will impact their neighborhood, minority and low-income groups face numerous barriers to mounting effective opposition. They typically suffer from a lack of resources, limited free time, and restricted access to political networks.  Collective action problems weigh down their attempts to marshall resources to hire legal counsel or expert witnesses.

Adding to their difficulties, many states do not allow opponents of an environmental permit an adversarial hearing, thereby preventing them from effectively making a record at the administrative level. In contrast, permit applicants who are either denied a permit or whose permit contains limitations they object to are allowed an administrative hearing or “contested case.” See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had no right to contested case proceeding).  Opponents can only file written comments. If they want to challenge the permit, they need to file a case in state court.  That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence.  The court will review based on the record made below, which the impacted citizens were not allowed to fully participate in.

Making participation by impacted communities easier and more effective will require statutory and regulatory changes to administrative hearing procedures.  In the meantime, however, environmental attorneys should consider pro bono opportunities to help level the playing field.

These recommendations address only two structural issues lying behind the racial disparities in environmental harm. For further discussion of those barriers, check out this podcast series on Racism in Administrative Law.

To examine environmental justice in your community, I highly recommend EPA’s Environmental Justice Screener, which allows you to compare environmental harms against demographic data.

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

Posted on December 28, 2020 by Seth Jaffe

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

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

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

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

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

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

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

Posted on December 10, 2020 by Seth Jaffe

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

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

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

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

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

Posted on December 7, 2020 by Seth Jaffe

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

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

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

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

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

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

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

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

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

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

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

Combating Climate Change with the Clean Air Act’s International Air Pollution Provision

Posted on November 23, 2020 by Michael Burger

As the key staffing decisions and priority policy agendas for President-elect Joseph R. Biden begin to take shape, the questions of when and how the administration will act on his campaign’s climate plan are front and center. Deservedly so. The scale and scope of the climate crisis calls for immediate and comprehensive nationwide efforts to reduce greenhouse gas emissions. There is no question that new federal legislation would be the best option. But with Georgia’s two Senate seats still undecided and the political implications of the November election still being parsed out, the prospect for federal legislation remains highly uncertain. What’s more, even assuming Congress does enact new climate legislation, it may not go far enough in reducing GHGs to be consistent with science-based climate targets, or to meet the nation’s international climate commitments. From January 20 onward, the Biden administration will need to think through and set in motion regulations that rely on existing statutes to achieve the deep emission reductions required to avoid increasingly dangerous, highly unpredictable climate scenarios.

Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales provides a roadmap for an essential component of such a plan:  the Environmental Protection Agency’s international air pollution authority. This new book, which I edited, is the culmination of a decade of collaboration by scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute at UCLA, and the Institute for Policy Integrity at NYU, with major contributions from other outstanding legal scholars, experienced lawyers from the Environmental Protection Agency and the State Department, leading state regulators, and veterans of congressional climate battles. Its chapters lay out how the Clean Air Act’s international air pollution provision -- Section 115 -- provides a logical, common-sense basis for a federal climate policy that (a) allows the executive branch to synchronize the nation’s domestic emission reduction efforts with its international climate commitments; (b) authorizes the use of a broad range of regulatory approaches, including market-based mechanisms; (c) respects cooperative federalism by giving EPA the responsibility to set emission reduction targets and states the authority to decide how to achieve them; and (d) is administratively simple. Whatever might come from Congress in the next year or two, and whatever else the Biden administration’s environmental, energy and natural resources agencies might do, EPA’s international authority can fill the gap between the emission reductions other federal, state and local programs can achieve and the level of cuts required to meet the nation’s climate goals. 

Though it has only been invoked once, and never implemented, the criteria for using the international air pollution provision are relatively straightforward. Section 115 is triggered when EPA both finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country (the “endangerment finding”) and determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country” by Section 115 (the “reciprocity determination”). In the case of climate change, both of these prerequisites are readily met: GHGs in the U.S. contribute to climate change, which endangers public health and welfare in other countries just as much if not more than it does here in the U.S. And the UNFCCC, the Paris Agreement, and potentially new, additional agreements ensure both that the U.S. can participate in other countries’ planning and that there is a mutual, or “reciprocal,” substantive commitment to address the climate crisis.   

Once triggered, Section 115 operates through state implementation plans (SIPs), the state air pollution control programs that are the heart of the Clean Air Act’s cooperative federalism model for achieving the nation’s air pollution control goals. Under Section 115, EPA’s role is to require the states to revise their SIPs to the extent they are “inadequate to prevent or eliminate the endangerment.” As explored in detail in the book, EPA can use the provision to set GHG emission reduction targets for the states, and the states can work together with EPA and other states to build upon their existing initiatives to achieve these emission reductions in a cost-effective manner. If a state refuses to revise its SIP, EPA can promulgate a federal implementation plan (FIP) for the state, authority that EPA has exercised in other contexts.

Some of this may sound familiar to some of you. Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales reflects a  significant enhancement of a 2016 article, which many of the book’s authors contributed to, and which received a good deal of attention, that examined how EPA’s international air pollution authority could help achieve the country’s climate change goals at that time. The book’s updated analysis makes important adjustments to the thinking in that article to reflect all that has happened in the intervening years – including developments in the UNFCCC, the U.S. Supreme Court, and U.S. politics. The book’s chapters dive deeper into the key implementation issues that would face EPA and the states, and they explore ways to address the various legal and policy issues that would arise – including critical questions of judicial review in an evolving doctrinal landscape marked by uncertainty around the future of Chevron deference and the shadow cast by the “major questions” doctrine. But the book’s chapters present solid answers to these questions, and demonstrate that the statutory language is robust enough to empower EPA and the states to reduce U.S. emissions in line with our international commitments, while providing sufficient guardrails to constrain and direct agency discretion.

The Clean Air Act’s international air pollution provision is not the only existing authority the Biden administration can, should, or will rely on to address climate change. But it is a powerful one. And while the idea of relying on the provision may seem novel to some, it is not new. Former EPA General Counsel Roger Martella wrote one of the first articles advocating the approach back in 2009. (Another former EPA GC, and ACOEL fellow, Jon Cannon, is one of the contributors to the book.) The provision provides EPA and the states with the authority, and the flexibility, to address GHG emissions in an efficient and equitable manner. It should be on the table when, early in 2021, the U.S. rejoins the Paris Agreement, and the federal government recommits to ambitious climate action.   

To read a summary of the book, go here.

To purchase the book, go here. You may use the discount code MBRG35 for a 35% discount on hard cover copies. The discount code does not apply to e-books, which are also available, and a lot less expensive.

For additional materials on the International Air Pollution provision, go to the Sabin Center’s Section 115 resources page, here.

Regulating Guidance As Though It Were Regulation

Posted on September 18, 2020 by Seth Jaffe

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. An agency operating in this way gains a large advantage. “It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.” The agency may also think there is another advantage-immunizing its lawmaking from judicial review.

Furthermore, much guidance is like that reviewed in Appalachian Power.  “The entire Guidance, from beginning to end-except the last paragraph-reads like a ukase.   It commands, it requires, it orders, it dictates.”

I defy anyone who has dealt with government regulations on a daily basis to say that, in their heart of hearts, they don’t know this to be an accurate description of how guidance comes to be created and used.  Because it is accurate – and as much as it pains me to say so – I support the rule issued by EPA on Monday that regulates EPA’s issuance of guidance documents.

To my friends who are either regulators or in the environmental community, let me suggest that reining in guidance is a good thing for those who believe in government regulation.  While I acknowledge that I am sometimes prone to rhetorical excess, l think it fair to say that the overuse of guidance – and the bureaucratic tendency to implement guidance as though it were a “ukase” – is one reason why government has increasingly been seen as illegitimate.  When those who are regulated see government bureaucrats as modern day Judge Roy Beans – the law north, south, east, and west of the Pecos – then many of us develop deep skepticism about government.

I believe in government.  I want others to do so as well.  That’s why I support regulating guidance as though it were regulation – because it functionally is regulation.

Not Quite the Same as Making Mexico Pay For the Wall

Posted on September 9, 2020 by Seth Jaffe

As the New York Times has documented, President Trump stated numerous times that Mexico would pay for the border wall. With this context, it was hard not to appreciate the delicious irony when EPA announced last week that it would be financing two separate measures to reduce pollution migrating from Mexico to Southern California.

In other words, not only is Mexico not paying for the wall (and neither is Steve Bannon), but the United States is paying for pollution controls in Mexico! I actually happen to think that this is good news, but I doubt that President Trump is going to be trumpeting this accomplishment to his base. There’s a pretty persuasive argument to be made that avoiding pollution controls is one way that Mexico is able to produce goods more cheaply than the United States. And we’re now financing Mexico’s ability to undercut the price of US manufactured goods?

Instead of requiring Mexico to internalize the externality caused by loose environmental controls in Mexico, we’re subsidizing the externality.

Will wonders never cease?

Assistant Attorney General Clark’s Clean Water Act Edict: A Solution to a Non-Existent Problem?

Posted on July 30, 2020 by Jeffrey Porter

During the dog days of summer in a general election year, Assistant Attorney General Jeffrey Bossert Clark, the nation's top environmental lawyer, has issued an eloquent, albeit curiously sourced, ten page edict to his subordinates at the Department of Justice decreeing that the Federal Government will not make the same Federal Clean Water Act claims as a State unless there is a good reason to do so.  See Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings (July 27, 2020), https://www.eenews.net/assets/2020/07/27/document_gw_03.pdf.

Environmentalists will likely complain that this edict is intended to prevent Federal cases that might otherwise be brought.   But there’s no evidence that “overfiling,” which is when the Federal Government commences an enforcement action that is already the subject of a State enforcement action, has been common during the Trump Administration, or any other recent Administration.

More specifically, as AAG Clark knows, nearly one in four State Attorneys General are currently suing the Environmental Protection Agency over what they allege is an impermissibly narrow interpretation of the Federal Clean Water Act.  See State of California, et al. v. Andrew H. Wheeler as Administrator of the United States Environmental Protection Agency, et al. (May 1, 2000), https://ag.ny.gov/sites/default/files/wotus_complaint.pdf.   Regardless of what one thinks of the merits of the Attorneys General’s case, it seems irrefutable that the Federal Government has not been, and will not be, overaggressive about enforcing the Federal Clean Water Act during this Administration.

If AAG Clark really intends to effect a meaningful change in the Department of Justice’s behavior in the future, why did he recite and ratify so many traditional circumstances in which Federal enforcement on top of State enforcement is deemed appropriate, including when a State is sitting on its hands, when the State requests it, when important federal interests are implicated, when there is a "gap" in the relief sought by the State, or where there are otherwise "exceptional circumstances"?

And why, to support what seems to be a completely uncontroversial conclusion, did the Assistant Attorney General feel compelled to cite an opinion of the Supreme Court authored by the late Justice Antonin Scalia striking down a provision of the Brady Handgun Violence Prevention Act as well as equally irrelevant remarks on white collar crime prosecutions by former Deputy Attorney General Rod Rosenstein?

And why does Assistant Attorney General Clark not reference at all a year-old EPA edict by the Assistant Administrator for Enforcement and Compliance Assurance, which requires coordination between EPA and any State before EPA gets involved in a matter already the subject of State enforcement? See Enhancing Effective Partnerships Between EPA and the States in Civil Enforcement and Compliance Assurance Work (July 11, 2019), https://www.epa.gov/sites/production/files/2019-07/documents/memoenhancingeffectivepartnerships.pdf.

And, if all of this isn’t puzzling enough, why does Assistant Attorney General Clark begin his memorandum about when the Federal Government should bring claims already brought by a State by questioning one of the fundamental premises of federal environmental law proffered by one of his most respected predecessors over forty years ago?

Since the Assistant Attorney General’s memorandum seems to be a solution to a non-existent problem, one is left to wonder whether there is more to it than meets the eye.

Surprise! New WOTUS Rule Leads to Conflicting Rulings

Posted on June 30, 2020 by Rick Glick

It was clear to everyone, including this humble blogger, that EPA’s new rule defining Waters of the United States (WOTUS) would bring little clarity to this fraught area of law.  The rule took effect June 22, but court challenges were already underway, and already we have conflicting rulings, described in this space by Seth Jaffe with his usual alacrity. 

Regardless of what ultimately emerges from this morass, recall that the states have authority of their own and that is probably where practitioners should be focusing in advising clients.  On the same day the WOTUS rule came into effect, the Oregon Department of Environmental Quality (ODEQ) issued a statement including a not too subtle warning about discharging pollutants into state waters without benefit of a permit. 

The ODEQ statement also speaks to state authority under CWA section 401, the subject of another recent EPA rulemaking, and a continuing source of litigation and uncertainty.  As Seth notes, the new WOTUS and 401 rules are complementary.  In its statement, ODEQ encourages project proponents to meet with the agency early for an evaluation of a “project plan.”  Such pre-application meetings are always a good idea—better to anticipate and address issues before they become controversial. 

All of this is pretty interesting for lawyers, but frustrating, time consuming and expensive for clients trying to discern a critical path for development projects.  Surely there is a better approach to ensuring clean water, but it is hard to see one emerging soon.

 

Woe Is WOTUS, Redux

Posted on June 30, 2020 by Seth Jaffe

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts.  The text of the statute made pretty clear that such challenges did belong in district courts, and the Supreme Court felt no need to address concerns that it was just plain nuts to have multiple courts reviewing this issue, leading to a patchwork of different rulings.  That’s Congress’s problem!

As anyone who remembers those halcyon days can attest, chaos did indeed result, with roughly half the states ending up subject to the Obama rule and half subject to the prior rule and the post-Rapanos guidance.

Now comes the Trump WOTUS rule, which became effective yesterday.  It looks like déjà vu all over again.  On Friday, two courts weighed in, with a judge in California declining to enjoin the rule and suggesting very strongly that EPA would prevail with its argument that the rule is entitled to Chevron deference, while a judge in Colorado enjoined the new rule, concluding that five justices in Rapanos precluded the new rule’s interpretation of WOTUS, thus barring any reliance on Chevron.

Other than saying “I told you so,” I think that the biggest takeaway so far is that, to the extent that the California decision carries the day, it’s also good news for fans of EPA’s recently released rule on section 401 water quality certifications.  It basically adopts lock, stock, and barrel EPA’s rationale for why it can ignore a seemingly contrary Supreme Court decision.  The short version is that the Supreme Court Brand X decision holds that, where the Supreme Court upholds an agency interpretation of an ambiguous statutory provision, that does not preclude the same agency from later adopting a contrary interpretation, so long as the new interpretation is also permissible under Chevron.

Time will tell which position prevails, at least in the lower courts.  This one does seem likely to make it back to SCOTUS.  For better or worse – likely worse – we might finally get some clarity on the definition of the waters of the United States.  Until then, I am confident that chaos will reign.

EPA Finalizes New Clean Water Act Section 401 Certification Rules—Will States Bite Back?

Posted on June 10, 2020 by Rick Glick

On June 1, 2020, the Environmental Protection Agency released its new rules implementing section 401 of the Clean Water Act (CWA). Section 401 provides that before a federal agency can approve a project that may result in a “discharge to the navigable waters” the applicant must obtain water quality certifications from the affected state. The certification encompasses compliance with water quality standards and “any other appropriate requirement of State law.”

However, the state is deemed to have waived its delegated authority under section 401 if it "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." The rules adopt the D.C. Circuit’s view in Hoopa Valley Tribe v. FERC that one year means one year, and they narrow the scope of conditions that states can impose on a project as part of the certification.

One Year Means One Year

The section 401 process has been controversial in the context of energy infrastructure projects requiring federal approvals, such as natural gas pipelines, LNG terminals and hydroelectric facilities. Historically, states have commonly avoided the one-year limit by allowing multiple cycles of withdrawal-and-resubmittal of 401 certification applications, stretching the review period over many years.

This in part was thought necessary to allow adequate time to assess the water quality effects and appropriate mitigation measures for complex facilities, which would often draw comments from many stakeholders seeking to influence the terms of a new certification. However, in Hoopa Valley the court rejected this workaround and denounced the withdrawal-and-resubmittal practice as a tool “for states to use Section 401 to hold federal licensing hostage.”

Shortly after Hoopa Valley, President Trump issued an Executive Order “Promoting Energy Infrastructure and Economic Growth,” for the stated purpose of making the regulatory process more efficient and creating “increased regulatory certainty.” Among other things, the Executive Order directed EPA to review federal policy and regulations on section 401 implementation in light of the Hoopa Valley decision.

With the new rules, EPA has adopted Hoopa Valley’s position that the one-year limit of section 401 actually means one year, and explicitly rejected state practices resulting in certification processes extending to several years. The rules make clear that upon receiving a complete 401 certification application, a state has one year to grant, grant with conditions, or deny the certification. Failure to do so will result in the state having waived its delegated authority with respect to the project under consideration.

Scope of 401 Certification Conditions

The Supreme Court has ruled that section 401 confers on a state broad authority to impose conditions on a water quality certification. In the 1994 case of PUD No. 1 v. Wash. Dep’t of Ecology, the Court found that water quality certifications could include conditions related to quantity of water flow, holding that a state could require minimum stream flows as part of the section 401 certification. Twelve years later, the Court found in S.D. Warren Co. v. Me. Bd. Of Envtl. Prot. that states have broad latitude in imposing conditions that are not directly water quality-related, such as provision for fish passage or recreation.

However, in the preamble to the rules, EPA found that nothing in the CWA nor section 401 contains any statement suggesting that section 401 “authorize[s] consideration or the imposition of certification conditions based on air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts.”

EPA reasoned that the phrase “any other appropriate requirement of State law,” often used to justify broad state authority, only included “those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States.” The rejection of conditions not directly related to water quality seems to ignore Supreme Court guidance in PUD No.1 and S.D. Warren.

The Rules’ Prospects in Court

The new rules are certain to draw legal challenges from environmental groups and from states concerned that EPA’s interpretation denies them the full authority conferred under the statute.

EPA’s interpretation that one year means one year is consistent with Hoopa Valley and with subsequent decisions and may fare well in court.  However, narrowing the scope of the states’ authority to impose conditions on a certification will face serious judicial scrutiny in light of PUD No. 1 and S.D. Warren. In addition, opponents of the new rules may take issue with EPA’s authority, or lack thereof, to make rules governing how a program delegated to states should be administered.

Has President Trump Just Limited Enforcement To Willful Violations?

Posted on May 22, 2020 by Seth Jaffe

On Tuesday, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery.  I’ll leave to others a discussion of the provisions telling agencies to look for more regulations to roll back.  I’m in general agreement with commenters who have said that those provisions don’t add much to Trump’s prior deregulatory efforts and are likely to face mostly the same reception in the courts as prior efforts.

Instead, I want to focus on this provision:

"The heads of all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law and as appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order, decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling."

I hate to give the President too much credit, but this may be the most significant deregulatory measure he’s taken.  As far as I can tell, Trump is telling agencies that they should only take enforcement action against persons who willfully violate environmental laws.  It is true that the President only tells agencies to “consider” policies “consistent with law,” but I think we all know what President Trump means when he tells agencies to consider cutting regulated entities a break.

Because this provision involves the exercise of agency enforcement discretion, it will be much harder to challenge in court.  Certainly, written policies saying that an entire agency will always exercise enforcement discretion to prosecute only willful violations, even in the case of statutes that plainly provide for strict liability, might cause raised eyebrows among judges, but if the agencies actually care about the outcome and draft the policies carefully, they might well withstand judicial review.

My advice to my clients, and I mean this in all seriousness, is pretty simple.  Take steps to carefully document your good faith efforts at compliance – and keep a copy of this EO in your back pocket at all times.

Not So Fast! Oregon DEQ Objects to EPA’s Draft NPDES Permits for Lower Columbia River Dams

Posted on May 21, 2020 by Rick Glick

On May 15, 2020, the Oregon Department of Environmental Quality (“DEQ”) submitted a letter to the Environmental Protection Agency (“EPA”) in which it objected to EPA’s draft water quality discharge permits (“NPDES permits”) relating to four federal dams on the Lower Columbia River. The dams in question are Bonneville, The Dalles, John Day, and McNary. The U. S. Army Corps of Engineers (“USACE”) operates the dams, which are key elements of the Federal Columbia River Power System (“FCRPS”).

Section 402 of the Clean Water Act (“CWA”) requires a NPDES permit for discharges of pollutants from “point sources.” A point source is a defined conveyance for direct discharges of pollutants, like a pipe. Courts have considered dams to be nonpoint sources that do not require permits, as dams typically do not add pollutants, but merely pass upstream pollutants through their spillways. However, dams with hydroelectric facilities often discharge oily waste from onsite transformers, which could include PCBs.

On that basis, EPA has determined that each of the four Lower Columbia dams require a NPDES permit to cover the direct discharges resulting from power operations. EPA specifically did not address indirect discharges through the spillways or turbines.

Section 401(a)(2) requires that EPA notify states whose water quality may be affected by the permits, including Oregon. In its letter, DEQ notes that although the NPDES permits do not address pass-through pollutants, section 401 allows DEQ to consider potential violations of any water quality parameter resulting from total dam operations. DEQ therefore objects to the permits and requests imposition of certain conditions to meet numeric and narrative temperature criteria, total dissolved gas (“TDG”) levels, biocriteria, and toxics substances criteria.

For temperature, DEQ would require a temperature management plan with adaptive management elements to address a yet-to-be-developed Total Maximum Daily Load (“TMDL”). As expected, on May 18, EPA initiated the process for establishing a TMDL for temperature in the Columbia and Lower Snake Rivers. We will be tracking this process and reporting in future posts.

For total dissolved gas, DEQ requests that EPA require the USACE to implement additional monitoring measures to increase compliance with the existing TDG TMDL through adaptive management. With regard to biocriteria, DEQ is asking USACE to allow the use of best technology available (“BTA”) or Oregon Department of Fish and Wildlife (“ODFW”) recommended technology to reduce fish entrainment and impingement. If the technology implemented does not reduce impingement, USACE would be required to develop an adaptive management plan and submit it to DEQ for approval. Finally, DEQ would require additional measures to reduce PCB discharges from each project to ensure compliance with Oregon toxics substances criteria.

DEQ’s objection letter is the latest development in a long-running dispute involving the effects of FCRPS operations on salmonid species listed under the Endangered Species Act (“ESA”). Oregon is an intervenor plaintiff in a lawsuit brought by the National Wildlife Federation alleging that the 2014 Biological Opinion, and later iterations, violated the ESA.

Under the Clean Water Act, EPA will now be required to hold a hearing to address DEQ’s objections and requests. By extending its section 401 authority to the FCRPS saga, DEQ has raised the bar for the seemingly endless tension between the benefits and consequences of this massive public power system, which was established in an era preceding our organic conservation statutes. It has been a bumpy ride and will continue to be for the foreseeable future.

Will Federal Rollbacks Lead to the Rise of Localism?

Posted on May 19, 2020 by Jerry L. Anderson

Based on research from law professors at Harvard and Columbia, the New York Times reported this month that the Trump administration has reversed, or is in the process of reversing, almost 100 federal environmental regulations. The changes weaken federal protection across virtually every sector of environmental, energy, wildlife, and public lands law. While legal challenges to these rollbacks may lessen their impact, the Trump administration will at the very least have begun to turn the tide of federal environmental regulation.

Much commentary has centered around the negative implications of this federal regulatory contraction for the environment. The New York Times article, for example, quotes experts as predicting that the changes will “increase greenhouse gas emissions and lead to thousands of extra deaths from poor air quality each year.”

But could there be a more optimistic view of this tidal change in federal regulation, or at least a silver lining? One possibility is that the clear signals of federal retreat on environmental control could lead to a return to local responsibility for environmental quality tradeoffs.

The theory runs this way: Since the late 1960s, citizens have turned to the federal government to solve all of our environmental problems.  The “environmental decade” of the 1970s ushered in an era of federal control over every type of environmental problem, e.g., water, air, wildlife, and waste disposal.  In this area, as in many others, federal control has been virtually plenary, despite the retention of state agencies’ authority to enforce the federal mandates. Although many environmental acts reserve to the states the authority to enact stricter regulations, in many states federal regulation has become the ceiling, not the floor. See, e.g., Iowa Code Section 455.B.173(2)b, providing that state effluent limitations shall not be more stringent than those established by the EPA.

We know there were good reasons for introducing national level regulation.  For one thing, states fighting for economic growth seemed unable, or unwilling, to impose the cost of environmental controls on the providers of jobs and taxes, engaging in a “race to the bottom.” But the unfortunate downside of 50 years of federal control has been that, at least in some jurisdictions, local users now feel a diminished (or nonexistent) sense of responsibility for those natural resources.  Any environmental problem is now a federal problem, one the local community has little power to affect.  Worse still, for many the EPA has become the bogeyman, the bad guy in Washington imposing onerous regulations on us poor locals.

So what if the bogeyman is gone?  What if we view the rollback of federal authority as an effective invitation to turn back to those locals and say – “we’re giving this responsibility back to you.”  Like the teenager going off to college – how will they respond when the parents are no longer looking over their shoulders?

Of course, I am painting with a broad brush here – I know there are many examples in which states have taken back the reins or acted to augment federal regulations.  For example, some states moved quickly to protect wetlands left behind by limitations on federal control or enacted more expansive state versions of NEPA. Over the last couple of decades, state and local governments have taken the lead on issues such as climate change, when meaningful federal action was absent. Certainly, greater local control may be prevented or at least limited by preemption issues (either federal-state, or state-local). Moreover, for some environmental issues, spillover effects on other states absolutely cry out for federal intervention. 

Nevertheless, it’s worth considering whether the extraordinary campaign of federal deregulation we are witnessing might cause a broader shift in our attitude about environmental issues. If federal control is pared back, to those areas where it’s absolutely necessary, is it possible that will we empower locals to come together once again, to start making their own decisions about how clean they want their air, water, and land to be?

EPA’s War on Science

Posted on May 6, 2020 by Robert B. McKinstry, Jr.

Since its creation under President Nixon five decades ago, EPA has, for the most part, been an independent agency utilizing the best science available, even where the science led it to policy results contrary to the predilections of the party in power – that is until the Trump Administration.  Two recent actions by the Trump EPA, one final and the other proposed, exemplify the sad and stark departure by the Agency from this prior practice.

An example of the agency’s prior practice is the Advance Notice of Proposed Rulemaking issued following the Bush Administration’s defeat in Massachusetts v. EPA.  In that case, the agency staff drafted a lengthy and well-reasoned analysis indicating how greenhouse gases might be regulated under the Clean Air Act governed by the law and science.  The Bush Administration published that analysis, prefacing it with a number of letters by appointed officials presenting alternative views consistent with the Administration position rejected by the Supreme Court - - but the Agency’s well-reasoned analysis constituting the bulk of the notice was nevertheless published.

As noted, two recent actions by the Trump EPA represent a departure from this science-driven regulatory approach; they also share the distinction of being roundly condemned by EPA’s Science Advisory Board and the relevant scientific community.  Both have the transparent objective of preventing the adoption of regulations whose health benefits clearly outweigh their costs.  The two actions are: (1) the final rule reversing the necessary and appropriate finding underlying the Mercury and Air Toxics Rule (“MATS”), National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, Docket No. EPA-HQ-OAR-2018-0794 (“Revised Necessary and Appropriate Finding”); and (2) the proposal cynically entitled Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18768 (Apr. 30, 2018); Supplemental Notice, 85 Fed. Reg. 15396 (Apr. 17, 2020), Supplemental Notice, 85 Fed. Reg.21340 (Apr. 17, 2020) (extending comment period to May 18, 2020), proposing 40 C.F.R. pt. 30 (“Transparency Proposal”). 

Over the unanimous objection of the regulated industry and environmental groups, the Revised Necessary and Appropriate Finding reversed the Obama EPA’s finding that it was necessary and appropriate to regulate hazardous air pollutant emissions from the utility industry under section 112 of the Clean Air Act.  The finding that was reversed was made by the Obama EMA on remand from the Supreme Court’s decision in Michigan v. EPA, holding that EPA needed to consider cost in making a necessary and appropriate finding.  On remand, the Obama Administration EPA considered cost in several ways and renewed its finding that it was necessary and appropriate to regulate hazardous air emissions from the utility industry. 

After the change of administrations, the Trump EPA decided to revisit the necessary and appropriate finding and, in its Revised Necessary and Appropriate Finding, found that it was not necessary and appropriate to regulated hazardous air pollutant emissions from the utility industry (this was the fourth flip over four administrations on this issue).  The Revised Necessary and Appropriate Finding ostensibly left the substantive requirements of the MATS rule in place.  Indeed, the utility industry had already complied with those substantive requirements by either closing plants or installing control equipment. However, under the Clean Air Act, a necessary and appropriate finding is a prerequisite to regulating hazardous air pollutants from the utility industry.  EPA’s reversal of the finding therefore has the potential to increase its chance of success in the on-going challenges to the MATS rule.  Reversal of the rule could undermine the ability of regulated utilities to recover sunk capital costs.

In issuing the Revised Finding, EPA decided not to consider “co-benefits.” The vast majority of the monetized benefits arising from regulating air toxics from the utility industry arise from the fact that most of the toxic acid gases and fine particulates are a mixture of listed hazardous air pollutants and conventional pollutants.  It is, therefore, impossible in epidemiological surveys in most cases to segregate the impacts of the components that are listed hazardous pollutants from the impacts of the components that are conventional pollutants.  Moreover, the same pollution control equipment that removes the hazardous air pollutants will also remove the conventional air pollutants.  Thus, for example, hazardous hydrochloric acid, hydrofluoric acid and hydrocyanic acid all form acid aerosols having the same impact on the lungs as the nitric, nitrous, sulfuric and sulfurous acid aerosols formed from “conventional” NOx and SOx air pollutants; and the same treatment technologies will remove hazardous and “conventional” acid gases.  For that reason, the direct health benefits of controlling these pollutants are labeled as co-benefits, and, according to economists, can also be considered negative costs. 

In the Revised Finding, EPA, contrary to the recommendations of the Science Advisory Board, would exclude these benefits/negative costs, as well as non-monetized benefits, from its consideration.  Instead, EPA would consider only costs to benefits relating to control of a hazardous air pollutant whose impacts can be segregated from other pollutants that are not listed as hazardous and can be monetized.   

Because EPA did not reverse the requirements of the MATS rule, the only apparent reason for proceeding with the revised finding appears to be an intent to advance a rule for the consideration of costs that will make it more difficult to regulate pollutants in the future.  Most pollutants have a variety of impacts, are emitted into the atmosphere as a mixture of pollutants, mix with other pollutants in the environment, and have impacts on receptors that cannot be segregated.  For example, most of us have observed the blue skies and clear air resulting from the reduction in automobile, truck, and air traffic as a result of COVID-19 restrictions.  Under the rationale underlying the Revised Necessary and Appropriate Finding, proposals to reduce greenhouse gas emissions from these sources could not consider the many health, environmental and welfare benefits arising from reductions in NOx and fine particulates.  While perhaps that is the underlying intent, the rationale could also be extended to water pollution, hazardous and solid waste, and other regulations in the future.

The Transparency Proposal might seem to be a proposal that would promote sound science and good government procedure; it provides:

…when EPA develops regulations, including regulations for which the public is likely to bear the cost of compliance, with regard to those scientific studies that are pivotal to the action being taken, EPA should ensure that the data underlying those are publicly available in a manner sufficient for independent validation.

83 Fed. Reg. 18768.  In fact, the proposed regulation is an all too transparent attempt to preclude reliance on results that are crucial for the promulgation of regulations to protect health and the environment, even where those results have met the rigorous requirements of scientific peer review.

Most notably the proposal applies specifically to “dose response data and models” supporting a regulation, requiring that they be “publicly available in a manner sufficient for independent validation. . . in a fashion that is consistent with law, protects privacy, confidentiality, confidential business information, and is sensitive to national and homeland security.  40 C.F.R. § 30.5, proposed 83 Fed. Reg; 18773.  In fact, this qualification makes most data and studies critical to support regulations out of reach for agency reliance.  The underlying data in human health studies is invariably private information that, by the words of the proposal, would be unavailable, for example, many dose response animal studies are business confidential.  Additionally, most models upon which EPA relies are proprietary and are available only for a significant price.  The proposal would also seemingly preclude reliance upon metadata and review articles appearing in peer reviewed publications, since the proposal would require that the underlying data be available. 

In recognition of these fatal flaws, the proposal has been criticized by EPA’s Science Advisory Board and major scientific organizations.  Moreover, there has not been a showing of any need for the proposed regulation.  The only reasonable conclusion is that this proposed regulation, like the Revised Necessary and Appropriate Finding, is an effort to promote the Trump Administration’s anti-regulatory agenda contrary to the dictates of sound science, in short, a war against science.  There is still an opportunity to comment.  The comment period has been extended to May 18, 2020.

A Ray of Regulatory Sunshine

Posted on April 30, 2020 by Lynn L. Bergeson

We are all desperate for good news.  In my continuing efforts not to become further mired in the quiet despair we are all experiencing, I thought I would pass along some good news, ironically occasioned by the pandemic.

To help alleviate supply chain disruptions by pesticide registrants that manufacture disinfectant products included on List N, the U.S. Environmental Protection Agency (EPA), in March, announced it was taking action to help hasten the availability of EPA-registered disinfectants.  EPA explained that it is temporarily allowing manufacturers of select already-registered EPA disinfectant products to obtain certain active ingredients from any source without obtaining prior EPA approval. The action only applies to products listed on EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (List N). For List N disinfectant manufacturers, EPA’s decision was very good news, and EPA has moved with extraordinary speed in qualifying products to be effective against the virus that causes COVID-19.  As of April 23, EPA now has over 400 such products, up from less than 100 such products pre-pandemic.

Typically, EPA requires disinfectant manufacturers to apply for and receive EPA approval prior to making a change in the source of the active ingredient.  Under EPA’s action, however, manufacturers can source certain active ingredients from alternate suppliers by simply informing EPA of the change.  Once EPA has been notified, the registrant can immediately distribute or sell a product modified according to this temporary amendment, provided that the resulting formulation is chemically similar to the current formulation.  Presumably after the crisis subsides, the program would revert back to the standard approval process.  Registrants would then be disallowed from releasing for shipment new registered product unless that product is produced using a source of active ingredient identified in the product’s approved Confidential Statement of Formula, or otherwise would have complied with relevant requirements in the absence of this temporary amendment.

When announcing its temporary action in March, EPA stated that it intended to assess the continued need for the temporary amendment on a regular basis.  More recently, EPA has done one better, resulting in yet more good news.  EPA Assistant Administrator Alexandra Dunn, our esteemed ACOEL colleague, announced on April 22, 2020, that EPA may well consider permanently dropping certain “administrative hoops” based on a review of the temporary policy after the coronavirus crisis subsides.  EPA’s commitment to review the “value added” of these and perhaps other administrative requirements, consider eliminating them, and possibly institutionalize the streamlined temporary approach could be a great take-away from the crisis and an unexpected benefit.  Any such decision would, of course, be firmly premised on the conclusion that in eliminating these administrative hurdles, there would be no risk to human health or the environment.

Crises have a tendency to sharpen focus and realign priorities.  Maybe this crisis will help distinguish essential requirements to protect health and the environment from non-essential, vestigial ones that we can all live without.

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

Posted on April 16, 2020 by Seth Jaffe

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

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

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

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

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

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

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

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

Well done, Mr. Wheeler.

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

Posted on April 9, 2020 by Seth Jaffe

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

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

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

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

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

MACT Follies

Posted on March 20, 2020 by Adam Babich

Data is in from EPA’s “work practice” requirement that petroleum refineries monitor ambient air for benzene concentrations around their fence lines. The regulations set an “action level” of 9 µg/m3 benzene, using benzene as a “surrogate” for fugitive hazardous air pollutants. The purpose? To “protect the health of the populations surrounding the facility, including minority and low-income populations.” EPA set the action level at a concentration that no refinery would exceed as long as its fugitive emissions estimates were “consistent with the level of fugitive emissions actually emitted.” In other words, if operators reported their fugitive emissions accurately, the benzene action level would be entirely theoretical.

Surprise! Benzene concentrations in air around 10 oil refineries blew the limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero and BPF Energy. Does this tell us something about using unverified industry estimates of emissions as a basis for protecting public health?

In theory, the regulatory structure that governs hazardous air pollutants—such as benzene from oil refineries—is brilliant. It includes elements to appeal to fans of both “technology-based” and “risk-based” regulation. Technology-based standards require that facilities reduce dangerous pollution as much as practical given the state of the art. These standards are relatively straightforward to set and enforce. There is no guarantee, however, that technology-based standards will protect people from all excessive risks. In contrast, risk-based standards are designed to eliminate unacceptable risks, ideally with a margin of safety. Confidence in risk-based regulation, however, requires a leap of faith that risk assessment techniques will generate accurate results. Risk assessments tend to rely on questionable estimates of the amounts of chemical pollutants that people breath, drink, or absorb, and on controversial assumptions about what a safe level of exposure would be. The fact that people are exposed to many chemicals leads to further uncertainty about cumulative and synergistic risks.

Originally, Congress designed the Clean Air Act’s hazardous air pollutant program to use risk-based standards. The Act required EPA to set emission standards that would protect public health with an ample margin of safety. For EPA, this mandate raised the prospect of banning some chemicals completely, at least when “the only level … which would appear to be absolutely protective of health is zero.” The agency essentially froze up. As of 1990, EPA had only promulgated eight hazardous air pollutant standards.

Congress responded in the 1990 Clean Air Act Amendments. At least initially, that law shifted the hazardous-air-pollutant program to rest on technology-based standards. The Act required EPA to determine maximum achievable control technology (MACT) for a list of 191 chemicals. Congress, however, did not stop there. To ensure that a MACT standard is actually protecting the public, the Act mandates an EPA “residual risk” analysis within six years of the promulgation of technology-based limits. This sounds like the best of both the technology-based and risk-based approaches—right?

But look at EPA’s historical approach to residual risk: In Natural Resource Defense Council v. EPA, the D.C. Circuit reviewed EPA’s 2006 analysis of risk from facilities that use or produce synthetic organic chemicals. EPA relied on the results of an American Chemistry Council questionnaire with a 44% response rate. Why? The agency explained, inter alia, that reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. EPA’s approach survived the appeal.

With respect to the 2015 petroleum refineries rule: Hats off to EPA for its innovative work-practice/fenceline-monitoring approach. Because the monitoring results illustrate the fallacy of continued reliance on industry estimates of fugitive emissions, the agency should now expand the fenceline-monitoring approach to other sectors.

Modern Day Alchemy: New Help for Treating Acid Mine Drainage

Posted on March 11, 2020 by Robert Uram

Two promising new technologies—recovery of rare earths from acid mine drainage (AMD and conversion of AMD treatment by-products to paint pigments are bringing new hope to remediating AMD polluted streams. These technologies are a kind of modern day alchemy—restoring streams that are orange and lifeless by turning pollution into economically valuable products and creating new jobs for local economies. The development of economically viable treatment processes is a game changer for AMD treatment with potentially huge benefits for national security, local economies, and restoration of the health of thousands of miles of now lifeless streams.

Rare Earth Recovery

West Virginia University’s Water Research Institute director, Paul Ziemkiewicz, PhD, has been at the forefront of researching AMD issues and developing AMD remediation techniques for decades. Dr. Ziemkewicz has developed a process that can extract rare earths from AMD.  As explained more fully in Rare Earths Funded, last fall he received a 5 million dollar grant from the Department of Energy to build a pilot plant in conjunction with the WVDEP that will extract rare earths while treating 500 gallons of AMD per minute. Dr. Ziemkewicz estimates that AMD flows could be the source of as much as 2200 tons of rare earths a year.

Rare earths are a critical component in many products including cell phones.  Rare Earths Funded explains that, “Rare earth metals consist of the 17 chemically similar elements at the bottom of the periodic table, such as cerium and scandium. Despite their name, they're not "rare" because they're often found in other minerals, within the earth's crust or, in this case, in coal and coal byproducts.” Most of the 20,000 tons of rare earths we use are imported, mainly from China. The initial plant will be located on Abrams Creek, a tributary to the North Branch of the Potomac River and will benefit at least 17 miles of stream.

Paint Pigments

Rural Action is a watershed organization that has been involved in restoring AMD damaged streams since 1991. Recently, they have partnered with Ohio University Professor Guy Riefler, and the Ohio Department of Natural Resources to develop a process that transforms iron from AMD into marketable paint pigments in a process called True Pigments, https://www.ohio.edu/news/2019/12/acid-mine-drainage-cleanup-plant-moves-closer-full-scale-thanks-3-5m-award. They have received a 3.5 million dollar grant from the OSMRE to partially fund the development of a treatment plant. The initial plant will treat a large discharge in the Sunday Creek watershed in Athens County, Ohio, that pollutes a seven-mile stretch of Sunday Creek with 2.2 million pounds of iron each year.

The True Pigments process treats polluted water, removing iron oxide, to yield a commercial grade of iron pigment, which can be used in paint production. The United States uses about 224,000 tons of paint pigment each year, most of which is imported from China.  The first True Pigments plant is anticipated to meet one percent of that supply.  Rural Action is still seeking an additional four million dollars needed to build the treatment facility.

In the past 25 years, with the active support of dozens of watershed groups like Rural Action and Friends of the Cheat River in West Virginia and state and federal agencies, hundreds of projects have been implemented and many hundred miles of AMD-polluted streams have been brought back to life. Formerly dead streams are now brimming with fish and other aquatic species. Local communities have the benefit of clean water.

The bulk of the funding for these restoration projects has come in the form of grants to State Abandoned Mine land programs from Surface Mining Control and Reclamation Act’s Abandoned Mined Land Fund and from EPA’s Clean Water Act Section 319 grant program. These funding sources are simply insufficient to address the vast scope of AMD problems (which are only a part of the overall need to address the health and safety and other environmental effects from abandoned coal mines).  In addition, new revenue to the Abandoned Mined Land fund is currently scheduled to expire in 2021.

The rare earth and True Pigment processes can help address the funding shortage by providing an additional, independent source of funding for AMD remediation. They will be important tools in the decades to come as the battle continues to restore more than 7000 miles of streams polluted by AMD from abandoned coal mines continues in Pennsylvania, West Virginia, Ohio, Virginia, Maryland, Kentucky, Tennessee and Alabama.

Little Bear Run, Pennsylvania (Before and after Treatment)

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Shaping the Future of EPA

Posted on January 29, 2020 by Ridgway Hall

What should EPA and environmental protection look like in the future? A report issued by American University’s Center for Environmental Policy in December, entitled Moving Forward: Future Directions for EPA and Environmental Protection, provides 6 principal recommendations.

The report was written by John Reeder, Executive in Residence at the Center and a 30-year veteran of EPA, based on a conference that was cosponsored last April by AU’s School of Public Affairs (where the Center is housed), its law school and ELI, with a talented and diverse field of speakers including 4 former EPA Administrators.  It was also informed by 5 focus group reports prepared by the EPA Alumni Association, which helped organize the conference.

At ACOEL’s October meeting, Dan Esty issued a challenge to us to undertake a multi-year project to transform our environmental protection framework from the existing “command and control” regulations to one using primarily market-based incentives. On November 21, I posted a blog article titled Dan Esty’s Challenge to ACOEL: Let’s Do It. I pointed out that 25 years ago a wave of thoughtful studies recommended moving away from command and control regulation towards systems featuring multimedia permitting, ecosystem-wide approaches, financial incentives, marketable pollution rights and other innovations, but that very little had come of these.

So what’s changed? Among other things, there appears to be an increasing recognition that when a company acts because it is in its financial interest to do so rather than because a regulation is requiring it to do so, it is more economically efficient (the transaction costs are lower) and the managers are likely to feel better about the fact that they were free to make the choice. Shifting the emphasis in the implementation of environmental laws in this way can yield better outcomes within the underlying regulatory framework. This translates to political acceptance by both industry and the public. In addition, thanks in part to the internet, we have more scientific, technical and economic data regarding environmental issues, we have far more sophisticated methods of using and transmitting that data, and we have more sophisticated abilities to monitor actions and impacts.

Furthermore, the nature of our environmental challenges has expanded to include climate change, energy policies, loss of biodiversity, agricultural practices, water availability and distribution (not just quality), land use, and the environmental behavior and effects of manufacturing wastes like endocrine disruptors and microplastics. Many of these issues must be addressed by multiple federal departments or agencies (Interior, Energy, Agriculture, NOAA  and the Corps of Engineers to name a few). Some, like climate change and the protection of oceans and fisheries, must be addressed on an international basis. Most of these issues cannot be effectively addressed through regulatory controls alone. Finally, issues relating to allocation of costs, environmental justice and public acceptance have become more prominent.

The challenges facing EPA are of two types: 1) threats to the environment or human health, and 2) “system” challenges, reflecting in large part the statutory framework under which EPA addresses those threats. The AU report focuses on EPA’s institutional capacity rather than on  specific policy proposals. The 6 major recommendations are as follows:

  1. Pursue State of the Art Science Capability. EPA will need to keep abreast of rapidly emerging scientific challenges, manage data from numerous sources, and reestablish technical assistance as part of its core mission. Sound science must be a top priority.
  2. Renew the “Environmental Protection Enterprise”. This involves striking the right balance in its relationships with states and tribes between maintaining a level playing field and encouraging flexibility and innovation, partnering with private sector entities, and focusing on outcomes rather than just regulatory compliance. It includes working with other federal agencies and encouraging regional approaches involving multiple layers of government and the private sector (“cooperative federalism”), such as the Great Lakes and Chesapeake Bay initiatives.
  3. Strengthen International Cooperation. Because many of our biggest environmental challenges are global, like climate change and protection of ocean resources, EPA should work with the State Department and other relevant agencies to strengthen relationships with other countries and international organizations to share information and address these issues on an international scale.
  4. Harness the Power of Consumer Choice and the Marketplace.The use of pollution pricing, cap and trade programs and other market-based incentives should be promoted, with existing regulations largely left in place as a backstop. EPA should continue to encourage corporate sustainability programs, public information campaigns like the Toxic Release Inventory and ecolabeling.  
  5. Advance a Forward-looking Regulatory System. EPA’s regulatory programs should anticipate rapid technological change and make use of vastly expanding monitoring and reporting technologies. They should emphasize transparency and public accountability, help reduce the “overhead” costs of regulations, and include market-based approaches wherever possible.
  6. Engage the Public to Raise Awareness About the Environment. EPA should promote public awareness and education from elementary school through college on environmental issues, challenges and opportunities. Its regional offices should work with state and local entities to make scientific information and teaching materials and online instruction available.

There is a lot more in this report than I can summarize here. It is thoughtful and important reading for anyone interested in the future direction of EPA and environmental protection.

When is risk reduction not a benefit?

Posted on January 7, 2020 by Adam Babich

EPA filed a status report on October 15 in the slow-moving mercury and air toxics (MATS) litigation, which is now Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir., filed April 26, 2016). The case is a challenge to EPA standards for coal-fired power plants that have been on the books since April 16, 2012, despite a U.S. Supreme Court remand in Michigan v. EPA, 135 S. Ct. 2699 (2015), followed by a D.C. Circuit decision not to vacate, White Stallion Energy Center v. EPA, 2015 WL 11051103 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2463 (2016), and the pending 2016 challenge to an EPA supplemental finding. EPA’s October 15 status report says that the agency has sent OMB a draft final rule regarding its proposal—published in February 2019—to withdraw its finding that a MATS rule is “appropriate and necessary” while leaving the applicable emission standards in place. 84 Fed. Reg. 2670 (Feb. 7, 2019). These proceedings retain a relevance apart from their utility in illustrating the occasionally bizarre nature of the world in which we live and litigate.

EPA’s proposal would, among other things, implement a new approach to analyzing the benefits of a regulation. Specifically—when calculating benefits for purposes of determining whether regulation of hazardous air pollutants is appropriate—EPA would eschew consideration of “co-benefits” flowing from accompanying reductions in emissions of other pollutants, such as nitrogen oxides, sulfur dioxide, and fine particulate matter. Thus, “if the HAP [Hazardous Air Pollutant]-related benefits are not at least moderately commensurate with the cost of HAP controls, then no amount of co-benefits can offset this imbalance for purposes of a determination that it is appropriate to regulate under CAA section 112(n)(1)(A).” 84 Fed. Reg. at 2676. The idea is that non-HAP benefits should not receive “equal consideration” because criteria pollutants “are already addressed” by another regulatory program. Id. at 2677.

The analysis is reminiscent of EPA’s infamous Select Steel opinion, which dismissed an environmental-justice complaint. EPA File No. 5R-98-R5. In that 1998 opinion, the agency found that because the NAAQS for ozone “has been set at a level that is presumptively sufficient to protect public health and allows for an adequate margin of safety … there is no affected population which suffers ‘adverse’ impacts within the meaning of Title VI resulting from the incremental VOC emissions [that do not cause NAAQS violations].” There could be no disproportionate impact on a minority community that met NAAQS because there was no “adverse” impact at all!

The conclusion that achievement of NAAQS eliminates risk ignores a reality that Congress perceived when it amended the Clean Air Act in 1977. Congress recognized the need to protect people from harmful exposures “notwithstanding attainment and maintenance of all national ambient air quality standards.” 42 U.S.C. § 7470(1). The legislative history acknowledges, “The idea that the national primary standards are adequate to protect the health of the public has been belied.” H.R. Rep. No. 95-294 at 112 (May 12, 1977) (accompanying H.R. 6161). Senator Muskie—the father of the Clean Air Act—explained, “[T]here is no such thing as a threshold for health effects,” S. Deb. on S. 252, 123 Cong. Rec. 18,460 (June 10, 1977). “Even at the national primary standard level, which is the health standard, there are health effects that are not protected against.” Id.

“Appropriate” is an “all-encompassing term that naturally and traditionally includes consideration of all the relevant factors.” 135 S. Ct. at 2707 (quotation marks and citation omitted). Just as it was not “appropriate” for EPA to ignore costs when deciding to promulgate MATS, id., it would be inappropriate to ignore the benefit of lives saved because of ancillary reductions of criteria pollutants.

The Bees Just Got Busier: EPA Approves New Fungicide to be Delivered by the Bees Themselves

Posted on December 20, 2019 by Richard Horder

EPA has been a hive of activity regarding the declining bee population. The agency recently approved an organic fungicide that is to be delivered to crops via “bee vectoring”—a process by which commercially-reared bees walk through trays of pesticide powder, collecting it on their legs and fur. The bees are then released into the wild, and when they land on flowers to collect pollen, the pesticide is distributed directly to the source. It’s true! I am not pollen your leg here.

The fungicide, Clonostachys rosea strain CR-7 (also known as “Vectorite”), is aimed at protecting “high value” crops such as almonds, blueberries, strawberries and sunflowers. The fungicide’s creator, Canadian company Bee Vectoring Technology International (BVT), claims it is a “naturally occurring, non-genetically modified, unique fungus found throughout the world”—in other words, totally bee-nign. 

BVT had to seek approval from EPA for this unique fungicide and distribution process. Section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) authorizes EPA to set tolerances, or maximum residue limits, for pesticide residues on foods. Without such a tolerance, food containing residue is subject to seizure by the government. EPA approved an exemption from this tolerance requirement for residues of Vectorite in August 2019, finding that it is “safe” within the meaning of FFDCA. Vectorite is the first pesticide EPA has ever allowed to be deployed by bees—a bee-utiful use of the exemption.

Here is what all the buzz is about: Vectorite may be a win-win for bees and struggling crops alike. Bumblebees have been declining at an alarming rate in the U.S. in recent years, and studies show that common chemical fungicides are responsible for at least 70% of this decline. These fungicides are traditionally applied via spraying, an imprecise method which requires more product than necessary, with the rest ending up in water sources or on land—a stinging result for the environment and bees alike. But the use of bee vectoring, a highly precise distribution method, may end up replacing the use of these traditional fungicides, thereby bolstering the declining bee population. It seems like bee vectoring is the bee’s knees and a honey of a solution!

But now for the buzz kill: some biologists believe the fungicide may prove harmful to the busy bees who deliver it. Sheila Colla, a conservation biologist at the University of York, thinks that farmers will continue to use insecticides in addition to Vectorite to combat fungal diseases. Not only that, but there is also the potential that this method will adversely affect the wild bee population. The rusty-patched bumblebee (Bombus affinis), listed as endangered under the Endangered Species Act just two years ago, may very well have “[rapidly declined] because they were exposed to a novel disease from managed bees.” For more on the rusty patched bumblebee, see an earlier blog post of mine, Bumble Bee Buzzkill.

The question is, then (with apologies to Shakespeare): “to bee, or not to bee?” Even if Vectorite is not the solution to the plight of the American bumblebee, hopefully it will, at the very least, make farmers buzz off of the large-scale application of harmful chemical fungicides.

Should Someone be Reading The SEP Policy its Last Rights?

Posted on December 5, 2019 by Heidi Friedman

Chances are if you have been on either side of a settlement for an environmental violation over the past 20 years, you have discussed and/or negotiated a supplemental environmental project (SEP) as part of the overall resolution of a matter.  SEPs are projects that go beyond what is required by law, although the projects do have to have a “nexus” to the violation being addressed.  Settling parties can receive a credit toward mitigation of the civil penalty for a portion of the value of funds spent on implementing SEPs, and SEPs are the favorite child of many since a quality SEP can close the gap on a contentious penalty negotiation – visualize a bridge that pops up bringing two sides together.  Instead of building these bridges, the Asst. Attorney General’s August 21, 2019 Memorandum analogizes SEPs to elephants explaining that “Congress does not ‘hide elephants in mouseholes’ (citing Gonzales v. Oregon, 546 U.S. 243, 267 (2006)) and if Congress had intended the use of such a “controversial miscellaneous-receipt-circumvention device[], it would not have done so without mentioning SEPs by name.”  And while the elephant/mousehole analysis relates specifically to an interpretation of the 2018 Clean Water Act Amendments, it still seems challenging to think of such a long-accepted settlement tool as now being the elephant in the room. 

The August 2019 memorandum all but eliminates SEPs for civil consent decrees and settlement agreements with state and local governments, which at first read may be seem a narrow focus.  Yet, the grounds set forth in that memo and related analysis provide a clear path for this Administration to fully exterminate this elephant or at least put it to rest for now.  One recent example is in July 2017, when DOJ modified a finalized settlement with Harley Davidson in a Clean Air Act case by removing the SEP.  This left the American Lung Association without its project to retrofit or change out wood-burning fireplaces and left Harley Davidson paying a larger penalty.  From the defense side of things, many companies favor SEPs since a SEP can allow the company to support an innovative project that can truly benefit a community’s local environment.  And to be transparent, there can also be potential tax advantages while penalties are not tax deductible. Keep in mind that the SEP does not replace the payment of a penalty, it supplements and somewhat mitigates the potential penalty payment that might have been sought and obtained.

Yet, what we are seeing is a clear signal that money is the only path to resolution.  The crux of Clark’s analysis and any debate over SEPs is that SEPs are seen as “…mechanisms for sidestepping the power of the purse.”  (citing to H.R. Rep. 115-72, at 5-6) or said in another way, “…implicating Congress’ constitutional power over appropriations.”  The Clark view is that Congress should be able to spend its penalty funds as it pleases whether its defense spending or the opioid crisis, without any nexus to the alleged violation, and thus, allowing a SEP to direct funds in a manner that serves narrower statutory purposes interferes with this autonomy.  Don’t get me wrong, we need government intervention in the opioid crisis, but do we further the purpose of our environmental laws when we are just collecting as much penalty money as possible?  Using environmental penalty policies to fund another defense tank for example seems counter intuitive to the intent of the Clean Water Act or the Clean Air Act in the first place.  While I am certainly not a constitutional scholar, I do know that we have the judiciary reviewing and approving SEPs as part of the Consent Decree process providing a further check on the scope and direction of this often favored alternative. 

For you elephant lovers out there, EPA does seem to be keeping the policy alive and well at the moment as the memo is not even posted to the SEP page on its website.  According to the EPA 2018 enforcement statistics, the value of SEPs in settlements jumped from 17.75M in 2017 to 28.93M in 2018.   Further, in FY2018, EPA enforcement cases included 100 SEPS.   Looking at the last 10 years (2008 to 2018), the total value of 1,418 SEPS was $577M. This is not peanuts no matter how you look at it, but here’s hoping we are able to keep the elephant alive and well.