Posted on January 26, 2017
The Trump administration has issued a key Executive Order and several memoranda relating to energy and the environment. The goal of the Executive Order -- Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects – is to expedite environmental reviews and approvals. It provides that action by the Chair of the Counsel of Environmental Quality to designate an infrastructure project as high priority would trigger an expedited review and approval process, as described in the memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing.
Two other memoranda – those addressing the construction of the Keystone Pipeline and construction of the Dakota Access Pipeline – are intended to clear the way for approval of these two controversial pipelines. The President also stated that he wants pipe for U.S. pipelines to be made with American steel.
Finally, the White House issued a memorandum providing for a regulatory freeze of regulations that have not taken effect and withdrawal of regulations that have not yet been published in the Federal Register. In accordance with this directive, EPA has issued a notice postponing to March 21, 2017 the effective date of 30 regulations that were published by EPA after October 28, 2016. The delay is intended to provide further review of these regulations by the new Administration.
The Order and memoranda do not change the requirements of relevant environmental statutes. It remains to be seen to what extent these policies will affect future permitting or regulatory decisions. Interested parties will wish to carefully monitor how these developments unfold.
Posted on October 13, 2016
Along with the flood of news coverage of the Flint water crisis comes the flood of litigation. So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the expected plea deals. Here are some highlights.
In April, a federal district judge dismissed for lack of subject matter jurisdiction a §1983 claim for “safe and portable water” as preempted by the Safe Drinking Water Act. The case is on appeal.
Class actions have been filed against state and municipal officials in federal court, the Michigan Court of Claims, and Genesee County Circuit Court, seeking damages for personal injuries, property damages, and relief from water bills. Along with the usual governmental immunity defense, defendants assert a statute of limitations defense, with a fair likelihood of success. The governmental immunity defense is complicated by Governor Snyder admitting fault. That admission strengthens plaintiffs’ gross negligence exception to governmental immunity.
So far, the Attorney General’s criminal charges have resulted in the usual plea deals by underlings. The Flint water quality supervisor whom I lauded in a previous post as the only principled public servant in this mess (a position with which the Attorney General agrees) pled no contest to willful neglect of duty; the plea is essentially nothing, because the court took the plea under advisement with dismissal in one year if the supervisor cooperates with the investigation. A state official reached a second plea deal, pleading no contest to willful neglect of duty regarding an outbreak of legionnaire’s disease with the usual cooperation clause.
Politics saturates the Flint legal landscape. Attorney General Bill Schuette is widely expected to run for governor in 2018 and must therefore appear to be doing something, such as filing an unusual professional negligence and public nuisance claim against the Flint outside engineering firms. And when the Flint mayor notified Michigan of intent to sue the state, the state receivership board with continuing jurisdiction over Flint removed the city’s authority to sue.
Posted on September 20, 2016
Sometimes the most extraordinary things in the world of law and government get served up in the most undramatic way. If you aren’t paying attention to the back story, and you don’t know the context, you might almost miss the action. And future generations, seeking to decipher history, might all too easily overlook the most crucial and delicate tipping points. This fact of life has been emphatically proven by the Pulitzer Prize-winning cultural juggernaut that is the Broadway musical Hamilton, by Lin-Manuel Miranda. In addition to telling the very personal story of one of our nation’s founding fathers, Hamilton shows, in brilliant style, that even seemingly dry and technical matters such as the origins of our nation’s financial system, and the logic underlying the complex apparatus of modern administrative agencies, are actually fueled by passion, dripping with drama, and world-changing in consequence. You just need to know whose story to tell, and how to read between the lines.
A recent case in point: On August 17, 2016, the Massachusetts Supreme Judicial Court issued its decision in Engie Gas & LNG LLC v. Department of Public Utilities (Docket SJC-12051/SJC-12052). Environmental and energy lawyers readily recognized the decision as an important one, but it’s easy to see how future generations, far from the current action, might miss the excitement here. The question in Engie was whether the state utility department could approve ratepayer-backed, long-term contracts by electric distribution companies for the purchase and resale of interstate natural gas pipeline transportation capacity.
To answer that question, the Engie court addressed, among other things, (1) the propriety of the appeal in the absence of a final adjudicatory order; (2) the pertinent standard of review, (3) the canon of statutory construction reddenda singula singulis, a.k.a. the rule of the last antecedent (which might also be merely a grammar rule), (4) whether ambiguity should or could be found in statutory language that neither expressly forbids nor clearly permits the proposed departmental action, (5) the parties’ competing interpretations of the legislative history, (6) the overall statutory framework, (7) the necessity of a “distributive reading” of the terms “gas or electric,” (8) the limitations of the deference to be afforded to an agency’s reasonable interpretation of a statute it is charged with enforcing, where the interpretation represents a significant departure from the agency’s own record of administering the pertinent statute, (9) the importance of ensuring consistency with the fundamental policy embodied in the legislation at issue, and (10) the interpretive pertinence of subsequent, separate legislation. Phew!
Ultimately, the SJC rejected the utility department’s determination of the scope of its authority, and concluded that the pertinent statute forbade the imposition on electricity ratepayers of the costs of new natural gas supply infrastructure. Like many judicial opinions concerning complex environmental and energy issues, the Engie decision has a sober logic that makes it seem unsurprising, correct, and even almost easy. But wait – what just happened here?
Ladies and gentlemen, we have an affair of honor! One dueling party and its seconds, the state’s public utility department and electric distribution companies, contend that the policy choice by our state government’s executive branch to expand natural gas pipeline capacity is a sensible way of meeting our very real need for reliable electrical power. Even as we move toward a more sustainable future of renewable energy, they say, we still depend urgently on new supplies of natural gas, obtained by means of fracking, to provide the essential “bridge” fuel, and we can all get ready for price spikes and power blackouts each winter if we ignore that reality. It’s an emergency, and our future is at stake!
The other dueling party and its seconds, who include the Massachusetts Attorney General and a coalition of environmentalists, land conservationists, and consumer and taxpayer advocates, insist that we don’t need any new natural gas infrastructure at all. And if we don’t push much faster and harder for a larger-scale shift to more environmentally sustainable ways to support our energy consumption, they say, we are fiddling while Rome burns. It’s an emergency, and our future is at stake!
Grappling with the fine points of utility infrastructure regulation and financing may make some people’s eyes glaze over. To which I say, are you kidding? I can’t think of another moment when our courts were faced with environmental and energy law disputes more laden with tension and drama. This is the high-stakes, heroic, dueling-on-the-ledge stuff on which our future history depends. It could practically be a Broadway musical.
Posted on September 15, 2016
Congress in recent years has not really been in the business of solving core public welfare problems like safe drinking water. Today the Senate, however, has taken a major step forward by passing the 2016 Water Resources and Development Act, S. 2848. WRDA bills are the annual appropriations bills to shore up the nation’s water service infrastructure. The Senate bill would provide $9.4 billion for water projects, hydrology and flood control, including $4.9 billion to address aging municipal water systems.
By and large, Americans take for granted that their municipal water supply systems deliver abundant, wholesome and safe drinking water. Water borne illnesses are rare in this country, and the professionals I know that operate these systems take their jobs seriously and feel the weight of the responsibility. And yet, there are colossal failures putting public health at risk—like Flint.
The Flint debacle reflects a complete absence of professional water management. The problem there was a change in water supply, and the failure to add commonly available corrosion inhibiting chemicals to the water to prevent lead pipelines from leaching lead into Flint homes. What should have been an inexpensive operational measure became a billion dollar pipe replacement project. And that figure doesn’t include the long-term costs to address health effects of drinking the water, not to mention the cost of a different kind of corrosion, that of the public trust.
But even well-managed municipal water systems, including those that tout the high quality of the supply, can have serious lead problems. My town of Portland, Oregon, has one of the purest water sources in the country, the Bull Run water shed on Mt. Hood. The water is so soft, however, that it has a corrosive effect. Luckily Portland doesn’t have lead service pipes like Flint, but many older homes have lead solder in their plumbing, resulting in Portland exceeding lead drinking water standardsin high risk households and schools.
The Portland Water Bureauis taking steps to address the lead problem, like raising the pH level in the water to minimize lead leaching. But Portland’s water rates are among the highest in the country, and the cost of maintaining safe water supplies is only going up. There is a practical limit to how high water rates can go, and communities with fewer resources than Portland struggle to keep up.
This is where the federal government is supposed to step in, to address problems that exceed local capacities to protect the public. Although a little late in coming, S. 2848 is a mostly bipartisan bill, which if enacted could move the needle in the right direction. Let’s hope this bill gets through the House and to the President for signing without further delay.
Posted on August 29, 2016
Perhaps not many, at least not in Oregon, would mourn the failure of a liquefied natural gas terminal and associated gas pipeline project. As counsel for over a decade to the Oregon LNG project at the mouth of the Columbia River, I mourn less for the failure of the project than the process. I am confident that if the standards-based approval process had been allowed to play out, we would have satisfied all federal and state permitting criteria. But, alas, we never got that opportunity.
The Natural Gas Act, as amended in 2005, confers upon the Federal Energy Regulatory Commission exclusive authority over the siting of LNG export terminals and interstate pipelines. The NGA, however, preserves authority delegated to the states by the Clean Water Act, Clean Air Act, and Coastal Zone Management Act. The problem is that Oregon law requires state agencies to first receive affirmation from local governments of compatibility with land use regulations before issuing a state permit.
Other states have similar laws and have attempted to use them to halt or impede LNG projects, only to have Courts of Appeals for the D.C., First and Fourth Circuits reject the incorporation of local land use planning into state processes as preempted by the NGA. But the conflict with state law sets up an unnecessary confrontation, adding expense and delay that can prove fatal to a project under development, as it was here.
The Oregon LNG project, aware of the federal preemption argument, nonetheless filed land use applications at the City of Warrenton for the terminal, and at Clatsop County for the pipeline. The project filed the applications to demonstrate a desire to comply with all applicable regulations, confident in its ability to do so. In fact, an independent hearings officer, following an evidentiary hearing, concluded the project met all County criteria. Following approval by the County Commission, and, while an appeal by opponents was pending, an election occurred. An anti-LNG slate was elected to the Board of Commissioners, and the newly constituted County Commission promptly reversed course. And there’s the rub: the criteria had not changed, only the elected officials passing judgment. Thus, local land use compatibility statements were not to be had, rendering the state permitting process impossible to complete.
This is not a screed against the multitude of state or federal agencies reviewing our various, complex permit applications. To be sure, the agencies felt the political pressure brought by opponents, which caused them to be cautious and deliberate (perhaps too deliberate) and thus slow moving. Nor is this to suggest that local governments and sentiment should have no role in siting energy projects that affect their communities. Of course they should.
The real problem, however, is the total deference given under Oregon law to local land use regulations, even when the local land use decision is so blatantly political, thus creating a legal basis for NIMBY-ism. In our case, this deference essentially gave veto authority to the Clatsop County Board of Commissioners, which cannot have been the intent of Congress or the state legislature. Otherwise, how would any infrastructure project of national importance ever be constructed—highways, power plants, transmission lines, fiber optic cables, telephone lines, railroads, bridges, or dams—if locals could block it through a land use resolution?
Posted on May 20, 2016
August 25, 2016 is the 100th anniversary of the National Park Service. The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us. As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park. I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.
As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession. Why – and how – we do what we do? What challenges will the next 100 years hold?
I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond. Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself). Sadly, we lost Henry earlier this year.
Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it. We have made progress, but new challenges have emerged. Easy answers, if they ever existed, are fewer and farther between. So what, then, does the future hold for the next generation of environmental lawyers?
Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals. As an example, we can look to the past. Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962. Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands. Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges. While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities. Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion.
I expect climate change will dominate the agenda for the young lawyers of our current era. They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change. Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.
We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties. Autonomous vehicles and drones also pose novel environmental and land use issues. These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate. As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions. Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions. Only in this way can the environmental bar forge new solutions to emerging challenges.
The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore. From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection. As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions. This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.
Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response. With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide. With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.
Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”). I commend that article to you. It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come. Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference. In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015. The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law. I hope it may inspire ACOEL members and others to follow Henry’s lead.
These are just a few things I think the future holds for environmental lawyers. What trends do you predict? How should the environmental bar and ACOEL respond?
Posted on February 19, 2016
Amid the finger-pointing, forced resignations, and mea culpas, a question has hovered over the Flint water crisis. What did staff at the Flint water plant say before the switch to Flint River water?
For months, Michigan’s governor Rick Snyder and the Michigan Department of Environmental Quality have admitted mistakes but never quite explained why Flint switched from Lake Huron water to Flint River water without prior pilot studies. Critics assailed the saving-costs-at-the-expense-of-the-public-health attitude. Apologists apologized and promised remedial measures. But until last weekend, we did not know what the engineers and technicians who operate the Flint water plant thought of the switch.
On February 13, the Detroit Free Press reported that the Flint water lab supervisor questioned the switch. One week before the grandiose public ceremony celebrating the new era for Flint, the lab supervisor told DEQ he needed time to train staff and update monitoring to be ready to use Flint River water. He complained that higher-ups seemed to have their own agenda.
Like many members of this College, I have spent my career fighting the regulator attitude that “we’re the government experts—trust us” and being dismayed when courts blindly defer to an agency. But when faced with a choice, should we believe agency staff, or politicians and their flappers (see Gulliver’s Travels)? We should start by considering the views of the technical folks who take seriously their jobs to protect publichealth. We might get better policy.
From the Detroit Free Press, February 18, 2016
Posted on May 23, 2014
Recently, Governor Cuomo and the NY State Legislative leaders struck a $140 billion budget deal for FY 2014-2015. Historically, the budget process in New York is messy (sometimes very messy), protracted (with the budget often being late, sometimes very late) and largely plays out behind-the-scenes among the “three men in the room” (Governor Cuomo, Speaker Silver and Senate Co-Leader Dean Skelos). Nevertheless, the FY 2014/2015 budget was passed on time this year and without too much background noise.
How did the environment fare you ask? That might depend on who you ask. Parks advocates were declaring victory and applauding the infusion of $92.5 million in park capital funds, (which the State Senate initially had rejected) for repairs and restoration at New York’s state parks and historic sites. This is the third year of robust capital funding for parks after several years of severe cuts in parks funding, although Park state officials had identified more than $1 billion of required park rehabilitation projects across the state. On the environmental front, notwithstanding some modest successes in the budget process, the environmental community largely believes the new budget falls short when it comes to protecting the environment, making New York more sustainable and preparing New Yorkers for the challenges of climate change. Moreover, many of the so-called advocacy successes were, in reality, merely successful efforts to beat down some pretty bad ideas.
Here are some of the highlights:
1. The Environmental Protection Fund (the “EPF”): The EPF was established in 1993 to fund environmental projects that protect the NYS environment and enhance communities, including in the areas of open space (such as purchasing land for the NYS Forest Preserve), parks, recreation, historic preservation and restoration, habitat restoration, farmland conservation and solid waste management (including upgrading of municipal sewage treatment plants). The EPF, which once stood at $255 million but suffered deep cuts during the recession when it was raided to support the State’s General Fund, was increased in the FY 2014/2015 budget to $162 million, a $9 million increase over last year’s funding level, continuing the progress toward restoring the EPF. The environmental community had sought an increase to $200 million.
2. Brownfields Clean-up Program: No consensus was reached among the Assembly, Senate and Governor during the budget process on the needed reforms to the Brownfield Clean-up Program (“BCP”) and extension of the BCP tax credits deadline. Unless the Legislature and Governor can agree on a bill before the end of the legislative session in mid-June, the program will expire at the end of 2015. Negotiations are continuing on a compromise bill and there are at least 4 competing proposals currently on the table.
3. Reauthorization of the State Superfund Program: The budget agreement did not include new funding for the State’s Superfund program. It is hoped that this issue will be taken up along with a BCP bill and funding.
4. Clean Energy: Proposals from the Assembly and Senate to divert to the General Fund up to $218 million from the New York State Energy Research and Development Authority (“NYSERDA”) budget, which supports clean energy projects, energy-related job creation and greenhouse gas emissions reduction, were defeated.
5. Pesticides: The Governor had proposed to significantly gut the Pesticide Sales and Use Reporting Law. The Senate refused to go along with the Governor’s proposals, whereas the Assembly proposed to modernize the law. No consensus was reached so the law remains in effect.
6. Diesel Emissions Reduction Act (“DERA”): The Governor and Assembly acquiesced to the Senate’s desire to delay the deadline for compliance with New York’s DERA by one year. Accordingly, the State now has until the end of 2015 to bring the State’s fleet into compliance with the Act.
7. Mass Transit/the Metropolitan Transportation Authority: The final budget diverts $30 million in funds dedicated for mass transit to pay State debt, a disappointing loss at a time of record mass transit ridership.
Overall, one might characterize the final budget as being good for the environment mostly because of what it did not accomplish than for what ultimately was included in the FY 2014/2-15 budget.
Posted on September 11, 2013
A federal court in Washington, D.C. gave some encouragement to transmission line developers—not to mention sponsors of other linear projects, like gas or water pipelines. In National Parks Conservation Assn. (NPCA) v. Jewell, the court rejected a challenge to the National Parks Service’s grant of special use permits and extended rights-of-way for the Susquehanna to Roseland Transmission Line (S-R Line), a replacement and upgrade project.
The focus of Appellant NPCA’s attack was the National Environmental Policy Act (NEPA), a potent weapon in years past. Under NEPA, a federal agency considering a “major” action must evaluate the environmental effects of the project. After an initial Environmental Assessment, the agency either conducts a full blown Environmental Impact Statement (EIS) or issues a Finding of No Significant Impact. NEPA’s purpose is to ensure that the agency takes a “hard look” at the environmental tradeoffs of its intended action, but once having done that, it can decide to move forward regardless. In other words, NEPA is a procedural statute, but lacks teeth to prevent the agency from acting.
Still, NEPA has proved effective in stopping projects in their tracks. The usual avenues of attack have been whether the agency should have written an EIS, whether it considered all reasonable alternatives, whether the EIS needs updating, and whether the project should be seen in a larger context of other similar developments or as part of a broad program. In recent years, however, the agencies have learned how to beat back such challenges.
The NPCA made allegations on similar bases here, but this time to no avail. The Parks Service’s EIS took an adaptive management approach to mitigation, anticipating that the mitigation plan would evolve. The NPCA argued that the EIS must analyze the mitigation ultimately decided on, but the court was satisfied the agency had taken the requisite “hard look.” Nor did the court find a supplemental EIS necessary because the “new information” adduced by the NPCA concerned environmental effects that were already within the scope of the EIS.
The NPCA also argued that the alternatives analysis in the EIS was lacking because it didn’t adequately consider the no-action alternative. In this case, the no-action alternative would be to pursue a non-transmission approach, such as distributed energy. The court deferred to the Parks Service’s analysis that this alternative would not meet the objective of improving the reliability of the applicants’ existing line. The court found that the Parks Service rationally considered and rejected the no-action alternative.
The court also rejected the argument that the Parks Service should have analyzed the environmental effects of the entire S-R Line, and agreed the agency could look just at the consequences of extending the right-of-way. The judge took note of the fact that the project sponsors could have reconstructed the line on their existing right-of-way, and therefore there was no functional difference between the reconstructed line on the proposed right-of-way and the existing one.
The court’s approach in this case is consistent with NEPA case law in recent years. Agencies will be given some deference in their decision making, so long as their NEPA documents indicate a good faith effort to look at environmental impacts. Project opponents can no longer rely on NEPA as a reliable weapon to block development.