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

Posted on October 16, 2018 by Seth Jaffe

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

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

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

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

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

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

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

PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.

 

How Much Does Trump Even Care About Deregulation?

Posted on September 13, 2018 by Seth Jaffe

Rick Glick’s September 11 post discusses Judge David Norton’s August 2018 decision to issue a nationwide injunction against the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States RuleAs noted in Rick's post, that case was not about the merits of the WOTUS rule.  It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.

Which brings me to the point of this post.

The Administration’s failure to comply seems so obvious that one has to wonder whether the Administration even cared whether the Suspension Rule could survive judicial review.  Indeed, this case seems part of a clear pattern.  The Court noted as much in quoting a summary of such cases from the plaintiffs’ brief:

Clean Air Council v. Pruitt (vacating the EPA’s attempt to temporarily stay a Clean Air Act regulation without “comply[ing] with the … APA”); Open Communities All. v. Carson, (enjoining the defendant agency’s attempt, “without notice and comment or particularized evidentiary findings, … [to] delay[] almost entirely by two years implementation of a rule” adopted by the previous administration); Pennsylvania v. Trump (enjoining two new “Interim Final Rules” based on the defendant agencies’ attempt to “bypass notice and comment rule making”); Nat’l Venture Capital Ass’n v. Duke (vacating the defendant agency’s “decision to delay the implementation of an Obama-era immigration rule … without providing notice or soliciting comment from the public”); California v. U.S. Bureau of Land Mgmt. (holding that the defendant agency’s attempt to postpone a regulation’s compliance dates “after the rule’s effective date had already passed … violated the APA’s notice and comment requirements by effectively repealing the [r]ule without engaging in the process for obtaining comment from the public”); Becerra v. U.S. Dep’t of the Interior, (holding that the defendant agency violated the APA in “fail[ing] to give the public an opportunity to weigh in with comments” before attempting to postpone a rule that had already taken effect).

To which the Court added its own footnote:

To this litany of cases, the court adds two more from the last several months— Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin. and Children’s Hosp. of the King’s Daughters, Inc. v. AzarAs these cases make clear, this court is but the latest in a series to recently find that an agency’s delay of a properly promulgated final rule circumvented the APA.  (My emphasis.)

I find it hard to believe that numerous smart lawyers, across a range of agencies, all suddenly forgot what the APA requires.  Isn’t it more likely that the Administration simply doesn’t care about the outcome?  The government of the most powerful nation on earth, that likes to think that it taught the world about democracy, doesn’t care about governing.  All it cares about is having Twitter material, to feed to its adoring fans and, equally importantly, to bait its many critics.

CAFO Odors and the Ghost of William Aldred

Posted on July 10, 2018 by Susan Cooke

The number and size of concentrated animal feeding operations (CAFOs) have increased in recent years.  These operations keep large numbers of animals in a confined space and provide them with feed from offsite sources prior to their slaughter.  While generally viewed as cost efficient, CAFOs raise concerns about animal welfare and about their environmental impacts and effect on the health and quality of life for those living or working nearby.  Such concerns include the foul odors associated with the substantial quantities of animal waste that are generated, especially where such waste is discharged into pits and then flushed into open air lagoons.  The sludge in those lagoons sinks to the bottom and is periodically removed for land application and the liquid waste remaining at the top is sprayed as fertilizer onto adjacent fields.

The anaerobic reaction that occurs during pit and lagoon storage of the waste over an extended time period is the primary generator of such odor, the primary constituents being ammonia and hydrogen sulfide.  Anaerobic digesters and other technologies can be employed to reduce odor generation, with some also producing gases for fuel.  However, the costs of installing and operating such equipment can be substantial, and there are no specific requirements at the federal level mandating odor control or limiting ammonia or hydrogen sulfide emissions from CAFO operations.  Indeed, even the reporting of animal waste air emissions under the federal Superfund law and under EPCRA (as interpreted by EPA) is precluded under the Fair Agricultural Reporting Method (FARM) Act signed into law by Congress in March 2018

While there is little regulation at the federal level, some states have imposed limits on hydrogen sulfide.  For example, California has a one hour average standard and Minnesota has a 30 minute standard for H2S.  In addition, a few states have instituted odor standards covering some CAFOs, including Colorado’s odor standard, which is based on an odor dilution factor, for swine CAFOs above a certain size (i.e., the odor must be eliminated by a specified amount of dilution).  While most local ordinances covering odors enjoin nuisances in general, some have adopted a dilution factor standard that is generally applicable, such as the ordinance adopted in Denver, Colorado and that adopted in South St. Paul, Minnesota.

Even where CAFOs are singled out for specific regulation by state, the dilution factor standard is not often used, probably because it is in essence subjective in nature and thus quite different from most environmental emission standards.  Instead, states have generally adopted a management plan approach coupled with registration and periodic inspections.  For example, the environmental regulations covering odor control at CAFOs in North Carolina, which has a number of swine CAFOs in the southeastern portion of the state, do not include a specific standard covering odor.  Instead, those regulations impose setback requirements and provide for state agency inspections, and they empower that agency to require preparation and modification of a best management plan if it determines that odor control is necessary.

Given the absence of a specific standard for judging CAFO emissions, some neighbors of CAFO operations have brought tort suits for nuisance to address odor concerns.  In one case decided this past April, a jury awarded $50 million in compensatory and punitive damages to 10 neighbors of a North Carolina hog farm.  The plaintiffs claimed that the truck noise associated with farm operations and the odor associated with lagoon storage of waste from its 4700 hogs and the spraying of lagoon liquid onto nearby fields created a nuisance.

Although the federal court reduced recovery to $3.25 million under punitive damage limits imposed under the North Carolina Right to Farm Law, agribusiness interests raised strong concerns about the damage award and within weeks the North Carolina legislature had passed amendments to the state Right to Farm Law to further restrict tort recovery for alleged nuisances from agricultural and forestry operations.  Although those amendments (in Senate Bill 711) were vetoed by Governor Roy Cooper on June 25, the veto was overridden by both houses before their month-end adjournment.

The amendments, which are similar to statutory language already enacted in Missouri for facilities engaged in crop and animal production, would limit compensation to property located within one half mile of the alleged source of a nuisance at an agricultural or forestry operation.  In addition, the suit would have to be filed within one year of the operation’s establishment or of a fundamental change (which wouldn’t include, among other things, a change in ownership or size) to that operation, with compensatory damages limited to a reduction in fair market value of the plaintiff’s property for a permanent nuisance and to diminution in fair rental value for a temporary nuisance.  While punitive damages are already capped at a specified multiple of compensatory damages, the amendments would limit them to instances where, during the previous three years, the operation had been the subject of a criminal conviction or civil enforcement action or of regulatory action taken by the state or federal government pursuant to a notice of violation.

Such limits on monetary recovery for nuisance may encourage plaintiffs to seek injunctive relief to abate odors from CAFO operations.  And tort suits for nuisance animal odors have a long history, as evidenced by William Aldred’s Case dating back to 1610 where the Court of King’s Bench held that Mr. Aldred, whose house was situated within 30 feet of a later constructed hog sty, had a right to obtain abatement of the foul odor emanating from that hog sty.

In recent years the injunction remedy in a nuisance action has sometimes been disfavored, as illustrated in the Boomer v. Atlantic Cement decision where monetary damages were awarded rather than injunctive relief for operation of a cement plant.  There the court weighed the (lower) cost of compensatory damages versus the (significantly higher) cost associated with installing abatement equipment or requiring plant shutdown.  However, it now appears that determining “entitlements” under an economic efficiency analysis, such as that described in the oft-cited Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, is undergoing more critical academic scrutiny.

Moreover, animal welfare advocates, as well as those concerned about environmental justice or greenhouse gas emissions, and perhaps even property rights advocates, may add their own voices in support of the injunctive remedy option for stopping or curtailing CAFO operations.  If so, then the right of a landowner to quiet (and unscented) enjoyment of his or her property through an injunction, as enunciated by the King’s Bench more than 400 years ago, may prove to be the most effective remedy for those seeking to curtail CAFO odor emissions.

Still No Judicial Remedy For Climate Change — Don’t Expect Advocates To Stop Trying

Posted on July 3, 2018 by Seth Jaffe

On June 25th, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change.  The more complicated answer?  Because AEP v. Connecticut held that the Clean Air Act displaces federal common law claims for greenhouse gas emissions in the United States and because claims with respect to sales by the defendants outside of the United States could not be addressed by a U.S. court without violating the presumption against giving extraterritorial effect to U.S. laws.

Here, plaintiffs seek to impose liability on five companies for their production and sale of fossil fuels worldwide. These claims — through which plaintiffs request billions of dollars to abate the localized effects of an inherently global phenomenon — undoubtedly implicate the interests of countless governments, both foreign and domestic. The challenged conduct is, as far as the complaints allege, lawful in every nation. And, as the United States aptly notes, many foreign governments actively support the very activities targeted by plaintiffs’ claims. Nevertheless, plaintiffs would have a single judge or jury in California impose an abatement fund as a result of such overseas behavior. Because this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil, we must exercise great caution.

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.  Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.

I couldn’t have said it better myself.  I’ve always thought that these types of suits are not the way to address climate change.  I’ve recently acknowledged that, if the current administration continues to rely on fake news to formulate its position on climate change, courts at some point might conclude that the exigencies of the situation require them to act.  For now, we haven’t reached that point, and I hope we never do.

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

As a follow-up to my earlier post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. 

The Dutch case is more similar to the Oregon children’s suit than Oakland litigation, because the Oregon case, like the Dutch case, is against the government, seeking further regulation, rather than against private parties, seeking damages.  All of these cases, though, present some of the same concerns regarding whether courts are the right place to make climate policy, as noted by the Dutch government spokesman, quoted in ClimateWire:

We also believe that renewable energy should be increased and CO2 emissions should be reduced, so this is really about something else: It’s about how the judge has intervened in something that’s [called] democracy, and actually democracy has been sidelined.

It would be nice if democracy could show a greater capacity for addressing climate change, but I still agree that sidelining democracy is rarely a good thing.  Of course, there are good scientific reasons why democracies don’t do so well at dealing with climate change.  Appeals to the courts may be unavoidable.

Florida Gets A “Do-Over”

Posted on July 2, 2018 by Karen Crawford

Florida v. Georgia, 585 U.S. ____ (2018), Slip Opinion No. 142, June 27, 2018

On June 27, in a 5-4 decision the U.S. Supreme Court (SCOTUS or the Court) rejected the Special Master’s conclusion that the Court could provide no relief to Florida for its claims of harm from Georgia’s upstream water usage from the Flint River, ultimately affecting downstream flow in the Apalachicola-Chattahoochee-Flint River basin, a basin affected by operations of a dam and lake by the U.S. Army Corps of Engineers (Corps).  SCOTUS reserved judgement on the ultimate outcome of the case, and sent the case back to the Special Master for further consideration with specific direction as to the additional factual findings it considered necessary to decide this case.

Citing several historical decisions by the U.S. Supreme Court in equitable apportionment disputes over water rights between neighboring states, the Court characterizes the following guiding principles to be used in deciding such cases:

1.    The states possess an equal right to make a reasonable use of the waters in question.

2.    When confronted with competing claims to interstate water, the Court’s effort is to secure equitable apportionment, without quibbling over formulas.

3.    Given sovereign status and equal dignity, a complaining state’s burden is much greater than the burden ordinarily shouldered by a private party seeking an injunction, requiring a demonstration by “a clear and convincing evidence” that it has suffered a “threatened invasion of rights” that is “of serious magnitude.”

Once the Court finds the complaining State has met this burden, the Court must determine whether the State has shown it has not only some “technical right,” but a right with a “corresponding benefit” as a precondition to any equitable apportionment.  If so, then the Court will seek to arrive at a  just and equitable apportionment of an interstate stream, by considering all relevant factors, because equitable apportionment is flexible and should weigh all relevant factors by examining extensive and specific factual findings to properly apply the doctrine of equitable apportionment.  To do this, the Court has observed it must consider physical and climatic conditions, the consumptive uses in the several sections of the rivers at issue, the character of return flows, the extent of established uses, the availability of storage water/capacity, the practical effect of wasteful uses on downstream area, and the benefit to downstream areas against the damage to upstream areas if a limitation is imposed. 

In this case, however, the Court stated the Master instead made several assumptions regarding what should be key findings of fact, including that 1) Florida has suffered harm from decreased water flow into the subject basin, 2) Florida had shown that Georgia has taken too much water, and 3) inequitable use by Georgia had caused injury to Florida.  These assumptions were found by the Court to stop short of providing the necessary findings of fact required to decide the case.  As a result, all Parties agreed that the recommendation of the Special Master turned on one single, discrete issue --whether Florida has shown that a cap on Georgia’s consumption would address its injury if the decree did not bind the Corps as well.

The Court determined that the Master’s conclusion that Florida failed to meet its burden because it did not present “clear and convincing evidence” that its injuries could be redressed by a decree capping Georgia’s upstream water consumption if that decree does not also bind the Corps, was too strict a standard to apply to redressability at this point in the case.  The Court determined that the Special Master had not defined the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia’s use of the Flint River waters, and that unless and until that necessary fact was established, Florida needed only to show that, applying the principles of “flexibility” and “approximation”, it is likely to prove it is possible for the Court to fashion such a decree. 

The Court determined that further findings are needed on all of the evidentiary issues underlying the Master’s assumptions before the Master’s conclusion that Florida failed to meet its initial burden of demonstrating that the Court can eventually fashion an effective equitable decree could be reached and supported.  The Court stated that “to require “clear and convincing evidence” about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse.”  The Court addressed here only that Florida had made a legally sufficient showing as to the possibility of fashioning an effective remedial decree, thereby meeting its burden.

The lengthy dissent ultimately agreed with the Special Master’s conclusion that the Corps would not change its operations during droughts if the Court capped Georgia’s water use, and thus Florida would not benefit during droughts.  Further, the dissent argued there was no need to remand the case for further findings by the Special Master as the evidentiary findings ultimately rest with the Court.  But the majority opinion discusses the differences of view as to interpretation of the facts related to estimated water flows, further emphasizing the complex nature of these cases.  The dissent suggests that giving Florida another bite at the apple was unlikely to produce additional evidence to affect the outcome and would be unfair to Georgia.  Ultimately, the dissent appears to agree that the Master’s ordinary balance-of-harms analysis was sufficient, and he applied that test. 

Also, this blogger found the majority’s “Chevron-like” discussion of the deference that should be given to the Special Master’s findings interesting but a bit disturbing in that the Court cited a precedent that those findings “deserve respect and a tacit presumption of correctness.”   The Court’s division over today’s decision turned on both the correctness of the findings by the Special Master and whether he had correctly applied the applicable precedents to sufficient findings.  A clear disagreement is articulated by the majority and dissenting opinions surrounding the factual evidence related to whether the amount of water that would flow to Florida during drought conditions would ultimately be increased by a cap on Georgia’s water use from the Flint River.  The answer to this question turns on the behavior of the Corps in both storing the resulting additional water, then releasing that additional stored water from Lake Seminole during drought conditions.

Interestingly, in addressing Florida’s exceptions to the Master’s evidentiary determinations, the Court discussed the consequences of the United States’ declining to waive sovereign immunity from suit in this case at its outset.  An early motion by Georgia to dismiss Florida’s complaint on the grounds that the United States was a necessary party was denied as the Special Master concluded at that time that a decree binding the Corps might not prove necessary.  Ultimately, however, the Report of the Special Master was based on the conclusion that a decree binding the Corps was necessary to redress the injury to Florida.  The Court’s analysis of the evidence indicated that, since the cap on Georgia’s consumption was upstream of the Corps-operated dam and lake, the cap could effectively result in more water storage and more water that could be released to the Apalachicola River reaching Florida in both non-drought and drought conditions.  It also disagreed with the Master’s conclusion that effective relief was rendered impermissibly “uncertain” given the Corps’ revised Master Manual and its documented commitment that it will “work to accommodate any determinations or obligations the Court sets forth if a final decree equitably apportioning the basin’s waters proves justified in this case” and take such a decree into consideration in appropriate operational adjustments to the Master Manual, if applicable. 

Again, the Supreme Court stressed that Florida will ultimately be entitled to a decree only if it is shown that “the benefits of the [apportionment] substantially outweigh the harm that might result.”

For those keeping score on certain of these issues and looking for clues as to “life after Kennedy”, Justice Breyer penned the majority opinion, joined by Roberts, Kennedy, Ginsburg and Sotomayor.  Justice Thomas wrote the dissent, joined by Alito, Kagan, and Gorsuch.

AND NOW FOR SOME GOOD NEWS

Posted on June 27, 2018 by Leslie Carothers

ACOEL blog readers sorry to see the U.S. retreat from international leadership on the environment may be encouraged to learn that, on the other side of the world, the government of China is determined to copy some signature U.S. strategies to accelerate pollution control in their country.  Specifically, the National People’s Congress enacted comprehensive revisions to its Environmental Protection Law in 2015, including provisions to increase public reporting of pollution releases to accompany many existing regulatory laws. The revisions, along with other recent legislation, also empowered public interest plaintiffs from non-governmental organizations (NGOs) registered with the government, as well as prosecutors to engage in aggressive public interest litigation, to enforce anti-pollution and clean up requirements.

Many countries have strong environmental laws, but most struggle to build and maintain effective programs to implement and enforce them.  For many years, China has stressed the overriding importance of economic and employment growth.  Provincial governments with major responsibility for enforcement have been measured on economic indicators and not by success in abating pollution.  But the growing level of public protest over worsening pollution and waste disposal practices has compelled the national government to add environmental performance to the priorities of provincial and local governments and to experiment with new legal tools to improve it.

The Environmental Law Institute is playing an important role with a Chinese partner, the China Environmental Protection Foundation (CEPF), in providing training to environmental lawyers and others from NGOs, as well as prosecutors and judges, to help educate them on the new Chinese laws and to share the U.S. experience with public interest litigation and statutory citizen suit provisions in environmental cases.  The impact of NGO and other citizen plaintiffs on implementing U.S. environmental law has been immense.  During the 1970s and 1980s, suits against companies where government had not acted against permit violations and suits against government for failure to meet statutory deadlines for other requirements channeled strong public pressure and achieved significant results. The most notable recent example is the petition by environmental NGOs, renewable energy firms, and states to require the U.S. EPA to make a finding that motor vehicle emissions of greenhouse gases could be “reasonably anticipated to endanger public health and welfare” under Title II of the Clean Air Act.   This lawsuit produced the Supreme Court decision in Massachusetts v. EPA, Massachusetts v. EPA, 549 U.S. 497 (2007), requiring EPA to make a finding whether or not an endangerment was presented.  The evidence, most people would agree, supported only one answer. The endangerment finding was made, upheld by the D.C. Circuit, Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (D.C. Cir. 2012), and left standing by the Supreme Court, which declined to review the finding.

The five workshops on public interest lawsuits organized by Tianjin University Law School, CEPF, and ELI have each assembled around 50 NGO staff, prosecutors, judges and other lawyers for three days of teaching on Chinese law by Chinese experts and officials and one day by ELI lawyers, including volunteers like me, and ELI’s Chinese- and U.S.-trained lawyer, Zhuoshi Liu, who also coordinates the planning.  Language challenges notwithstanding, I can attest that the Chinese participants show keen interest in the presentations and ask many thoughtful questions of the speakers.  It is too soon to know whether this new initiative to take more problems to court will succeed. Certainly, the Chinese plaintiffs do not yet have the body of public reports disclosing violations that made U.S. cases easier to develop, and they and China’s well-educated judges need greater access to scientific and technical support to find violations and order appropriate relief.  The NGOs could also use the help of private law firm lawyers in China willing to undertake cases pro bono as some do in the U.S.  In any case, it is exciting and encouraging to be able to work with dedicated Chinese lawyers and other professionals in the early stages of a serious drive in China to rank environmental protection much higher on the nation’s agenda and to gain clearer skies and cleaner land and water for its people.

Big Tribal Victory in Culvert Case, Big Implications for Taxpayers

Posted on June 13, 2018 by Rick Glick

On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.

The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.

The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.

A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?

The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."

Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.

The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Posted on May 29, 2018 by Seth Jaffe

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.  EPA said that they were.  However, the petitioners pointed to cross-sections in the record that showed a confining layer existed between the bedrock and overburden aquifers.  More importantly, the record showed that EPA did not even attempt to explain why the cross-sections did not undermine its determination.  That’s a no-no.  As the Court noted:

It was arbitrary and capricious for EPA to rely on portions of studies in the record that support its position, while ignoring cross sections in those studies that do not. … Although EPA ‘is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’

Counsel from DOJ tried to repair the damage in the litigation, to which the Court replied that:

These arguments come too late. We may only uphold a rule “on the basis articulated by the agency” in the rule making record.

Lesson for EPA?  Don’t ignore comments in the record – and don’t count on your lawyers to fill in the gaps.

Lesson for potential petitioners?  Make sure that the record looks as good as possible – and focus like a laser beam on EPA failures to respond to your evidence.

And who knew that there was a band called The Substantial Evidence?

Hoping All Your Consequences Are Happy Ones

Posted on May 3, 2018 by Kenneth Warren

Those of us who remember Bob Barker’s years as host of the game show Truth or Consequences recognize the title of this blog as his customary closing line.  His desire to limit the ramifications of bad decisions has a corollary in Pennsylvania law.  As the Pennsylvania Supreme Court recently held, statutory provisions may be construed narrowly “substantially in consideration of the consequences of a particular interpretation.” 

In EQT Production Co. v. Pa. Dep’t. of Envtl. Prot., an energy company operated an impoundment to contain hydraulic fracturing wastewater.  Wastewater leaked through holes in the impoundment’s liner into the underlying base layers, soils and “waters of the Commonwealth” which include “underground waters, or parts thereof.”    

The release from the impoundment into groundwater clearly violated the prohibition in the Pennsylvania Clean Streams Law on discharging or permitting the discharge of industrial wastes into the waters of the Commonwealth.  Anticipating that the Pennsylvania Department of Environmental Protection (PADEP) would seek a penalty for each day that contaminants remained present in the environment, EQT sought a judicial declaration that civil penalties may be imposed only for days that pollutants were actually discharged from the impoundment.   

As the declaratory judgment action progressed, PADEP acknowledged that the mere presence of contaminants in groundwater would not alone support the imposition of penalties.  But it contended that a violation occurred on each day that the contaminants initially released from the impoundment passively migrated from soil to groundwater (the “soil-to-groundwater” theory) or moved from one part of the waters of the Commonwealth to another (the “water-to-water” theory).   

The Pennsylvania Supreme Court concluded that the language of the Clean Streams Law, which prohibits any discharge of an industrial waste “into” a water of the Commonwealth, is ambiguous.  The language could be interpreted to cover only movement of a pollutant from outside the waters of the Commonwealth into these waters, but could also be read to include movement of a previously released contaminant from one part of the Commonwealth’s waters into another part.   

In resolving the ambiguity, the Court noted that even after remediation occurs, a small quantity of contaminants may remain present in groundwater and continue to migrate.  If each day constitutes a violation, massive civil penalties would result.  Principally because it believed this consequence to be unreasonable, the Court rejected the water-to-water theory.  By excluding water-to-water mitigation from the ambit of the Clean Streams Law’s prohibitions, the Court created Pennsylvania’s version of the “unified waters” approach.  At least in this context, it makes good sense.    

But EQT still suffered serious liabilities.  It was required to remediate the contamination that it caused.  And the soil-to-groundwater theory remains in play; the Court chose not to rule on its validity because EQT’s pleadings and application for summary relief did not raise that challenge.  Penalties in excess of $1 million were assessed against EQT and will be reviewed on appeal.  In a fictional game show world, all consequences are happy ones.  In real life, even a solicitous state Supreme Court will not guarantee an entirely happy ending for a party who has violated environmental laws.

How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

Federal Common Law Controls California Climate Actions: Never a Dull Moment

Posted on March 12, 2018 by Seth Jaffe

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v. Connecticut and subsequent decisions, such as Native Village of Kivalina, it seemed pretty clear that the federal Clean Air Act had displaced federal common law, leaving only potential state law claims in its place.

Judge Alsup had a different idea.  The cities’ claims were only brought against fossil fuel producers, not electric generators.  The claims were based on the allegations concerning the companies’ conduct in selling fossil fuels into the stream of commerce, while at the same time allegedly making misrepresentations concerning the risks of climate change.

Judge Alsup concluded that this was a distinction with a difference.  The Clean Air Act displaces federal common law regulating operations that emit GHGs.  The Clean Air Act, however, does not regulate the sale of fossil fuels.  Thus, it does not displace the type of public nuisance action at issue in this case.  (Of course, this leads to the odd result that the companies’ sale of fossil fuels is subject to public nuisance claims, even though methane emissions from oil wells and refineries are not, because those are subject to regulation under the CAA!)

Having made this critical distinction, the rest of the decision was relatively easy.  As Judge Alsup noted:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making. The range of consequences is likewise universal. Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is not to say that the ultimate answer under our federal common law will favor judicial relief. But it is to say that the extent of any judicial relief should be uniform across our nation.

I’m not sure that Judge Alsup is right, though I appreciate his creativity.  And if appellate courts decide he is right, the defendants may come to regret removing the action from state courts.

Takings Math for Dummies: When 1+1=1

Posted on March 7, 2018 by Mary K. Ryan

One benefit of preparing an annual review of last year’s important cases, as I just did for MCLE, is that you may have missed a significant case when it came out. That’s why I’m writing now about Murr v. Wisconsin, 137 S. Ct. 1645, decided on June 5, 2017. Murr, which incorporates the mathematical conundrum in the title, expands the Supreme Court’s regulatory takings jurisprudence by asking a preliminary question—what parcel or parcels of land are at issue? The Court held that this question must be answered before reaching the ad hoc case-by-case analysis established by Penn Central Transportation Co. v. New York City, Lucas v. South Carolina Coastal Council, and Palazzolo v. Rhode Island which examines the economic impact of the challenged regulation, the investment-backed expectations of the landowner, and the character of the government action.

Murr involved the owners of two adjacent waterfront properties on the St. Croix River in Wisconsin which, given their location, were subject to numerous regulations, including a one acre buildable lot requirement. The properties lost their original grandfathered protection from that regulation when they were put into common ownership. The county denied requests for variances and the owners filed a regulatory takings claim, which they lost at the state level.

In a 5-3 opinion written by Justice Kennedy, the Court developed a new, three-factor test for determining the “denominator” in the regulatory takings analysis—in other words, the unit of property against which a court must assess the effects of the challenged governmental action. First, courts must assess the treatment of the land under state and local law, in particular how state law bounds and divides the land. Second, courts must look at the physical characteristics of the landowner’s property, e.g., whether the land is subject to further environmental or land use regulations due to the nature of the land or adjacent natural resources. Third, courts must consider the value of the property under the challenged regulation. Under this test, there was no regulatory taking. The Court rejected the bright line tests offered by the state (state law controls) and the landowners (lot lines define the relevant parcel) as too easily subject to manipulation. The Court defined the relevant parcel as a single combined lot based on several factors:  (1) that merger as a result of common ownership is a reasonable and usual zoning and land use control and there was a voluntary merger; (2) riverside property is often subject to restrictions on development; and (3) treatment as one lot did not substantially diminish the value of the land without the regulation.    

Murr may be an example where the “no harm, no foul” rule led to the right result. But generally speaking, the government’s defenses just got better, and the landowner’s burden tougher, in regulatory takings cases. And while there were three dissenters (Justice Gorsuch did not participate in the case), without two more votes, Murr will be the law for the foreseeable future.

More Guidance on Guidance: DOJ Will Not Enforce “Improper” Agency Guidance Documents

Posted on February 21, 2018 by Seth Jaffe

In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

Folders with the label Regulations and Guidelines

Now, DOJ has taken the prohibition a step further.  It will no longer rely on guidance issued by other agencies when taking civil enforcement action.  The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo.  I hate circumvention of notice and comment rulemaking by guidance.  However, as I noted when the memo was released, the problem with guidance documents is not how they are drafted; it’s how they are implemented.

For example, the new memorandum states that:

The Department may continue to use agency guidance documents for proper purposes in such cases.  For instance, some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations.

Well, but in the first instance, who decides whether a guidance document “simply explains or paraphrases legal mandates” or whether it instead “purports to create rights or obligations binding on persons or entities outside the Executive Branch”?

The agency does, of course – perhaps aided by its counsel, DOJ.

This will particularly be an issue where guidance has been in place for many years and has been relied on by both an agency and the regulated community as accurately describing what the law actually is.  Take, for example, the New Source Review Workshop Manual.  The Manual is not only not a regulation; it’s been in draft for 28 years.  Nonetheless, it’s been relied on as the bible for practitioners since then.  It might be exempt from this policy, which makes clear that it does not apply to internal training materials.  However, when internal training materials are used to say what the law is, that sounds like regulation masquerading as guidance to me.

Here’s another issue.  What are the implications of this guidance memorandum for cooperative federalism?  In a delegated program, what happens if states continue to rely on guidance documents in enforcing federal obligations?  Are we going to have one interpretation under federal law and another interpretation under state law?  Can you say “forum shopping”?!

Finally, I cannot resist pointing out the irony inherent in the AG issuing two separate guidance documents on the proper – and improper – use of guidance documents.

Statutory Deadlines Matter—EPA Gets Taken to the Woodshed

Posted on February 14, 2018 by Seth Jaffe

Last week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, which asserted that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut.  

EPA did not dispute liability; it had clearly missed the original statutory deadline. The case was all about the remedy. EPA asked to be given until December 31, 2018 to respond. Plaintiffs said EPA could respond within 60 days.

Noting the “heavy burden” EPA bears in trying to demonstrate that it cannot comply with the congressionally mandated timeline, the Court ordered a response within 60 days, concluding that:

Defendants’ proposed schedule contravenes the congressional intent that EPA “act quickly on a Section 126(b) petition.”

I noted last spring that we are likely to see more of these cases. And I think we’re also going to see increasing judicial impatience with agency delay. I also wonder if this case might be the first bit of evidence that Scott Pruitt’s order precluding the notorious—if mythical—practice of “sue and settle” may have come back to bite EPA.

EPA had to know it was going to lose this case. In bygone days—meaning 2016—EPA would have negotiated for the best schedule it could have gotten. If EPA had told the plaintiffs it would respond to the petition within 90 or even 120 days, my guess is that the plaintiffs would have accepted such a proposal. Given the Pruitt memorandum, that was not possible. The outcome? The worst possible result for EPA.

Just wonderin’.

(Full disclosure: Foley Hoag has represented Talen Energy, owner of Brunner Island, on matters unrelated to Brunner Island. We take no position on the merits of the underlying § 126(b) petition.)

One Brief Shining Moment of WOTUS Clarity

Posted on January 24, 2018 by Rick Glick

In a rare moment of clarity in the benighted history of the Waters of the United States or WOTUS rule, a unanimous Supreme Court declared that jurisdiction to review the WOTUS rule lies in the District Courts and not the Courts of Appeal.  The immediate effect of the January 22 ruling in National Assn. of Manufacturers v. Dept. of Defense  is to lift the nationwide stay of the rule imposed by the Sixth Circuit—which held that the appellate courts have original jurisdiction over the rule—thus reigniting a lot of dormant trial court challenges. 

The Clean Water Act applies to “navigable” waters, which is defined simply as “waters of the United States, including the territorial seas.”  EPA and the Army Corps of Engineers administer the CWA, and have tried without much success to refine this vague definition.  The latest attempt is the WOTUS rule, adopted by the Obama EPA in 2015.  The issue in National Assn. of Manufacturers is not whether that attempt hits the mark, but in which court should challenges be heard.

As noted in Bob Brubaker’s take on this case, the Court looked to the plain language of the statute, and to context when further explanation is needed.   The CWA extends original jurisdiction to the Circuits for EPA “approving or promulgating any effluent limitation or other limitation.”  The government argued that the WOTUS rule falls within “any . . . other limitation.”  The Supreme Court rejected that argument, holding that such other limitations must be related to effluent limitations, and the WOTUS rule just establishes a definition that would apply generally to the scope of CWA.  The Court also rejected applicability of another CWA basis for Circuit Court jurisdiction advanced by the government, “issuing or denying any [NPDES] permit,” concluding simply that the WOTUS rule is not the same as permit issuance.

So what difference does it make if a trial judge or an appellate judge makes the initial decision on WOTUS?  WOTUS has drawn a multitude of challenges in both the District Courts and Courts of Appeals, including some in which plaintiffs filed in both courts to be on the safe side.  The case will end up at the Supreme Court anyway, right? 

True, but consider that the Sixth Circuit consolidated all the challenges in other Circuits and issued a decision that applied across the country.  The district court litigation has not been consolidated, and some cases have come to different conclusions, with many remaining to be litigated.  So, we can expect years of litigation in many different courts, followed by years of appeals heard by the Circuits, and finally to the Supreme Court . . . again.

But wait, Scott Pruitt’s EPA has initiated a rulemaking process to rescind and replace the WOTUS rule, so wouldn’t that moot the pending challenges to the rule?  It would not.  EPA has announced it is delaying the effective date of the 2015 rule for two more years to allow the Agency to develop its replacement.  But, in the meantime, the 2015 WOTUS rule remains in place.

The practical result is that the current round of cases in the District Courts will continue, followed -- if not accompanied -- by a new round of litigation challenging the proposed change of effective date, and the proposed rescission and replacement rules.  Safe to say there will be no certainty on the definition of WOTUS and the scope of Clean Water Act jurisdiction for many years to come.

Are RCRA Endangerment Claims Becoming The Preferred Way for Third-Parties To Regulate Point Source Discharges?

Posted on December 18, 2017 by Edward F. McTiernan

In 1972, Congress adopted the Clean Water Act (CWA) prohibiting discharges of pollutants from point sources without a permit.  Four years later, when Congress enacted the Resource Conservation and Recovery Act (RCRA), it included two notable provisions.  First, Congress excluded from the definition of “solid waste”—and thereby from regulation under RCRA—“industrial discharges which are point sources subject to permits under” CWA Section 402 (i.e., NPDES permits).  Second, Congress barred RCRA from applying to “any activity or substance which is subject to” various environmental statutes (including the CWA), “except to the extent that such application (or regulation) is not inconsistent with the requirements of such” other environmental statutes.  The net effect of these two RCRA “anti-duplication” provisions prevents RCRA from encroaching upon activities regulated by the CWA.  While much of this year’s Clean Water Act action seemed to focus on the WOTUS rule, 2017 may ultimately be remembered as the year in which plaintiffs were able to break through RCRA’s anti-duplication provisions and use endangerment claims to regulate point source discharges.

In Tennessee Riverkeeper, Inc. v. 3M Co., plaintiffs convinced a district court that they were entitled to pursue RCRA endangerment claims to regulate discharges of perfluorinated chemicals.  The court  refused to dismiss the case because, in its view, the defendants had failed to provide ‘‘any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.”  Slip Op. at 20.  On November 2, the Ninth Circuit reached a similar result.  Ecological Rights Foundation v. Pacific Gas & Electric Company, (“ERF”).  Following an extensive (and largely unnecessary) analysis of RCRA’s non-duplication provisions, the Ninth Circuit stated: “RCRA’s anti-duplication provision does not bar RCRA’s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.” Slip op. at 25.  In other words, plaintiffs may use RCRA to impose discharge limits on any substance not specifically named in a Clean Water Act permit, and perhaps to lower the discharge limits of substances that are.

By encouraging exactly the sort of dual regulation of a single discharge under both the CWA and RCRA that the RCRA non-duplication provisions appear intended to prevent, these decisions appear to be inconsistent with a proper reading of RCRA’s non-duplication provisions.  They may allow a judge to set discharge limits, displacing the limits (or the lack thereof) established by agency scientists following a public process.  This is problematic for several reasons.  A CWA permitted discharge may contain tens or hundreds of pollutants, but the permit typically regulates only those of most concern.  According to the Ninth Circuit,  however, the rest can now be regulated by RCRA.  Indeed, these recent decisions may open the door to using RCRA to cover pollutants  already regulated under the permit, as long RCRA imposes “stricter limits” (in the words of the Tennessee Riverkeeper court) than the CWA permit.  If the sole criterion is that RCRA endangerment claims must impose “stricter limits” than the CWA permit, plaintiffs may now have a legal basis for rewriting permits to contain whatever regulatory standards, technology requirements or procedural measures they can convince a court to impose.

Oh, Well, Some Folks Don’t Like Oysters, Anyway….

Posted on December 12, 2017 by James I. Palmer, Jr.

As a kid growing up in the hills of North Mississippi, I was introduced to oysters by my maternal Grandmother in Biloxi, down on our Coast.  I wasn’t particularly impressed with the slimy mollusks then, but my tastes changed over many years and I now enjoy them, especially in po’boys and on the half shell.

For the longest, I have considered oysters from Apalachicola Bay, Florida, to be the best along the Gulf Coast.  Large, plump, salty, everything an oyster fan likes.  But, today the oyster industry in the Bay has declined dramatically, and many Floridians believe that the ultimate fate of this historic mainstay of the economy of the area will soon be determined by the Justices of the United States Supreme Court.

The “Tri-State Water Wars” among Alabama, Georgia, and Florida are now several decades long, and never more intense.  Two interstate compacts, covering six river basins in the three states, failed to yield an “equitable apportionment” of the flows from these basins, and expired by their terms.  Follow-on negotiations fared no better.  So, in 2013 Florida sued Georgia in the Original Jurisdiction of the Supreme Court, but didn’t join Alabama.  The case was tried before the Special Master from October 31, 2016 through December 1, 2016.

At the core of Florida’s claims is the ever-growing demand for water in Georgia, principally (but not only) in metropolitan Atlanta.  Even the definition of “metropolitan Atlanta” differs among websites, so the data showing the population trends over the last 50 years also differs somewhat, but the numbers I will use for general reference show that the population of metropolitan Atlanta was 3,317,000 in 1990, 4,548,000 in 2000, 5,034,000 in 2004, and the 2010 U.S. Census recorded 5,800,000.  I’ve seen one projection of 8,000,000 by 2020.  Using these statistics purely for the sake of argument, the population of metropolitan Atlanta in 2020 – just over two years away – could have grown by over 240% in 30 years.  

Too, production agriculture in southwestern Georgia, heavily dependent upon surface water and groundwater supplies for irrigation, has also burgeoned during this same time period.  Groundwater levels in the Flint River basin have declined significantly because of what one of Georgia’s own witnesses at trial attributed to essentially lax regulatory management at the State level.  No surprise, these declines in groundwater availability have ratcheted up pressures on surface water resources in the Flint River watershed.

Thus, given these twin realities of seemingly insatiable urban and agricultural demands for water in Georgia, it’s no wonder that folks down in the Apalachicola Bay area staunchly believe that this is the principal cause of declining freshwater flows into the Bay, and, inevitably, will lead to the irrecoverable loss of the Bay ecosystem, itself.

The Special Master rendered his Report on February 14, 2017, and it was filed on March 20, 2017.  The Special Master found, as a matter of fact and law, that Florida had failed to prove its case by clear and convincing evidence, and recommended that the Supreme Court deny Florida’s claims.

Florida filed its Exceptions to the Report of the Special Master on May 31, 2017.  Georgia filed its Reply opposing Florida’s objections on July 31, 2017, and Florida filed its Sur-reply on August 30, 2017.  Amicus briefs supporting Georgia’s position have been filed by the United States (on behalf of the Corps of Engineers), the State of Colorado, and the Atlanta Regional Commission, et al.  The case has been set for oral argument before the Supreme Court on Monday, January 8, 2018.

Of the several issues before the Court, the two major ones are the “clear and convincing evidence”  burden of proof standard the Special Master imposed upon Florida and the general issue of “redressability,” which turns on the obligation of Florida to prove both substantial (some would say “irreparable”) injury and that the relief sought (a consumption cap on Georgia water use, primarily in the Flint River Basin) would, in fact, provide additional flows into Apalachicola Bay sufficient to save the ecosystem and the oyster industry.  Understandably, Georgia strongly rejects Florida’s contentions.

The cases relied upon by Georgia and the amici are, in the main, decisions in litigation between and among western states whose organic water resources laws are grounded in the doctrine of prior appropriation.  Here, the dispute is between two states whose organic water resources laws arise under the common law doctrine of riparianism (or, in modern times, regulated riparianism).  Interestingly, because the Supreme Court departed from pure riparian principles in early cases involving interstate fights over the water needs of huge urban areas like New York City, Florida contends that it is appropriate in this case for the Court to apply traditional equitable principles in addition to equitable apportionment principles that have evolved over many years of case law.  While not dismissing the argument out of hand, I think it could be a real challenge for Florida to make it stick.

Ultimately, the Court will either accept the Report and recommendations of the Special Master and dismiss Florida’s case outright, or decline to accept the Report and remand the case to the Special Master for further proceedings.  Given the deference the Supreme Court generally accords Special Masters in Original Jurisdiction cases, I think Florida, figuratively, now has to push a very heavy anchor chain up a very steep hill to stay in the fight it started.  If the State fails, locals say that the loss will likely result in a knockout blow to the oyster industry in Apalachicola Bay, which is already on the ropes.  Maybe, yes.  Maybe, no.  Maybe, not yet.  Time will tell.  Oh, well, some folks don’t like oysters, anyway….

The Truth about Sue and Settle that Scott Pruitt Ignores

Posted on December 4, 2017 by Jonathan Z. Cannon

Seth Jaffe’s post about EPA Administrator Scott Pruitt’s sue and settle directive is right on. As he notes, the Administrator punts on the question at the core of his holy war against sue and settle: that is, what is the evidence that sue and settle has been abused in the way he presumes?  In particular, was sue and settle systematically used during the Obama administration as a vehicle of collusion between environmental groups and sympathetic agency officials, catering to the greens through rulemaking in secret? That was the characterization advanced by the Chamber of Commerce and other pro-business and anti-regulatory groups that made sue and settle a battle cry in their war against Obama’s environmental policies. Without citing any evidence, Pruitt has proceeded as if that characterization is correct.

A careful, fact-based, analytically disciplined examination of the practice of sue and settle during the Obama administration shows that this characterization is not correct.  That examination appeared in a law review note by a former law student of mine, Ben Tyson, who went on to clerk for Chief Justice Roberts on the Supreme Court.  I recommend that anyone who is interested in this issue -- and who delights in careful research and analysis – read the entire article. But here’s a brief summary for those who don’t have the time.

Tyson’s analysis is based on eighty-eight sue and settle cases arising under the Clean Air Act, Clean Water Act, and the Endangered species act during the Obama administration.  This data set includes twenty-eight cases that were missed by the Chamber of Commerce in its 2013 report, Sue and Settle: Regulating Behind Closed Doors.  In his analysis Tyson is careful to distinguish between decision-forcing consent decrees, which simply require the agency to do what it is statutorily required to do and do not have a potentially adverse effect on public participation in rulemaking, and substantive consent degrees, in which the agency agrees to propose a particular regulatory change, with dismissal of the litigation dependent upon adoption of that change after public notice and comment. Of the total eighty-eight sue and settle suits, seventy-nine were brought by environmental groups.  But all but four of these suits by environmentalists sought decision-forcing consent decrees, not substantive outcomes. And in three of those four cases, there was at least one industry intervenor that had a right to be heard on the proposed decree.  Tyson concludes: “Sue-and-settle, when used by environmental group plaintiffs, is not principally about secret, backdoor rulemaking.” Instead, overwhelmingly, environmental groups used litigation to enforce existing statutory requirements. 

Ironically, although industry brought far fewer sue and settle suits overall (only nine compared to the environmental groups’ 79), five of those suits resulted in consent decrees with substantive terms. And there was no environmental intervenor in any of those cases to contest entry of the consent decree. Based on the data, industry used sue and settle to achieve substantive outcomes more often than environmental groups. And the total number of substantive sue and settle suits by industry and environmental groups was relatively small (9, or 10% of the 88 cases). Improving public participation is always worth attention, but one wonders what all the fuss was about.

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

Posted on November 27, 2017 by Seth Jaffe

EPA Administrator Scott Pruitt earlier this month issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support.  These include:  (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.

So far, so good.  However, at a certain point, the Administrator seems to have gone off the rails.  First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.”  Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?

What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.”  Instead, the Directive merely states that:

"It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups."

The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”

The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson.  I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water.  Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.

AN UNDERGROUND RIVER RUNS THROUGH IT

Posted on November 8, 2017 by Andrew Goddard

Environmental groups have for years sought greater regulation of coal ash waste from coal-fired power plants.  It turns out an old-fashioned Clean Water Act (CWA) citizen suit is sometimes a more effective tool.

In August, Judge Waverly Crenshaw, of the U.S. District Court for the Middle District of Tennessee, ordered the Tennessee Valley Authority to “wholly excavate the ash waste disposal areas” at the Gallatin Steam Plant and “relocate the excavated coal ash to a lined impoundment with no significant risk of discharge to waters of the United States.”  TVA estimates that this will take 24 years at a cost of $2 billion.  The least surprising aspect of this case: TVA has filed a notice of appeal.

How?  In 2015, the Tennessee Clean Water Network and the Tennessee Scenic Rivers Association filed a CWA citizen suit claiming that groundwater flowed through two ash pond areas and then to the nearby Cumberland River was an unpermitted point source.  Judge Crenshaw’s 125-page opinion in support of the Order includes this diagram showing one zone of earth penetrated only vertically (by storm water) and one penetrated both vertically and laterally (by storm water and groundwater):

 

This pretty much sums up the central issue in the case:  Is the groundwater flow through the lower part of coal ash landfill, picking up contaminants and transmitting them laterally to the Cumberland River, regulated by the CWA?

In his lengthy opinion, Judge Crenshaw found that the CWA does regulate groundwater where there is a direct and immediate hydrologic connection if plaintiffs are able to “prove a link between contaminated groundwaters and navigable waters.”  TVA argued that the CWA cannot reach discharges enabled by infiltration of rainwater that was not channeled by human act because they are not point sources, but Judge Crenshaw found that the ultimate question regarding point source is whether the pollutants were discharged from a discernable, combined, and discreet conveyance by any means.  He found that the entire ash dewatering complex was a discernible, combined and discreet manmade concentration of waste and that it was a “conveyance” because it is “unlined and leaking pollutants,” and thus is by definition “conveying pollutants.”

It takes a lot for a judge to impose $2 billion of costs on a public utility.  His displeasure with how the problem had been addressed over the past several decades was palpable.  He wrote that the older of the two coal ash sites

“…offers a grim preview of what it means to leave an abandoned unlined coal ash waste pond in place next to a river.  [It] has not been a waste treatment facility for over forty-five years. It has been ‘closed’ for almost twenty years.  Still, water infiltrates it.  Still, it leaks pollutants.  Still, counsel for TVA and counsel for environmental groups are locked in conflict about what can and should be done about it. … As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties and conflicts giving rise to this case will survive another 20 years, 45 years or more.  While the process of closure by removal would not be swift, it would, at least, end.” 

With that, he ordered that TVA remove the coal ash to an appropriate lined site that will not discharge into waters of the United States.

There was one bit of good news for TVA: because of the cost of the chosen remedy, Judge Crenshaw decided not to assess penalties. 

Not every argument was about such large costs.  TVA’s objection to the plaintiffs’ request for attorney’s fees and costs included an objection to caviar included in a claim for $200 for food and snack items purchased from Kroger before and during the trial.  The plaintiff’s response included a receipt showing the “caviar” purchase was $16.24 of “Texas Caviar,” and attached Kroger’s recipe therefor.  It is devoid of fish eggs but does include chopped cilantro.  The recipe is available through PACER here.

Court Rejects BLM’s Efforts to Unbalance the Scales of Justice

Posted on November 6, 2017 by Seth Jaffe

Last month, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands.  If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise.  BLM based its postponement of the compliance deadlines on § 705 of the APA, which authorizes agencies to “postpone the effective date” of regulations “when justice so requires.”  However, every court that has looked at the issue has concluded that the plain words of the APA apply only to the “effective date” of a regulation and not to any “compliance date” contained within the regulation.

It seems clearly right to me.  For Chevron geeks out there, I’ll note that the Court stated that, because the APA is a procedural statute as to which BLM has no particular expertise, its interpretation of the APA is not entitled to Chevron deference – a conclusion which also seems right to me.

What particularly caught my eye about the decision was the Court’s discussion of the phrase, “when justice so requires.”  In a belt and suspenders bit of analysis, the Court also made findings that justice did not require postponement.  BLM’s argument was that justice required the postponement because otherwise the regulated community would have to incur compliance costs.  However, as the Court noted, “the Bureau entirely failed to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced public revenues.”  Indeed:  

If the words “justice so requires” are to mean anything, they must satisfy the fundamental understanding of justice: that it requires an impartial look at the balance struck between the two sides of the scale, as the iconic statue of the blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” Without considering both the costs and the benefits of postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” of the problem into account and was therefore arbitrary.

I think I detect a theme here.  Some of you will remember that Foley Hoag filed an amicus brief on behalf of the Union of Concerned Scientists, supporting the challenge to President Trump’s “2-for-1” Executive Order.  We made pretty much the same arguments in that case that Magistrate Judge Laporte made here – minus the reference to the scales of justice.

Unless SCOTUS gets rid of all agency deference, the Trump Administration is going to get some deference as it tries to eliminate environmental regulations wherever it can find them.  However, if it continues to do so while looking solely at the costs of the regulations to the business community, while ignoring the benefits of the regulations, it’s still going to have an uphill battle on its hands.

Cooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0

Posted on September 26, 2017 by Jeffrey Haynes

In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute.  Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017).  The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”

Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply.  The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court.  The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws.  Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind.  The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.

The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state.  The state officers were not contractors, employees, or agents of federal officers.  The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship.  EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute.  The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection. 

The court kept the floodgates closed.  It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.

So, states’ rights advocates, take heart.  Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own.  Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.