A FLORID (AND POSSIBLY SIGNIFICANT?) ACE DISSENT

Posted on January 26, 2021 by Dick Stoll

On January 19, 2021, the D.C. Circuit issued its long-awaited decision on the Trump EPA’s Affordable Clean Energy (ACE) rule.  American Lung Assn. v. EPA, No. 19-1140.  The ACE rule was the Trump EPA’s repudiation of the Obama EPA’s Clean Power Plan (CPP) under the Clean Air Act. 

Two spoiler alerts:

(1)    I will not in this blog even begin to analyze the extremely lengthy and complex majority and dissenting opinions.  I am too retired for that.  Hopefully an unretired Fellow will be helping us with that soon. 

(2)   I will not offer any views on which of the opinions is more meritorious, because I really don’t know.   I will conclude by saying, however, that new legislation would sure be nice. 

The most critical issue in both the ACE and the CPP is fairly simple.  In regulating coal-burning electric power plants under the CAA for climate purposes, is EPA authorized to impose “beyond-the-fenceline, generation shifting” measures?  These measures will hereafter be referred to as “BTFGS.” 

Or put another way, may EPA go beyond plant-specific emission controls, and impose measures that effectively require power companies to secure emission reductions on a company-wide or grid-wide basis?  If so, power companies may be forced to shift some (or all) of their capacity to non-coal-fired generation (such as natural gas) or even shut down some (or all) of their coal-fired generation.

The Obama EPA based its CPP on BTFGS requirements.  The Trump EPA repealed the CPP and issued ACE, which imposed no BTFGS measures.  In doing so, the Trump EPA took the position that the CAA’s plain words did not authorize BTFGS measures.

The D.C. Circuit’s new 2-1 American Lung decision — joined by Judges Millet and Pillard — rejected the Trump ACE.  The majority fully embraced the Obama CPP position that the CAA authorizes BTFGS measures.  Judge Walker dissented (more on that below).

The majority decision was hailed by many as giving the Biden EPA a “green light” to fashion effective climate regulations that the Trump EPA would never entertain.  This may or may not prove to be correct, however, if the Biden EPA decides to require BTFGS measures in future climate rules.  For even though the new decision may stand as binding in the D.C. Circuit, we must consider the U.S. Supreme Court (SCOTUS).

Two points on SCOTUS.  First, recall that in totally unprecedented fashion, SCOTUS in 2016 stayed the Obama CPP pending review, with the result that the CPP never came into effect before the Trump EPA repealed it.   The stay was issued by a 5-4 Court that included five conservative leaning and four liberal leaning Justices.  No opinion accompanied the stay, but it is fair to assume the conservative majority was skeptical of the Obama BTFGS position.  If any rule that relies on BTFGS comes before SCOTUS in the next few years, it will presumably face a Court that includes six conservative leaning and three liberal leaning Justices.

Second, and now I get to the Walker dissent.   Judge Walker, a recent Trump appointee, was well known on Fox News and other outlets for his strong conservative views before his appointment.   His dissent is a testament to those views.  

Whether you agree with Judge Walker or not, you may have fun reading his florid opinion.  I have attached a copy, in which I have highlighted various notable passages.  He throws in cites to Arthur Conan Doyle (p. 9), Shakespeare (p. 33), and Lawrence of Arabia (the movie, p. 14).  He explains that the U.S. Senate is designed to protect small States (pp. 3, 5).   He postulates that the doomed Obama 2009 legislative climate effort would have succeeded if there were proportional representation in both Houses of Congress (p. 6).  He engages in amusing word play (pp. 3, 35).

But why am I even bothering with Judge Walker’s dissent?   Recall that in 2014, then-D.C. Circuit Judge Kavanaugh filed a dissent in a CAA case against a majority opinion favoring stronger environmental controls.  White Stallion v. EPA, 748 F. 3d 1222 (2014).   On review, a 5-4 SCOTUS (with the conservatives in the majority) reversed the D.C. Circuit ruling, adopting and quoting from the reasoning in Judge Kavanaugh’s D.C. Circuit dissent.  Michigan v. EPA, 576 U.S. 743 (2015).

So not too long ago, a narrow conservative SCOTUS majority adopted the reasoning of a dissent from a conservative D.C. Circuit Judge to reverse a more environmentally protective D.C. Circuit opinion.  I suppose it could happen again, with an even more conservative SCOTUS now.  And by the way, Judge Walker clerked for Judge Kavanaugh when Kavanaugh was on the D.C. Circuit. 

Again, I offer no view on what I think the courts should do with BTFGS.  What I really hope is that Congress will enact CAA amendments to clarify EPA’s climate authorities.   Now that we have a Democratic President, House, and (barely) Senate, maybe this can finally happen.  Maybe the Senate will do away with the filibuster, or — even without that — enough Republicans in the Senate could come along?  There’s always hope. 

Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

"Keep Makin’ Bacon” Indiana’s Right to Farm Act Statute Upheld As Constitutional

Posted on January 11, 2021 by Chris Braun

Indiana, like every other State, has adopted a Right to Farm Act to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” Indiana Code § 32-30-6-9(b) (“RTFA”). The RTFA limits the availability of state-law nuisance actions with respect to agricultural operations.

The Plaintiffs’ residential properties are located in rural Indiana near land owned by a family of second- and third-generation farmers who decided to convert land that had been historically used to grow row crops to a state-of-the art concentrated animal feeding operation (“CAFO”) for raising 8,000 hogs. The farmers obtained the necessary zoning changes, construction and operation permits, and environmental permits to build two 33,500 square foot buildings with ventilation fans, slatted floors and concrete pits to store liquid waste and began operations in October 2013. Two years later, the Plaintiffs commenced the action alleging claims of nuisance, trespass, personal injuries and property damage based on the odors and airborne emissions produced by the hog-farming operation.

The lawsuit was dismissed on summary judgment, with the dismissal upheld on appeal. The lawsuit included several constitutional challenges to Indiana’s RTFA. The Indiana courts held that the Plaintiffs’ nuisance claims were precluded by the RTFA, ruled that their trespass claims should be treated as nuisance claims as a matter of state law because they were essentially a repackaged version of the nuisance claims, and determined that the application of the RTFA did not effect a regulatory taking of the Plaintiffs’ properties. 

As the Indiana Court of Appeals held, Indiana’s legislature has declared that the Indiana RTFA is vitally important to Indiana’s agricultural economy and the protection of farmers’ rights related to livestock agriculture and the use of their farmland. The Court held that the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.”  Indiana Code § 32-30-6-9(b). The purpose of the law is “to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.” The Court of Appeals also recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology.”

During the litigation, the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment. The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

The Plaintiffs’ filed a petition for certiorari with the U.S. Supreme Court. The question presented by the Plaintiffs’ petition was whether the application of Indiana’s RTFA to preclude Plaintiffs’ nuisance claims constituted a regulatory taking without compensation violative of the federal Constitution.

The Plaintiffs argued that the Supreme Court should take the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants responded that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.

The Plaintiffs’ litigation came to an end on October 5, 2020, when the U.S. Supreme Court denied the Plaintiffs ’ petition. As a result, Indiana farmers are now permitted to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree. Janet L. Himsel, et al. v. 4/9 Livestock, LLC, et al., 122 N.E. 2d 935 (Ind. App. 2019), Petition to Transfer Denied (Ind. S. Ct., Feb. 20, 2020), Cert. Denied (U.S. S. Ct.., Oct. 5, 2020, page 27).

Agriculture is an important part of Indiana’s economy as it contributes approximately $31 billion to the State, with $3.55 billion of that revenue coming from animal and animal product production.  More than 85% of the livestock raised in Indiana are raised in confined feeding operations.  There are more than 56,000 farming operations in Indiana and 96% of those farms are family owned and operated.  This case was important because the Indiana courts recognized the Indiana Legislature’s statutory framework to protect farmers who are not negligent in operating their farms while rejecting the various constitutional challenges to the RTFA, including equal protection, due process and taking arguments.  This case provides the necessary assurances to Indiana’s farmers and the agricultural community that they have the right to choose how best to modernize their farming and livestock operations.  In addition, Indiana’s RTFA and this case provide a helpful guide to other states that are interested in updating their own RTFA statutes to ensure a proper balance is struck between the needs of the agricultural community and neighboring property owners when dealing with such land use issues.   

Paying More than Your CERCLA Fair Share

Posted on January 8, 2021 by David G. Mandelbaum

The rhetoric of enforcement under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, plays well in public.  The government seeks “cleanup” and makes “the polluter pay.”  Cf. S. Rep. No. 96-848 at 13 (1980); Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020).  Contrast that with mitigating climate change where, in the words of the Pogo Earth Day poster, “we have met the enemy, and he is us.”  Four years ago, then-new EPA Administrator Scott Pruitt described the Superfund program as the “cornerstone” of EPA’s “core mission” of protecting the environment and human health.  Memorandum on Prioritizing the Superfund Program (May 22, 2017).  (To be sure, as things turned out, emphasizing Superfund may not really have been what the last administration was about.  See, e.g., Rule on Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 5, 2021).) If this next administration succumbs to the temptation to feature Superfund, perhaps it and we might focus on some of the mess the statute as drafted and read by the courts has made of private contribution claims, or a small corner of that mess.

The rhetoric plays better when the costs are higher and the work is more impressive.  So, Superfund has become a tool used repeatedly to clean up sediments in industrial waterways, mining sites, and similar “mega sites.” By contrast, it does not even have a straightforward way to approach voluntary response to common problems that cause human exposure to hazardous substances, like PCB contamination within buildings to be redeveloped.  And, of course, the “polluters” who are paying are not really the human beings who caused the releases.  Even if the business entity remains the same, the shareholders, directors, officers, and employees who were associated with a release decades in the past are not the same as those who must pay today.

Large, complicated sites and a capacious notion of “polluter” lead, naturally, to a desire to reallocate costs through contribution or private cost recovery actions.  But sections 113(f) (dealing with contribution), 113(g) (dealing with limitations periods), and 107 (dealing with cost recovery), produce a maze of procedural incoherence.

A CERCLA contribution claim seeks reallocation of costs the contribution plaintiff has incurred in excess of its fair share of the total.  Arguably, then, the claim is premature until the plaintiff can allege that it has incurred that excess.  That requires the plaintiff to be able to allege something about the total costs.  But there is confusion – sometimes so profound that it is not expressed – among lawyers and courts about what actions or costs count as the total. 

One natural approach would be to consider the total to be all costs incurred or to be incurred with respect to that facility.  Indeed, one ordinarily would think that costs incurred during various stages of response would net against each other when deciding whether a party had paid more than its fair share.  If I buy the baseball tickets, you would naturally buy the beer (at least up to the price of a ticket); if one party overpaid on a removal, it might get a compensating discount on the remedial action.  So, under this approach, a party cannot recover in contribution unless it can allege that it has incurred more than its fair share of all costs.

But that might be very hard to do before a large portion of the remedial action had been completed.  Section 113(f)(1) allows a contribution claim “during or after” a claim for cost recovery, and the limitations period for a contribution claim runs from entry of the judgment or entry into the settlement.  See 42 U.S.C. § 113(f)(1), (g)(3).  Thus, arguably some level of legal undertaking to incur future costs may count as “incurring” those costs for purposes of satisfying the requirement that a contribution plaintiff incur more than its fair share.

But even that may leave timing problems.  The limitations period is three years from a trigger:  a judgment or judicially approved settlement for costs or damages, or an administrative order settling costs under section 122(g) or (h).  An early settlement for RI/FS costs, for example, could be more than three years before a record of decision, let alone entry into any sort of commitment by anyone to implement the remedy.  The remedy could be divided into operable units, and they could be separated in time by more than the limitations period.

Treating each separate action as a stand-alone total would deny the netting principle.  It will always be true that a party (other than a solely liable party) pays more than its fair share of every dollar that that party pays.  But if you don’t allow for tasks to be divided up, you make settlement of cases with the government, or even among private parties, quite difficult.

None of this would be overly troubling if one could have confidence that courts would treat separate actions as simply parts of a single whole.  If one knew that, then allowing the limitations period to expire on a small, early set of costs would simply mean that the settling up for those costs would occur in the contribution action for later costs. 

But courts have, in some circumstances, decided that contribution may not even be available for later actions if they are conducted under orders or agreements that do not meet the requirements of Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), and Atlantic Research Corp. v. United States, 551 U.S. 128 (2007).  That is, costs incurred complying with a Unilateral Administrative Order, for example, are not costs incurred “during or following any civil action” under section 106 or 107, nor are they incurred under a settlement.  42 U.S.C. §§ 9613(f)(1), (3)(B).  Those costs would be recoverable from a jointly and severally co-responsible party through a cost recovery claim under section 107(a)(1-4)(B). Although typically the defendant would have a section 113 counterclaim, it is not clear how that would play out if some of the defendant’s (or the plaintiff’s) costs were incurred in a separate response action as to which the limitations period had run and how the accounting of paying more than one’s fair share would be accounted.

Finally, note that most courts would take equitable account of payments by insurers, indemnitors, or other contribution defendants in determining whether a contribution plaintiff has paid more than its share.  If separate actions are separate totals for this purpose, then one must allocate those payments by action when the insurer or indemnitor did not allocate, and even if the contribution defendant was allocating, it may also have been netting.

There isn’t any reason for all this complexity.  It is all readily fixable.  We just haven’t fixed it. 

BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications

Posted on August 12, 2020 by Seth Jaffe

Last month, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct, but I don’t think it’s necessarily even a Chevron issue.

After Justice Gorsuch shocked many readers by holding that the plain language of the Civil Rights Act required protection of transgender people, environmental lawyers speculated whether Justice Gorsuch’s passion for plain language readings might benefit the environmental side in any pending environmental disputes.  I have questioned such hopes, but I think that the Waste Prevention Rule case may not be a bad candidate.  “Waste” may not be defined in the statute and there may be uncertainty in precisely what it does mean, but I don’t that there is any plausible understanding of the word that limits its meaning to “economic waste.”  Venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.

Justice Gorsuch, are you listening?

The second important issue is the Court’s rejection of BLM’s redefinition of the “social cost of methane.”  This is just one of many occasions in which the Trump administration has attempted to change Obama administration positions.  To date – and including this case – the Trump administration has had a difficult time enacting its policy preferences when those policies are interwoven with scientific questions.  Here, President Trump issued Executive Order 13783, which disbanded the Interagency Working Group and withdrew all of the documents created by the IWG, including its social cost of methane metric, which included global costs.  That metric had been intensively vetted and was subject to peer review.  In response to EO 13783, BLM withdrew the global social cost of carbon approach and replaced it within one that looked only at the domestic cost, an approach that was not subject to peer review and has been roundly criticized by economists.

Judge Rogers was not amused.

While Executive Order 13783 may have withdrawn the relevant technical support documents for political reasons, it did not and could not erase the scientific and economic facts that formed the foundation for that estimate—facts that BLM now ignores.  [T]he President did not alter by fiat what constitutes the best available science.  (My emphasis, because this may be the single best sentence written to date summarizing this administration’s approach to environmental regulation.)

Notwithstanding my views of this administration, I’m not so confident about this part of the opinion.  I can certainly imagine conservative judges concluding that whether the U.S. government should care about the global, as opposed to domestic, cost of methane is more of a policy choice than a scientific question.

There’s little doubt though, that this is not the last case in which courts are going to have to wrestle with this thorny problem.

Woe Is WOTUS, Redux

Posted on June 30, 2020 by Seth Jaffe

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

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

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

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

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

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

Has President Trump Just Limited Enforcement To Willful Violations?

Posted on May 22, 2020 by Seth Jaffe

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

Instead, I want to focus on this provision:

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

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

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

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

A Story of Homecoming: Kisor Helps Auer Find Its Way Back To Seminole Rock

Posted on January 28, 2020 by Sanne Knudsen

Shortly before the new year, when the holidays were in full swing, Kisor v. Wilkie celebrated its half-birthday.  That was quick.  Just six months ago – when short winter days were long summer nights, when peppermint mochas were cold beers served in frosted mugs – the U.S. Supreme Court decided by the narrowest of margins to spare the life of Auer deference, the strong form of deference that for decades had been routinely given to federal agencies for interpretations of their own ambiguous regulations.  In a splintered decision, Justice Kagan penned a decision in Kisor in which Justices Ginsburg, Breyer, and Sotomayor joined. Those four agreed that Auer deference is theoretically justified, that it does not undermine the APA or the Constitution, and that principles of stare decisis counsel for judicial restraint.

Notably, Justice Kagan failed to capture a majority on her justifications for Auer deference. This is important.  Before Kisor, the Supreme Court had never really provided a firm theoretical rationale for Auer deference.  After Kisor, the justifications for Auer deference are even more suspect given that only four Justices even agreed that the doctrine was a theoretically defensible idea.  Given those shaky foundations, it is not surprising that in order to save Auer, in order to earn the critical fifth vote from Chief Justice Roberts, Justice Kagan had to weaken it. She had to articulate a version of Auer that is more cabined in its scope and restrained in its application than has been common practice over the past few decades. In particular, she admonished lower courts to engage in a rigorous and independent review of an allegedly ambiguous agency regulation to determine if it is genuinely as advertised. She describes a framework for review that looks very much like the Chevron doctrine, only with more bite and with a warning label: this is a test that an agency can fail.

After six months, in a time of reflection and resolutions, we can pause from the heft of eggnog and the specter of twinkle lights to ask whether Kisor has made a discernible impact on the landscape of administrative law.  In doing so, we might observe two things: First, there has been an impact. Second, the new Auer is not really new at all.  In order to save Auer, Justice Kagan was not weakening it.  Rather, she was simply helping Auer return to its roots, reminding courts to engage in the rigorous, independent-style review that was commonplace at the time of its creation.  If we are prone to the sentimentality of the season, we might say that Kisor is a story of homecoming.

A bit of history might help us gain some perspective: Auer deference originated not with the 1997 case of Auer v. Robbins, but a half-century earlier with the 1946 case of Bowles v. Seminole Rock & Sand Co.  It began as a doctrine with significant constraints, at a vastly different moment in administrative law under in highly specific circumstances of the post-war era. To that end, it was applied only in the price control context and only to official agency interpretations. And notably, courts applying the doctrine took a heavy hand in examining the text of the regulation—often deferring only after engaging in an independent review of the regulatory text. In other words, the rigorous review that Kisor articulates follows closely the pattern of how courts approached Seminole Rock deference in the early years.

Over the course of thirty years, Seminole Rock became completely divorced from these modest and restrained origins. By the 1970s, it was transformed; it was mechanically applied and reflexively treated as a constraint upon the careful inquiry that one might ordinarily expect of courts engaged in textual analysis. With the transformation of both the doctrine and the administrative state, discomfort with the doctrine grew – first among scholars like John Manning in the mid-1990s and then in the Supreme Court jurisprudence about a decade ago. Eventually, we arrived at the doorstep of Kisor and now appear to have returned nearly full circle to Seminole Rock.

Early signs indicate that Kisor has been more than lip service. Ordinarily, six months is hardly enough time for a change like this to take root in the jurisprudence.  Kisor, however, has already been cited in over 80 judicial opinions.  Influential jurisdictions like the U.S. District Court for the District of Columbia have taken Kisor to heart and are engaging in rigorous textual review of agency regulations before deciding whether deference is warranted.  See, e.g., Stand Up for California! v. DOI  (emphasizing the courts obligation under Kisor to “exhaust[] all the traditional tools of construction to determine the meaning of the regulation”); cf. Am. Tunaboat Ass'n v. Ross (deferring only after engaging in rigorous review). The D.C. Circuit has even cited Kisor for the proposition that Chevron deference should not be “reflexively” given to agency interpretations. Mozilla Corp. v. FCC, (“[W]e do not apply Chevron reflexively, and we find ambiguity only after exhausting ordinary tools of the judicial craft.”).

Other circuits have similarly indicated that Auer deference is to be earned, not afforded as a matter of course. The Ninth Circuit, for example, declined to defer to the Department of Energy in a case alleging a violation of the Energy Policy and Conservation Act's error-correction rule. NRDC v. Perry (engaging in rigorous review of the regulatory language and declining to defer because “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary interpretation.”).  See also Romero v. Barr (citing Kisor to describe the demanding Auer framework, engaging in independent textual analysis, and declining to defer to the agency after finding the regulation unambiguous).

Of course, as with the application of other deference doctrines, the outcomes of cases involving Kisor review will vary greatly.  As the body of cases available for analysis grows, empiricists will undoubtedly have ample data to begin exploring the particular contours of Kisor’s impacts on judicial deference.  For now, however, a bird’s eye view of the early cases indicates that Auer is homeward bound.

The historical analysis provided in this post is based on the work of Sanne H. Knudsen & Amy J. Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L.J. 47 (2015). 

Sanne Knudsen is the Stimson Bullitt Endowed Professor of Environmental Law at the University of Washington.

The PFAS Battle Heats Up In The Northeast?

Posted on January 27, 2020 by Barry Needleman

New Hampshire, like many northeast states, is pursuing a concerted regulatory and litigation approach to address contamination from emerging contaminants in the so-called PFAS suite of chemicals, (per- and poly-fluoroalkyl substances).  Over the last few years, the State has enforced cleanups at certain manufacturing facilities, and required the provision of alternative water supplies in several communities.  Early in 2019, it began a rare, statutorily required rulemaking process to set drinking water and ambient groundwater quality rules for four chemicals - PFOA, PFOS, PFHxS and PFNA.  The new rules were approved in July 2019.

In late May 2019, New Hampshire also filed suit against the manufacturers of AFFF, the firefighting foam used at military bases, airports and fire training facilities.  This case was transferred to the AFFF multi-district litigation in South Carolina.  In a separate case, the State sued 3M, Dupont and Chemours for alleged investigation and clean-up costs incurred under the parens patriae theory, among other claims.  That case is in the initial stages of litigation.

Several plaintiffs (3M Company, a town water and sewer district, a sewage sludge disposal company and a farmer) challenged the new regulatory limits in Court.  In October 2019, the court ruled that the State had failed to perform an adequate cost/benefit analysis as required by statute.  Plymouth Village Water & Sewer District v. Scott, No. 217-2019-CV-00650, (N.H. Super. Ct., Nov.26, 2019). The final rules set standards that were 50-80% lower than the initially proposed limits, and the costs had increased by 1200%.  The State conceded it could not determine the benefits from the lower limits.  Consequently, the court issued a preliminary injunction, enjoining New Hampshire’s drinking water and groundwater quality limits.  The parties are preparing interlocutory appeals to the New Hampshire Supreme Court.  The case presents issues of first impression in New Hampshire, under its rulemaking statute and certain constitutional provisions limiting unfunded State mandates. 

Children’s Climate Case Coming to a Close

Posted on January 23, 2020 by Rick Glick

In an extraordinary opinion issued January 17, the Ninth Circuit U.S. Court of Appeals concluded that the redress sought by the Juliana v. United States plaintiffs is beyond the power of federal courts.  It is not the conclusion that is extraordinary, which was widely expected, but rather the court’s extended expression of dismay in having to reach it. 

Plaintiffs in this case are a group of young people alleging that through policies promoting or acquiescing to fossil fuels use, the federal government has violated their constitutional rights to a “climate system capable of sustaining human life.”  The court never reaches the merits of the case.

The basis for the court’s conclusion is that the plaintiffs lack standing, meaning the right to prosecute their case in federal courts.  There is a three-part test for standing.  First, the plaintiffs must show “concrete and particularized injury.”  Second, plaintiffs must show that their injury is caused by defendant.  Third, the plaintiffs must demonstrate that the alleged injury can be redressed by court order.  The court found that plaintiffs satisfied the first two prongs, but not the third.

The court noted that the “plaintiffs have compiled an extensive record” that the government “affirmatively promotes fossil fuel use in a host of ways,” from tax credits to extraction leases on public lands.  These policies “will wreak havoc on the Earth’s climate if unchecked.”  The court had no trouble finding particularized injury to specific plaintiffs and that there is a genuine issue as to whether these government policies are a “substantial factor” in plaintiffs’ injuries.  The harder question is what a court could or should do to remedy the problem.

The court found that the scope of the desired remedy—an injunction to end pro-fossil fuel policies and to direct the government to prepare a plan to reduce emissions—is better left to the political branches to resolve.  The court recognized the harm from government policies, which the government does not refute.  However, such an order is problematic because:

  • Plaintiffs own experts acknowledge that the injunction would not “suffice to stop catastrophic climate change or even ameliorate their injuries. . . . Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”
  • “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
  • “Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’ We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”

The plaintiffs have indicated the case is not over, that they will seek reconsideration of the three-judge panel’s decision before the entire Ninth Circuit en banc, and possibly the Supreme Court.  Reconsideration rarely overturns decisions and bringing the case to the Supreme Court is risky.  If the Court accepts the case, the result may be an even more adverse standing ruling for such cases.  There are cases pending in which the relief sought is not so broad as in Juliana, cases in which states are asking for money damages for harm caused by government fossil fuel policies.  The Ninth Circuit’s denial of standing based on redressability may not be as limiting in those cases, as courts are accustomed to cases seeking damages.

Even if the Juliana case ends here, it will have served an important public service.  The plaintiffs’ tenacity—and the extraordinary advocacy by their attorney Julia A. Olson—have shone a spotlight on the abject failure of the government to address climate change.  The court expressed its sympathy to that effort and its regret at the limited ability of the judiciary to correct the government’s failure:

The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.

It was always unlikely that U.S. courts would feel empowered to issue orders to address so complex and global a problem.  The Trump Administration’s open hostility to aggressive action to restrain fossil fuels use—reaffirmed by the President at the Davos conference just this week—coupled with congressional inaction, suggests leaving the matter to the legislative and executive branches is a slim reed indeed.  But as the court concludes, Juliana and other climate cases make it harder for politicians to ignore the catastrophic consequences and get reelected.  The question is, how much more time do we have to take meaningful action?

Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Posted on January 23, 2020 by Seth Jaffe

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing.  Given where we are, this is about as momentous a decision as I can imagine.  I get the majority opinion.  Under traditional standing doctrine, it may even be right, though I think it’s a close call.

However, this is not a time for timidly falling back on the easy jurisprudential path.  Extraordinary times demand something extraordinary, from our judges as well as our elected leaders.  If our government is even around in a hundred years, I think that this decision will likely be seen as of a piece with Dred ScottPlessy v. Ferguson, and Korematsu

The cruel irony underlying the opinion is that it is the very scope of the climate problem and the comprehensive government response that it demands that is the basis of the court’s decision that courts are not in a position to oversee the response.  Is this the first case ever brought before our nation’s courts in which the court ruled that it could not grant relief, precisely because relief is so necessary?

I’ll note one other issue.  The majority opinion was clearly sympathetic to the plaintiffs, but ultimately concluded that:

the plaintiffs’ case must be made to the political branches or to the electorate at large.

What if, however, our legislative and executive branches are literally incapable of addressing climate change?  That’s pretty much the view of my intellectual hero, Daniel Kahneman.  If we are truly on the eve of destruction and Congress can’t do anything about it, must the courts remain powerless to step in?  And so I’ll leave you with the conclusion of the dissent:

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

COURT-ORDERED REDUCTIONS OF GREENHOUSE GASES? THE URGENDA AND JULIANA DECISIONS

Posted on January 22, 2020 by John C. Dernbach

Two major climate change cases were decided in the last month—State of the Netherlands v. Urgenda (Dec. 20, 2019) and Juliana v. United States (Jan. 17, 2020).  They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions.

The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”  The government’s current goal of a 20% reduction by 2020, the Court held, violates Articles 2 and 8 of the European Convention on Human Rights (ECHR), a human rights treaty to which 47 nations are parties, including the Netherlands.  As our colleague Michael Gerrard has pointed out, this is the first judicial decision anywhere in the world to explicitly require a government to reduce its greenhouse gas emissions.  

Article 2 of the EHCR ‘protects the right to life,” and means that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.”  Article 8 “protects the right to respect for private and family life,” which includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.”  Finally, and significantly, Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.” 

Climate change science, the Court said, compels the conclusion that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.”  In addition, “there is a high degree of international consensus” on the need to achieve at least a 25% reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change.  The government violated its duties under the ECHR with a less ambitious short-term goal, the court held.  (The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050, and there was no dispute about long-term goals.) 

The Supreme Court rejected the government’s argument that “it is not for the courts” to make political decisions “on the reduction of greenhouse gas emissions.”  ”The protection of human rights…is an essential component of a democratic state under the rule of law,” the Court said.  “This case involves an exceptional situation. After all, there is the threat of dangerous climate change.”  The government, not the courts, will decide which measures to employ to achieve the required reduction, the court explained.  

In the Juliana case, 21 young people are the principal plaintiffs in a lawsuit against the United States, claiming, among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.”  They developed a “substantial record” establishing the severity of existing and projected climate change impacts, and showing that the government had not only failed to act but that it “affirmatively promotes fossil fuel use in a host of ways.”  They sought declaratory and injunctive relief requiring the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”

The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, “reluctantly” held that youth plaintiffs did not have standing.  All three judges agreed that climate change caused by human activity presents grave, even existential, risks.  For the majority, Judge Andrew Hurwitz wrote that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions.  But even assuming that there is a constitutional right to a “climate system capable of sustaining human life,” the court said, they do not meet the third requirement because “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”

The plaintiffs had argued that the legislative and executive branches of government can figure out which particular measures to employ to “phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”  But even then, the court said, a court would have to decide whether the government’s response is sufficient.  There is no “limited and precise” standard, the majority wrote, by which a court could determine the adequacy of the government’s response.

Judge Josephine Staton’s lengthy dissenting opinion states that the plaintiffs are seeking to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.”  The discernible standard, she wrote, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.”  This is a scientific question, she said, not a political one.  

Julia Olson, co-counsel for plaintiffs in the case, issued a statement saying the next step would be a petition for en banc review in the Ninth Circuit. 

As both cases indicate, there is no universal answer on the authority of courts to order reduction of greenhouse gas emissions, and this issue is not going away.

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Posted on August 23, 2019 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

Because I Didn’t Say So!

Posted on August 5, 2019 by Brian Rosenthal

Major sources of air pollution must obtain a Clean Air Act Title V permit under their state’s EPA- approved implementation plan.  Permits, of course, can be challenged.  By petition to the EPA Administrator, the Sierra Club challenged a Utah permit in part based on a challenge to the standard used when the permit was issued in 1997! 

The challenge was denied.  The D.C. Circuit has exclusive venue for nationally applicable regulations or orders or issues of nationwide scope.  So, Sierra Club appealed to the D.C. Circuit but also filed a protective appeal in the Tenth Circuit in case the D.C. Circuit’s exclusive venue was not controlling.  Good move.  Because the issue involved a single permit from a single state, and because the Administrator used a “novel” interpretation of Title V limited to the specific circumstances presented and did not make a determination of nationwide relevance, venue was found to properly lie in the Tenth Circuit. 

It may be creative to conclude that venue is lacking because “the circumstances presented” by the federal air permit challenge are local in nature, but isn’t that always true in a decision on an air permit source with impacts in a single state?  If the Administrator had used other language intimating general application of a standard without a specific finding of a matter of nationwide effect, one has to wonder whether that would produce the same result.  So a word to the careful practitioner.  File the protective appeal in the issuing state’s circuit! 

HEY CONGRESS: PLEASE FIX THIS “JUST PLAIN NUTS” SITUATION

Posted on June 10, 2019 by Dick Stoll

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is “just plain nuts.”  He points to two recent (May, 2019) conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.

I similarly complained of a “whole lot of craziness going on” regarding WOTUS judicial review in my 2015 ACOEL post.  I related how inconsistent decisions coming out of various courts were leaving the rule in force in some states, yet throwing it out in other states.  Since then, we have seen even crazier situations with some counties left subject to the rule while other counties in the same State are not!

Here is a recent sad summary from the May 29, 2019 Inside EPA: “Due to a variety of district court decisions, the 2015 rule continues to apply in 23 states and 23 of New Mexico’s 33 counties, but it is blocked in 26 states and in the other 10 New Mexico Counties.”  And to make the patchwork even crazier, the 23 states where the rule remains in place are anything but contiguous – looking at a U.S. map, it appears someone threw darts.

As Rick Glick recently reminded us, we will soon have a brand new WOTUS from the Trump EPA folks.  This will inevitably trigger a slew of new judicial review actions in numerous federal district courts, with another crazy-quilt patch of inconsistent results sure to follow.

Seth appears to blame this situation on the Supreme Court, which ruled last year that initial judicial review of the WOTUS rule must lie in the federal district courts – not, as the federal government had urged, in a U.S. Court of Appeals.  Seth notes that “the Supreme Court had the luxury of ignoring the chaos that would ensue” from its decision.

I blame this situation squarely on Congress, however.  Given the way the Clean Water Act is drafted, I just don’t see how the Supreme Court could have ruled otherwise.  And it is telling that the Court’s opinion was unanimous.  That’s right, a unanimous opinion from this Supreme Court! 

The heart of the problem is straightforward.  Under the federal APA, direct judicial review of final agency rules lies in federal district courts except where Congress has provided that certain types of rules are to be reviewed directly in a Court of Appeals.  As I outlined in my 2015 “craziness” post, Congress has provided that all sorts of national rules under the Clean Air Act, the Resource Conservation and Recovery Act, and many other statutes, shall be directly reviewed by a Court of Appeals.

But in 1972 Congress took a different approach in the Clean Water Act, and specified that only seven types of final EPA actions would be directly reviewed in a Court of Appeals.  As the Supreme Court unanimously ruled last year, the WOTUS rule does not fit within any of these seven types of actions.  As a matter of pure (and unfortunate) logic, this means the district courts have initial jurisdiction over the WOTUS rule.

The federal government argued before the Supreme Court that the policy arguments in favor of direct Court of Appeals review are overwhelming.  The crazy-quilt patchwork that would take years (probably decades) to resolve would be avoided, as federal rules would require challenges filed in various Court of Appeals circuits to be consolidated in one Court. 

I wholly agree with these policy arguments, and I believe it is up to Congress to fix this mess. Just a few words added to the CWA would do it.  For example, Congress could simply provide that final rules defining the extent of “waters of the United States” would be the eighth type of action subject to direct Court of Appeals review.  Or many other formulations with just a few words could do the trick.

I know we live in polarized political times, and it is hard to secure Congressional consensus on major issues like reproductive rights, immigration, etc.   But should it be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid “just plain nuts” and “whole lot of craziness” inconsistencies throughout the nation?  If it is, I think that is just plain nuts.

Woe is WOTUS

Posted on June 7, 2019 by Seth Jaffe

When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory.  I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.

Whatever one may think of the merits of the competing theories, two district court decisions in the past week have made clear that it is, indeed, just plain nuts to have these cases before the district courts.

First up, Texas v. EPA, in which Judge George Hanks (an Obama appointee, no less) ruled that EPA and the Corps of Engineers had violated the Administrative Procedure Act in two ways by promulgating the 2015 Rule.  First, while the proposed rule had defined “adjacent waters” based hydrogeological criteria, the final rule used specific numerical distance criteria instead.  The Court concluded that the use of distance criteria was not sufficiently anticipated in the proposed rule and thus EPA violated the APA when it failed to take comment on the new approach.  Judge Hanks also concluded that the 2015 Rule violated the APA because the Agencies relied on what is known as the “Final Connectivity Report,” even though the comment period closed before the Final Connectivity Report was available.  As a result, Judge Hanks remanded the 2015 Rule to the Agencies “for proceedings consistent with this order.”  Of course, the Agencies have already announced that they intend to replace the 2015 Rule, so I think we all know what those proceedings will be.

Next up, Oklahoma v. EPA, in which Judge Claire Eagan (a Bush appointee, no less!), refused to issue a preliminary injunction against the enforcement of the 2015 Rule.  Simply put, Judge Eagan was not persuaded by any of the declarations submitted by the plaintiffs that they would suffer irreparable harm if the 2015 Rule were to remain in effect in Oklahoma.  She described them as “speculative.”  This was particularly troubling because:

the 2015 Rule has been in effect for varying periods of time since this case was filed, and the State can identify no evidence of an aggressive expansion of federal regulation of Oklahoma waters. … This case has been pending for nearly four years, and the Court would have anticipated a showing of substantial, actual harm in support of a motion for preliminary injunction.

We now have a situation where an Obama appointee has remanded the 2015 Rule and a Bush appointee has refused to enjoin its enforcement.  I do get some pleasure from these two judges upsetting preconceived notions in this partisan age about what judges do and how they decide.

Beyond that, however, I have no idea what these cases mean for the enforcement of the 2015 Rule.  I understand that this may all soon be moot, but in the meantime, it’s hard to defend this as a logical system of judicial review of agency action.  Indeed, I might even go so far as to say that it’s just plain nuts.

A Rational Counter to the Green New Deal

Posted on May 15, 2019 by Dick Stoll

For anyone serious about climate policy, I highly recommend Bob Sussman’s Comment in the May 2019 Environmental Law Reporter. Sussman, a former high-ranking EPA official in the Clinton and Obama Administrations, has produced an amazingly comprehensive review of where we have been and where – in his view – we should be going with climate policy and law in the U.S.

He recommends a detailed mix of legislative and regulatory proposals covering all sectors of the economy.  His proposals are based (necessarily) on the assumption that Democrats will control both the White House and Congress beginning in 2021.  If this happens, he says, the Democrats “will need to be ready with a fully developed and actionable climate policy agenda . . . building this agenda will take time and must begin now.”

So is Sussman – like many Democratic Presidential candidates – endorsing the Green New Deal (GND)?  Hardly!  His baseline is to seek “economically responsible and realistic” measures.  And when he says “realistic,” he means politically as well as technically.

Sussman criticizes the GND as a “wild card” formulated by “idealistic newcomers” who could “unwittingly torpedo their own efforts.”  He urges those formulating new proposals to account seriously for concerns about (1) economic disruption, (2) an expansive federal bureaucracy, (3) picking winners and losers among energy technologies, and (4) the U.S. competitive position internationally.  Democrats, he writes, “need to acknowledge these political realities.” 

These are concerns and realities, of course, that the GND essentially flaunts.  He warns that the GND “will polarize the electorate and alienate the political center,” which would lead to “yet another policymaking failure that allows GHG emissions and global temperatures to continue to rise unchecked.”

Sussman’s detailed proposals are summarized neatly in Table I to his Comment.  He is realistic in dividing proposals that will need new legislation as opposed to beefed up regulations.  For instance, he is careful to note that cap-and-trade or “beyond the fenceline” approaches would need new legislation.  In this regard, he recognizes that anything like the ambitious Obama Clean Power Plan would be unlikely to survive judicial review given the current composition of the Supreme Court.

For the power and manufacturing sectors, he endorses legislation providing an integrated cap-and-trade system.  I have one caution in this regard.  I would hope that such legislation would not look very much like the Waxman-Markey bill that passed the House in June, 2009 (and was never brought to the floor of the Senate).

As I wrote in a piece for BNA that year, the House bill contained short deadlines for dozens of new EPA regulations – deadlines that could never have been responsibly met. This would have set up an inevitable round of citizens suits forcing new deadlines coupled with massive judicial review opportunities.  All this in turn would produce tons of work for lawyers accompanied by very few tons of emission reductions.   Hopefully any new cap and trade legislation can be sufficiently specific on programmatic elements and numeric details so the program could get off the ground without suffering through years of judicial process.

North to the Future: Alaska and the Risks of Pursuing a Trump Legacy

Posted on April 5, 2019 by Peter Van Tuyn

On the last Friday in March, Judge Sharon Gleason of the Federal District Court for the District of Alaska issued two opinions in closely-watched cases* concerning federal public lands and waters in and offshore of Alaska.  In both cases, the Trump administration’s actions were overturned by the court, having immediate impact on two State of Alaska priorities and potential impact on a number of other State and private development efforts. 

The first case concerns a land trade approved by Interior Secretary Ryan Zinke in which the United States agreed to transfer formal Wilderness in the Izembek National Wildlife Refuge to an Alaska Native Corporation.  Izembek Refuge is internationally significant and of critical importance to many species of wildlife, including migratory waterfowl.  For example, virtually the entire global populations of Pacific Brant and Emperor Geese migrate through Izembek.  The land trade was intended to enable the construction of a road between the Alaska communities of Cold Bay and King Cove.  In multiple analyses since the 1980s the Interior Department had found that such a road would harm wildlife in the Refuge.  In 2013 Interior Secretary Sally Jewell formally rejected a land trade due to harm it would cause to “irreplaceable ecological resources,” and because “reasonable and viable transportation alternatives” exist between the communities.  In 2018, Secretary Zinke reversed course and approved the land trade.  A coalition of conservation groups then sued.

In rejecting the land trade, Judge Gleason found that Secretary Zinke had not addressed anywhere in the record his reasons for reversing course; indeed, he had not even acknowledged the change in agency position. Relying on the seminal U.S. Supreme Court administrative law cases of Motor Vehicle Manufacturers v. State Farm and FCC v. Fox, which require an acknowledgement and reasoned explanation for such a change of course, Judge Gleason invalidated the land trade, writing that while a court should “‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ a court may not ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’”

Later that same day Judge Gleason issued an opinion in a challenge to a 2017 President Trump executive order concerning areas where offshore oil and gas leasing can take place.  In that case, conservation organizations and an Alaska Native-focused NGO challenged Trump’s  revocation of President Obama’s earlier withdrawals from oil and gas leasing of most of the United States’ Arctic Ocean and a number of canyons within the Atlantic Ocean. 

This lawsuit turned on an interpretation of presidential withdrawal authority under the Outer Continental Shelf Lands Act. Section 12(a) of OCSLA provides the president with the clear authority to withdraw certain areas of the Outer Continental Shelf from oil and gas leasing, and the central question in the lawsuit was whether it also provides authority for a president to undo existing  withdrawals that were intended, like Obama’s Arctic and Atlantic actions, to be of unlimited duration.  Judge Gleason found that section 12(a) authority works only in the direction of presidential withdrawals, and not the undoing (or “revocation”) of such withdrawals.

Looking to the future, should Acting (and likely soon-to-be-confirmed) Secretary David Bernhardt revisit the Izembek land trade, he will need to either win on appeal during his tenure (should he take one) or directly confront the agency’s previous rejection of a land trade and the reasons for that rejection.  Furthermore, Trump’s “energy dominance” effort to expand offshore oil drilling in the Arctic Ocean is dealt a blow.  Notably, the OCSLA issue is similar to one raised in litigation over Trump’s revocation of National Monument designations under the Antiquities Act and Judge Gleason’s treatment of the issue thus may influence other courts. 

More broadly than even these implications, the two Gleason decisions may portend the result of other Alaska-related federal policy and decision-making.  For example, the Corps of Engineers is fast-tracking Clean Water Act section 404 permitting for the proposed Pebble mine in Southwest Alaska.  And the proposed mine’s developers are trying to get EPA to reverse course on its intended use of its Clean Water Act section 404(c) authority to restrict or prevent any Corps’ permit for the mining of the Pebble ore deposit.  EPA’s proposed restrictions were based on a Bristol Bay Watershed Assessment, which the developer had waived challenging in settling a previous lawsuit with EPA.  Given the clarity of Judge Gleason’s Izembek opinion on what it would take for the agency to reverse course, and the settled science of EPA’s watershed assessment, securing a 404 permit won’t be as simple for proponents as winning a policy argument, which appeared to be the case with the Izembek land trade. 

Looking back to the Interior Department, the Bureau of Land Management is moving forward with oil and gas lease sales on the Coastal Plain of the Arctic Refuge.  Critics of that effort, including a former Interior official, say the legal process is being illegally shortcut, which is an attribute it may thus share with the Izembek land trade.  Interior is also speedily-redoing a 2013 management plan for the 23 million acre National Petroleum Reserve with a goal of expanding oil and gas leasing in the Reserve starting in 2020.    

Ironically, on Thursday, March 28, the day before Judge Gleason issued her decisions, Interior Secretary-nominee David Bernhardt had his confirmation hearing before the U.S. Senate Energy and Natural Resources Committee.  This committee is chaired by Alaska’s Senator Lisa Murkowski, who is a supporter of expanded oil and gas development on federal lands in and offshore of Alaska.  The judicial smackdown the next day, however, is sure to complicate Bernhardt’s efforts to implement such an agenda before the next presidential term, which is the timeframe which appears to underly Interior’s and other agencies’ efforts on Alaska issues.  And if the rush to secure more decisions in this presidential term leads to more losses in court, Alaska development interests could face complicated bureaucratic and legal landscapes, and strong political backlash, well into the future.

* Izembek case:  Friends of Alaska Wildlife Refuges, et al, v. Bernhardt, 3:18-cv-00029-SLG (March 29, 2019, D. Ak).

* Arctic OCS case:  League of Conservation Voters, et al, v. Trump, 3:17-cv-00101-SLG (March 29, 2019, D. Ak)

 

Down the Rabbit Hole: Injection Wells and Subsurface "Trespass"

Posted on March 29, 2019 by G. Alan Perkins

When an oil and gas operator obtains all proper permits for a saltwater disposal well and responsibly injects fluids into the approved deep subsurface formation, and some of the injected fluid ultimately migrates laterally within the permitted injection formation beneath the lands of another, has the operator committed an actionable trespass?  And if so, what should the measure of damages be?  Despite widespread use of injection wells under strict state and federal regulation, the law concerning subsurface “trespass” by fluids injected into disposal wells is spotty.  Many states have yet to directly address the issue.  Perhaps due to the proliferation of oil and gas production in regions of the country not accustomed to petroleum production, such cases are becoming more frequent.

Nearly all formations that contain oil or natural gas also contain saltwater.  So, it should come as no surprise that the process of producing oil and gas also produces saltwater – a lot of saltwater.  In 2007, the estimated volume of produced water from U.S. onshore oil and gas production was 21 billion barrels, or about 2.4 billion gallons per day.  Produced water that cannot be reused or recycled must be disposed of in a safe and effective manner.

Injection wells (often called “disposal wells” or “saltwater disposal wells”) that inject fluids associated with oil and gas production are considered “Class II” injection wells in the Underground Injection Control program.  Disposal wells typically inject produced water into zones depleted of oil and natural gas and that also naturally contain saltwater similar to the fluids being injected.  Such wells have been common in oil and gas producing states since the 1930s.  U.S. EPA reports that approximately 180,000 Class II injection wells operate in the United States. 

The industry, along with state and federal regulators, determined decades ago that the safest and most environmentally responsible way to dispose of produced water was through the proper use of injection wells.  Injection wells dispose of produced water in deep geological formations, isolated from underground sources of drinking water, to prevent soil and water contamination.  U.S. EPA regulates injection wells in accordance with stringent regulations pursuant to the federal Safe Drinking Water Act, and 33 states have delegated authority to be the primary enforcer (with a few others having joint authority with EPA).

Common law trespass can be described generally as “any entry on land that is in the peaceable possession of another, regardless of the willfulness of the entry, the degree of force used, the duration of the intruding presence, and the absence of damage to the land.”  Under the common law, an invasion alone was sufficient to sustain a trespass action, regardless of whether any damages could be proven.  This formulation may be adequate when applied to a pasture, home, or driveway.  But troublesome issues immediately arise when the focus turns to fluids moving unseen through geological formations thousands of feet below the ground surface.  Simply confirming whether the fluids in question are present in the deep subsurface of a particular tract of land is problematic, much less discovering how much is there and how long it has been there.

The common law cause of action for trespass was created before significant technological advances existed, such as the advent of aircraft and deep subsurface injection wells. Common law trespass typically involves the disturbance of the “peaceable possession” of property by another.  Surely, injecting produced water into a confined deep formation that already contains saltwater does not, in reality, disturb a landowner’s “peaceable possession” of his “property,” and thus should not give rise to an actionable trespass.  Just as a landowner does not “possess” the heavens, so neither should a property owner be considered to “possess” the deep subsurface unless he or she has at a minimum drilled a well or opened a mine to exploit it.

Over 70 years ago, in the well-known case of United States v. Causby, 328 U.S. 256 (1946), the common law yielded to societal needs to accommodate modern air travel so long as the use is regulated and does not unreasonably intrude on the owner’s use and enjoyment of the surface.  Class II commercial disposal wells are also highly regulated and serve an important societal purpose – the necessary, safe and environmentally protective disposal of vast amounts of produced water. The Ohio Supreme Court explicitly adopted this reasoning in expressing the law in Ohio with regard to migration of injected fluids from a disposal well, stating:

[O]wnership rights in today’s world are not as clear-cut as they were before the advent of airplanes and injection wells.  Consequently, we do not accept appellants’ assertion of absolute ownership of everything below the surface of their properties.  Just as a property owner must accept some limitations on the ownership rights extending above the surface of the property, we find that there are also limitations on the property owners’ subsurface rights.

Chance v. BP Chems., Inc., 670 N.E.2d 985, 992 (Ohio 1996).

Disposal of produced water is an essential part of the production of oil and gas, and it is impossible to accurately predict or restrict the movement of injected fluid through the injection zone.  Of course, some might advocate simply eliminating oil and gas production as a happy solution.  But realistically that is not going to happen anytime soon, and we should all agree that produced water should be handled in a safe and environmentally responsible manner.  Given the vital need for safe disposal of produced water, and the pervasive regulatory scheme governing such wells, the operator of a permitted injection well should not be subject to trespass liability for lateral movement through the permitted injection zone absent any damage.  Recognizing a per se trespass liability without any actual injury could impact many thousands of currently operating permitted injection wells, and essentially create a new strict liability tort.

Any Press Is Good Press

Posted on March 25, 2019 by Seth Jaffe

Last week, the Washington Post (subscription required) published an article about the Trump Administration’s inability to defend many of its policies in court. Yours truly was among those quoted. I liked the story and it was largely accurate, including its quotes from me, except that Fred Barbash stated that I had “been looking forward to deregulation under Trump.”  On that issue, I can only say that Fred and I had a misunderstanding, because I was never looking forward to deregulation under Trump.

Aside from the relatively unimportant and mildly humorous issue related to me maintaining credibility with a number of people whom I respect, I’m doing this post because that line highlights an important issue – there’s a significant difference between deregulation and regulatory reform. I think much of our environmental regulatory structure could benefit from reform, but I don’t question the benefits of environmental regulation and I don’t support “deregulation.”

Indeed, as the article demonstrates quite well, President Trump has shown no interest in regulatory reform.  He just wants to kill as many regulations as possible – or at least persuade his supporters that that’s what he wants to do.  Like so many things about this President, he doesn’t actually care about results as much as he cares what his supporters think about him – that’s one reason why the article is a valuable piece of reporting.

And that's also part of the reason why, as I said in the article, Trump has set regulatory reform back for years.  If we want widespread public support for regulation, we have to persuade people that regulations benefit them.  That’s why environmentalists shouldn't fear cost benefit analysis and cost-effectiveness analysis; we need economic analysis to demonstrate the benefits of regulation.  We have a President who thinks all regulations are bad, but who cares only about the cost of regulations, not their benefits.  As a result,  cost-benefit analysis and cost-effectiveness analysis get a bad name.

And that’s bad for everyone.

Does the Clean Water Act Cover Discharges to or Through Groundwater, Part III?

Posted on March 7, 2019 by David Buente

In both 2016 and 2017, I blogged to discuss a key Clean Water Act (“CWA”) jurisdictional issue:  whether the indirect discharge of pollutants into groundwater which is hydrologically connected to a surface water of the United States is regulated under the CWA.  At the time, the district courts were split on this issue, and the only courts of appeals to rule on this point (a Fifth Circuit opinion from 2001 and a Seventh Circuit opinion from 1994) got the issue right by rejecting CWA or Oil Pollution Act jurisdiction over such discharges.  Since then, the landscape has shifted dramatically.  In 2018 alone, three circuit courts weighed in on this topic in five decisions.  And, as noted on this blog last month, the Supreme Court recently granted a petition for certiorari in one of these cases, meaning that years of confusion will finally be resolved, in some fashion, by 2020. 

The first circuit court to issue an opinion in 2018 was the Ninth Circuit in February 2018, in Hawai’i Wildlife Fund v. County of Maui (the opinion was amended in March 2018).  That case addressed whether treated wastewater effluent which traveled from the County’s underground injection wells, through groundwater, into the nearby Pacific Ocean constituted discharges regulated under the CWA.  The Ninth Circuit held that the wastewater was a covered discharge since it came from a point source (the wells) and was “fairly traceable from the point source,” even if it did not make its way directly from the wells to the ocean. 

The next circuit to weigh in was the Fourth Circuit, in April 2018 in Upstate Forever v. Kinder Morgan Energy Partners, L.P.  This decision held that the movement of gasoline which resulted from a pipeline spill in 2014 and was allegedly still seeping through groundwater approximately 1000 feet into surface waters constituted a CWA discharge, since it originated from a point source (the pipeline rupture) and there was evidence of a “direct hydrological connection between [the] ground water and navigable waters….”  This decision in fact expands the CWA even further than the Maui opinion, because it held that the CWA covered discharges when the original release of pollutants from the point source has ceased, but the pollutants continue to travel diffusely through groundwater.  In a September 2018 decision, a different Fourth Circuit panel in Sierra Club v. Virginia Electric & Power Company acknowledged the Upstate Forever panel’s adoption of the direct hydrological connection theory but rejected liability on the grounds that the coal ash landfills and basins at issue were not point sources.   

Finally, on the same day in September 2018, the Sixth Circuit issued decisions in Kentucky Waterways Alliance v. Kentucky Utilities Company and in Tennessee Clean Water Network v. Tennessee Valley Authority.  Both cases dealt with alleged discharges through groundwater from coal ash basins to navigable waterways.  Contrary to the Fourth and Ninth Circuits (and in line with the earlier circuit court case law), the Sixth Circuit held that groundwater was not a point source and that these discharges are not regulated since they must be directly from the point source to a water of the United States.

Petitions for writs of certiorari before the Supreme Court have proceeded on similar timeframes in the Maui and Upstate Forever cases.  In each case, the petitioners filed their petitions in August 2018.  The Maui petition addressed the indirect discharge via groundwater issue and a fair notice question.  The Upstate Forever petition raised both the indirect discharge through groundwater issue and whether an ongoing violation for purposes of a CWA citizen suit occurs when the point source ceased discharging but pollutants are still reaching navigable waters via groundwater.  In December 2018, the Supreme Court, signaling interest in the cases, requested the Solicitor General to file an amicus brief in both cases by January 4, 2019, expressing the view of the United States.  In that amicus brief, the United States urged the Supreme Court only to accept the Maui case, and only on the groundwater discharge issue.  The United States’ rationale was that Maui presented the groundwater discharge issue more squarely, since the ongoing violation issue in Upstate Forever was a threshold concern.  The brief separately observed that EPA was planning to take action shortly in response to its February 2018 request for comment on the groundwater discharge issue. 

On February 19, 2019, the Supreme Court, adhering to the United States’ request, accepted only the Maui petition and only on the groundwater discharge question.  The Maui case will likely be the Supreme Court’s most seminal CWA decision in over a decade, since the split decision in Rapanos v. United States, 547 U.S. 715 (2006).  Industry should track this case closely, as its resolution will have an effect on everything from federal and citizen suit enforcement to National Pollutant Discharge Elimination System permit requirements.   

Deadlines For Permit Issuance Are Double-Edged Swords

Posted on January 29, 2019 by Seth Jaffe

On Friday, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water quality certification requests under § 401 of the Clean Water Act within one year.

The facts are important here and somewhat convoluted.  The short version is that PacifiCorp operates a number of dams on the Klamath River.  In 2010, PacifiCorp reached a settlement with California, Oregon, and a number of private parties – not including the Hoopa Valley Tribe, the plaintiff here – to decommission certain dams and relicense others.  However, the decommissioning was dependent on certain third party actions, including, apparently, federal funding.  Part of the settlement required California and Oregon to “hold in abeyance” their § 401 certificate reviews.  Specifically, each year, PacifiCorp:

sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same . . . in the same one-page letter . . . for more than a decade.

The Court was not pleased.

Such an arrangement does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project. … There is no legal basis for recognition of an exception for an individual request made pursuant to a coordinated withdrawal-and-resubmission scheme, and we decline to recognize one that would so readily consume Congress’s generally applicable statutory limit.

The Court limited its holding to the facts of this case; it does not apply, for example, to applications that are substantively amended and resubmitted.  It only applies to what PacifiCorp and the states unabashedly did here – reach a private agreement to get around the explicit provisions of the statute.

Nonetheless, it’s an important decision.  Based on data reported in the opinion, it may have a significant impact on a number of FERC licensing proceedings, where similar agreements may also be in place.

The decision also highlights an issue with these types of permitting deadlines.  These provisions follow a fairly well-trod path.  Some agency is slow in responding to permit applications.  A legislature responds by demanding that approvals be issued within a certain period of time.  The regulated community is happy.  Then, life moves on and, in the real world, parties realize that, for one reason or another, strict adherence to the statutory deadline is infeasible, impractical, or just plain not in anyone’s best interest.  They thus do what creative people do – they find a way around the deadline that was supposed to be protecting them.  Or, they try to do so until a court says no, no, no.

Be careful what you wish for.

A Diverse Chorus of Voices Seek to Be Heard in Utah Monuments Cases

Posted on January 7, 2019 by Brenda Mallory

December 4, 2018 was the one-year anniversary of President Trump’s proclamation disaggregating the boundaries and reducing the size of the Bears Ears and Grand Staircase Escalante national monuments, with Bears Ears being reduced by 85% and Grand Staircase by half, a total reduction of nearly two million acres. As we enter the second year of what many believe are illegal reductions, the litigation challenging the President’s actions continues to inspire broad public interest and controversy. 

On October 1, 2018, shortly after the D.C. federal district court refused the federal government’s request to transfer the lawsuits to the Utah federal court, the Department of Justice (DOJ) filed sweeping motions to dismiss the five pending complaints, three associated with Bears Ears and two with Grand Staircase.  Among the plaintiffs were the coalition of Sovereign Tribes that spearheaded the monument designation of Bears Ears, local businesses, scientists, and environmental organizations. On November 15, the plaintiffs filed their briefs in opposition to the DOJ motions to dismiss. 

On or about November 19, amicus briefs were filed by a diverse array of parties in support of the plaintiffs, including state Attorneys General, members of Congress, natural resources law professors, archaeological associations, Tribal organizations, outdoor user groups, and locally elected officials in Utah. The amicus briefs, if accepted by the court, would provide important context about the impact of monument designations on the resources being protected by those designations and on the user communities. On November 27, DOJ asked the court to deny all amicus briefs other than that filed by the Attorneys General, including the brief filed on behalf of 118 members of Congress. At the time this blog was finalized, the court has not yet ruled on the motion. DOJ filed its reply to the plaintiffs’ opposition briefs on December 13.

The core of the litigation is whether the President has the authority under the Antiquities Act to revoke or substantially modify a predecessor President’s monument designation. The Antiquities Act gives the President the authority to “declare” as national monuments landmarks, historic and pre-historic structures, and other objects of historic and scientific interest and to “reserve” parcels that are “confined to the smallest area compatible” with protection of the objects. All five groups of plaintiffs argue that Congress did not delegate the authority to revoke or modify monuments to the President. The federal government’s motion to dismiss is based in part on traditional arguments about the lack of standing and ripeness. DOJ also makes more sweeping arguments that go to the heart of the case, asserting that plaintiffs’ claims fail as a matter of law, with its brief pointing to legislative history, the text of the statute, actions by previous Presidents, and the lack of action by Congress. Plaintiffs argue each factor the other way.

One highly consequential point on which the parties differ starkly is the impact of monument designations and the practical consequences for resource protection that flow from the Presidential act. DOJ asserts that other federal law provides sufficient protection absent such designation, and that any potential harm from President Trumps’ “UN-designation” will only occur if future activities, subject to future process, are authorized. DOJ further argues that the President has an ongoing, affirmative obligation to shrink the designated area if he believes it is not “the smallest area compatible” with protection of the objects, a key statutory term, as noted above.

The plaintiffs offer a compelling view of the weaker legal protections, imminent threats, and uncertainty that monument objects would face if monument boundaries could be redrawn to exclude them. On this point, in particular, amicus supporters offer context and experience to support Plaintiffs’ position. For example, the brief submitted by 118 Democratic members of Congress explains that the authority Congress delegated to the President under the Antiquities Act was intended to be “one-way” and constituted a logical choice since risks to objects require quick protective action while the removal of protections is better suited to the legislative process retained by Congress. The natural resource law professors offer a detailed description of how the Antiquities Act works in combination with other resource management statutes, including the Mining Law of 1872. Absent the monument designation, this law permits a wide range of ground-disturbing activities on public lands with minimal or no notice and generally with no prior approval.

Similarly, the archaeologists’ brief provides detailed examples of recorded historic sites that are no longer subject to the protections offered by a monument designation, with about half (1,910) of the 4,000 documented sites located within the original boundaries of Grand Staircase no longer having monument protection and approximately 73% of documented archaeological sites having been removed from the Bears Ears monument. The brief filed by the National Congress of American Indians, the oldest and largest national organization of American Indian and Alaska Native tribal governments and their citizens, underscores the importance of the original Bears Ears designation to Native American history and culture and the harm associated with eliminating the Commission of Tribal Sovereigns which was established to ensure that the Tribes had enhanced participation opportunities in the long-term management of their heritage.

Communities and users dependent on monument designations, both in Utah and elsewhere, share how they rely on the monuments and have built systems and infrastructure around them based on an understanding of their permanence. The Attorneys General from Washington, California, Oregon, New Mexico, Hawaii, Maine, Maryland, Vermont, Rhode Island, and New York describe how states enter cooperative management agreements, provide investments in infrastructure, change state rules and regulations, conduct state university research and preservation within monuments, and promote economic and health benefits for citizens. The Mayor of Salt Lake City and other affected officials emphasize the importance and economic reliance of gateway communities on monument designations, as well as the failure of the Trump Administration to hear all the local voices in reaching its decision on the monuments. The Outdoor Alliance describes how the monument designation changes the management of these resources and therefore the user experience. The Outdoor Alliance also counters the government’s suggestion that the lands would be similarly protected without monument status.

I find these points and other arguments made by the plaintiffs and amici supporting the plaintiffs very persuasive as they illustrate the complex array of interests harmed by President Trump’s proclamation. The federal government and its supporters from the State of Utah and the Farm Bureau took the opportunity to present their views in the December 13 filing. That may be a topic for discussion in later blogs.

Two Strikes Against the Administration’s WOTUS Suspension Rule

Posted on December 10, 2018 by Seth Jaffe

In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule.  Now, a judge in Washington has gone even further.  Judge John Coughenour has vacated the rule.

The core of the new decision is the same as that in South Carolina.  By refusing to take comment on the impact of the delay in the effective date of the WOTUS rule, the Administration acted arbitrarily and capriciously and thus violated the Administrative Procedure Act.

For my non-lawyer readers wondering what the difference is between a nationwide injunction against the Suspension Rule and vacatur of the Rule, I’m picturing a petulant President Trump, sitting in a corner.  First, his teacher tells him that he can’t play with his shiny new toy – that’s an injunction.  Then, still not satisfied, another teacher comes by and takes the toy away completely.  That’s vacatur.