Acronymic Acrobatics: Why Poly- and Perfluoroalkyl Substances (PFAS) are becoming a Problem For All States

Posted on February 13, 2019 by Tom Burack

In an age in which the names of chemicals are so complicated that even scientists refer to them by acronyms, an entire class of manmade chemicals created to improve human lives is now in the midst of performing an acrobatic stunt, back-flipping from being the darling of industrial and consumer products to being the contaminants that are now the nemesis of many communities: Poly- and Perfluoroalkyl Substances -- commonly referred to as “PFAS” – are also coming to be recognized as something else with the same acronym, namely a “Problem For All States”.  Due to their unique chemical properties and the growing public demands for timely regulatory response actions at the local level in the absence of definitive federal leadership, PFAS compounds can be expected to remain a Problem For All States for many decades to come.

Chemical engineers, starting in the 1940s, made some remarkable discoveries: the combination of carbon and fluorine atoms into long-chained synthetic organic molecules results in compounds that variously can repel oil, water, grease or stains, resist high temperatures, and reduce friction.  These properties, combined with high durability, made these newfound PFAS compounds ideal for innumerable industrial and consumer purposes. For example, some of the most commonly used PFAS are: perfluorooctanoic acid (PFOA), as a repellent coating for textiles, paper products and cookware; and, perfluorooctanesulfonic acid (PFOS), in fire-fighting foams, carpet treatments, and mist suppressants in metal plating operations.  As a broad class, there are approximately 3,000 different PFAS compounds, some of which are precursors to other PFAS compounds, and various of which may co-occur with each other. Commonly known household products containing or made with PFAS compounds have included DuPont’s Teflon®, 3M’s ScotchGard®, and Gore’s Gore-Tex®, to name but a few. Unfortunately, some of the most commonly used PFAS compounds are also highly persistent, mobile, and non-biodegradable.  Consequently, worldwide production and uses of PFAS have resulted in their nearly ubiquitous presence throughout the environment, including in soils, sediments, surface and groundwater.

Moreover, because they can also bioaccumulate, PFAS compounds can be found in animals and humans in parts per billion (ppb) concentrations. Laboratory studies of PFAS health impacts on animals point toward elevated cholesterol levels, low infant birth weights, immune system effects, cancer (PFOA), and thyroid hormone disruption (PFOS).  While peer-reviewed human epidemiological studies of PFAS exposure have been less numerous or definitive to date, when combined with the laboratory animal studies there have been sufficient data to support the establishment of Lifetime Health Advisories for PFOA and PFOS by the US EPA in 2016 and the promulgation of regulatory limits to protect drinking water supplies by a growing number of states.

In the United States, the first health and environmental concerns arose in connection with PFAS manufacturing facilities and their waste disposal practices in West Virginia and Ohio in the late 1990’s and in Minnesota in the early 2000’s.  Between 2000 and 2002, 3M voluntarily agreed to phase out the further manufacture of most long-chain PFAS compounds, and DuPont and other US manufacturers followed suit. Today, under a set of Significant New Use Rules (SNURs) promulgated by the US EPA under the Toxic Substances Control Act (TSCA), most long-chain PFAS are allowed to be used or imported only for limited purposes and in select industries or applications.  Further restrictions have been proposed and shorter chain PFAS compounds are increasingly being used as substitutes, but even these may present significant environmental and public health concerns, as illustrated by the ongoing GenX contamination situation in the Cape Fear Watershed of North Carolina. (See, e.g., https://www.northcarolinahealthnews.org/2017/08/17/genx-pollution-what-happened-when/)

Ever-more sensitive laboratory technology can now detect PFAS at parts per trillion (ppt) concentrations, and it’s become evident that the more than five decades of unregulated use of PFAS has left an indelible signature in landfills, wastewater, waterways, and communities far and wide. To date, the New Hampshire Department of Environmental Services has amassed perhaps the largest single dataset on PFAS contamination in groundwater, surface water and soils of any state: roughly 6,000 samples from some 3,500 locations.  This continuously growing dataset already shows some noteworthy trends: sampling of 429 public water supply wells found that 7 (1.6%) contained PFOA or PFOS above 70 ppt (the US EPA LHA value which NH adopted as its groundwater cleanup standard); but NH has now proposed to lower its standard for PFOA to 38 ppt, which once all of NH’s public water systems have been sampled is likely to put another 16 or so in noncompliance.  More than 50% of the existing known contaminated industrial sites sampled so far in NH contain elevated levels of PFAS.  Every NH landfill leachate system sampled to date has a PFAS signature, and the monitoring wells around the older closed but unlined landfills indicate 46% exceed the groundwater standards.  Fire stations and training sites are also potential sources, as are municipal wastewater treatment plants, biosolids storage and application sites, car washes, airports (military and civilian), and a wide variety of other operations. Typical contamination vectors include not only historical releases directly to soils, groundwater or surface waters, but also atmospheric deposition resulting from airborne emissions of PFAS that subsequently contaminate other media, including groundwater.

Due to the combination of their durability, persistence, mobility, multiple possible release mechanisms, and extremely low detection limits, the simple reality is that if you look for PFAS in the environment you will find them.  The corollary is that if you haven’t found them, you’re probably not looking in the right places. While some public officials may believe that PFAS are not a problem in their states or regions, the public and elected officials – sensitized by the story of lead contamination in the water supply of Flint, Michigan – are asking questions, demanding answers, and expecting action. In 2018, the US EPA held a “national summit” on PFAS contamination and announced that it would consider whether to establish public drinking water standards, Maximum Contaminant Levels (MCLs), for some PFAS, and whether to list certain PFAS compounds as hazardous substances under CERCLA.  More recently, EPA officials have indicated that MCLs for PFAS are unlikely, but that EPA is considering broader use of its emergency administrative order authority under Section 1431(a) of the Safe Drinking Water Act to address PFAS contamination situations on a site-by-site basis. In the meantime, members of Congress have introduced bipartisan legislation to require US EPA to list all PFAS compounds as CERCLA hazardous substances and a growing number are joining a bipartisan Congressional PFAS Task Force.

The most consequential regulatory action, however, has been at the state level, which is where considerably more future action should be expected.  As of January 2019, at least eight states had adopted or proposed guidance values or regulations setting acceptable concentrations of various PFAS compounds in groundwater, drinking water, surface water, or soil, including Alaska, Colorado, Michigan, Minnesota, New Hampshire, New Jersey, New York and Vermont.  This list is expanding rapidly, as is the list of state legislatures that have regulated or are considering regulating the use of PFAS compounds, including California, Michigan, Minnesota, North Carolina, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont and Washington.  The Environmental Council of States (ECOS), the national, nonpartisan, nonprofit association of state and territorial environmental agency leaders, has established a PFAS workgroup, and its research arm, the Environmental Research Institute of the States (ERIS) has a large and active technical team that has published a number of fact sheets on PFAS through the Interstate Technology Regulatory Council (ITRC). 

Regulatory strategies and cleanup standards for the same compounds often differ from state to state: for example, in Vermont the groundwater standard is 20 ppt for PFOA and PFOS individually or in combination, while in New Hampshire the standard for PFOA and PFOS individually or in combination is 70 ppt, and a proposed rule would lower the individual standard for PFOA to 38 ppt.  The process of setting health-based regulatory standards varies greatly by jurisdiction, and different standards are typically attributable to differences in which toxicity data are selected and how they are interpreted, differences in toxicity factors (i.e., multipliers or margins of safety), how animal test results are extrapolated to humans, exposure assumptions, life stage used, and sources of exposure (drinking water versus non-drinking water).  Should EPA choose not to adopt MCLs for PFAS compounds, it’s likely that more and more states will find themselves weighing these and other variables as they set their own regulatory standards and seek to explain why they may be either higher or lower than those of their neighboring states.

Because they are ubiquitous, PFAS compounds present a set of challenges that every state will ultimately need to quantify and regulate, all the while communicating with the public, the regulated community and elected officials about the steps they’re taking and why their approach is an appropriately protective risk management strategy.  The lack of a comprehensive national regulatory approach and federal standards for PFAS compounds makes the problem all the more challenging for states, as they will forever need to justify their own approach in comparison with those of other states.  All of which suggests that PFAS are, and for the foreseeable future will remain, a Problem For All States.

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.

Ode to Angus: The Macbeth Report

Posted on January 17, 2019 by Scott Fulton

In the Summer of 2017, ELI undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI and ACOEL communities and in cooperation with the Environmental Council of States (ECOS). Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI. As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting report, The MacBeth Report: Cooperative Federalism in the Modern Era, is, I believe, one of the more thoughtful pieces on cooperative federalism that has been rendered. Let me highlight some of the report’s key contributions.  

As the report reflects, there is considerable support at this juncture for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs; but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good of a, job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The report also considers the role that a citizenry — equipped with unprecedented amounts of environmental information and operating in a socially networked world — can play as a driver of environmental behavior going forward.

In terms of opportunities for adjustment or realignment, The Macbeth Report points to a number of options, including:

· Possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

· ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. The report advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can tuned. Permitting decisions may a good place to focus such pilot projects.

· Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice in implementation decisions.

· The report generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

· Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, the report recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give The Macbeth Report a look. Be sure to read again Steve Ramsey’s wonderful tribute to Angus, which we have embedded in the report. Many thanks to all who contributed to the thinking in the report, and, of course, a special thanks to you, Angus. 

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.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

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

Posted on October 16, 2018 by Seth Jaffe

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

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

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

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

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

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

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

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

Posted on October 2, 2018 by Kenneth Gray

 

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

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

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

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

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

Your thoughts? Let the informed debate begin.

 

We May Not Always Have Paris, But Perhaps We Can Do Better Than Paris

Posted on September 20, 2018 by Seth Jaffe

Last week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  (And a shout out to ACOEL fellow Pam Giblin, who is a Senior Policy Advisor at the CLC.) 

I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.

I understand the difficulty in convincing what passes for the GOP base at this point – and the GOP members of Congress – to endorse the carbon tax.  Oops, I meant dividend.  I’m hopeful that enough members will come around at some point.  My real worry is that the environmental movement will reject the plan because it calls for elimination of current regulations concerning carbon.

Years ago, Gina McCarthy used to say quite freely that the Obama administration would get most of its carbon reductions, not from direct regulation of GHG emissions, but instead from all of the other air regulations it was promulgating, such as the power plant MACT standards.

What environmentalists have to remember is that the reverse is also true – any robust program to reduce carbon emissions will also lower emissions of conventional pollutants.  Indeed, in defending the Clean Power Plan, environmentalists have made that very argument.  Why not acknowledge the same point in connection with a carbon tax and give up on a set of regulations that have always been clunky at best, are nowhere near as efficient a regulatory tool as a carbon tax, and which, as compared to a carbon tax, really benefit no one other than environmental lawyers and consultants?

God, wouldn’t it be a breath of fresh air to see Congress actually get something big done for the American people?  Let’s not screw this one up.

How Much Does Trump Even Care About Deregulation?

Posted on September 13, 2018 by Seth Jaffe

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

Which brings me to the point of this post.

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

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

To which the Court added its own footnote:

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

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

WOTUS: Legal Issue or Scientific Issue?

Posted on August 1, 2018 by Seth Jaffe

Last month, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected, it asks what are the jurisdictional limits in the Clean Water Act.

It’s cynical, because, by failing to take on the science behind the 2015 rule, which seemed fairly persuasive to me, EPA and the Corps avoid the hard regulations necessary to protect our waters while clothing themselves in feel-good words about the integrity of the statute and the important role given to states under the Clean Water Act.

Part of the beauty of the SNPR is the way it carefully navigates between whether the broader jurisdictional interpretation taken by the 2015 rule is prohibited under the Clean Water Act or simply not required under the Clean Water Act.

The agencies are also concerned that the 2015 Rule lacks sufficient statutory basis. The agencies are proposing to conclude in the alternative that, at a minimum, the interpretation of the statute adopted in the 2015 Rule is not compelled, and a different policy balance can be appropriate.

I’m not sure I agree with the administration’s interpretation of the scope of the CWA, but it’s not crazy.  If I had to bet, I’d assume that it would survive judicial review.

The problem is that this simplistic legal approach ignores the science and ignores the missions of both EPA and the Corps.  If the 2015 rule is more protective of the nation’s waters, and if there are questions about the scope of jurisdiction under the CWA, then shouldn’t the administration be asking Congress to clarify EPA’s and the Corps’ authority so that they can regulate in a manner consistent with what good science says is necessary to protect the waters of the United States?

I’m not holding my breath.

CAFO Odors and the Ghost of William Aldred

Posted on July 10, 2018 by Susan Cooke

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

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

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

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

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

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

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

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

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

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

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

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

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

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

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

DAVID AND GOLIATH AT THE CONOWINGO DAM

Posted on June 26, 2018 by Ridgway Hall

Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of its operating license from FERC under the Federal Power Act for 50 years. Section 401 of the Clean Water Act requires that any applicant for a federal license that may result in a discharge submit a certification by the state where the discharge will occur that the discharge “will comply with the applicable provisions” of the CWA, including water quality standards. The certification may include conditions and requirements, including monitoring and reporting, deemed necessary to ensure compliance. The certification becomes part of the federal license, and the licensing agency may not change it.

The facts in this case are unusual, and the outcome will likely be precedential. For decades, sediment has flowed down the 450 miles of the Susquehanna River from New York and Pennsylvania and accumulated in the reservoir behind the dam, trapping nitrogen, phosphorus, metals, PCBs and other pollutants along with the sediment,  Now the trapping capacity has been reached. Several times in recent decades severe storms have scoured out tons of this sediment and carried it over the dam and into the Chesapeake Bay 10 miles downstream, causing not just violation of water quality standards, but severe damage to oysters, bay grasses and benthic organisms.  In addition, the dam has blocked historic fish passage. Measures such as fish ladders and transportation have produced only modest relief. Since 2010 the entire Chesapeake Bay and its tributary system has been subject to a multi-state total maximum daily load (TMDL) for nitrogen, phosphorus and sediment, but at the time that was set, it was not anticipated that the Conowingo trapping capacity would be exhausted this soon.

On April 27, 2018, the Maryland Department of the Environment issued a CWA certification in which it determined that numerous conditions must be complied with by Exelon in order to reasonably ensure compliance with water quality standards. It requires, among other things, measures to ensure compliance with standards for dissolved oxygen (DO), chlorophyll-A (an indicator of algae), turbidity, temperature, pH and bacteriological criteria in the reservoir and downstream waters including the Bay, plus compliance with plans to protect various fish species, waterfowl and habitat. It also requires shoreline protection, removal of trash from the reservoir and a variety of monitoring programs.

Notably, to satisfy the DO standards, which are adversely affected by nutrients and are critical to aquatic life, MDE requires that starting in 2025 Exelon must annually reduce the amount of nitrogen in its discharges by 6 million pounds, and phosphorus by 260,000 pounds. Exelon can also satisfy this requirement by installing best management practices elsewhere upstream or paying $17 per pound of nitrogen and $270 per pound of phosphorus for any amounts not removed.

Exelon promptly filed a request for reconsideration and administrative appeal with MDE. It also filed a complaint in Maryland state court seeking a declaration that the certification could not be considered “final action” until proceedings before MDE were concluded, including Exelon’s right to an evidentiary hearing; an injunction against any consideration of the certification by FERC, and, alternatively, for judicial review. Exelon also filed suit in the U.S District Court in Washington, D.C., claiming that MDE’s certification exceeded its CWA authority and constituted an unconstitutional taking of its property, and seeking declaratory and injunctive relief.  See Exelon’s filings at here.

Among Exelon’s complaints is the fact that the certification would require it to spend vast sums to remove pollutants that did not come from its operations, but from upstream polluters. The fee equivalent of the nitrogen and phosphorus removals would amount to $172 million per year – far more than Exelon earns from the operation of Conowingo. An environmental impact statement had concluded that efforts to remove the sediment from behind the dam “would be cost-prohibitive and ineffective.” Releases from the dam, Exelon contends, are not “discharges” but “pass-through.” Exelon also argues that fish passage damage was caused decades ago and it would be unfair to make Exelon bear the full cost of restoring it.

Some environmental groups have joined the administrative appeal process.  Stewards of the Lower Susquehanna and Waterkeepers Chesapeake (a group of 18 Waterkeeper organizations in the Chesapeake Bay watershed) appealed to MDE asking that protection against scouring by big storms be strengthened and that likely effects from climate change be considered, but otherwise supporting the certification. The Nature Conservancy and the Chesapeake Bay Foundation, both with longstanding interests in water quality and restoration of the fisheries and fish passage, have also been actively involved.

The stakes are high. MDE, “David” in my title, has taken some bold measures to address some enormous problems, and Exelon is fighting back hard. However it comes out, the resolution will have precedential value for other CWA 401 cases across the country, and particularly for hydroelectric projects.

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

Posted on June 8, 2018 by Seth Jaffe

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

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

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

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

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

I loved the Court’s response.

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

Epistemological smokescreen.  Humph.

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

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

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

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

Ending Secret Science or Censoring Science?

Posted on June 7, 2018 by Chester Babst

On April 30, 2018, EPA issued a Notice of Proposed Rulemaking entitled “Strengthening Transparency in Regulatory Science.” Although EPA’s stated intent is to increase transparency and public confidence in the Agency’s regulations, a number of its critics have described the proposed rule as “exquisitely opaque,” “vague,” and “lacking data transparency.” Even supporters of the proposed rule seem to recognize that it may need some work before it is issued in final form.

Critics of the proposed rulemaking argue that some scientific studies cannot be released publicly because they may include personal health information and identifiers or they may involve trade secrets.  Proponents of the proposed rulemaking note that the proposed rule allows EPA to make studies available in a manner that protects privacy and confidential business information. However, it does not provide how this would be accomplished. If personal identifiers could be redacted from studies examining health effects, who would perform this data removal and who would pay for the costs associated with this removal? Proponents also note that the proposed rulemaking would give the Administrator the power to grant exemptions to these disclosure requirements if the Administrator deems it impractical or not feasible to release the research in a manner that protects privacy and other private interests, but critics are concerned that the proposed rule does not provide what factors would govern this type of discretionary exemption.

Although the concept that environmental regulations should rely on data, information and methods that are publicly available and sufficiently transparent to meet a “standard of reproducibility” is laudable, the initial reactions to the proposed rule suggest that finding a path to that end will not be easy.

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

Posted on May 29, 2018 by Seth Jaffe

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

Why did EPA lose?

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

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

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

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

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

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

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

A 2-Fer Update

Posted on May 1, 2018 by Mark Walker

Seth Jaffe and I have both previously blogged about Public Citizen v. Trump. It is the lawsuit challenging Trump’s Executive Order 13771 which, with some exceptions, mandates two existing federal regulations be eliminated for every new regulation. Several public interest groups challenged the EO asserting that it will block or repeal regulations needed to protect the environment, health and safety and that it directs federal agencies to engage in decision making that is arbitrary, capricious and contrary to other existing laws.

Since its filing, no substantive issues have been addressed. Instead, the case has been mired in addressing the issue of standing. Standing requires that the plaintiffs demonstrate a personal stake in the outcome of the controversy. In order to demonstrate Article III jurisdiction, the plaintiff associations must either show “associational standing” or “organizational standing”. Associational standing requires that the plaintiffs demonstrate that the EO will substantially increase the risk that at least one of their members will either be harmed or face a substantial probability of harm once such increased risk is taken into account. Organizational standing requires that the plaintiffs demonstrate that they have standing to sue in their own right which requires that they show the EO will have a chilling effect on their missions.

On February 26, 2018, Judge Moss ruled that the plaintiffs had failed to demonstrate standing and that, therefore, the court did not have jurisdiction to entertain their lawsuit. In a lengthy decision, the judge held that the plaintiffs had not identified a specific member who had yet suffered an injury as a result of the EO. The plaintiffs brought this action before any specific regulatory actions had been taken pursuant to the EO. Therefore, they could not identify any specific regulations that had been repealed or were likely to be repealed as a result of the EO. The court held that plaintiffs’ allegation that it was “likely” that the EPA and other agencies would stop seeking new regulations in order to protect existing ones was overly speculative.

Most of plaintiffs’ arguments in support of associational standing related to their claims that the EO had already delayed the issuance of new regulations. For example, the plaintiffs alleged that the EO had already delayed an unspecified regulation on greenhouse gas emissions. One of the NRDC’s members asserted that global warming and the resulting rise in sea level would deprive him of water supply and the use of his home. However, as Judge Moss noted, the plaintiffs had not identified any proposed rule or putative regulatory action that addressed this concern or that had been delayed by the EO.

As to organizational standing, the plaintiffs claimed that the EO would cause them harm by chilling their advocacy activities. The advanced basis for this claim was that the plaintiffs would now have to “think twice” about advocating new regulations with the knowledge that a new regulation could result in the elimination of two regulations which plaintiffs believe are necessary protections, thus imperiling their ability to advocate thereby chilling their First Amendment right. However, the plaintiffs could not point to any specific regulation which had yet presented this alleged Catch 22. Instead, they merely claimed they were now forced to consider the issue. Judge Moss held that this “think twice” argument did not establish an injury in fact.

This case is a text book example of the difficulties public advocacy groups face in demonstrating standing, particularly where the new proposed regulation has not yet been adopted or implemented. Although the plaintiffs amended their claims once before to address standing, Judge Moss has allowed them to amend again to try to establish standing. Of course, if subsequent agency actions pursuant to the EO demonstrate standing, the plaintiffs will then be allowed to pursue a lawsuit. It is noted that the Trump Administration is now proposing a 3-for-1 plan for 2018.

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

Posted on April 30, 2018 by Seth Jaffe

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

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

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

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

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

Takings Math for Dummies: When 1+1=1

Posted on March 7, 2018 by Mary K. Ryan

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

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

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

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

And the Regulatory Reform Caravan Keeps Moving on Down the Road

Posted on February 26, 2018 by Donald Shandy

On January 25, 2018, The EPA published a guidance memorandum withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act. This new EPA guidance allows stationary sources of hazardous air pollutants (HAPs) that are classified as “major sources” to limit their HAP emissions to below major source thresholds and thereby be reclassified as “area” sources at any time. As Bill Wehrum, assistant administrator of EPA’s Office of Air and Radiation, puts it, “It will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.” I agree.

A major source is one that emits or has the potential to emit 10 tons per year of any single HAP or 25 tons per year of combination of HAPs. For the last 20 years, once a source became subject to a MACT it remained in that status even if it reduced emissions below the major source threshold(s).

The new policy follows a similar theme emerging from the Pruitt EPA: legally speaking, the once in always in policy was not supported by the language of the Clean Air Act. Under this new policy, a source can voluntarily accept limitations (even after previously triggering major source status) and avoid major source requirements. This would eliminate some of the resource intensive burdens of MACT such as recordkeeping and reporting requirements.

In 2007, the Bush EPA proposed a rule that would have replaced the historic policy. After taking comment on the proposal, the EPA never took a final action and it has never been withdrawn. Based upon the new guidance, EPA intends to revive the pending rulemaking consistent with the Wehrum guidance document. 

This new policy is a significant incentive for major sources to take efforts to reduce emissions on an actual or potential basis and fall below the triggering thresholds. As such, this new policy is good for business and the environment.

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

Posted on February 21, 2018 by Seth Jaffe

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

Folders with the label Regulations and Guidelines

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

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

For example, the new memorandum states that:

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

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

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

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

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

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

“It’s What We Know for Sure That Just Ain’t So”

Posted on February 16, 2018 by Paul Seals

In his current bestseller, 12 Rules for Life: An Antidote to Chaos, Jordan B. Peterson, a clinical psychologist and University of Toronto professor of psychology, quotes Mark Twain in discussing the potential consequences of our conventional assumptions regarding nature and the environment. Mark Twain once said, “It’s not what we don’t know that gets us in trouble. It’s what we know for sure that just ain’t so.” In our current period of environmental regulatory conflict and chaos, Dr. Peterson’s rules could be fruitful in thinking more critically about “what we know for sure” and in advancing the sort of discourse that can help us find our way to a more rational and orderly regulatory consensus.

Dr. Peterson presents informative, fascinating, and often humorous prescriptions on how we should approach the disorder and tumult in the world in order to achieve meaning in our lives. His provocative and controversial assertions are woven through essays on each of his twelve rules:

  1.  Stand up straight with our shoulders back.
  2.  Treat yourself like someone you are responsible for helping.
  3.  Make friends with people who want the best for you.
  4.  Compare yourself to who you were yesterday, not to who someone else is today.
  5.  Don’t let your children do anything that makes you dislike them.
  6.  Set your house in perfect order before you criticize the world.
  7.  Pursue what is meaningful (not what is expedient).
  8.  Tell the truth—or, at least, don’t lie.
  9.  Assume that the person you are listening to might know something you don’t.
  10.  Be precise in your speech.
  11.  Do not bother children when they are skateboarding.
  12.  Pet a cat when you encounter one on the street.

We could use a little of Rules 7, 8, and 9 as we grapple with the significant environmental regulatory controversies that we face. We have competing facts and assumptions to support our contentions. We are in our separate corners armed with our arguments and beliefs, with little room for honest debate, dissent, or compromise. Too often, we become the conscious or unconscious proxies of ideological tyranny. Orthodoxy, dominance, and power are more important than advancing our knowledge to further effective and appropriate public health and environmental regulations.

We need to do a little more listening combined with a humility that what we know for sure may not be so. The challenge is great. We must overcome the straightjacket of our ideology and follow Rules 7, 8, and 9—beginning with the assumption that the person you are listening to might know something you don’t.

Statutory Deadlines Matter—EPA Gets Taken to the Woodshed

Posted on February 14, 2018 by Seth Jaffe

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

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

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

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

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

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

Just wonderin’.

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

Environmental and Energy Executive Orders – Ever Expanding Exercise?

Posted on December 26, 2017 by John Milner

The presidential use of executive orders (EOs) is not a new practice but President Trump is using EOs to impact significant environmental and energy issues.  He is reported to be issuing EOs at the second-fastest rate of any modern Republican president, second only to President Eisenhower. This trend exists despite consistent criticism prior to being elected of President Obama’s EOs: “Obama … goes around signing all these executive orders.  It’s a disaster.  You can’t do it.”

What is an EO?  Here is a quick summary.  An EO is a directive issued by the president to federal governmental agencies.  The president may revoke, modify, or supersede any prior EO.  Presidents often undo the EOs of their predecessors, as President Trump has done a number of times with regard to EOs issued by President Obama.  Courts can declare an EO to be illegal or unconstitutional.  Congress can pass legislation overturning an EO, subject to the president’s veto authority.

In the environmental and energy areas, President Trump has issued the following EOs:

1.       “Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects,” EO No. 13766, dated January 24, 2017.

The EO directs the chairman of the Council on Environmental Quality (CEQ), within 30 days after a request, to determine a project’s environmental impact and decide whether it is “high priority.”

2.      “Reducing Regulation and Controlling Regulatory Costs,” EO No. 13771, dated January 30, 2017.

The EO states that executive departments and agencies must slash two regulations for every one new regulation proposed. Regulation spending cannot exceed $0 and any costs associated with regulations must be offset with eliminations. The EO also directs the head of each agency to keep records of the cost savings, to be sent to the president.

3.      “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the U.S.’ [WOTUS] Rule,” EO No. 13778, dated Feb. 28, 2017.

The EO calls on federal agencies to revise a regulation put in place by President Obama called the Clean Water Rule or WOTUS. Published in 2015, WOTUS arguably expanded the number of bodies of water protected by the federal government to include certain streams, ponds, and smaller waterways that were not previously clearly covered.  The EO directs the administrator of EPA and the assistant secretary of the Army for Civil Works to review WOTUS and propose a new one that either eliminates or revises the rule.

4.      “Promoting Energy Independence and Economic Growth,” EO No. 13783, dated March 28, 2017

The EO directs EPA to review the Clean Power Plan (CPP) EO, signed by President Obama in 2014. In 2016, the Supreme Court granted a stay pending review in the U.S. Circuit Court for the District of Columbia of the CPP, which aimed to reduce carbon pollution from power plants.  This EO also requires federal agencies to review any regulations that could “potentially burden the development or use” of oil, natural gas, coal, and nuclear energy resources. Within 180 days, the agencies must submit reports to the Office of Management and Budget, which will take action to eliminate burdensome regulations.

5.      “Implementing an America-First Offshore Energy Strategy” EO No. 13795, dated April 28, 2017

The EO reverses a prior ban on Arctic leasing put in place under the Obama administration and directs the Interior Secretary to review areas available for off-shore oil and gas exploration.

6.      “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” EO No. 13817, dated August 15, 2017

The EO establishes “One Federal Decision” for major infrastructure projects, assigning each project a lead federal agency and creating a performance accountability system to track its progress.  It sets a goal of two years for the average completion time of the permitting process.  The EO also revokes Executive Order 13690, which mandated stricter environmental review standards in floodplains as part of President Obama’s Climate Action Plan.  That prior EO required planners to use flooding predictions that incorporated climate science.

The president may also issue proclamations, as well as presidential memoranda.  Like EOs, presidential proclamations and memoranda can have significant impacts.  For example, on December 4, 2018, President Trump issued a proclamation to substantially reduce the size of the Bears Ears and Grand Staircase-Escalante National Monuments in Utah.  Additionally, the EPA administrator may issue directives to the agency staff that have important ramifications, such as Administrator Scott Pruitt’s October 16, 2017 directive to end so-called “sue and settle” judicial settlements relating to EPA regulations.

It appears that EOs and their related executive edicts have become the standard operating procedure for presidents and their appointees.  The pressure to have “instant impact” is due, in part, to the political division in Congress and the impatience and uncertainty of legislative action.  As always, “the buck stops” with the courts to deal with the issues created by these executive actions.  As we all know, judicial action can bog down resolution of these issues almost indefinitely.  There is no easy way out of this quagmire.

It Ain’t Over ‘til It’s Over -- The Congressional Review Act & the Search for Zombie Regulations

Posted on December 7, 2017 by Allan Gates

Enacted in 1996, the Congressional Review Act (CRA) affords Congress the opportunity to review and disapprove final rules of federal agencies.  In the first 20 years of its existence, only one regulation was disapproved using the CRA.  In the first 100 days of the Trump administration, however, Congress invoked the CRA to disapprove thirteen separate regulations.  The White House advertised the CRA disapproval resolutions as the top legislative accomplishment of the administration’s first 100 days, proudly claiming that President Trump had signed more CRA resolutions than any other President in history.

By mid-summer most observers assumed the push to roll back Obama-era regulations using the CRA was over because the statute provides a narrow window of time for introducing resolutions of disapproval (generally 60 legislative days from the date the regulation is received by Congress), and it similarly limits the time within which expedited legislative procedures – including passage by simple majority vote in the Senate – can be used.

But wait, there’s more  – 

The window of time for introducing a disapproval resolution under the CRA begins to run on the day a regulation is submitted to Congress.  And it turns out agencies have not always been careful about sending their rules to Congress.   According to a 2014 report, hundreds of final regulations published in the Federal Register each year have never been reported to Congress.  Moreover, since the rules subject to review under the CRA are not limited to those published in the Federal Register, the report suggests there may be thousands of unreported interpretive rules, guidance documents, “Dear Colleague letters,” and the like.

Conservative activists aware of the inconsistent agency filing practices have begun to argue that all older regulations that were not reported to Congress are still subject to CRA review.  One conservative group has established a separate website, RedTapeRollback.com, proclaiming that:

“Powerful new ideas to use the CRA for older rules not reported to Congress are causing great excitement. This is a regulatory game changer!”

The website includes a database of rules it claims were not reported; and the website urges its visitors to, “Help us find and report more rules that were never submitted to Congress.”

The activists promoting use of the CRA to attack older, unreported regulations offer three rollback strategies.  First, private parties who are subject to the requirements of an older, unreported regulation could argue the regulation has never taken effect. There is certainly language in the CRA to support such an argument:

“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress [a report containing a copy of the rule.]”

Another provision of the CRA, however, has language that may preclude a private party’s ability to obtain judicial review of claims based on the CRA:

“No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The second strategy calls for the Trump administration to identify undesirable rules that were never reported to Congress, state that the rules have never taken effect because of the agency’s failure to report them, and abandon or vacate the rules.  Under this scenario, the Trump administration would roll back undesirable rules immediately without the necessity of going through notice and comment rulemaking procedures otherwise required to repeal the rules.

The third strategy suggests the Trump administration could identify undesirable rules that were never reported, report them to Congress, and encourage Congress to adopt resolutions of disapproval.  If this occurs, Section 801(b)(2) of the CRA precludes reissuance of a disapproved rule in the same or similar form unless Congress affirmatively adopts legislation authorizing the promulgation.

It may well be that the activists’ frothy enthusiasm for expanded use of the CRA will come to very little.  It is possible, perhaps even likely, that most of the unreported rules were insignificant, unobjectionable, or even exempt from reporting and review under the CRA.  Moreover, as a practical matter it is unlikely that Congress would be willing to devote significant amounts of floor time to debate the disapproval of a large number of older, unreported regulations.  Nevertheless, a cursory examination of RedTapeRollback’s database of supposedly unreported rules cannot help but give one pause.   Think the 2010 Chesapeake Bay TMDL and EPA’s 2008 Rapanos Guidance.

Interest in use of the CRA did not end with the flurry of disapproval resolutions in the first one hundred days of the Trump administration.  At a September House Subcommittee on Regulatory Reform oversight hearing focused on agency compliance with the CRA, witnesses urged Congress to attack older regulations that were never reported to Congress.  In late October, Congress passed and the President signed a disapproval resolution invalidating an arbitration regulation adopted by the Consumer Financial Protection Bureau, an independent agency whose regulations are not ordinarily subject to Executive review and approval.

The recent surge in use of the CRA has not gone without opposition.  The Center for Biological Diversity (CBD) has filed suit to vacate a CRA resolution that nullified an Interior Department regulation limiting the methods used to hunt wolves and bears in Alaska wildlife refuges.  Among other things, CBD argues that the CRA limitation on issuance of future regulations without express approval of Congress infringes on the constitutionally protected separation of powers.  The court’s decision in the CBD case is likely to provide guidance on the reach of the language quoted above that limits judicial review of claims arising under the CRA.

Against this background it is safe to say that we have not seen the last of the CRA in the Trump administration.  As Yogi Berra once said, “It ain’t over ‘til it’s over.”