What a Difference a Day Makes

Posted on January 26, 2021 by Brian Rosenthal

Co-authored by Brian Rosenthal and Timothy Webster

On Day One, the 46th President of the United States signaled his focus on climate, the environment, and energy in executive orders, official correspondence, and memoranda.  In a few strokes of his pen, the President undid much or all of what his predecessor had done, also largely by executive order, and cast into doubt many of the prior administration’s environmental and energy policies and rules.

As has been widely reported, the new administration’s Day One executive actions established and implemented a broad range of policy objectives, several of which were environmental, that immediately start to make good on some of the commitments of candidate Biden during his campaign and President Biden in his inaugural address:

While unable to change substantive rules, the administration’s memorandum “Modernizing Regulatory Review” weaves themes together of environmental justice and equality. It supports the administrative agencies recommending steps for “improving and modernizing regulatory review” in order to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”  Among other things, this memorandum order seeks to review the regulatory process by 

(i) identifying ways to modernize and improve the regulatory review to reflect current science and economics considerations even where “difficult or impossible” to measure; and 

(ii) considering the regulatory impact on disadvantaged communities.

Similar themes are presented in the administration’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government.”  The order imposes equitable assessment benchmarking across agency programs to examine barriers in and to federal programs. 

Perhaps the boldest order for environmental lawyers was President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”  The order directs executive agency heads to review hundreds of agency actions implemented during the Trump Administration, including more than 120 related to energy and the environment.  In addition, the order suspends or revokes, in whole or in part, nearly one dozen Executive Orders issued by the prior president that were directly tied to energy infrastructure.

The order includes the phrases “listening to science” and “holding polluters accountable.”  It also emphasizes reviewing all regulations of the last administration for disproportionate effects on low-income areas.  Parenthetically, as noted in Seth Jaffe’s Law & the Environment Blog—the line between legitimate environmental concern based on cost benefit and NIMBY reactions is narrow but must be drawn.   

Opposition has already been expressed to many of these measures, several of which will surely spur litigation.

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Posted on January 25, 2021 by Seth Jaffe

Last week, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

keystone pipeline protestors in silhouette with man holding ‘NO XL’ sign (XXXL)

Why start here?

Well, it’s a big deal, any way you look it.  It’s pretty much the end for large fossil fuel pipeline construction in the US.  According to Bloomberg (subscription required), here’s what Alan Armstrong, CEO of the Williams Companies, had to say about it:

"I can’t imagine going to my board and saying, ‘we want to build a new greenfield pipeline’. “I do not think there will be any funding of any big cross-country greenfield pipelines, and I say that because of the amount of money that’s been wasted."

OK.  But there’s also another reason why this is important. Creating a new, renewable electricity grid is going to require substantial new transmission capacity.  In terms of direct impacts, there isn’t necessarily much difference between siting a pipeline and siting a transmission line.  They can both cause damage to wetlands and endangered species.

The difference between them is simple and stark.  Fossil fuel pipelines lead to greater GHG emissions, while new transmission is necessary to reduce GHG emissions.  And so much for the Trump administration’s efforts to minimize consideration of indirect impacts from infrastructure projects.  It’s all about the indirect impacts!

It can be a fine line between one person’s NIMBY and another person’s legitimate environmental concerns.  I sure hope we figure out how to assess environmental costs and benefits in infrastructure siting sooner rather than later, or that grid we’re all counting on to deliver zero-carbon electricity won’t be there when we need it.

There’s a First Time for Everything

Posted on January 21, 2021 by Robert M Olian

Anyone with even a passing interest in environmental law has seen numerous articles over the past four years noting the Trump administration’s efforts to roll back this or that environmental regulation. ACOEL’s blog contains dozens of such posts, and the New York Times is probably not far behind. The NYT aptly reflected the thrust of most such commentary in a recent article:

“All told, the Trump administration’s environmental rollbacks could significantly increase greenhouse gas emissions over the next decade and lead to thousands of extra deaths from poor air quality each year, according to energy and legal analysts.” (emphasis added)

“Environmental rollbacks lead to extra deaths” was a story line long before there was ever a Trump administration, of course, but never, until now, have I seen the reverse, namely “extra deaths lead to environmental rollbacks.”

On January 17, 2021, California’s South Coast Air Quality Management District issued Executive Order 2021-01, which notes:

  • “… the current rate of deaths in Los Angeles County is more than double that of pre-pandemic years ...”;
  • "… the growing backlog of cremation cases within the county constitutes a threat to public health …”; and
  • “… permits issued by South Coast AQMD and currently in effect for human crematoria contain limits on the number of cremations … that may be cremated each month ….”

SCAQMD then proceeded to roll back the permit limits on crematoria (on a temporary basis).

Normally I’d now offer a snarky comment, but this is all just so sad that I can’t bring myself to write it, so you’re on your own.

"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.   

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

Posted on December 10, 2020 by Seth Jaffe

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

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

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

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

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

Posted on December 7, 2020 by Seth Jaffe

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

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

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

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

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

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

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

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

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

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

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

New Jersey Governor Signs Historic Environmental Justice Legislation

Posted on December 4, 2020 by Debbie Mans

New Jersey Governor Phil Murphy recently signed a historic environmental justice bill to protect overburdened communities from pollutants.  The law requires the New Jersey Department of Environmental Protection (NJDEP) to deny permits for certain new facilities “upon a finding that approval of the permit…would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit analysis…”.  NJDEP may apply conditions to a permit for the expansion of an existing facility or the renewal of an existing facility’s major source permit based on the same review and finding.

This law was well over a decade in the making, after having stalled for several years in the New Jersey Legislature. A combination of individual leadership in the legislature, early and strong support from Governor Murphy, a determined advocacy campaign lead by environmental justice advocates, and a general sense that it was well past time to address environmental racism led to its passage.

Covered facilities include (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons a day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material a day; (6) scrap metal facility; (7) landfill; or (8) medical waste incinerator (except when attendant to a hospital or university and processing self-generated waste).

If this facility is located in whole or in part in an “overburdened community” then it must prepare an environmental justice impact statement and hold a public hearing in the community.  There are requirements for enhanced public notice, including use of a local non-English newspaper.

An “overburdened community” is defined as any census block group in which (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency. 

The mapping of these areas can be found in Appendix A of “Furthering the Promise: A Guidance Document fo Advancing Environmental Justice Across State Government.”

The law does not become operative until adoption of rules and regulations to implement the provisions of the law.  There is no timeframe provided in the law for NJDEP to accomplish this and it will likely take more than a year due to several key items needing to be hammered out during the rulemaking process. 

This includes how a new facility could qualify as serving a “compelling public need,” allowing NJDEP to grant a permit that imposes conditions, rather than denying the permit.  Additionally, the law leaves to rulemaking or guidance the process and geographic scope of determining whether approval of the permit, together with other environmental or public health stressors affecting the community, would cause or contribute to adverse cumulative or public health stressors that are higher than those borne by other communities within the State, county or other geographic unit analysis.  This is an important issue, because comparing the Ironbound section of Newark to an adjacent neighborhood can result in a different outcome than comparing it to a neighborhood in a different county or region of New Jersey.

NJDEP has begun stakeholder conversations on the proposed rulemaking.  To find out more, please see the presentation from the October 22, 2020, stakeholder session and video recording of the session.  For more information on NJDEP’s Office of Environmental Justice and all their programming visit their website.

Debbie Mans is the former Deputy Commissioner at the New Jersey Department of Environmental Protection

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

Posted on November 23, 2020 by Michael Burger

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

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

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

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

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

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

To read a summary of the book, go here.

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

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

Regulating Guidance As Though It Were Regulation

Posted on September 18, 2020 by Seth Jaffe

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

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

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

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

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

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

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.

Will Federal Rollbacks Lead to the Rise of Localism?

Posted on May 19, 2020 by Jerry L. Anderson

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

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

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

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

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

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

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

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

EPA’s War on Science

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Ray of Regulatory Sunshine

Posted on April 30, 2020 by Lynn L. Bergeson

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

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

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

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

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

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

Posted on April 16, 2020 by Seth Jaffe

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

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

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

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

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

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

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

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

Well done, Mr. Wheeler.

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

Posted on April 9, 2020 by Seth Jaffe

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

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

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

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

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

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

The Bad, the Ugly and the Good; The Trump Administration Proposes Changes to the National Environmental Policy Act

Posted on March 13, 2020 by Peter Van Tuyn

Benjamin Franklin wrote that “an investment in knowledge always pays the best interest.”  Just over 200 years later, the United States passed a law that put that sentiment into practice in the context of federal government decision-making that may impact an increasingly stressed environment.  The National Environmental Policy Act (NEPA) marked a turning point in our nation’s relationship with the environment, and it is based on the idea that if we take the time to understand the full effects of our decisions before we make them, we tend to make better decisions.  The Trump administration recently proposed changes to the Council on Environmental Quality’s NEPA regulations that, like its proposed changes to Endangered Species Act regulations, would institutionalize ignorance in federal decision-making that impacts the environment.  These proposed changes are bad, their origins ugly, and yet, fifty years after NEPA was signed into law, they also offer the opportunity to reaffirm our commitment to the pursuit of knowledge and informed decision-making.  In that sense the administration’s attempt to gut NEPA may turn out to be good. 

NEPA requires federal agencies to conduct in-depth analyses of the potential environmental, including human, impacts of “major federal actions that significantly affecting […] the environment.”   Under NEPA, federal agencies analyze the potential impacts of actions that they directly undertake, permit or fund, in order to determine if the potential impacts are significant.  If they are, the agencies must deeply and holistically analyze those impacts, consider alternatives that may have lesser impacts, and run their preliminary analyses through a ground-truthing, often enlightening and sometimes humbling, public review and comment process.  Only once these steps are done can the federal agency make its final decision.  This investment results in final decisions that tend to eliminate or at least minimize the impact of a proposed project on the environment

In myriad ways, the administration’s proposed changes would undercut these fundamental attributes of NEPA.   The proposal includes an attempt to limit the types of federal actions that trigger NEPA, to exclude, for example, the analysis of projects that may require multiple non-federal permits or have only partial federal funding.  The proposal would eliminate the requirement that cumulative effects of a proposed project be analyzed, despite CEQ’s own acknowledgement of the significance of such effects.  Further, using the same sleight of hand from the administration’s ill-considered proposal to change Endangered Species Act regulations, the proposal would exclude climate change from cumulative effects that must be analyzed.  The proposal also eliminates the requirement for review of the indirect effects of an action, such as downstream pollution impacts from an industrial activity.  In another provision rife with potential conflicts of interest, corporations could prepare their own impact analyses, a job now accomplished by the more objective federal agencies (though it is often paid for by corporations).  And the proposal limits public involvement in both time and substance, undercutting NEPA’s critical check against government (and in the future possibly corporate) myopathy or hubris.   

Senator Henry Jackson, upon the introduction of NEPA legislation in Congress, stated the following

The survival of man, in a world in which decency and dignity are possible, is the basic reason for bringing man’s impact on his environment under informed and responsible control. 

The CEQ proposals, individually, and dare I say cumulatively, would gut this vision, and finalizing them would be bad for people and our environment.

Further, the origins of the CEQ proposal appear to be downright ugly.  As one example, the British oil company BP lobbied the Trump administration to weaken NEPA as way to “benefit BP’s operations in the US” and, as reported, “clear[] the way for major infrastructure projects to bypass checks.”   And then, just a short while after the administration revealed its NEPA proposal, BP announced a new initiative aimed at reducing its environmental impact, with its CEO stating that “[t]he world does have a carbon budget, and it is running out fast.”  So on the one hand BP privately lobbies the United States to undercut this most fundamental of environmental laws, and with the other hand it publicly claims it will take action to address the environmental impacts from its operations.  How dreadful.

There is a silver lining in this dark cloud, however.  It exists in the renewed public discussion about the importance of facts to government decision-making, including those that some see as so inconvenient that they would rather not know them.  The groundswell of public opinion that led to Republican President Richard Nixon signing NEPA into law in 1970 will, I predict, result in a reaffirmation of the importance of NEPA and other environmental laws which this administration has sought to roll back, and the rollbacks will themselves be rolled back.  And that is for the greater good.

Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Endangered Species: Migratory Bird Treaty Act -- Scope of Act Rule

Posted on March 9, 2020 by Richard Horder

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty Act, even when those deaths are foreseeable and preventable.

The Migratory Bird Treaty Act (the Act) is a century-old statute with a broad prohibition on the taking and killing of migratory birds by any means and in any manner. It was originally enacted to protect birds from over-hunting and poaching, but has been used to prosecute and fine companies for accidental bird deaths since the 1970s, particularly when such deaths were anticipatable and preventable through conservation efforts.

The U.S. Department of Interior (DOI) has flip-flopped on its interpretation of the Act in recent years. The Principal Deputy Solicitor concluded in early 2017 that the Act’s “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” See Solicitor's Opinion M-37041, “Incidental Take Prohibited Under the Migratory Bird Treaty Act,” issued January 10, 2017. However, that regulation was withdrawn less than a month later as the Trump administration evaluated construction of the Keystone XL Pipeline. President Trump issued a memorandum on January 24, 2017, which called for an immediate review of requests for approvals related to the Keystone XL Pipeline, including requests under the USFWS’s regulations implementing the Migratory Bird Treaty Act. In December 2017, the DOI repealed and replaced the earlier regulation with one that clearly states: “Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” See Solicitor’s Opinion M-37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” issued December 22, 2017. The Proposed Rule published this February is an effort to codify this regulatory change.

Businesses and local governments now face no pressure from regulators to take precautionary measures to protect birds, and in some situations, have even been discouraged from doing so. For example, the state of Virginia underwent a major bridge and tunnel expansion in Chesapeake Bay in 2018, which was inevitably going to destroy the nesting grounds of 25,000 seabirds. While the state considered developing an artificial island as a safe haven for the birds, the Trump administration stepped in and told the state that while it “appreciates” the state’s efforts, the shift in policy now makes such conservation measures “purely voluntary.”

The agency’s emphasis on industry over conservation comes at a time when habitat loss, pesticide exposure, and general climate change threats to bird populations are at an all-time high. In fact, research shows that over the past half-century, North America has lost more than a quarter of its entire bird population— about 3 billion birds.

Though conservation efforts may seem burdensome, they provide unexpected benefits to the national economy. A 2016 study conducted by USFWS, the same agency that issued the Proposed Rule, found that more than 45 million people watch birds, joining other wildlife watchers in contributing a total of $80 billion to the U.S. economy. The importance of healthy bird populations will hopefully be addressed in public comments, which will be accepted until March 19. Comments that have been submitted to date can be found here.

Cleaning Up Nature: The Swift Creek Conundrum

Posted on February 28, 2020 by Andy Fitz

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Dredged spoils along the Swift Creek channel; landslide visible at upper right (author photo).

Swift Creek. The name evokes a clear, fast-moving mountain stream. 

The Swift Creek at issue, however, is hardly clear or swift for most of its length.  A massive, mile-long landslide hangs at the head of its southern fork, in the foothills of Washington’s North Cascades. The landslide has exposed a weak bed of serpentine rock, which weathers quickly into clay and delivers a heavy load of sediment to the creek—some 30,000 to 150,000 cubic yards annually. When the creek reaches the Nooksack Valley below, much of this material settles, clogging the channel, turning the creek sluggish, and creating a constant risk of flooding each winter.

In an effort to protect farms and rural homes, the affected local government, Whatcom County, began periodically dredging Swift Creek in the late 1950s, piling the dredged spoils along the channel. In 1971, the U.S. Army Corps of Engineers undertook its own large-scale dredging of the channel and further shaped the dredged spoils into levees.

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Swift Creek in May 2016 (author photo).

In 2006, however, this work largely came to a halt. In its place, a regulatory conundrum emerged.

Since at least the late 1970s, Swift Creek’s sediment has been known to contain a naturally occurring chrysotile form of asbestos derived from the serpentine bedrock. In 2006, the U.S. Environmental Protection Agency (EPA) sampled the dredged spoils and completed an activity-based risk assessment. That assessment, and a subsequent assessment in 2011, concluded that asbestos levels in dust generated from the sediment pose a human health threat, with the lifetime excess cancer risk approaching 8 in 1,000 under the most intensive exposure scenario. Making matters worse, naturally elevated levels of metals in the sediment retard plant growth, making the dredged spoils an attractive target for local four-wheelers and dirt-bike riders.

Left wholly to nature, there is no environmental liability associated with Swift Creek’s sediment: the “potentially responsible” entity is Mother Earth. And there is no clear environmental authority under which to address threats associated with the sediment. Under Section 104(a)(3)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), EPA cannot respond to a “naturally occurring substance . . . from a location where it is naturally found.” Likewise, under Washington’s Model Toxics Control Act (MTCA), there must be intentional or unintentional “entry” of a hazardous substance “into” the environment in order to have an actionable release. RCW 70.105D.020(32).

Once humans move and reconfigure the sediment, however, potential liability
may arise from those activities. See, e.g., United States v. W.R. Grace & Co.—Conn., 280 F.  Supp. 2d 1149, 1155, 1175 (D. Mont. 2003). Therein lies the conundrum: absent human intervention, there can be unabated exposure to naturally occurring asbestos from the creek channel and flood deposits, but no authority to address the situation under cleanup laws. But any human intervention to abate that exposure is discouraged by the specter of liability under those very same cleanup laws.

For more than ten years, this conundrum stymied efforts to address Swift Creek sediment, despite continued discussion among EPA, the Washington Department of Ecology, and Whatcom County. Neither EPA nor Ecology had the authority, mandate, or resources to address what at its heart is a civil engineering effort. And the entity with the clearest public works mandate—the County—did not want to assume full ownership of a situation it did not have the resources to address by itself, with potentially open-ended liability. This concern was heightened by EPA threats of cost recovery and enforcement under CERCLA.

In 2013, Whatcom County did complete an alternatives assessment and Environmental Impact Statement (EIS) for addressing Swift Creek sediment. The preferred alternative was a series of actions to capture and manage sediment in the upper reaches of Swift Creek, before it reaches the valley floor, including sediment traps, sedimentation basins, periodic dredging of those features, and disposal of the sediment in a constructed repository. The historic dredged spoils lining Swift Creek would also be armored and covered with clean soil.

Two key developments broke the Swift Creek stalemate. First, the Department of Ecology and the Washington State Attorney General’s Office reached agreement with the County on the terms of a proposed consent decree to be lodged under MTCA. With no traditional “site” to clean up, the basis for the decree is creative. It is premised on MTCA’s authority to prevent “threatened releases”—here, releases that would inevitably arise as local government and residents are forced to deal with flood-distributed sediment, but for preventive actions. The covenant not to sue is thus prospective, providing liability protection for the County within the specific areas where sediment will be managed under the decree, for activities to be undertaken by the County under a “Swift Creek Action Plan” that largely incorporates the preferred alternative from the 2013 EIS. The County is responsible for the operations and maintenance costs associated with this sediment management, up to an annual cap.

Second, bolstered by this provisional agreement, Washington’s Legislature appropriated the first installment of capital funding for the project, totaling $6.4 million. With initial construction funds in place, the parties moved to enter the decree, which became effective on December 6, 2019. Based on the plan and decree, EPA has indicated it does not intend to exercise CERCLA authority at the “site,” such as it is.

There are challenges ahead. Full construction of the engineering controls is still dependent on further state capital appropriations, with an estimated remaining cost of $11 million. And it remains to be seen whether the engineering controls are a long-term solution or only a temporary stopgap. Based on a creative application of cleanup law, however, the Swift Creek conundrum appears to have been broken.

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Conceptual layout of engineering controls to be constructed under the consent decree (sediment repository not shown). Source: Swift Creek Action Plan, Washington State Department of Ecology (December 2019).

NEPA at 50: What Lies Ahead?

Posted on February 19, 2020 by Scott Fulton

It seems to be the season for 50th anniversaries. The National Environmental Policy Act, signed into law by President Nixon on January 1, 1970, is now a half-century old. The first day of a new decade was no doubt seen as a symbolic moment for NEPA’s signing, but I wonder whether the statute’s framers could have envisioned the full reach of that symbolic step.

NEPA signaled the beginning of the modern environment era and was the first of many actions that would redefine our orientation toward the environment and attempt to march the country toward a more sustainable future. It also set an important marker for the rest of the world, with environmental impact assessment becoming one of the most imitated and enduring features of the global environmental legal architecture.

Now, 50 years later, change is in the air, as the Administration considers a rather sweeping rewrite of NEPA’s implementing regulations, the comment period for which closes March 10, 2020. The proposed rule may at first blush look like a walk through traditional NEPA terrain. Because it is set out as a wholly revised chapter, it takes a good deal of work to discern where language has been changed, moved, or excised. To that end, the Environmental Law Institute released the Practitioners’ Guide to the Proposed NEPA Regulations to assist commenters and others in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts. On close inspection, the changes are dramatic and potentially far-reaching.  Here are some that in my view deserves a close and searching look.

Importantly, the term “cumulative” has been excised from every point in the proposed regulations, except for the addition of a sentence stating, “Analysis of cumulative effects is not required.” Similarly, categorical exclusions would no longer need to be evaluated for cumulative impacts. Under the proposal, cumulative and indirect impacts are not to be used in determining the threshold of significance (whether an EIS is needed), and are no longer to be analyzed in EAs or EISs.

While climate change is never mentioned in the proposal, the restriction on cumulative or indirect impacts has obvious significance in that context. But cumulative impact concerns under NEPA predated worries about climate change. How would these limitations affect consideration of environmental justice issues? How would they affect watershed, air shed, and landscape protection considerations?

Further limitations on the scope of review will prevent agencies from considering alternatives not within their own jurisdiction. The rule would interpret DOT v. Public Citizen to prohibit agencies from analyzing or considering “any effects that the agency has no authority to prevent.”

The proposed rule would allow applicants themselves to prepare environmental impact statements and assessments (under guidelines from federal officials and ultimately signed by a federal official); would no longer require the lead agency to select the contractors performing EISs and EAs; and would remove existing conflict-of-interest requirements for contractors.

In a novel procedural innovation, the proposed rule would require the lead federal agency to issue a finding itself at the end of the NEPA process that it has adequately considered all “alternatives, information, and analyses submitted by public commenters” and states that this finding and “certification” would create a “conclusive presumption” that is binding on the courts.

The proposal encourages federal agencies to require that commenters and public opponents of an action post a financial bond for a stay if they contest a final agency decision.

Finally, the proposal would expressly preempt existing and future agency NEPA requirements, thus effectively setting a ceiling on federal environmental review: “Agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these regulations.”

There are many other changes scattered across the proposed rule. Some of these are important alterations intended to tighten time lines and increase interagency coordination and accountability. At bottom, if promulgated in this form, the proposed rule may well serve to exclude from NEPA review altogether some actions that would have heretofore gone through the process, as well as eliminate many environmental effects that agencies typically analyze.

In this sense, the proposal stands in fairly sharp contrast to prior reform efforts aimed at making NEPA review function more efficiently and effectively. This much is clear. What emerges from this proposal may well determine NEPA’s fate and role in the next 50 years.

PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

To some, it’s outrageous that PFAS (Per- and Polyflouoroalkyl substances) are omnipresent in the environment, in biota, in drinking water, and in a number of past and present products.  All PFAS are highly dangerous some claim (or at least presumptively so), based on data on a limited number of the thousands of compounds. It is therefore outrageous that some of the compounds are likely present in a vast majority of Americans.

Bypassing issues of dose, cause and effect, the conclusion is that all PFAS are dangerous and unwanted.  Throw in the allegations that companies knew of hazards before phasing out manufacturing or use (of some of the chemicals) and you have a perfect storm for outrage. Ban them all! Contrary views?  The activists’ answer is that the experts have been bought off or are misleading, so public policy should be based on public opinion, right? And what politician in his or her right mind would ignore public outrage?

The fear of many, and the public in general, is undeniable. The presence of a chemical in the human body, without more information, is information of unknown significance.  For most PFAS, since we don’t have data.  Scientists are struggling currently with whether there is any basis for toxicity grouping or classes of PFAS.  For most PFAS, this is “fear of the unknown,” borne of ignorance, but heightened by uncertainty. 

Public outrage doesn’t have to be, and often isn’t, correlated to actual harm or evidence of likelihood of harm.  The media and press don’t cause outrage, but they can and do amplify it.  Add activists who are media savvy and you get the current PFAS crisis.

Here’s an equation (thanks in part to Dr. Peter Sandman):  Risk = (perceived) Hazard + Outrage.  While experienced environmental law practitioners, toxicologists, and regulators know that Risk = Toxicity X Exposure, that is not the calculus of the public.  To the public, the risk equation is fueled by outrage. To be sure, there are data for some PFAS compounds that justify concerns, but I question whether it justifies the hysteria we see.

Believe it or not, public outrage -- whether justified or not -- is never a substitute for a scientific data, or for risk assessment, or for protective environmental policy.  Lack of data and fear of the unknown don’t inform thoughtful decision making. Yet public fear is undeniable, and legislators and regulators are feeling the heat.

To quote others:  Now is the time for facts, not fear. 

Why not work on better risk communication?  The basic tools include:

  • Understanding and acknowledging the outrage
  • Acknowledging the legitimate concerns
  • Avoiding extremes
  • Sticking rigidly to the facts
  • Recognizing and reminding others that actions or decisions without a scientific and rational basis, or that can’t be implemented do more harm than good in the medium and long run, and likely to be successfully challenged in court
  • Being realistic – there are funding limitations, both public and private
  • Remembering we live in a federal system that has independent actors capable of moving at different speeds
  • If testing is to be required, making sure that we can explain to the public and the regulated community the meaning of the environmental test data produced

While I understand some of the EPA’s 2019 PFAS Listening Sessions helped in some communities, better risk communication must be an ongoing task.

Finally, what’s the role an environmental lawyer can play?  While we are advocates and counselors, the experience we bring must contribute to better decisions.  Not the least of these are the skills and lessons from analyzing environmental problems, making sure that there is credible scientific evidence to justify action, and identifying alternatives that efficiently address health and environmental risks without unnecessary costs or other adverse impacts.

We need thoughtful communication and the best information available as we work through the current PFAS regulatory issues.

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.