Wednesday, January 21, 2015
I’ve just returned from Israel, where I presented a draft paper to an environmental workshop hosted by David Schorr and Issi Rosen-Svi at the University of Tel Aviv. The trip was short, but between my interactions at the university and some quality time with a very good traveling companion—Alon Tal’s book Pollution in a Promised Land: An Environmental History of Israel—I had a chance to form a few preliminary thoughts about Israeli environmental politics and law.
One reaction is that environmental politics in any developed country can have a certain sameness. The basic clash between development and environmental protection, the constant challenges of creating effective environmental agencies, and the interplay between advocacy groups, government, and industry are just as much a part of the Israeli story as they are part of the American one. But there are also ways in which Israeli environmental politics struck me as quite distinctive.
The most striking differences involves the intertwinement between environmental politics and the Arab-Israeli conflict. In that conflict, one of the Zionists’ central strategies, which they adopted well before Israel became a nation, has been to assert physical possession of space. Sometimes that has meant building settlements, sometimes watering farms in the Negev Desert, sometimes establishing military reserves, and sometimes buying land and planting forests, but a common theme has been to take territory by physically transforming it. That creates a potentially enormous challenge for an environmental movement, for much of traditional environmentalism has involved leaving spaces alone. Indeed, in the United States, environmentalists have succeeded in developing a patriotic narrative of non-development, arguing, in a tradition that dates back the Transcendentalists and Frederick Law Olmstead, that it affirms and strengthens our national character. In Israel, a sense of connection to the land also is a key element of the national character, but even committed environmentalists like Tal agree that the American-style wilderness ideal has little place. Both Issi and David agreed, as did Tal, that open space preservation has become the key environmental issue in Israel, and Israel’s history and current politics would seem to make that issue particularly challenging.
Yet two other details of Israeli environmental politics jumped out at me. First, as I walked around Tel Aviv, I did not see any single-family homes. I asked Issi and David about this, and they confirmed what I suspected: while some Israelis in more rural areas live in single-family homes, the norm is a high-rise apartment. That is a much more efficient use of space than is typical among Americans. And, second, Israel still has wolves (and some other pretty charismatic megafauna). Wolves, to Americans, are one of the ultimate symbols of wildness, and even some states that are pretty wild, like my home state of Maine, don’t have any. Perhaps that little fact doesn’t indicate too much—after all, one would expect to find a lot of biodiversity at the crossroads between Africa, Asia, and Europe—but still, it struck me as a hopeful little reminder of the resilience of nature.
- Dave Owen
Friday, January 16, 2015
Fifth Circuit Holds Designer and Supplier of Dry Cleaning System Is Not Liable under CERCLA as an Arranger
On January 14, a panel of the Fifth Circuit (King, Jolly, Costa) issued a decision in Vine Street LLC v. Borg Warner Corporation. A subsidiary of Borg Warner sold dry cleaning machines to a dry cleaning business in Tyler, Texas, and assisted with the design of the building housing the business, installed the machines, tested the machines, and initially assisted customers with operating the machines. The Borg Warner subsidiary also designed the system that connected the dry cleaning machines to the sewer system, including equipment that attempted to separate out perchloroethylene (PERC) for reuse. Environmental contamination occurred when PERC escaped from the sewer system into the ground. The district court held Borg Warner 75% responsible under CERCLA for the costs of cleaning up the contamination.
On appeal, the issue was whether Borg Warner is liable as an arranger under CERCLA § 107(a)(3)—that is, whether Borg Warner “arranged for disposal” of a hazardous substance. Applying Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009), the Fifth Circuit held that Borg Warner had not intentionally disposed of any PERC—indeed, Borg Warner designed its machines and drain system to prevent PERC from reaching the sewer system—and therefore was not liable as an arranger.
Wednesday, January 14, 2015
Back on June 4, 2014, a panel of the Fifth Circuit (King, Benavides, Dennis) held that BP and Anadarko, co-owners of the Macondo Well involved in the Deepwater Horizon disaster of 2010, are strictly liable for fines under Clean Water Act Section 311. In re Deepwater Horizon, 753 F.3d 570 (5th Cir. 2014). The panel subsequently issued a short per curiam supplemental decision addressing arguments raised in BP’s and Andarko’s rehearing petitions. In re Deepwater Horizon, 772 F.3d 350 (5th Cir. 2014).
On January 9, the Fifth Circuit, by a vote of 7-6, narrowly voted against granting rehearing en banc. Judge Clement, joined by Judges Jolly, Jones, Owen, Elrod, and Southwick, wrote an opinion dissenting from the denial of rehearing en banc. The dissent opined (1) that the panel’s “loss of controlled confinement” test is inconsistent with the text of the Clean Water Act, which imposes liability based on a “discharge”; (2) that at the very least the Clean Water Act is ambiguous, and ambiguities in civil-penalty statutes should be resolved in favor of defendants; (3) that the panel misapplied its “loss of controlled confinement” test because hydrocarbons were never confined in the well; and (4) that the panel’s supplemental opinion changed its original holding, creating lingering uncertainty in the precedent.
Saturday, January 10, 2015
Arizona State University Law School is planning a new annual law professor conference focused on sustainability-related law. Here's a quick blurb:
The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.
This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:
- Climate Change Law
- Energy Law
- Water Law
- Environmental Law
- Natural Resources Law
- Land Use and Zoning Law
- Agricultural and Food Law
- Disaster Law
The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.
Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.
Arizona State University will provide hotel lodging and a $500 travel stipend for all panelists and presenters.
ASU's conference page also includes a link to a site with more information about how to submit an abstract.
Tuesday, December 23, 2014
On December 23, the D.C. Circuit (Tatel, Srinivasan, Randolph) issued a decision in NRDC v. EPA, a case arising out of EPA regulations implementing its 2008 ozone air quality standard. NRDC filed a petition for review of the regulations.
NRDC first challenged EPA’s decision to tie the attainment deadline—that is, the date on which an air quality control region had to reach attainment with the new ozone standard—to the end of the calendar year in which the region was designated as nonattainment under the new ozone standard, rather than the actual date of designation. The D.C. Circuit panel majority agreed with NRDC, holding that, although the Clean Air Act does not specifically address the attainment deadline for an air quality control region designated as nonattainment under a revised air quality standard, the Act consistently ties compliance deadlines to the actual date of designation or classification. Indeed, in its regulations implementing the 1997ozone air quality standard, EPA had interpreted the Clean Air Act to require such an approach.
NRDC’s second argument challenged EPA’s decision to revoke requirements regarding transportation conformity—essentially, a Clean Air Act requirement that regions ensure that new transportation projects will not interfere with the region’s timely attainment of air quality standards—under the prior 1997 ozone standard. Again, the court agreed with NRDC, holding that EPA lacked authority under the Clean Air Act to revoke the transportation conformity requirements under the 1997 standard. The court explicitly left open the possibility that EPA could revoke the 1997 standard altogether, as the agency has proposed to do.
Judge Randolph dissented. As to the deadlines, he believes the statute is ambiguous and EPA’s interpretation is reasonable. As to the transportation conformity requirements, he believes NRDC waived any argument that EPA lacks the authority to revoke the requirements without revoking the entire 1997 standard. According to Judge Randolph, NRDC did not raise such an argument until its reply brief. Even if the merits of that issue were before the court, Judge Randolph believes the Clean Air Act allows EPA to revoke transportation conformity requirements for prior air quality standards.
On December 23, the D.C. Circuit (Tatel, Millett, Pillard) issued a decision in Trumpeter Swan Society v. EPA. In 2010, five environmental organizations petitioned EPA to regulate spent lead bullets and shot under Toxic Substances Control Act (TSCA) § 21, 15 U.S.C. § 2620, which allows “[a]ny person” to petition for a rulemaking proceeding. In this case, the environmental organizations alleged that spent lead bullets and shot constitute “chemical substances” that “present an unreasonable risk of injury to health or the environment” and therefore warrant regulation under TSCA § 6(a), 15 U.S.C. § 2605(a). EPA rejected that petition on the ground that TSCA § 3(2)(B)(v), which exempts cartridges and shells from the definition of “chemical substance,” deprives the agency of authority to regulate spent bullets and shot as chemical substances. Six months later, two of the environmental groups joined 99 other environmental groups to petition again to regulate spent lead ammunition as a chemical substance under TSCA. This time, EPA ruled that the new petition was “not . . . cognizable” under TSCA § 21 because it duplicated the earlier petition, and that in the alternative the agency would deny the petition on the same ground it denied the earlier petition. The environmental organizations sued EPA, and the district court upheld EPA’s action. On appeal, the D.C. Circuit held (1) that EPA lacked the authority to classify the petition as non-cognizable merely because it was duplicative; but (2) that EPA correctly determined in the alternative that the petition failed on the merits, given that spent lead bullets and shot cannot be regulated without also regulating cartridges and shells, which TSCA § 3(2)(B)(v) precludes.
Monday, December 22, 2014
On December 22, the Ninth Circuit (Tallman, Rawlinson, Rice (by designation)) issued a decision in San Luis & Delta-Mendota Water Authority v. Locke. In 2009, the National Marine Fisheries Service (NMFS) issued a Biological Opinion for Central Valley Project/State Water Project operations in California’s Central Valley, requiring the Bureau of Reclamation to change its operations to avoid jeopardizing populations of endangered Salmonids. Irrigation districts, who would be adversely impacted by the changes in operation, sued. The district court found for the plaintiffs, concluding that NMFS had acted arbitrarily and capriciously in developing the BiOp.
The Ninth Circuit reversed, holding that the district court had failed to give NMFS sufficient deference and that the BiOp—when reviewed under the proper standard—was valid. Among the more notable rulings in its lengthy opinion addressing numerous issues, the court of appeals held (1) that the district court erred by supplementing the administrative record with dozens of extra-record declarations; and (2) that NMFS was not required to show how each of the requirements it imposed was “essential to avoid jeopardy” or to address non-jeopardy factors. The court of appeals also rejected the plaintiffs’ cross-appeals. The court’s reasoning frequently relied on its recent decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014), which addressed a 2008 BiOp regarding irrigation impacts on the threatened Delta Smelt.
Wednesday, December 17, 2014
Back on June 30, a Fifth Circuit panel (Jones, Smith, Garza) reversed a district court judgment, following an eight-day bench trial, in favor of The Aransas Project against directors of the Texas Commission on Environmental Quality. Aransas Project v. Shaw, 756 F.3d 801, 805 (5th Cir. 2014). Aransas’s suit had alleged that the Commission violated the Endangered Species Act by allowing excessive water withdrawals from rivers that feed the estuary where whooping cranes live during winter. The Fifth Circuit panel, in reversing, faulted the district court’s finding that the Commission’s actions had caused the deaths of twenty-three whooping cranes in 2008-2009. According to the panel, the district court “either misunderstood the relevant liability test or misapplied proximate cause when it held the state defendants responsible for remote, attenuated, and fortuitous events following their issuance of water permits.” 756 F.3d at 817.
On December 15, the Fifth Circuit denied Aransas’s petition for rehearing en banc by an 11-4 vote. Judge Prado, joined by Judges Dennis and Graves, issued a strongly worded dissent from the denial, accusing the panel of engaging in a de novo reweighing of the evidence inappropriate for appellate review. Judge Prado characterized the panel’s “reweighing of facts” as “particularly egregious” in light of what he regards as a gross mismatch between the credibility of Aransas’s expert witnesses, with credentials that included a Nobel Prize and MacArthur Fellowships, and the intervenor-defendants’ expert witnesses, whom he characterizes as having “limited experience and insignificant expertise.” In addition, contrary to the panel’s conclusion regarding proximate causation, Judge Prado regards the causal connection between the Commission’s permitting decisions and the death of the whooping cranes as “straightforward” and “foreseeable.”
Seventh Circuit Upholds EPA Redesignations of Milwaukee, Chicago, and St. Louis as in Attainment with Ozone Air Quality Standard
On December 16, the Seventh Circuit (Flaum, Kanne, Sykes) issued a decision in Sierra Club v. U.S. EPA, a case challenging EPA’s 2012 decision redesignating the Milwaukee-Racine, Greater Chicago, and Illinois portion of St. Louis areas as in attainment with the 1997 National Ambient Air Quality Standard (NAAQS) for ozone. Sierra Club argued that, contrary to the requirements of Clean Air Act § 107(d)(3)(E)(3), 42 U.S.C. § 7407(d)(3)(E), the observed improvements in air quality in the areas at issue were not “due to permanent and enforceable reductions in emissions.” The Seventh Circuit first held that the Sierra Club had established its Article III standing by virtue of showing that EPA’s redesignation led to less stringent regulation than would have been in place had the areas remained designated as nonattainment for ozone. As to the merits, Sierra Club had argued (a) that EPA, before attributing improved air quality to regulation, should have given greater consideration to whether the improvements were caused by the economic recession, fuel prices, weather, or other temporary conditions; (b) that EPA inappropriately used actual emissions data from power plants, rather than maximum permitted emissions, in its modeling; and (c) that EPA erred in relying on the effects of a NOx emissions regulation program that allows trading within a region. The court of appeals, citing the deferential standard of review, held that EPA reasonably modeled the effects of regulation to conclude that regulation caused the observed air quality improvements. Accordingly, the Seventh Circuit denied Sierra Club’s petition for review.
Tuesday, December 16, 2014
On December 16, the Ninth Circuit (Thomas, O’Scannlain, McKeown) issued a decision in Conservation Congress v. Finley. Two environmental groups—Conservation Congress and the Environmental Protection Information Center—sued the Forest Service and Fish and Wildlife Service, alleging that the agencies’ approval of the Beaverslide timber thinning project in Trinity County, California, violates the Endangered Species Act, NEPA, and National Forest Management Act because of the project’s potential impacts on endangered Northern Spotted Owls. The Forest Service, with the Fish and Wildlife Service’s concurrence, issued a Biological Assessment concluding the project “may” but is “not likely to adversely affect” the Northern Spotted Owl. The district court granted summary judgment to the government, and Conservation Congress appealed.
The Ninth Circuit affirmed, holding (a) that Conservation Congress, although it could have been more specific, provided sufficient notice of its intent to sue under the Endangered Species Act; (b) that a new consultation between the Forest Service and Fish and Wildlife Service did not moot Conservation Congress’s claims, because the new consultation focused only on the effects of a critical habitat redesignation; (c) that the Forest Service did not violate consultation requirements by not reinitiating consultation upon the release of a 2011 Recovery Plan for the Northern Spotted Owl; (d) that the Forest Service and Fish and Wildlife Service used the best scientific data available to reach their conclusions; and (e) that the Forest Service’s Environmental Impact Statements adequately discussed the project’s short-term effects on Northern Spotted Owls.
Monday, December 8, 2014
On Friday, the Solicitor General indicated that the government will be filing a petition for certiorari to the Supreme Court in Electric Power Supply Association v. FERC. The government’s cert petition will ask the Supreme Court to review a May 23, 2014, decision from a divided panel of the D.C. Circuit that invalidated FERC’s Order 745.
Order 745 directs Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) to establish rules that compensate demand response resources at the wholesale market price—the same rate that electric power suppliers receive for selling electricity. A group of organizations affiliated with generators of electricity sued FERC, alleging that Order 745 had overstepped the agency’s authority. A majority of the D.C. Circuit panel (Brown, Silberman) agreed, holding that Order 745 exceeds FERC’s jurisdiction over wholesale electricity markets under the Federal Power Act, 16 U.S.C. § 824. The panel majority reasoned that, because demand response involves decisions by end users regarding their energy use, it is inherently “part of the retail market.” Judge Edwards dissented.
Demand response and other smart grid technologies raise challenging legal questions, because they are upending assumptions about how the grid and electric power markets work. Just as distributed generation is integrating generation resources at places in the electric power grid that traditionally involved only distribution to end users, demand response resources are being aggregated and coordinated in ways that allow them to compete effectively in wholesale markets.
Characterizing demand response as merely a decision not to purchase electricity in the retail market, as the panel majority did, fails to appreciate the important functions that demand response resources play in contemporary electric power markets. Demand response, for example, can provide effective frequency regulation that helps to stabilize the grid, and frequency regulation is an ancillary service procured through wholesale power markets.
FERC’s jurisdiction is determined by statute, and the agency cannot rewrite its authority merely because times have changed. But courts need to understand the context in which FERC is operating and should not apply outdated and rigid assumptions about how electric power markets should operate. Hopefully the Supreme Court will grant certiorari in this case and give FERC the flexibility it needs to apply its existing authority in the context of changing technologies and markets.
Friday, December 5, 2014
On December 5, the D.C. Circuit (Rogers, Wilkins, Williams) issued a decision in Louisiana Public Service Commission v. FERC, the latest in a string of decisions arising out of cost allocations amongst . Entergy Corporation, through six operating subsidiaries, sells electricity in Arkansas, Louisiana, Mississippi, and Texas. The six subsidiaries own their generation and transmission facilities individually, but operate jointly as a single system. Because of this joint operation, the six subsidiaries share production costs pursuant to a FERC-approved System Agreement. In 1995, the Louisiana Public Service Commission complained that the allocation of capacity costs under the System Agreement was unjust and unreasonable, in violation of the Federal Power Act. After much litigation, remands, and rehearings, FERC eventually agreed with the Louisiana Public Service Commission that the costs were unjust and unreasonable but declined to order refunds of the misallocated costs. Unlike excessive rates, FERC reasoned, misallocated costs involve a zero-sum game where the system overall has not over-recovered. The D.C. Circuit granted Louisiana’s petition for review, holding that FERC had failed to justify its decision not to order a refund of the misallocated costs. The court noted that FERC does not follow a strict policy against refunds of misallocated costs, and so had to explain why the particular circumstances in this case did not warrant a refund.
On December 2, the Tenth Circuit (Kelly, Bacharach, Phillips) issued a decision in Kane County v. United States, the latest in a series of cases involving challenges to federal title under Revised Statute 2477. This case is part of an ongoing dispute between Kane County, in southern Utah, and the federal government, in which the County has sought to establish rights-of-way in and across federal lands to allow off-road vehicle use in areas that would otherwise be subject to closure or restrictions under federal law. Kane County filed this action in 2008, seeking to quiet title to portions of 15 roads under Section 8 of the Mining Act, commonly referred to as Revised Statute 2477, or “R.S. 2477.” R.S. 2477 was repealed by the Federal Land Policy and Management Act in 1976, except as to “valid existing” R.S. 2477 rights. The government moved to dismiss the County’s claims on the basis that a jurisdictional trigger in the Quiet Title Act – disputed title – was lacking. The district court disagreed. On appeal, the Tenth Circuit reversed, establishing, for the first time, that only unambiguous and consistent assertions of title by the federal government are sufficient to create a title dispute. In other words, “actions of the United States that merely produce some ambiguity regarding a plaintiff’s title are insufficient to constitute ‘disputed title’” and prevent the court from exercising jurisdiction. With respect to the individual roads at issue in the case, the court held that the district court erred in asserting jurisdiction over a handful, but affirmed jurisdiction over several others. The court also addressed a statute of limitations argument under the Quiet Title Act for one of the road sections traversing a Wilderness Study Area, holding that federal designation of the WSA was not sufficient to give notice to the county of federal ownership of the roads because it was not an adequate assertion of “exclusive control” by the federal government. Finally, the court reaffirmed its rule regarding the scope of an R.S. 2477 right-of-way: once established, an R.S. 2477 road can be widened in a “reasonable and necessary manner”, but only in light of pre-1976 uses of the road.
Thursday, December 4, 2014
Earlier this week I attended the National Summit on Smart Grid and Climate Change, organized by the Association for Demand Response & Smart Grid. The conference addressed ways that smart grid technologies, including demand response and energy efficiency, can be used as climate mitigation and adaptation tools, including as means of complying with EPA’s forthcoming Clean Air Act 111(d) rule for existing power plants (also known as the Clean Power Plan). Takeaways from the conference included:
- As increases in distributed generation and renewable energy entail decreased centralized control over power generation, there is a need for a compensating increased centralized control over demand for power (load). Smart grid and demand response technologies help to fill that need, thereby facilitating integration of distributed generation and renewable energy into the grid. In addition, some of the concerns about the unpredictability of distributed resources (both generation and demand response) can be addressed by aggregating and coordinating distributed resources, to operate them as a “virtual power plant.”
- The 111(d) rulemaking process is inducing a convergence of energy and environmental regulation. Utility regulators and air regulators are meeting and starting to attempt to coordinate in ways they have never done before. That being said, there is clearly a lot more work to be done in this area.
- Demand response measures and smart grid technologies have benefits independent of emissions reduction. EPA’s 111(d) rule will have important impacts on the energy sector, including creating strong incentives for increased utilization of smart grid and demand response technologies. Thus, the 111(d) rule may have significant benefits beyond emissions reduction, especially if EPA, FERC, state energy and air regulators, and the energy sector can work together to create synergies between 111(d) compliance and grid modernization.
- Smart grid technologies and distributed generation are causing forward-thinking people and entities in the energy sector to rethink electric power distribution systems. Peter Fox-Penner of the Brattle Group, for example, advocates moving distribution systems toward open access platforms for a variety of grid services. Many speakers expressed interest and excitement about the New York State Public Service Commission’s Reforming the Energy Vision (REV) initiative as an example of a promising forum for such forward thinking.
On December 2, the D.C. Circuit (Garland, Griffith, Williams) issued a decision in Midland Power Co-op. v. FERC. This case arose out of a dispute between Gregory and Beverly Swecker, who own and operate a wind turbine on their Iowa farm, and Midland Power Cooperative, an Iowa electric utility. The Sweckers’ wind turbine is a qualifying facility under § 210 of the Public Utility Regulatory Policies Act of 1978 (“PURPA”), 16 U.S.C. § 824a–3. PURPA requires utilities to purchase power from qualifying facilities at “avoided cost.” When the Sweckers decided that Midland was not paying them a rate that reflected avoided cost, they stopped paying Midland for the power they used. Midland responded by disconnecting the Sweckers, which had the effect of preventing the Sweckers from buying retail power from Midland and stopping Midland’s purchases of power from the Sweckers’ wind turbine. FERC issued an order under PURPA requiring Midland to reconnect with the Sweckers’ turbine, and Midland filed a petition for review. Midland invoked Federal Power Act § 313(b), 16 U.S.C. § 825l(b), which as codified provides that “[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals.” Since PURPA § 210 is codified in the same chapter as the Federal Power Act, Federal Power Act § 313(b) would seem to create jurisdiction. The D.C. Circuit, however, observed that as enacted § 313(b) actually referred to “a proceeding under this Act,” with “this Act” meaning the Federal Power Act, and PURPA § 210 is not part of the Federal Power Act. Accordingly, Midland could not sue under Federal Power Act § 313(b). Nor, the court of appeals held, did FERC’s order create a new rule regarding disconnections of retail service for customers’ nonpayment in a way that might trigger jurisdiction under PURPA § 210(h), 16 U.S.C. § 824a–3(h). Citing its precedent, the D.C. Circuit noted that enforcement of PURPA § 210 is generally vested exclusively in district courts, not courts of appeals.
On December 1, the Ninth Circuit (Canby, Fletcher, Watford) issued a decision in WildEarth Guardians v. McCarthy. WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club sued EPA under the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604, in an attempt to force EPA to issue revised regulations for ozone under its Prevention of Significant Deterioration (PSD) program, which regulates emissions in areas that are in attainment of the National Ambient Air Quality Standard. Clean Air Act § 166(a) requires EPA to issue regulations implementing the PSD program, initially within two years after 1977 and then, “[i]n the case of pollutants for which national ambient air quality standards are promulgated after August 7, 1977, [EPA] shall promulgate such regulations not more than 2 years after the date of promulgation of such standards.” The plaintiffs’ suit was premised on an interpretation of this sentence that would require EPA to issue new PSD regulations within two years of any revision of a NAAQS—here, EPA’s 2008 revision of the ozone NAAQS. EPA interprets Clean Air Act § 166(a) to require new PSD regulations only for newly regulated pollutants, not NAAQS that merely revise the standard for an already regulated pollutant. The Ninth Circuit, without reaching the question whether EPA’s interpretation is correct, held that Clean Air Act § 166(a) was sufficiently ambiguous that it could not support the existence of a nondiscretionary duty that would form the basis for a citizen suit against EPA. Under Ninth Circuit precedent, a citizen suit alleging EPA has violated a nondiscretionary duty must allege that EPA has violated a “specific, unequivocal command” in the relevant statute.
I hope you enjoyed our November (or has we call it here in Buffalo Snowvember) essays examining the latest IPCC report. Hopefully, they helped you frame some ideas and provided some context for the current discussions in Lima. A big thanks to Environmental Law Profs Blog for hosting the Environmental Law Collaborative yet again. The ELC is an evolving group of environmental law scholars that meets in person every other year to discuss thorny environmental law problems and strategize responses. These essays are only one way in which we seek to disseminate our work and further the discussion. These essays will be appearing in print in ELR early next year, and you can download them in one document on SSRN starting today.
Feel free to direct any comments on this specific project on on the ELC generally my way.
Tuesday, November 25, 2014
2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.
Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings.
Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted. Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.” For that reason, he deliberately included the open-ended phrase “selected air pollution agents And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”
Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts. The Senator’s views remain an important indicator of the legislative intent underlying many environmental laws, and both Court opinions and oral argument transcripts frequently quote Muskie’s words. Lazarus also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue as a short-term defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Lazarus also discussed the current EPA rulemaking under Section 111, especially referencing the term “best system of emission reduction,” noting that EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just technology-based controls.
During Q&A, both panelists contrasted the partisanship of the past 10-20 years with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.”
- Jeff Thaler, Visiting Professor of Energy Law and Policy, Maine Law School
Friday, November 21, 2014
Katrina Fischer Kuh, Professor of Law, Associate Dean for Intellectual Life and Hofstra Research Fellow, Maurice A. Deane School of Law
Adaptation planning and implementation at all levels of governance are contingent on societal values, objectives, and risk perceptions (high confidence). Recognition of diverse interests, circumstances, social-cultural contexts, and expectations can benefit decision-making processes. Indigenous, local, and traditional knowledge systems and practices, including indigenous peoples’ holistic view of community and environment, are a major resource for adapting to climate change, but these have not been used consistently in existing adaptation efforts. Integrating such forms of knowledge with existing practices increases the effectiveness of adaptation.
On November 20, the Ninth Circuit (Schroeder, Paez, Berzon) issued a decision in Alliance for the Wild Rockies v. Department of Agriculture. Montana authorities, under a federally approved program, use low altitude helicopter flights, riders on horseback, and off-highway vehicles in the Greater Yellowstone Area to haze bison, directing the bison into Yellowstone National Park and away from cattle to which the bison could spread the disease brucellosis. The area in which the bison hazing occurs is habitat for the endangered Yellowstone grizzly bear. Alliance for the Wild Rockies sued the federal agencies that approved the bison hazing, alleging that the helicopter flights harass grizzlies in the area in violation of the Endangered Species Act (ESA), NEPA, and the National Forest Management Act (NEPA). On appeal from a district court judgment in favor of the defendants, the Ninth Circuit held (a) that the Alliance had Article III standing to pursue its claims against the federal defendants, because the federal defendants approved the bison hazing program even though a state agency operates it; (b) that the Alliance’s claim under Section 7 of the Endangered Species Act was moot because the defendants already had completed a new biological evaluation consultation; (c) that the Alliance complied with the Endangered Species Act’s sixty-day notice requirement for citizen suits by sending a notice of intent to sue, then filing a complaint alleging non-ESA claims, and then amending its complaint to add ESA claims after the sixty-day window had expired; (d) that the Alliance’s claims against the Animal and Plant Health Inspection Service and Fish and Wildlife Service failed because those claims were not part of the Alliance’s sixty-day notice; (e) that the Alliance’s claim under Section 9 of the ESA failed because the Alliance failed to present evidence that bison hazing would cause a “take” of a Yellowstone grizzly bear; and (f) that the Alliance’s claims under NEPA and NFMA failed because it failed to show changes in the bison hazing program that would require a supplemental environmental impact statement.
Most of these conclusions are case-specific and closely tied to the record in this case. The question of whether a plaintiff can bring suit alleging non-ESA claims before the sixty-day window has expired, and then amend its complaint to add ESA claims upon expiration of the sixty-day period, is a purely legal issue that will establish precedent for at least the Ninth Circuit. The court distinguished cases such as Proie v. National Marine Fisheries Service, No. C11-5955BHS, 2012 WL 1536756 (W.D. Wash. May 1, 2012), in which the plaintiff’s initial complaint alleged APA claims based on ESA violations. Here, by contrast, the Alliance’s initial complaint raised NEPA and NFMA claims independent of the ESA.