March 24, 2012
U.S. Nuclear Energy at the Epicenter
Just over a full year after the earthquake and tsunami struck the Fukushima Daiichi plant in Japan on March 11, 2011, U.S. nuclear energy has found itself at the epicenter of a new legal storm that is quietly brewing here at home. The storm is far-reaching. It raises some new issues previously not faced domestically, or not faced as sharply as they are about to be, and also resurrects many that have dogged nuclear power for years.
One emerging problem is what to do with aging plants. Of the 104 reactors running in the United States, 52 have been in operation for 30 or more years. Another 42 have been running for at least 20 years. With no new reactors built here for over a decade, the U.S. nuclear fleet is quickly getting older. Nuclear engineers will tell you that most of these plants can operate safely for many years to come. That may be true -- and necessary, if we are serious about climate change mitigation. But it raises the question of what our approach to nuclear power should be. And for those facilities that do shut down, how quickly should they be decommissioned? The New York Times reported this week that many facilities lack sufficient funding to decommission, in part because of the economic downturn.
Related is the question of whether existing plants should be relicensed. The Atomic Energy Act allows plants to have initial licenses of 40 years, and many facilities whose initial licenses have begun to run have sought permission to extend the life of their plants. This last Wednesday, the 40-year initial license for the Vermont Yankee facility expired. The plant continues to produce energy under a 20-year extension granted by the NRC last year. But, citing Fukushima as a reason to shut down the plant, protests over the facility's continued operation have grown, including 130 arrests of protestors that were made at the facility this week.
This itself re-raises the longstanding dilemma of who decides whether we have nuclear power in the U.S. Vermont is trying to shut down Vermont Yankee, and politicians have made similar threats for other plants in the U.S., including in New York. The Vermont effort is now in federal court, with an initial decision in January that found Vermont's law preempted and, thus, allowed Vermont Yankee to continue running. Certainly that lawsuit is worth watching, but going forward it highlights how divisive nuclear power can be. Three decades after it was handed down, the Supreme Court's decision in PG&E v. State Energy Resources Conservation & Development Comm'n, in which the Court ruled that federal authority over radiological safety is exclusive and that states can foreclose nuclear plants only for non-radiological safety-related concerns, is as pertinent as ever.
This all is on top of other continuing disputes over nuclear power in the U.S., including whether the DOE can withdraw its license application for Yucca Mountain, what regulatory changes should be made to eliminate safety concerns exposed by Fukushima, and, more broadly, whether the Carter-era ban on fuel repocessing should be abandoned or an entirely different solution to storing spent nuclear fuel should be pursued.
A year out, Fukushima's ripples continue to spread.
March 22, 2012
Wildland Fire Law and Policy
The year after I graduated from college, I had the pleasure of spending a year serving in the AmeriCorps National Civil Community Corps. We worked in teams on different community service projects in different parts of the country. I happened to be on the “fire team.” This meant our thirteen person crew could be called away from a tutoring, trail building, or habitat restoration project to lend a hand should a wildland fire arise. We called ourselves the “Lucky Thirteen.” Sure enough, that summer I found myself hauling my 45-pound pack alongside experienced firefighters in the Great Smoky Mountains of Tennessee and North Carolina, digging line through the night in an effort to contain flames.
The experience forced me to face the conflicts between forests and human life and property. However, what I did not realize at the time is how well fire demonstrates the sheer complexity of the interaction between human landscapes and ecosystems. Fire can impair ecosystems and scatter wildlife, displacing human sustenance, recreational, and other needs. Yet fires also have fostered and shaped the evolution and development of many organisms. For instance, one species of pine tree produces cones that are so tightly sealed that they can only be opened—and thus their seeds dispersed—by the heat that fire brings. These types of complexities have set up important and difficult policy debates on how the law can best serve public and private objectives.
Fueled by high winds and record temperatures and drought last fall, the most destructive wildfires in the history of Texas—which covered an area the size of Connecticut—have reinvigorated these debates. I am pleased to announce that Texas Wesleyan’s new Journal of Real Property, for its inaugural symposium, has assembled an impressive group of scholars (listed below) to address many of the outstanding questions surrounding wildfire law and policy. The event will take place tomorrow, March 23, 2012, and the journal will publish the panelists’ articles this summer.
March 21, 2012
Supreme Court Decides Sackett v. EPA Unanimously in Favor of the Petitioners
With thanks to Rebecca Bratspies for bringing the Scotus Blog post on this decision to the environmental law professor's listserve, I wanted to highlight excerpts of key passages from today's unanimous decision in Sackett v. EPA authored by Justice Scalia, as well as from the concurrences by Justices Ginsburg and Alito. As the Court makes clear in its discussion of focus and scope, the opinion is narrowly framed. However, even with a narrow framing, as has been discussed actively on the discussion list this afternoon, the opinion likely will have significant practical implications for EPA enforcement efforts under this and other similarly framed environmental statutes.
Focus and Scope of the Opinion by Justice Scalia:
We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under §309 of the Clean Water Act, 33 U. S. C. §1319. The order asserts that the Sacketts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the property; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.
The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per day for each violation.” §1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to$37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.
The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order—we do not resolve the dispute on the merits.
We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Analysis of Final Agency Action:
The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” U. S. C. §704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “‘determined’” “‘rights or obligations.’”....Also, “‘legal consequences . . . flow’” from issuance of the order....The issuance of the compliance order also marks the “‘consummation’” of the agency’s decisionmaking process.
Analysis of Adequacy of Remedy
The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U. S. C. §704. In Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under 33 U. S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possible route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for action already taken by another agency. The Government, to its credit, does not seriously contend that other available remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute.
Analysis of Whether CWA Precludes Review
Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to]its express language.” The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review.
The Government first points to 33 U. S. C. §1319(a)(3),which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter....It is entirely consistent with this function to allow judicial review whenthe recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice.
The Government also notes that compliance orders are not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress therefore viewed a compliance order “as a step in the deliberative process[,] . . . rather than as a coercive sanction that itself must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanction....As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end....
The Government further urges us to consider that Congress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administrative penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.
Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediationthrough voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review....Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.
Key Passage from Justice Ginsburg Concurrence:
The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.
Key Passage from Justice Alito Concurrence:
Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.
March 20, 2012
Embarking on an Exciting New Adventure in an Environmental Hot-spot
At the risk of engaging in shameless self-promotion of my home institution, I've had the fortune to spend this week at my new place of employment starting June 1, the LSU Law Center. I grew up only four hours from Baton Rouge, in south Alabama, so this move is very much like going home. So, on a personal level I am ecstatic to be moving to this part of the country. More importantly, however, the LSU Law Center is making some very exciting strides toward developing a robust environmental program. The Law Center is currently seeking to fill a new endowed Nesser Chair in Energy Law. My appointment will be a joint one with the LSU School of the Coast and Environment, where I will also be teaching courses. We plan to cross-list a variety of environmental law related courses so that graduate students and law students can meet in the same classroom - to have clients talking with their lawyers prior to graduation. As this blog has recently highlighted (here and here), students at the LSU Law Center have recently formed the new LSU Journal of Energy Law and Resources, which is, of course, a natural home for an energy journal considering the energy sector presence in Louisiana. LSU will be hosting the 59th Annual Mineral Law Institute this week, and later this month Dave Owen and I will be participating with others in the Lousiana Law Review's Coastal Land Loss Symposium.
So in short, I am excited about the many environmentally focused activities taking place at the Law Center. And this focus is well-warranted considering Louisiana's vast forest, wetland, and biodiversity resources, its vast energy resources and production sector, coastal land loss issues and related climate change impacts along the Louisiana coast, the amount of international trade that goes in and out of Louisiana ports and up and down the Mississippi River, and the fisheries industry off the Louisiana coast, among a variety of other environmental issues in the state. With the great environmental faculty and programs at Tulane Law and Loyola New Orleans College of Law nearby, there is a fantastic opportunity for inter-institutional synergies in what is truly an environmental hot-spot right here in our own backyard.
- Blake Hudson
The USD 99 million versus USD 3 billion nuclear question
So it has come to pass...the Tamil Nadu government has cleared the nuclear power plant project in Kundankulam. The Chief Minister of Tamil Nadu, Jayalalitha, who had until now demanded the central government and the Indian Atomic Energy Commission to provide satisfactory explanation about safety measures, has reportedly decided, after perusing materials submitted to it, that the plant is safe. She has reportedly also dismissed any risk of an earthquake or tsunami hitting the region. Of course, since protestors who allege that there is no disaster management plan as required legally for those living within a 30 mile radious, the government decision is not entirely persuasive.
So, in an effort to persuade local villagers, the Tamil Nadu government is reportedly offering nearly USD 99 million (INR 500 crores) worth of infrastructure building, including provision of cold storage to local fisherfolks for storing fish, construction of houses, building roads, and repairing their boats. In return for this bargain, the construction of the USD 3 billion (INR 1300 crores) nuclear power project will proceed. The government apparently has also imposed a Section 144 restriction on protestors. Section 144 of the Indian Penal Code (IPC) punishes anyone from joining an unlawful assembly with a deadly weapon with two years imprisonment or fine. Peaceful protests, however, are reportedly continuing and several, including scientists and villagers, have gathered inside the plant in protest. Their demand? To repeat: that the government and India's Atomic Energy Commission provide a disaster management plan for at least those living with a 30 mile radius of the plant site. A full newsreport is available here.
Since I have not had an opportunity to thoroughly examine the government documents or interact with those in opposition, including petitioners, I will refrain from giving my two cents worth on the legality of the issue. But, I will admit that I was especially intrigued to read at the same time reports on Kudankulam and a special report on nuclear energy published by the The Economist in its March 10th issue. (I would highly recommend the report, The Dream that Failed).
Unlike the Indian government, the authors of the The Economist report have actually cooled to the idea of nuclear energy; a source of energy that they admittedly once termed as a source that was "as safe as chocolate factory." (This was pre-Johnny Depp). What is especially striking is their observations on the regulatory implications, notably:
1. That a nuclear energy plant is simply not feasible without government support, backing, subsidy, or initiative, because of the high risk and associated costs.
2. In relation to the above point, the report notes that costs are usually managed in the form of subsidies and limited liability.
3. That with so much at stake, the accountability and transperancy generally suffer. They point to Japan, a developed nation, as an example of dismal failures on that front.
After reading both the reports together, I am left with one thought--how do we begin to assess what is in a nation's self-interest in a time of energy reforms? Regulators are putting a lot in stake in the hope of promoting development and competition. Nuclear energy is involves serious high stakes risk. The chances may be that an accident occurs once every two decades. But, the devastation is often irreversible. Should we then regulate nuclear energy as any other form of energy? I am still thinking...
March 18, 2012
In Case You Missed It: Week of March 11 - March 17
The Earth Policy Institute reported that wind energy developers installed a record 41,000 megawatts of electricity-generating capacity in 2011, bringing the installed capacity to a level that can meet the residential electricity needs of 380 million people at European consumption levels.
One year after the nuclear accident in Japan, some analysts suggest the incident only dampened an already-diminishing desire to build new reactors in the U.S., while others find ending nuclear ambitions too hasty a response. Meanwhile, key stakeholders in Japan’s nuclear industry alleged that the disaster was avoidable.
In a draft EIS, staff of the Federal Energy Regulatory Commission endorsed a proposed natural gas pipeline through densely populated sections of northern New Jersey and New York City, despite opposition by groups raising safety concerns in both states.
As explained in the Washington Post, among other media outlets, political quarrels over the causes of and remedies for rising gas prices continue.
The Daily revealed that the U.S. Department of Agriculture was buying 7 million pounds of “pink slime”---a gelatinous, ammonia-treated mix of connective tissues and beef scraps that is used as filler in a significant percentage of supermarket ground beef---for school lunches this year.
The U.S. Commerce Department approved catch limits for more than three dozen species in the South Atlantic from Florida to North Carolina.
Less than two months after wolves in the Great Lakes region were removed from the federal endangered species list, the Wisconsin State Assembly approved a bill that would open the way for a wolf hunting and trapping season.