March 30, 2012
Mingo Logan Coal Co. v. EPA -- Some Initial Reactions
On March 23, 2012, the D.C. District Court issued an opinion in Mingo Logan Coal Co. v. EPA that raises a host of fascinating environmental and administrative law issues. The facts alone have attracted quite a bit of attention—this case is about mountaintop mining. There is plenty to say about this case, but here are some initial reactions focusing on two aspects of the opinion: the administrative law analysis; and the overall tone of the reasoning.
Mingo Logan, the petitioner in the case, obtained various permits from West Virginia for its mountaintop mining operations (including an NPDES permit that EPA initially opposed). It also applied to the Corps of Engineers for a Clean Water Act (CWA) section 404 permit to discharge material from its mine into nearby streams. EPA expressed concern over this permit and the accompanying EIS, but it didn't exercise its veto authority and the permit was eventually issued in 2007.
Two years later, EPA requested that the Corps withdraw the permit, stating that downstream water quality impacts hadn’t been adequately addressed. The Corps rejected that request, and in 2010, EPA announced its plans to withdraw the specification of most of the streams comprising Mingo Logan’s discharge area. The withdrawal became final in 2011, and Mingo Logan sued.
The Chevron Analysis
In her opinion on cross motions for summary judgment, Judge Amy Berman Jackson treated the issue—whether EPA exceeded its statutory authority under section 404(c) of the CWA by withdrawing the site specification after the Corps had issued the permit—according to the two-step Chevron analysis. The language under consideration: "The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site . . . ."
The court's Step One analysis set up a few strawmen of possible but unlikely meanings of this provision before knocking them down and turning to the statute as a whole. Here, the court expressed concern about the mechanics of a post-permit withdrawal. It's true that the agencies don't appear to have worked out those particulars, but it's not clear why that undermines the authority of the EPA to withdraw a specification. Aren't there plenty of situations where Congress delegates broad authority and leaves the particulars to the EPA? In any event, the court here created some Brand X ambiguities by not being entirely clear whether the statute unambiguously prohibits a post-permit withdrawal.
But the Step Two analysis is where things got especially interesting. First the court asked whether Chevron applied, given that two different agencies share responsibilities for 404 permitting (some courts and scholars treat this as a Step Zero issue instead). Judge Jackson determined that Chevron was not warranted, but she may have missed an opportunity for deeper analysis. Other courts have examined agencies' responsibilities more closely here and given deference to the agency with expertise. Arguably, the EPA has expertise when it comes to reasons a withdrawal would be warranted. The court decided Skidmore deference would be appropriate in this circumstance (again, slightly unusual to embed that in Chevron Step Two). But then it gave short shrift to the things that matter under Skidmore, like the consistency of the agency's interpretation over time (it's been in place since 1979). An agency's policy rationales also matter under Skidmore, but the court dismissed the EPA's policy statements on the matter while raising its own policy concerns about commerce. Ultimately, the court determined that EPA's interpretation is unreasonable; thus, the agency acted outside its statutory authority.
A Few Words About Tone
But here's what really stood out about the opinion: its tone was disrespectful and at times, caustic. Take this passage:
. . . EPA resorts to magical thinking. It posits a scenario involving automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!
No matter the substantive outcome or administrative law approach, it's disappointing to see a court treat one of the parties disrespectfully. Especially for issues that arouse such passion (jobs, mining, mountains, water), what is the impact on the perceived legitimacy of our system in the long-term when judicial rhetoric takes this kind of turn?
For some great insights, take a look at Dave Markell, Tom Tyler, and Sarah Brosnan’s forthcoming empirical piece on procedural preferences, trust, and the importance of the decisionmaker treating parties in a respectful way. The bottome line: it matters.
Please, let's aim for civil discourse. And let's model respectful behavior for our students.
March 29, 2012
Thinking, Faster than all those Slow People
I’ve been working my way through Thinking, Fast and Slow, which is psychologist Daniel Kahneman’s compilation of decades of work exploring the ways biases and heuristics affect people’s decision-making. It’s a fascinating book, with interesting applications to many other fields, including law, and is well worth a read.
Kahneman wants to alert his readers to the limitations of their own decision-making, in hopes that we can better understand and account for the ways we’re not quite as rational as we would like to think. But as I read, I’m discovering a strong temptation to apply his insights in a rather different way. Kahneman’s insights can ameliorate the cognitive dissonance I otherwise would feel when I realize that an intelligent person has very different views than I do. To put the point slightly differently, Kahneman helps me forgive people for not understanding the world quite as well as I do. “It’s not that they’re unintelligent, or that I’m wrong,” I can tell myself. “Their thinking is just distorted by the (fill in the blank) bias. Who could blame them?”
This is great! And it can be helpful not just in professional situations, but also in personal ones. Or at least I think it should. But then this kind of stuff happens:
Meg (my wife): (watching HGTV) Do you think we should remodel…
Meg: …the upstairs bathroom to look like that?
Meg: It looks great.
Me: No it doesn’t. That’s just the halo effect.
Meg: The what?
Me: The halo effect. The designer has a strong chin, biceps three times larger than mine, and a subtle whiff of sensitive metrosexuality. That makes you like him. And because you like him, you like his bathroom design. Look, it’s explained right here on page...
Meg: We’re remodeling the bathroom.
Meg: Did you let Ethan play with my phone?
Meg: He just put it in the dog’s water dish.
Me: Well, yes, he did.
Meg: So… should we let him play with my phone?
Me: Look, you’re falling victim to hindsight bias. Just because a bad outcome occurred doesn’t mean it was an unreasonable decision.
Pause. Dark look.
Me: It’s explained right here on page…
Meg: Don’t you have something else to read?
So perhaps these wonderful features of Kahneman’s book (features which, I should stress again, are exactly the opposite of the effect he hopes to create) aren’t quite so wonderful.
Nevertheless, I suspect I’m not the only one having these issues. Kahneman’s work (often the articles he co-authored with Amos Tversky) frequently appears in legal-academic literature. Quite often, it seems to me, it comes up when authors are explaining why other people don’t realize the failings of their policy preferences, and haven’t adopted the more enlightened view that just happens to be held by the author. I haven’t done any sort of systematic survey, and my perception could be just a little bit of the availability effect at work. But it still leads to an idea. Perhaps the psychologists and behavioral economists should add one more bias to their ever-growing list. We could call it Kahneman-Induced Bias, and it would refer to situations in which time spent with cognitive bias theory reinforces rather than reduces a reader’s reluctance to consider the possibility that he or she might be just plain wrong.
- Dave Owen
March 28, 2012
Should environmental law be concerned with access to and engagement with nature? This question is complex and deep, and it requires us to draw on connections I hope to discuss in this forum.
Despite evidence to the contrary, it has been argued that today’s young people are not interested in saving the environment. On the other hand, as several of this blog’s editors have reported, an understanding of nature is essential to visioning environmental protection, if only because environmental literacy has potential to direct the course of social norms.
When it comes to survival and well-being, humans depend on the workings of nature and are beginning to value it as such. One poll suggests that a majority of voters place a high priority on protecting nature’s ability to support life, provide benefits such as food and clean air and water, and protect from natural hazards such as floods and hurricanes. Perhaps there is something more subtle and sublime attained by our own personal experiences in nature. Nancy Wells, an environmental psychologist at Cornell University, has studied differences in children that may be influenced by access to nature and argues for an association between interaction with nature and the ability to cope with adversity.
My friend Troy Payne explains that experience also allows us to believe in nature – knowing without fully understanding that we are subject to the prerogative of nature. He spends a great deal of his time remembering what that means through experiences in and with nature. Troy has captured a spectacular array of sounds, visions, and poetry in his multi-media presentations. It seems Troy has hit upon something quite important, and you can decide for yourself whether you agree by visiting his artistic and engaging work with Black Lantern Synergy.
- Keith Hirokawa
March 26, 2012
Towards a Bioeconomy?
While “green economy” is the term of choice at Rio+20, “bioeconomy” is also becoming a popular term. In September 2011, President Obama announced a plan for a National Bioeconomy Blueprint. Several European countries, including Finland and Germany already have bioeconomy strategies, and the European Commission (the executive branch of the European Union) published an action plan for boosting its bioeconomy last month.
So what is a bioeconomy exactly? In the US, the emphasis is officially on “harnessing biological research innovations to meet national challenges in health, food, energy, and the environment.” See the October 2011 Request for Information (RFI), 76 FR 62869. Based in the RFI, the Administration is particularly interested in improving R&D; moving innovation from lab to market; creating jobs; reducing regulatory burden; and public private partnerships. According to the EU’s new action plan, titled "Innovating for Sustainable Growth: a Bioeconomy for Europe,” a bioeconomy “encompasses the production of renewable biological resources and the conversion of these resources and waste streams into value added products, such as food, feed, bio-based products and bioenergy.” The action plan endorses greater (1) “investment in research, innovation and skills”; (2) “Reinforced policy interaction and stakeholder engagement,” through the creation of a Bioeconomy Panel, a Bioeconomy Observatory and regular Stakeholder Conferences; and (3) “Enhancement of markets and competitiveness in bioeconomy,” such as markets that transform food wastes into bio-energy.
I kind of like the term bioeconomy. To my mind, it brings the idea of living within the limits of the biosphere, of changing our human economy to fit the earth’s economy. But there are lots of concerns about what industry and government mean when they use the term. The basic idea, after all, is of turning biomass in marketable goods and services – biofuels, bioplastics, bioenergy, etc. And biomass will presumably be produced using the techniques of industrial agriculture, which isn’t particularly biofriendly. Concerns include the destruction of biodiversity; erosion; pollution; deforestation; land-grabbing; and increased GHG emissions. A critical expose was written in 2010 by the Canada-based ETC Group (or, Action Group on Erosion, Technology and Concentration), The New Biomassters - Synthetic Biology and The Next Assault on Biodiversity and Livelihoods. As the authors explain, “what’s behind the dash to biomass is not high ideals but the calculated interest of the corporate bottom line. Far from changing to a new economy, the biomass transition describes the retooling of the same old economy of production, consumption, capital accumulation, and exploitation – only now a new source of carbon is being plundered to keep the industrial machines going.”
Finally, if you are in Berkeley this week, you might want to sit in on UC Berkeley’s School of Natural Resources’ 5th Bioeconomy Conference, which started yesterday and features primarily academic speakers in the area of agricultural and resource economics.
- Lesley McAllister
Shale Gas and Oil: What's New (and Is It New)?
America has continued to experience an upsurge in domestic oil and gas production--a trend that the Energy Information Administration predicts will last through the next several decades. The oil industry in North Dakota's Bakken Shale, for example, is booming thanks to horizontal drilling and hydraulic fracturing, and a March 2012 New York Times article highlights the social effects, from employment of formerly jobless people from around the country to growth in housing demand and, perhaps, crime. The Times also reports that we are inching "toward the goal of energy independence" as production of gas and oil within our borders keeps rising as a result of hydraulic fracturing and other technologies. This follows an earlier Wall Street Journal article reporting that the United States in 2011 was moving toward the status of net exporter of energy--partly due to the economic downturn but also rising production and international demand.
Anyone familiar with old stories from Texas and Pennsylvania oil fields knows that this country has a long history of oil and gas production and that in some respects, this boom is nothing new. In response to industry's and state regulators' repeated reminders that fracturing has occurred for more than half a century, I argue that several things are, decidedly, quite new. First, this boom is occurring in different times: We now have better renewable technologies, and our abilities to support efficient consumption of energy have expanded. These solutions won't offer a full substitute for oil and gas--or even close to one. Booming production of unsustainable fossil fuels occurs against this backdrop, though, and has important effects on the renewable energy industry. Betsy Burleson has posted an excellent article that addresses this issue, noting that "natural gas production is likely to stunt the direction and intensity of renewable energy by up to two decades" and suggesting a path forward to ensure effective and just policy moving forward.
Second, as shown by the outpouring of media attention and citizen participation in EPA meetings around the country in 2010, many Americans are worried about the environmental effects of oil and gas extraction--perhaps even more so than in previous booms. To assert that production has long occurred and that there is nothing to worry about ignores important concerns that should be addressed.
Finally, although we could have long debates about whether slickwater fracturing--a common technology initially developed in Texas in the 1990s--is "new," it is certainly newer than certain other oil and gas technologies, and its widespread use is an even more recent development. The technique, which is now applied to shales and some tight sands around the country, introduces new activities to oil and gas development, including higher quantities of water consumption, the transport of new chemicals to well sites, and the production of more waste to be stored and disposed of. Combined with horizontal drilling, it also creates new opportunities, including less surface disruption and associated benefits, such as the avoidance of sensitive habitat and reduced habitat fragmentation and erosion. So there are new benefits and costs, but it seems unproductive to continue to argue about whether any of this is really "new." The fact is that we're in a boom, which is creating important jobs and growth but also environmental and social concerns.
States have responded to the boom in a variety of ways. Ohio, which disposes of large quantities of drilling and fracturing wastes in underground injection control wells, recently proposed new rules for these disposal wells (which are regulated under the Safe Drinking Water Act) after experiencing several earthquakes. West Virginia has published new fracturing rules, and North Carolina's Department of Environment and Natural Resources issued a draft report and recommendations as the state's politicians continued to consider lifting the horizontal drilling ban. Colorado's Governor Hickenlooper, in turn, has initiated a task force to address local and state regulation of oil and gas development and (impliedly) potential jurisdictional conflicts. For more discussion of state regulation and developments over the past few years, see American Law and Jurisprudence of Fracing (authored by, among others, fracing expert Professor Chris Kulander of Texas Tech University School of Law and since published by the Rocky Mountain Mineral Law Foundation) and (shameless self-plug) this regulatory analysis funded by the University of Texas Energy Institute and a resulting article.
There has been some activity at the federal level, too. The Bureau of Land Management has published draft fracturing guidelines, and the Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board issued a helpful report last November.
All of these developments continues to raise broader legal and policy issues, such as questions about races to the bottom or top (Ohio boasts of having "among [the] nation's toughest" brine disposal rules, while New York speaks of lessons learned from Pennsylvania and proposes more stringent regulation in some areas), cooperative federalism, regional regulatory options, and public choice concerns at all levels. Whether the boom is new, or simply reminiscent of previous domestic fossil fuel production cycles, I hope that we'll continue to see more legal scholarship in this area. In addition to Betsy Burleson's and Chris Kulander's work mentioned above, Patrick McGinley has an excellent article on regulatory takings and shale gas (19 Penn. St. Envtl. L. Rev. 193), Emily Collins has offered an extremely useful analysis of Marcellus issues, David Spence thoroughly explores the federalism issues in a University of Pennsylvania Law Review article, Richard J. Pierce, Jr. offers an optimistic and interesting account of shale gas, and Susan Sakmar addresses international issues and the potential for U.S. regulation as a model. Beyond traditional legal scholarship, the University of Colorado Law School has proposed best management practices for hydraulic fracturing. As always, in the limited space of a blog post I likely have omitted very important legal scholarship and projects, and I welcome comments.
-Hannah Wiseman, Florida State University College of Law
March 25, 2012
In Case You Missed It - Week of March 18 - March 24
* A recent report details that annual deforestation rates in the Congo basin have doubled since 1990.
* The Organization for Economic Cooperation and Development recently stated that water pollution from agricultural operations is on the rise and is costing billions each year.
* Ocean acidification is worse than it has been for 300 million years.
* How dimming road lighting can save money and reduce carbon emissions.
* Looking for a neat way to flunk that special someone in your class this exam season? Try the Tolkien way.