June 22, 2012
Mingo Logan Coal Co. v. EPA, On Appeal
Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis. For those following the case, it's now on appeal to the D.C. Circuit. EPA's statement of the issues, filed last week, keeps things crisp:
The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.
EPA's brief is due on July 18.
June 21, 2012
EPA's New Policy on Integrated Stormwater and Wastewater Management
The last time I taught water law, I took my students on an urban water quality field trip. We toured a wastewater treatment plant and visited some impaired urban streams. It was all interesting, or at least the students humored me and pretended it was, but the most memorable moments of the trip involved combined sewer overflows. During the wastewater treatment plant tour, we saw the point where excess sewage flows were diverted into a pipe discharging directly into Casco Bay, not far from a public beach. During our visit to the impaired stream, we stopped not far downstream from a still-active CSO. To untrained eyes, nothing would have seemed amiss with the stream, at least until one student noticed a piece of toilet paper suspended from an overhanging branch, fluttering gently in the October breeze.
CSOs are kind of fascinating. The Clean Water Act assumed its modern form four decades ago, and in the years since we’ve made great strides in controlling direct effluent discharges. Yet in many cities—particularly older ones—combined sewer systems carry stormwater and wastewater to treatment plants, and when storms overwhelm the capacity of those plants, huge volumes of untreated sewage discharge directly to surface waterways. These discharges are blatantly inconsistent with the Clean Water Act, and they impact some highly valued, widely used waterways—often in cities otherwise known for their liberal and green politics. Yet they’re still around.
The primary reason, of course, is money. Avoiding CSO discharges often means major infrastructural improvements, and cash-strapped cities don’t have the money to make those changes quickly. So, while EPA has entered into consent decrees with many cities, and while those cities are slowly chipping away at their CSOs, much work remains to be done. Where I live, at least, while environmental groups aren’t happy with the situation, they grudgingly understand the slow progress. “Yeah, we could sue the city on this,” one prominent Maine environmental attorney told me (I’m paraphrasing) not long ago. “But what are they going to do? Shut down the schools to pay for it?”
In recent years, another complication has emerged. The traditional way to fix a CSO problem was to separate the storm and wastewater sewer systems. Stormwater then would discharge directly to surface water bodies, and with only wastewater going to the treatment plant, the plant’s capacity wouldn’t be overwhelmed. But urban stormwater isn’t exactly benign. It’s loaded with pollutants, and spikes in flow can also damage the hydrology of streams. During smaller storm events—events that would not overwhelm the capacity of treatment systems—a combined sewer system would result in treatment of that stormwater, but with a separated system, such treatment no longer occurs. So while separating the sewers can reduce wastewater pollution, the price is an increase in stormwater pollution.
Last week, EPA released a policy statement designed to address this dilemma. The broad goal of the policy statement is to encourage municipalities to generate integrated plans addressing stormwater and wastewater. A closely related goal is to encourage the use of “green infrastructure”—that is, green roofs, stormwater infiltration systems, and other mechanisms for reducing stormwater discharges--thus reducing strain on combined sewer systems without increasing direct stormwater discharges. EPA isn’t saying that municipalities with these plans will obtain any exemptions from their consent decrees or other Clean Water Act obligations. But EPA does suggest that if municipalities adopt these plans, EPA will take the olans into account when deciding whether to bring enforcement actions, and also when deciding what actions it will require of cities, and what compliance schedules it will negotiate or impose.
One policy statement does not fix a major and longstanding problem. But this sure looks like a step in the right direction, and it’s not the first step EPA has taken to push green infrastructure. Even if the change will be incremental, hopefully there will come a time, not too far in the future, when my water quality field trip is primarly about green roofs and other sustainable stormwater treatment systems (we'll still also go to the wastewater treatment plant), and our sidetrip to the now-defunct CSO just provides a little historical color.
Obamacare and Federalism's Tug of War Within
In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions. And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal. For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.
In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.
Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?
To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning from that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.
In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.
As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and local government brings useful capacity to the regulatory table.
Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.
But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.
Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.
By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.
The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, would that be okay?)
Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)
This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.
A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.
Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.
The trick, of course, is that while all of these values are independently good things, they are nevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.
Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.
And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.
The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.
In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to facilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.
June 20, 2012
Doing Away with Cars as Property
This week I met a Jean Claude Puerto Salavert who founded Ucar, a car rental company in France, with a new perspective: reduce car ownership by providing people with the choice of renting cars at a lower price. His view is quite simple—by eliminating the idea of car as property, one can help reduce pollution. Jean Claude’s idea stems from his experience in France, where apparently people buy cars that can transport an entire family long distances. However, since they cannot afford more than one car, they buy a big car. Because big cars are expensive, they buy second hand cars that are ten or more years older. In short, people choose cars that are meant to serve multiple uses even if they may be inefficient because they serve a limited purpose.
By working with car dealers and companies, he hopes to reduce dependency on cars. While similar models can be found in “zip car”, Jean Claude’s idea appears more ambitious since he wants to change the notion of car ownership as a fundamental concept. He has written a book on the subject, Pour le prix de ce livre, vois pourriez avoir une voiture [For the price of this book, you could have owned a car], and which owing to my poor French knowledge will have to await a translation. But, I am told that the book, published in 2006, presents his arguments for reducing car ownership. He focuses on the following themes in encouraging people to consider sharing new cars for a low price: comfort, security, better image, savings, lower energy cost and decreased pollution.
At a time when the idea of car ownership is spreading in several developing countries, notably China and India, it is interesting to discover efforts to the contrary here in France. The idea may also be palatable for car companies, because Jean Claude does not argue against car use and is in fact working with car dealers to find mechanisms to make car rentals cheaper. What he is apparently trying to figure out is a way to get government assistance in his project. Perhaps if car rental sectors could be brought within the EU Emissions Trading Scheme conditioned on proven ability to convert car ownership and reduced emissions, the European Union may be able to consider this idea as part of its strategy to reduce emissions.
While discussing the idea with friends, I also learned that for some time the government of Belgium provided three years of free public transportation for citizens who gave up their car. That seems like another interesting idea, as well. Of course, the availability of public transportation and access to daily necessities in a geographical location is critical to making this idea work on a larger scale. But, it is certainly an idea worth considering as we face the prospect of increasing car ownership.
On separate note, when I inquired whether this model can be used to rent out cheap hybrid cars or electrical vehicles, the answer was yes, but not until charging stations are made available and the grid developed. That, of course, can take quite a while. It is interesting to note, however, that business entrepreneurs can find discrete opportunities as governments grapple to reduce pollution.
For now, it is au revoir from a place with great public transportation.
June 19, 2012
Co-Regulation: What is it?
I’m in the process of editing an article about environmental co-regulation. My starting point for the article was a study of environmental law in Mexico, where the federal environmental agency has run a voluntary environmental compliance program called the National Environmental Audit Program (Programa Nacional de Auditoria Ambiental) since the early 1990s. The basic idea of the program is that a regulated facility can opt out of regular inspections (and potential penalties) by hiring a private third-party firm approved by the agency to audit its compliance and devise a compliance plan to correct any deficiencies. About 9,000 industrial facilities and other establishments, owned by many of the country’s largest companies, have joined the program over the years.
Studying this program, I arrived to the question: what kind of regulation is this? It had characteristics of both typical state-directed regulation and self-regulation. When I came across the term co-regulation, which has been used much more extensively in the European environmental law literature, I was happy to see that it fit. But the meaning of co-regulation (and for that matter, self-regulation) has not been well-specified, so the first task of the article became just that. For this purpose, I constructed the “regulatory spectrum” below. I hope that you find it interesting and useful in your own thinking about regulation. And if you'd like to read my draft article, Co-Regulation in Mexican Environmental Law, I've posted it on SSRN.
- Lesley McAllister
June 18, 2012
Emerging Issues in the Arctic, Part V: The Contested Space of Indigenous Peoples
Last week I was in Juneau for a conference hosted by the Association for the Study of Literature and Environment and united under the theme of “Environment, Culture & Place in a Rapidly Changing North.” Papers presented have tackled a broad range of topics, from what might seem obscure to the law community (representations of gender and race in the “post-carbon” novel, a study of Edward Abbey’s taste in music) to what is most definitely on point (frontier rhetoric and environmental justice concerns in Arctic oil and gas politics, park management in Alaska and the Yukon, citizen resistance to fracking in northern Ohio, the Russian view of the far north). But as I recall the large raven statue in the Egan courtyard on the University of Alaska Southeast campus, which itself sits on Tlingit land, I cannot help but think about the recurrent motif of indigenous peoples and the contested space their stories and communities occupy in the new Arctic.
Many presenters at the conference offered studies that revealed the power of story to fuel and shape environmental conflicts. Julie Cruikshank, though, an anthropologist at the University of British Columbia who has spent years of her life documenting the life stories of Athabaskan and Tlingit women in the Yukon, raised a question of particular salience for environmental law: What do current methods of incorporating traditional environmental knowledge (TEK) into environmental decision-making signal? As described by Professor Cruikshank, indigenous peoples in northern Alaska and Canada are invited, or else made, to participate in bureaucratic processes such as public hearings and environmental reviews; through their participation they are invited, or else made, to lend their TEK to the underlying field science and managerial science that will direct decisions on where and when to mine or drill. The indigenous peoples may be unaccustomed to the process, and even if they have become accustomed to the process the form and place of speech may still be antithetical to the very TEK they are being called upon to share. In essence, Prof. Cruikshank said, indigenous peoples are forced to re-orient themselves in relation to the permitting agency; but there is no corresponding obligation on the agency to shift its orientation based on the indigenous peoples’ TEK.
Now, if TEK reveals that an endangered or threatened species mates or feeds in a certain area then the agency and the project sponsor would do well to take that fact into consideration, lest they wind up in court defending their decision to ignore it. Shell learned this the hard way in the Arctic. Yet, this measure of regard is a far cry from the far deeper engagement that Prof. Cruikshank suggested would be necessary to actually inform the decision-makers’ worldview.
It was at this point that I found the lawyer in me raising questions the humanist in me probably would have preferred to leave unasked: Is the purpose of consulting with or otherwise soliciting traditional environmental knowledge from indigenous peoples really to inform a decision-makers worldview? If the answer to that is no—and on a descriptive level it is—then should that be the purpose? Or is the purpose simply, and properly, to obtain information to plug into existing scientific and bureaucratic models of knowledge-creation and decision-making?
These questions could be asked more generally, in regards to public comment from any local community – fishermen subjected to quotas and catch-share programs, city residents subjected to new construction projects, and so on. There is a real problem of ideational and emotional incommensurability. But these problematics are particularly pronounced in the Arctic, as industry moves into areas that have been almost exclusively inhabited by people with radically different worldviews, worldviews that are traditionally communicated through stories that simply do not fit into the regulatory state. Ultimately, these stories underscore the degree of difference: Agencies can account for where local people say the whales or caribou are. But what are they supposed to do with the stories of the whale and the fox?
- Michael Burger
June 17, 2012
In Case You Missed It: The Week of June 10-16
The U.S. Court of Appeals for the District of Columbia ruled that the Nuclear Regulatory Commission must consider the environmental impacts of long-term storage of radioactive waste at power plants when it renews licenses (the decision is here).
A new Title VI Civil Rights administrative complaint was filed by the Center on Race, Poverty and the Environment against the California Air Resources Board over AB 32's Cap & Trade program.
A huge 'forest' of algae was unexpectedly discovered by NASA under the Arctic Ocean.
Sen. Mike Lee (R-UT) introduced an amendment to the Farm Bill that would eliminate federal protection for endangered and threatened species that exist entirely within the borders of a single state.
California's Salton Sea State Recreation Area is on a list of parks to be closed because of the Salton Sea's environmental woes as well as California's financial woes.