Tuesday, May 14, 2013

On NEPA and Duplicity

A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents.  I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation.  Judging from a followup email John sent this morning, I wasn’t the only one.  In a short time, it seems, he’s compiled a long list.

But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute.  I know I’m not the only one.  In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes.   The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts.  The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action.  Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal.  Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.

Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness.  After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners).  Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business.  The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents. 

I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic.  “Don’t ever underestimate,” he told me, “how much we fear that public reaction.”  For him, that fear was also leverage.  The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl.  I doubt his situation was unique.  So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.

-Dave Owen

May 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Standing in Recent Environmental Cases

On Wednesday (May 15), the Environmental Law Institute is hosting a lunchtime seminar on The Future of Standing in Environmental Cases, with a great panel: 

I hope that the panel addresses what I regard as one of the most interesting recent developments in standing cases:  the number of significant environmental cases in which the D.C. Circuit is finding that industry plaintiffs lack standing.  Environmentalists and environmental law scholars have often regarded rigorous standing requirements as biased against citizen environmentalist plaintiffs.  See, e.g., Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 465-73 (2008).  Indeed, the Supreme Court has essentially admitted as much, noting that plaintiffs who are the target of government regulation generally satisfy standing requirements, whereas establishing standing for other plaintiffs is "substantially more difficult.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).  But many of the recent significant environmental cases in which plaintiffs have lost on standing grounds involve industry plaintiffs:

  • Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), held that states and industry groups lacked standing to challenge EPA’s Timing and Tailoring Rules.
  • Nat'l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir. 2012), held that the National Chicken Council, National Meat Association, and National Turkey Federation lacked standing to challenge an EPA rule interpreting a provision in the Energy Independence and Security Act of 2007 regarding renewable fuel credits.
  • Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), held that engine manufacturers, food suppliers, and petroleum suppliers lacked standing to challenge EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines.
  • Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge findings by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River in southern Arizona are “waters of the United States” and therefore within the jurisdiction of the Clean Water Act. 
  • Nat’l Ass’n of Home Builders v. Army Corps of Engineers, 663 F.3d 470 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge the Army Corps of Engineers’ Nationwide Permit 46 authorizing discharges of dredged or fill material into certain non-tidal ditches.
  • Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011), held that the U.S. Chamber of Commerce and National Automobile Dealers Association lacked standing to challenge EPA’s decision granting California a waiver from federal preemption of vehicle emission standards under Clean Air Act § 209.

This pattern of losses for industry plaintiffs does not appear to reflect a new development in standing doctrine; each of these decisions relies on well-established standing principles.  This makes me wonder whether this string of industry losses is a coincidence, or has some underlying common cause.  For example, are industry plaintiffs seeking judicial review more aggressively or expansively?

I am equally interested in seeing whether, if this pattern continues, environmentalists and environmental law scholars will soften their skepticism about standing doctrine.  Of course, the obstacles encountered by industry plaintiffs in establishing standing are not necessarily the same as those encountered by environmentalist plaintiffs, and so one can take a principled position that courts have interpreted standing doctrine too stringently as applied to losing environmental groups but correctly as applied to these losing industry plaintiffs.  But it does seem to me that, these days, the results in standing cases seem somewhat less disproportionately against environmentalist plaintiffs.

--Todd Aagaard

May 13, 2013 | Permalink | Comments (0) | TrackBack (0)