Tuesday, December 15, 2015

An Important New ESA Paper, A Great Database, and Some Research Opportunities

Jacob Malcolm and Ya-Wei Li (both with Defenders of Wildlife) have just published a paper that really should be required reading for anyone interested in the Endangered Species Act.  Defenders has also created a database that offers exciting possibilities for additional research.  Here's a little more information about each:

The Study:

The study addresses implementation of ESA section 7, which prohibits federal agencies from taking actions likely to jeopardize the continued existence of listed species or to cause destruction or adverse modification of critical habitat.  Section 7 also prescribes a process, known as consultation, designed to ensure compliance with that substantive mandate.

Here's the key part of the abstract:

We analyze data on all 88,290 consultations recorded by FWS from January 2008 through April 2015. In contrast to conventional wisdom about section 7 implementation, no project was stopped or extensively altered as a result of FWS finding jeopardy or adverse modification during this period. We also show that median consultation duration is far lower than the maximum allowed by the Act, and several factors drive variation in consultation duration. The results discredit many of the claims about the onerous nature of section 7 but also raise questions as to how federal agencies could apply this tool more effectively to conserve species. We build on the results to identify ways to improve the effectiveness of consultations for imperiled species conservation and increase the efficiency of consultations.

Some of the findings in the body of the article are even more dramatic.  Most importantly, during the study period, FWS issued only two jeopardy opinions and one adverse modification opinion.  I think that is amazing.  Past studies (including my own work) have consistently found that jeopardy and adverse modification opinions are rare.  But in recent years, with FWS at least (NMFS will await a later study), their frequency has dropped by orders of magnitude, and they've become essentially non-existent.

So what's going on?  The obvious answer--which Malcolm and Li, to their credit, do not just leap to--is that FWS has abdicated its responsibilities under section 7.  Another, more hopeful possibility is that FWS, action agencies, and project applicants are successfully negotiating changes to projects so that jeopardy and adverse modification opinions don't become necessary.  In my own research, I heard anecdotal evidence supporting the latter view.  One biologist, for example, told me he was about to send out several draft jeopardy letters, and he expected that each would prod the action agency to provide more protection; none would become finalized.  But I also found extensive evidence that FWS and NMFS were routinely allowing small acts of habitat degradation to proceed.  Li and Malcolm's study suggests that both dynamics are continuing, though they do not claim to know which predominates.  We do know, however, that in the past eight years, something about the dynamics has changed.

More broadly, there's a lesson here for anyone interested in how environmental law really works.  We often draw distinctions between hard and soft legal instruments.  The former block things, while the latter create subtle incentives toward adjustment.  This study shows the extent to which that distinction can be misleading--or, to put it slightly differently, the extent to which laws we might think of as classically "hard" function rather softly in practice.  Environmental law is largely about adjusting practices, and about making subtle alterations in systems of incentives.  Flat-out stopping stuff from happening is pretty rare.

The Database:

In addition to writing this study, Defenders wants to facilitate research by others.  Here's how Ya-Wei Li explained it in an email to me earlier today:

The study is getting most of the media attention, but the database is almost as important in my view because raw data on ESA implementation are rarely published online.  We published the information to encourage federal agencies and others to follow, as we’re big believers in using open data to inform efforts to improve the performance of environmental laws.  There are also some gold nuggets of information in the dataset, and we want to encourage researchers to run their own analysis and publish the results.

I couldn't agree more.  Building this database is a heroic effort and public service, and researchers ought to thank Defenders by using it.  Some potentially interesting research questions (many of which student authors might readily tackle):

  • What kinds of species are generating most of the consultation effort?  A common perception of the ESA is that it protects all sorts of obscure, weird creatures that no one really likes anyway.  Or, alternatively, some people think it doesn't do enough to protect those obscure, weird creatures, and that we're too fixated on charismatic megafauna.  Malcolm and Li's study includes some information about which species are the focus of consultations, but it's just a beginning.  One could potentially dig a whole lot deeper.
  • How often are consultations focused just on one specific species?  In my time in practice, I noticed that threatened and endangered species often came in bunches, and that actions to protect one often protected (and, on rare occasions, were in tension with) actions to protect others.  Think, for example, about old growth forests, or about the Sacramento/San Joaquin Bay Delta, both habitats in which whole suites of species are in trouble.  The consultation data might reveal something about how often species protections are synergistic.
  • Which agencies aren't consulting?  In my own research, I heard anecdotal stories about agencies that probably needed to consult but weren't used to doing it.  Data on who is consulting therefore are interesting, not just because they reveal who the repeat customers are, but also because they might reveal who isn't even coming to the store.
  • What kinds of projects are generating consultations?  Malcolm and Li include some summary tables on this issue, but I'd love to see more, and trends might also be interesting.
  • What kinds of protective/mitigation measures are most prevalent?  And are changes occurring?
  • Are there differences in protective/mitigation approaches among different FWS field offices?

That's just a beginning; I think there are many more possibilities.  

- Dave Owen

 

December 15, 2015 | Permalink | Comments (2)

Thursday, December 10, 2015

Hage v. United States Lives on, 24 Years Later

 

Although Cliven Bundy has gained some recent fame for resisting the BLM’s efforts to bring him into compliance with his federal grazing permits, he was a flash in the pan compared to the Hage family, whose 24-year litigation siege continues to stymie the Department of Justice.     Although it is barely possible to put this 24-year history in a nutshell version, the essence of it is E. Wayne Hage and his children’s belief that Interior’s partial cancellation, and eventual revocation, of their grazing permits in the early 1990s violated their constitutional and statutory rights.  Several of these cases have been resolved, but two live on… and on, and on:  Hage v. United States (U.S. Court of Federal Claims) and United States v. Estate of E. Wayne Hage (9th Cir.).

In the former case, the Hages alleged that the Forest Service’s partial cancellations of E. Wayne Hage’s grazing permits in 1991 effected a taking of their fee simple rights in several ditches and water rights located on the Forest Service grazing allotments historically used by their ranch.  E. Wayne and Jean Hage bought the Pine Creek Ranch in 1978, which consists of 7,000 acres of private land, serving as base property for 752,000 acres of grazing allotments located nearby.  The Hages first started grazing these six allotments (managed by BLM and the Forest Service) pursuant to federal permits in 1978.  In the early years, the Hages and the agencies had an uneventful relationship.  In the late 1980s, however, the Hages started to resist Forest Service management actions that they deemed to be in conflict with their “rights” to graze the allotments at levels they, rather than the Forest Service, deemed appropriate.   This resulted in the Forest Service enforcing permit violations by lowering authorized stocking levels on two of the allotments in 1990 – one by 25% for repeated violations of prior permit terms, and one by 38% for trespass. Forest Service later impounded Hages’ cattle after they refused to remove enough to comply with the reductions.

Things heated up in 1991, when E. Wayne Hage and a friend were criminally convicted of removing trees on one allotment, which conviction was later overturned by the Ninth Circuit. That same year, the Hages filed the predecessor action to Hage v. United States, alleging physical and regulatory takings of their ranch, cattle, “forage rights”, water rights, and ditch rights.  In addition, they argued that grazing permits were bilateral contracts, and reduction or cancellation of the permits constituted an enforceable breach.  In a series of decisions (8 in total), the Court of Claims repeatedly held that cancellation or reduction of the permitted stocking levels did not constitute takings, but struggled with the factual issues related to the water rights, finally holding that the Forest Service’s denial of the Hages’ requests for access to their ditches and water rights constituted a taking.  In 2010, the district court awarded Wayne N. Hage (now pursuing the family litigation after his father had passed away in 1996) and the Hage Estate approximately $14,000 in damages.  The federal defendants appealed, and Hage cross-appealed.  Over the ensuing five years, the case again bounced back and forth from the district court to the Court of Claims, with the federal defendants seeking reversal of the takings ruling and Hage seeking to reopen the merits of “unresolved liability theories” yet to be tested. The Court of Claims eventually reversed the district court on the takings and damage assessment in 2012.  Yet, Hage filed a motion to reopen the case, and so it continues…Currently, the parties are battling over whether the case is closed, with Hage arguing that he did not receive notice of his right to appeal the last district court ruling.  On December 2, the court agreed, granting Hage leave to file an appeal to the Federal Circuit, which will hear the case in 2016.   

The Ninth Circuit appeal arises out of a trespass enforcement action by the Department of Interior, which Wayne N. Hage defended using a theory of vested grazing rights predating the passage of the Taylor Grazing Act in 1934.  Essentially, he argued that the Pine Creek Ranch had acquired grazing rights under territorial law and the Treaty of Ruby Valley.  The federal district court ruled against Hage on those arguments, but, in a novel interpretation of federal grazing laws, held that a) there is a property right for the purposes of the Due Process Clause (both “substantive and procedural”) in a grazing permit and b) that the federal government may not deprive a permittee of a grazing permit without observing “certain procedural safeguards.”  In addition, the court held, there are certain circumstances in which the federal government may not take “adverse action” against a permittee, regardless of the procedure. 

The facts in this case centered around Hage’s application for a new grazing permit in 1993, after the criminal case and the takings case had been filed.  Despite this tension, the BLM was willing to allow Hage to renew his BLM permits.  Hage filled out the permit application form, but next to his signature, wrote “without prejudice-UCC 1-207.”   The BLM denied the permit because of the UCC language, uncertain that Hage was fully accepting the terms and conditions of the proffered permits.  Despite the fact that he lacked permits, Hage continued to graze the BLM allotments, resulting in the trespass violations which eventually gave rise to the enforcement action. 

Ultimately, at the conclusion of a 103-page decision that essentially rewrote federal grazing law, Judge Jones held that the federal government had violated Hage’s due process rights “through a series of actions designed to strip the Estate of its grazing permits… for reasons unrelated to the appropriate use of the range or ensuring that historical grazing use is respected.”  United States v. Estate of Hage, No. 2:07-CV-01154-RCJ, p. 41 (D. Nev. May 24, 2013).  Apparently, the court viewed the federal actions (such as failing to issue the BLM permits because of the UCC annotation, and failing to entertain any further grazing applications after the trespasses occurred) as a sort of conspiracy designed to deprive Hage of his “rights” to graze, going so far as to say that the federal actions “shock[ed] the conscience of the court.”  Id. at 42.  Furthermore, the court recognized a “forage right” to graze within one-half mile on either side of a vested water or ditch right, granting Hage a one-mile easement alongside each of his ditches and around each of his springs and wells, for his cattle to drink and “wander,” without a federal grazing permit.

These rulings were remarkable for several reasons, primarily because federal courts have refused to recognize any property right in a grazing preference, a grazing permit, or any associated aspect of public lands grazing, for over one hundred years.  The United States Supreme Court has issued no less than five opinions declining to recognize property rights in permits, preferences, or in the public lands grazed pursuant to federal permits.  Moreover, this decision reverses the statutory presumptions, in the Taylor Grazing Act, National Forest Management Act, Multiple-Use and Sustained Yield Act, and the Federal Lands Policy and Management Act, and recognized by the federal courts in every circuit, that the Forest Service and the BLM possess the right to modify, cancel, or decline to renew grazing permits for a broad variety of reasons – not just related to the permittee’s behavior (although violations of permit conditions certainly constitute grounds for suspension, cancellation, or modification of a permit’s terms), but in light of other management concerns, such as a modification to the management plan, or because of drought, competing uses, or other reasons. This decision flips that model on its head – declaring that the agency has the burden to prove that the permit should be modified, cancelled, or suspended, and once it has satisfied that burden, changes may only be made for reasons related to the permittee and his “historical use” of the allotments.  Finally, this decision deviates markedly from the line of federal cases recognizing the Forest Service and BLM’s statutory authority to impose reasonable conditions on access to private inholdings – in this case water and ditch rights.  Every other court that has considered this issue has ruled that the federal agencies can restrict, bar, or otherwise condition a right of access based on the private inholder’s past conduct, or for reasons unrelated to that inholding (depending on the protected status of the surrounding federal land).  This decision intimates that anyone possessing a private inholding has an absolute right to access an inheld water or ditch right, which cannot be regulated by the federal agency, and expands that right to include the one-half mile “buffer zone” on all sides.

The Department of Interior has appealed this decision to the Ninth Circuit, which hears oral argument from the parties today.  A decision is expected on this appeal in 2016 as well.

 - Hillary Hoffmann

Guest blogger Hillary Hoffmann teaches grazing law, among other subjects, at Vermont Law School.

December 10, 2015 | Permalink | Comments (1)

Monday, November 30, 2015

The Fisheries Outlier? A Research Paper Idea

FishermanIn environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990.  In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law.  Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

Dave Owen

image from http://www.nmfs.noaa.gov/sfa/magact/

November 30, 2015 | Permalink | Comments (0)

Friday, November 20, 2015

Arizona State University is Sustaining its Sustainability Law Conference...

... and it wants you to come.  I've heard good things about last year's conference, and the financial deal--lodging, meals, and up to $500 paid for travel--will make your dean happy.  The organizers are looking for both individual and panel proposals, and the portal for submitting proposals is here.

ASU is also soliciting submissions for its Morrison Prize, which goes to the most influential piece of sustainability-related scholarship from the previous year.  The winner gets $10,000 and will be the keynote speaker at the sustainability conference.  You can find more details here, and move quickly; the deadline for submissions is Monday, November 30.

November 20, 2015 | Permalink | Comments (0)

Tuesday, November 10, 2015

A Law Review Submissions Idea

The law review submissions process is a perennial gripe for professors and students alike (for some recent discussion, see this thread from Prawfsblawg).  But I wonder if a relatively simple reform might make it better.

Imagine if every law professor were limited, somehow, to fifteen submissions per article.  What might the consequences be?  I can imagine a few positive and some negative.  And while it’s difficult to predict all the ripple effects, I suspect the positive effects would outweigh the negatives.

The main positive benefits would flow from articles editors having fewer articles to read.  Right now, many authors blanket the field with submissions.  There are few reasons not to; Expresso and Scholastica make it so easy.  But that means many journals are inundated with submissions and have no choice but to triage their workloads.  So they do, and in ways that aren’t fair to professors or good for quality scholarship: using letterhead and past publication records as proxies for quality, for example, and making snap judgments based on tiny portions of articles.  The process has costs for students, too.  I suspect most articles editors would prefer to read a little bit less and a little more deeply.  This system might allow them to do that.  And, of course, it might reduce the number of articles that student editors do read carefully, make considered judgments upon, and offer to publish, only to see their offer used as leverage for another placement.

A secondary positive benefit might be increased alignment between the interests of student editors and the articles they receive.  This could happen in multiple ways.  First, imagine that the 2017-18 board of the Hastings Law Journal is particularly interested in environmental law.  It could advertise that interest, and professors would be particularly likely to prioritize Hastings for their environmental law submissions.  Students then might get more articles in subject areas that interest them—and subject areas in which they are more comfortable evaluating quality.  The same benefit ought to accrue to specialty journals.  Professors would probably make more effort to target journals that seem like natural fits for their articles, and specialty journals obviously would fit that description.  And again, I think that would benefit both students and the academy, for it would ensure that a greater proportion of articles is selected and edited by students with heightened expertise in the areas those articles cover.

There are also some obvious potential negative effects.  Submission limits might reify the soft caste system that currently plagues the submission process; they would probably make it harder for an underdog, unknown author to use expedites to climb the ladder (though they might also make her less dependent on expedites to get an initial read at a top journal).  And there’s also the problem of the author who writes something pretty good but just miscalculates when selecting journals to target.  Missing out on publication seems like a harsh penalty for what might be a completely understandable mistake. 

And then, of course, there’s the enforcement problem.  Putting this system in place would be a bit like, say, trying to limit the ability of federal judges to make hiring decisions before a certain date.  The incentive to cheat would be huge, and penalizing cheating would be rather difficult (who would the enforcers be?).  And that assumes that everyone would agree to this system in the first place.  Even if most journals are interested, the holdout and coordination problems are daunting.  But perhaps, if the basic idea is sound, those obstacles might be surmountable—and if the basic idea isn’t sound, those obstacles are moot.  So I’m curious what readers think.  Is there any potential benefit here?

- Dave Owen

November 10, 2015 | Permalink | Comments (1)

Tuesday, November 3, 2015

The Unravelling Ideology of Environmental Trading Systems

This morning, the Obama Administration released a memorandum on compensatory mitigation.  The memorandum does several key things.  First, it makes the avoid-minimize-compensate hierarchy, long a cornerstone of Clean Water Act section 404 implementation, into a guiding principle across much of federal environmental governance.  Second, it strengthens the federal commitment to use, and support, compensatory mitigation, including private sector initiatives.  And third, it directs agencies to link compensatory mitigation to landscape-scale planning efforts.  None of these ideas is new—in specific realms like renewable energy siting, federal agencies were already trying to do these sorts of things—but the memorandum tries to turn individual efforts into consistent and cohesive policy.

All of that is important, but this post is going to wallow in academic geekiness and address another interesting aspect of the memorandum.  The memorandum takes another small step in a long process through which environmental trading has lost its ideological overtones.  And that loss may have some interesting implications for the future of environmental law.

Thirty years ago, writing about environmental trading systems was rife with ideology.  According to many of their legal-academic proponents, these trading systems were not just more efficient ways to govern.  They also offered the prospect of removing decision-making from the sclerotic, domineering central government and transferring it to private decision-makers.  In other words, they offered a possible escape from a New-Deal, expert-centered, centralized mode of decision-making that many thinkers on the right, and even in the political center, had come to disdain.  The frequent use of the adjective “market-based” to describe these regulatory systems—often in contrast to the pejorative phrase “command and control”—reflected those overtones.  Environmental trading was not just about efficiency.  It was about reconciling environmental protection with a libertarian conception of freedom.  Or, at least, that was the expectation and the hope.

Fast-forward thirty years, and some things haven’t changed.  This new memorandum still reflects widely-shared hopes that environmental trading systems can lead to economically and environmentally preferable outcomes.  But the libertarian overtones are gone, as is the bashing of government.  Instead, the new memorandum envisions a major role for government: it will provide lots of guidance on trading systems, and it will engage in elaborate planning exercises that set the ground rules for trading before it begins to occur.  Environmental trading, in other words, will be highly technocratic, and the New Deal-style expert will still be there, pulling the strings behind the whole enterprise.  That expectation is hardly unique to the vision of this one particular memorandum.  Indeed, it really just reflects reality.  From carbon trading to fisheries management, we have learned that for environmental trading systems to work—and, sometimes, they do—sophisticated government actors will have to be centrally involved in their design and ongoing management.

But even if the environmental trading systems envisioned by this memorandum bear little resemblance to the libertarian-tinged fantasies of their early legal-academic proponents, they also don’t represent a pure resurgence of New Deal-style regulation.  During the New Deal, the Civilian Conservation Corps did much of the actual work of landscape restoration; the men that actually dug the dirt worked on government paychecks.  That isn’t the current vision.  Instead, the memorandum directs government agencies to facilitate the involvement of mitigation banks, which are private, and often for-profit, enterprises.  So while the New Deal expert may be back (if indeed he ever left), he or she is now embroiled in a rather modern-sounding public-private partnership.

So why might this all matter (or, more specifically, why might it matter to someone who doesn’t care so much about theories of regulation)?  This is where things get quite speculative, but this is just a blog post, so here goes.  The right ideology affinities do allow legislation to get passed, and administrative policy to get implemented, just a little more easily.  And if that’s so, the loss of environmental trading systems’ semi-libertarian halo may be an unfortunate development, at least in this age of semi-libertarian political ascendancy.  That halo never had much intellectual justification; it didn’t really describe how trading systems actually worked.  But to the extent it got politicians to think, inaccurately, that environmental trading was about freedom and limited government, it might have made a few forms of environmental protection just a little bit easier to accomplish. 

Now the bloom has mostly fallen off that rose.  Sometimes I wish we had it back. 

- Dave Owen

November 3, 2015 | Permalink | Comments (1)

Monday, November 2, 2015

U.S. News Oops

Can you spot the problem?

Us news survey

I wonder what this does to the validity of the survey results.

-Dave Owen

November 2, 2015 | Permalink | Comments (0)

Monday, October 19, 2015

Sports Gambling, the "Throw Away Culture," and the Environment - the Common Denominator

CW-Ad2

Scott Van Pelt, a popular media figure at ESPN, recently criticized the growth of daily fantasy football sites like FanDuel and DraftKings, citing their exploitative nature and capitalizing on human greed. I'm fairly against the grain when it comes to the issue of gambling, and definitely believe it plays into the baser instincts of human nature. I apply that sentiment to all forms of gambling, from sports betting, to casinos, state lotteries, and other forms. While it undoubtedly makes some people very wealthy, and particularly the entrepreneurs engaged in the business side of gambling, it's exploitative nature makes the poor poorer, even if there are those who can engage in it responsibly just for fun (if increasing the likelihood of losing money that you already have in hand is your idea of fun).

It strikes me, however, that pretty much any business enterprise is on a spectrum that spans human need on one end and human greed on the other. The difficulty is when the line is crossed between need and greed. Want is somewhere in the middle of the spectrum, of course, and one certainly can want and obtain things that they may not technically need without being motivated by greed. Nonetheless, querying why we might publicly criticize on national TV something like sports gambling on the one hand, but not "greedy" consumption patterns on the other is curious to me.

I am not a business expert by any means, but I do have a basic understanding of the many different ways that one can run a business enterprise. Some companies no doubt seek to make high-quality products that will last a long time without needing replacement. Other companies have incorporated sustainability into their business models, because they recognize the impacts of consumption on the environment and believe it is good business--especially if they want to be in business for the long term--to reduce the negative impacts of consumption. Many business models, however, are aimed at feeding a continual stream of consumption, purposefully encouraging the replacement of the products that we have. Consider the giggles one gets walking into the AT&T store with an iPhone 4, when the current model is the iPhone 6S. This happened to my wife just the other day. "Get a new phone every year" is the new plan that is going around now. A lot of energy and other resources go into the production of billions of cell phones, not to mention byproducts resulting from the process, such as chemicals and other components entering the general waste stream. But the need, here most likely greed, to get the newest and best thing is almost part of the fabric of American culture. This recognition is nothing new--consider the well-worn quote from economist Victor Lebow's 1955 article in the Journal of Retailing:

"Our enormously productive economy demands that we make consumption our way of life, that we convert the buying and use of goods into rituals, that we seek our spiritual satisfaction and our ego satisfaction in consumption. We need things consumed, burned up, worn out, replaced and discarded at an ever-increasing rate."

A major irony of Pope Francis's recent visit (as pointed out by Stephen Colbert), is that his criticism of our "throw away culture" was met with an amazing amount of American "entrepreneurship"--Pope Francis merchandise was everywhere during the visit, in the form of Pope medallions, pullovers, coffee mugs, Pope Francis cologne (you read that right), hats, life-size cardboard cutouts, and even gold rimmed porcelain plates inscribed with a tweet from Pope Francis.

Of course we waste copious amounts of food, which is a basic necessity, to the tune of $162 billion annually. But we also commoditize water from melting polar ice caps; increasingly consume meat, and particularly beef, that threatens the global climate and is accelerating biodiversity loss; and witness hermit crabs, at risk of losing their shells from ocean acidification, make new homes in tootpaste caps, while 90% of seabirds have plastic in their guts as a result of our plastic throwaway culture. As Jason Clay has pointed out, the world is currently consuming 1 1/3 earths worth of resources annually, and one American consumes as much as 43 Africans. Clay also projects that even as populations continue to climb, increased consumption patterns will require that we triple the provision of goods and services over the next 50 years--which will be impossible to do without wrecking the planet unless society makes a dramatic shift toward sustainability. Consider these images, visually demonstrating the consumptive nature of our culture, part out of basic need and part out of greed.

In the end, we all want things cheap, new, and often. Sometimes greed is the motivator, sometimes it is genuine need. But while I believe high profile analysts are right to point out the greed that drives sports gambling and threatens the integrity of sport, we would do well to place more pressure on harmful, greed-driven consumption patterns that continue to threaten the environment we depend upon for basic needs. Unless we do so, we are taking the riskiest gamble of all.

- Blake Hudson

October 19, 2015 | Permalink | Comments (0)

Friday, October 9, 2015

More Irony, More Complexity in Sixth Circuit Clean Water Rule Decision

Dave’s post about the Sixth Circuit’s decision today placing a temporary stay on the Clean Water Rule aptly notes irony and complexity in the court’s ruling:  the elements of the Rule with which the court finds potential fault may actually benefit the petitioners’ anti-regulatory objectives.  Another irony, and layer of complexity, is that the petitioners obtained the stay from a court that they believe lacks jurisdiction to hear the case. 

The Sixth Circuit decision arises in the context of a petition for review brought by eighteen states directly in courts of appeals pursuant to Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1).  That provision provides for challenges to certain agency actions under the Clean Water Act to be brought directly in courts of appeals as petitions for review rather than in federal district courts. 

The petitioners, who oppose the Clean Water Rule, would rather their challenge not fall under § 509(b)(1).  This is because agency actions that fall under § 509(b)(1) can be challenged only by a petition for review and not in any subsequent proceeding.  Thus, if the Rule falls under § 509(b)(1), a defendant to an EPA enforcement action could not invoke, as a defense, that the Rule is impermissibly broad and the Act therefore does not apply.

Why did the petitioning states file a petition for review under § 509(b)(1) if they don’t believe it applies—or at least don’t want it to apply?  The petitioning states filed both complaints in district courts and petitions for review in courts of appeals.  They filed their petitions protectively, merely to protect against the possibility that their district court challenges will be dismissed for lack of jurisdiction on the ground that they must be brought instead as petitions for review under § 509(b)(1).  [Two district courts have held that challenges to the Rule must be brought under § 509(b)(1), and one has held that they can be brought in district court.]  Thus, the petitioners have moved to dismiss their own petitions for lack of jurisdiction, hoping that the Sixth Circuit will hold that challenges to the Clean Water Rule should be brought as suits in district court. 

If the Sixth Circuit agrees with the petitioners on the jurisdictional question, it will have to dismiss the petitions for review, which will dissolve the stay as well.  In granting the stay, the Sixth Circuit noted that it will decide the threshold jurisdictional question “in a matter of weeks.”  Thus, if the petitioners are correct that the Sixth Circuit lacks jurisdiction, their stay from the Sixth Circuit may be very short-lived.  Of course, if the petitioners win on the merits, then they will have defeated the Rule and won’t be sorry that they had to proceed under § 509(b)(1).  What the petitioners do not want—and what still may happen—is for the Sixth Circuit to hold that § 509(b)(1) applies and then to uphold the Rule on the merits.

−Todd Aagaard

October 9, 2015 | Permalink

The Irony of the Sixth Circuit's Clean Water Rule Stay

This morning, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon which no one would have thought to comment.

According to the plaintiffs—and, now, the Sixth Circuit—EPA and the Army Corps violated that principle when they included distance-based jurisdictional criteria in the final rule.  Under the new regulations, wetlands that are more than 4,000 feet from a categorically jurisdictional water feature are categorically non-jurisdictional.  Under the proposed rule, those wetlands would have been subject to case-by-case jurisdictional determinations.  The final rule also includes specific numeric distance limitations on the definition of “adjacent” waters, which also are categorically jurisdictional.  These distance limitations, the court concluded, were not logical outgrowths of the proposed rule, and it therefore stayed implementation of the rule in its entirety.

The irony here is that, in the long term, the states may have shot themselves in the foot.  Or, at best, they’ve just achieved a little bit of largely inconsequential delay.  The state plaintiffs brought their claims for fundamentally anti-regulatory reasons: they wanted less federal jurisdiction, and they wanted more predictable limits upon that jurisdiction.  And the numeric distance limitations did just what the states wanted (though not as much as they wanted): they established boundaries on federal jurisdiction, and they did so on the basis of distance, which is typically more transparent and predictable than a complex science-based determination about hydrologic and ecological connectivity. 

Indeed, that move from science-based, site specific analysis to more blunt and categorical exclusions is precisely why environmental groups are upset about the distance limitations.  Those groups generally favor the new rule, but they have brought suits specifically focused on the very distance limitations that gave the states their “victory” today.  And if the ultimate result of this victory is that the distance limitations come out of the rule, the states will have succeeded in making the rule—from their anti-regulatory perspective—worse than it is at present.  The environmental groups, meanwhile, may just have achieved a key step toward excising the part of the rule that they particularly dislike.

Of course, all of this may turn out to be a tempest in a teapot.  As I’ve argued previously (and as EPA itself has repeatedly pointed out), the new rules don’t mark much of departure from previous practices.  In the field, this court decision won’t change much.  And the decision itself may not last.  As dissenting Judge Keith pointed out, the Sixth Circuit still has to decide whether it actually has jurisdiction to issue this stay.  If it finds that it lacked jurisdiction, the matter will revert to the district courts.  And if the issue does remain with the Sixth Circuit, this is just a preliminary stay.  I think there is some credible basis for these logical outgrowth arguments, but there also are some very credible responses.  With another round of briefing and argument, and a bit more time to think, the Sixth Circuit could come to a different outcome—which, then, may well be reviewed by the United States Supreme Court.

So stay tuned, and remember that in this dispute, things are not always as they seem.

-Dave Owen

October 9, 2015 | Permalink | Comments (0)

Wednesday, October 7, 2015

Idaho Law Review Call for Papers - Hydropower and the Energy of the Future: Is there a Place for Dams?

CALL FOR PAPERS

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 HYDROPOWER AND THE ENERGY OF THE FUTURE: IS THERE A PLACE FOR DAMS?

The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.

The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.

For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at: john0504@vandals.uidaho.edu, or Professor Jerrold Long at jlong@uidaho.edu. Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at http://www.uidaho.edu/law/law-review/articles.

October 7, 2015 | Permalink

Monday, October 5, 2015

An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law

On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands.  In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being.  The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people.  Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . .  values” on public lands.  This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research. 

The fracturing rules that the BLM finalized in March 2015 are primarily informational.  (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.)  They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices.   The rules also require operators, after conducting a fracturing operation, to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information.  Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status.  Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing.   Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions.  This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.

In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation.  Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example.  For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate.  Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state.  For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands.   These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.

The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes.  It also has broader implications for environmental and land use law.  In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA).  And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow.   This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act.  Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act.  Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution. 

The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws.  For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands?  It would, it seems, following the court’s logic.   Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.  

Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law

October 5, 2015 | Permalink | Comments (0)

Environmental Law, Environmental Politics, and Safety Valves

EPA decided on Thursday to issue a new national ambient air quality standard (NAAQS) for ozone.  EPA’s final rule sets the ozone NAAQS at 70 parts per billion (ppb), 5 ppb more stringent than the previous standard of 75 ppb, but at the upper (more lenient) end of the range of 60-70 ppb that was recommended by the agency’s Clean Air Science Advisory Committee.  The final rule is widely perceived as a compromise between public health objectives and concerns over the economic impacts of a more stringent ozone standard.  Under the Clean Air Act, however, it is well established that EPA’s judgment in choosing a NAAQS standard is supposed to be guided entirely by science, not economic costs.  See Whitman v. American Trucking Assns., 531 U.S. 457 (2001).

Environmental and public health advocacy organizations are criticizing the new standard as inadequately protective and scientifically indefensible.  One can indeed fault the Obama Administration for playing politics by compromising the Clean Air Act’s public health objectives, as it also did in 2011 when it rejected EPA’s attempt to promulgate a more stringent ozone standard.  But environmental politics are of course vitally important to obtaining results.  The new compromise ozone standard will make it more difficult for industry to lobby Congress to enact legislation overriding EPA’s standard than it would have been if the standard were more aggressive.  The political risk, not just to the Obama Administration generally but to the ozone standard specifically, of a more stringent standard would have been considerable.  The Administration’s compromise, by virtue of its political resilience, thus might actually result in cleaner air than a more aggressive but more politically susceptible standard.  The Administration’s compromise also undermines a broader caricature of EPA as a blindered agency unattentive to the economic consequences of its policies—a narrative that is both dangerous and untrue.  In this way, the Administration’s discretionary judgment to choose a new ozone NAAQS at the more lenient end of the scientifically defensible range of options acts as a potentially beneficial safety valve, mitigating the political firestorm that might have resulted from a more aggressive new rule.

The role of political safety valves in environmental law and politics has received some attention from environmental law scholars, but could use more.  In a recently posted draft paper on SSRN, Nathan Richardson (South Carolina) argues that the major questions doctrine, which allows courts to avoid giving deference to agency interpretations of statutes where the issue implicates particularly weighty policy questions, can serve as a beneficial safety valve that may reduce courts’ urge to jettison deference to agency interpretations altogether.  Like the new ozone rule, the major questions doctrine has elicited concern about whether it will undermine environmental policy—for example, by making it easier for courts to invalidate EPA’s new Clean Power Plan.  Richardson’s paper, however, argues that in the long run, the doctrine may help preserve agency deference.

Similar controversies have long plagued federal lands disputes, where Congress has sometimes enacted appropriations riders that create isolated exceptions to federal environmental requirements, such as a provision in a 1995 appropriations bill that streamlined environmental planning for certain timber projects on public lands.  Richard Lazarus, among others, has criticized such appropriations riders as “nondeliberative,  back-door, private deal-making.”  This characterization may be accurate, and the appropriations process clearly is not an ideal forum for deliberative democracy, but the safety valve that it offers may have some important pragmatic benefits that should be considered.

My point is not that political compromise is always justified.  But a political compromise may sometimes be justified at least partly on the basis of its safety valve benefits.  Whether a particular political compromise is justified because of its safety valve benefits will depend on weighing the various possible outcomes, and reasonable and informed minds will likely differ in making that assessment.

—Todd Aagaard

October 5, 2015 | Permalink

Friday, September 25, 2015

Seventh Circuit Holds that 1920 Agreement Bars CERCLA Contribution Claim Arising Out of Coke Plant

On September 21, the Seventh Circuit (Bauer, Kanne, Williams) issued a decision in Peoples Gas Light and Coke Co. v. Beazer East, Inc.  This case involves liability under CERCLA for response costs associated with the Crawford Station site, the location of a former coke plant in Chicago.  Both Peoples Gas Light and Coke Co. and Koppers, Beazer East’s predecessor, were involved with the construction and operation of the coke plant in the 1920s.  When decades later Peoples incurred liability and response costs in connection with the Crawford Station site, Peoples sued Beazer East under CERCLA for cost recovery and contribution.  The district court dismissed the cost recovery claim because Peoples had resolved its liability to the United States via an administrative settlement and dismissed the contribution claim because it was time barred and barred by a 1920 agreement between Peoples and Koppers.  Peoples appealed the dismissal of its contribution claim.

The Seventh Circuit affirmed.  The 1920 agreement between People and Koppers absolved Koppers of “liability of any character . . . except as expressly assumed under the terms of this contract.”  According to the court, reading this provision to bar Peoples’ contribution claim was consistent with the overall agreement, which limited Koppers’ role in the coke plant to financing and operating the plant for a limited time until it had been repaid.  In addition, the provision was general enough to cover CERCLA liability.  Because the court concluded that the 1920 agreement barred the contribution claim, it did not reach the question whether some aspects of the claim were time barred.

—Todd Aagaard

September 25, 2015 | Permalink

Thursday, September 17, 2015

Ninth Circuit Upholds Groundwater Pump Test in Nevada against ESA Challenge

On September 17, the Ninth Circuit (Schroeder, Callahan, Pratt (by designation)) issued a decision in Center for Biological Diversity v. Fish and Wildlife Service.  In 2002, the Nevada state engineer ordered water rights holders in the Coyote Spring Valley of Nevada to conduct a study of the effects of groundwater pumping in the area.  The Fish and Wildlife Service (FWS) was concerned about the potential effects of the pump test on the Moapa dace, a small endangered fish in the minnow family.  FWS entered into a memorandum of agreement with the other rights holders to take certain conservation measures to protect the Moapa dace from the potential impacts of the pump test.  Pursuant to its obligations under the Endangered Species Act, FWS issued a Biological Opinion analyzing the pump test’s impacts on the Moapa dace and concluding that the test would not be likely to jeopardize the continued existence of the Moapa dace.  The Coalition for Biological Diversity sued to challenge the adequacy of the Biological Opinion.  The district court granted summary judgment for FWS.

The Ninth Circuit affirmed.  First, the court held that CBD had standing to bring its suit, because setting aside FWS’s Biological Opinion could result in stronger conservation measures.  Second, the conservation measures identified in the Memorandum of Agreement qualify as enforceable under the ESA.  Because the Agreement—not the underlying groundwater pumping—was the federal action triggering the ESA, it was not necessary for the conservation measures to be enforceable against the private parties engaged in the pumping.  Third, the fact that the terms of the Agreement were negotiated does not support a conclusion that the Biological Opinion’s analysis of the Agreement was not supported by the best available science.  Fourth, the record supported the Biological Opinion’s conclusion that the Agreement’s conservation measures will adequately protect the Moapa dace.

—Todd Aagaard

September 17, 2015 | Permalink

Tuesday, September 15, 2015

Ninth Circuit Upholds Bureau of Indian Affairs’ Approval of Coquille Forest Timber Project

On June 12, the Ninth Circuit (Fisher, Bea, Murguia) issued a decision in Cascadia Wildlands v. Bureau of Indian Affairs.  Under the Coquille Restoration Act, 25 U.S.C. § 715c, the federal government holds and managed the lands of the Coquille Forest along the southwest Oregon coast in trust for the benefit of the Coquille Indian Tribe.  The Bureau of Indian Affairs (BIA) approved the Alder/Rasler timber project in 2011 and the Kokwel timber project in 2013 on adjacent and overlapping lands within the Coquille Forest.

Three environmental groups—Cascadia Wildlands, Oregon Wild, and Umpqua Watersheds—sued the BIA, alleging that the BIA’s approval of the Kokwel project violated the National Environmental Policy Act (NEPA) because it did not adequately consider the project’s cumulative environmental impact in light of the Alder/Rasler project and violated the Coquille Restoration Act because the project is inconsistent with the U.S. Fish and Wildlife Service's (FWS) Recovery Plan for the northern spotted owl.  The district court granted summary judgment for the BIA.

The Ninth Circuit affirmed.  With respect to the NEPA claim, the court held that the BIA permissibly considered the impacts of the Alder/Rasler project, which had been approved but not completed, as part of the baseline for the Kokwel project.  Moreover, the BIA allowably aggregated the impacts of the Alder/Rasler project along with other previously approved projects in the area.  With respect to the Coquille Restoration Act claim, the court held that the Act, which requires the BIA to manage the Coquille Forest consistently with federal “standards and guidelines,” does not require the BIA to comply with Fish and Wildlife recovery plans for endangered species such as the northern spotted owl.  Rather, the court interpreted “standards and guidelines” to refer to standards and guidelines in applicable federal forest plans, such as the Northwest Forest Plan.  Although the Coos Bay District Resource Management Plan specified consistency with recovery plans as an “objective,” the court declined to hold that the Act’s reference to “standards and guidelines” included the Coos Bay Plan’s “objective.”

—Todd Aagaard

September 15, 2015 | Permalink

Friday, September 11, 2015

Fifth Circuit Reverses Clean Air Act and MBTA Convictions

On September 4, a Fifth Circuit panel (Davis, Jones, Clement) issued a decision reversing the convictions in a Clean Air Act and Migratory Bird Treaty Act (MBTA) prosecution against CITGO. A March 2002 inspection of a CITGO refinery in Corpus Christi, Texas, found 130,000 barrels of oil floating in uncovered equalization tanks.  Equalization tanks are used to store wastewater temporarily so as to equalize the flow of wastewater to secondary treatment systems.  Under Clean Air Act regulations, if the tanks were oil-water separators, CITGO had to cover them to limit emissions of volatile organic compounds.  Following a trial, CITGO was convicted of two counts of violating the Clean Air Act and three counts of taking migratory birds in violation of the MBTA.

The Fifth Circuit reversed.  With respect to the Clean Air Act counts, the court of appeals held that the district court erred by instructing the jury to find that Clean Air Act regulations for oil-water separators applied if CITGO was using its tanks as oil-water separators.  The court instead interpreted the regulations to define an oil-water separator based on how the equipment is used and on its constituent parts.  Thus, even though CITGO was using the equalization tanks to separate oil from water, the tanks were not necessarily subject to regulation as an oil-water separator.  With respect to the MBTA convictions, the court of appeals—siding with the Eighth and Ninth Circuits and against the Second and Tenth Circuits—held that the MBTA’s prohibition against “taking” migratory birds “is limited to deliberate acts done directly and intentionally to migratory birds.”  The court reasoned that Congress intended to retain a narrow common law definition of “take,” as opposed to more expansive meaning in the Endangered Species Act.

—Todd Aagaard

September 11, 2015 | Permalink

Friday, August 28, 2015

Eighth Circuit Affirms $2.2 Million Judgment for Clean Water Act Violations at Nebraska Rendering Plant

On August 27, the Eighth Circuit (Wollman, Smith, Benton) issued a decision in United States v. STABL, Inc.  STABL owned and operated a rendering plant that discharged wastewater to the Lexington, Nebraska, wastewater treatment plant.  STABL’s discharge monitoring reports indicated that the plant repeatedly discharged excessive amounts of pollutants in violation of its pretreatment permit.  The United States and the State of Nebraska brought an enforcement action against STABL alleging violations of the federal Clean Water Act and the Nebraska Environmental Protection Act, respectively.  The district court granted partial summary judgment on liability for the government and imposed a $2.3 million civil penalty.  STABL appealed.

The Eighth Circuit affirmed.  First, the court held that STABL’s own discharge monitoring reports were admissible evidence of the company’s violations.  A defendant that asserts its own discharge monitoring reports were erroneous bears a heavy burden, which STABL did not meet in this case.  Second, the court held that the district court did not abuse its discretion in admitting the testimony of an EPA compliance officer as lay testimony rather than as expert testimony.  Third, the district court did not abuse its discretion in allowing a government expert to update her expert report to incorporate previously unknown information about the economic benefit STABL received from its violations.  Fourth, the district court properly allowed a government witness to correct his data, especially when the corrections favored STABL.  Fifth, the city’s monitoring records were reliable and admissible evidence of STABL’s violations.  Sixth, any error in denying STABL a jury trial on the number of violations was harmless, because the district court could have granted judgment as a matter of law on that issue.

—Todd Aagaard

August 28, 2015 | Permalink

Thursday, August 27, 2015

Ignored Facts, Distorted Law, and Today's WOTUS Injunction

Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule).  And if ever there was a judicial opinion begging for prompt reversal, this is it.  EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position.  The court pretended—among other errors—that all that effort and evidentiary support simply did not exist.

StreamThe Clean Water Rule determines the scope of federal jurisdiction under the Clean Water Act.  More specifically, it includes within federal jurisdiction any tributary of a navigable-in-fact waterway, and the definition of tributary encompasses any stream—even intermittent or ephemeral ones—so long as that stream has a bed, banks, and an ordinary high water mark.  That part of the rule, Judge Erickson has concluded, is inconsistent with the Clean Water Act and the Supreme Court’s Rapanos decision and is arbitrary and capricious (the court also held that another element of the rule was not a logical outgrowth of the proposed rule).  And that holding, in turn, is premised on all kinds of problematic reasoning.

Ignoring the Facts

One crux of the court’s reasoning was its assertion that the rule lacked any support in the administrative record.  The court left no doubt on this point: it charged that “the agencies’ internal documents reflect the absence of any information about how the EPA obtained its presented results;” that “review of what has been made available reveals a process that is inexplicable, arbitrary, and devoid of a reasoned process;” that “[t]he rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity of any navigable-in-fact water;” and that “[n]o evidence points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”

These statements are just plain false.  In the rule itself, EPA and the Corps explained in great depth, and over and over again, why tributaries, including ephemeral tributaries, have a significant nexus to water quality in traditionally navigable waters.  The rule also cited and summarized a technical support document—which the court purported to have read—that explained the connections in even greater depth.  And the technical support document in turn cited a massive EPA study of the scientific literature on connections between tributaries and other forms of wetlands and water quality in navigable-in-fact waterways.  That study in turn involved a review of about 1,200 scientific studies.  The support documents also were vetted by EPA’s science advisory board—which concluded, in no uncertain terms, that "[t]here is strong scientific evidence to support the EPA’s proposal to include all tributaries within the jurisdiction of the Clean Water Act."

Over the past few months, I have read the rule, the technical support document, the science literature review, and the SAB report, and I have also read many of the studies cited by the science review.  They contain a mountain of evidence that even intermittent streams and what the court described as “remote wetlands” do have a significant nexus to water quality in navigable-in-fact waterways.  Study after study explains how even intermittent streams process nutrients, reducing downstream algae blooms; process carbon, providing the basis for food chains throughout river systems; provide breeding grounds for a wide variety of aquatic species; and provide a host of other water quality benefits throughout river systems.  I honestly cannot imagine how any federal court judge could write that no such evidence informed EPA’s and the Army Corps’ decision.  At best, that assertion is the wishful guess of an ideologue who had not actually read any of the relevant documents.  At worst, it is just a bald-faced lie.

Distorting the Law

The district court’s opinion also displays a fairly flip attitude toward governing law.  That attitude is on display in both the court’s discussion—or lack thereof—of agency deference and in its application of the Rapanos standard itself.

Deference isn’t much in evidence here.  The idea that EPA and the Army Corps were basing the rule on scientific determinations that were within their expertise, and that a court should not lightly second-guess, appears nowhere in the opinion.  Nor does even a mention of Chevron deference, even though the court was reviewing a challenge to two agencies’ interpretation of their governing statutory law.  That is somewhat ironic, for the opinion itself provides rather compelling support for arguments in favor of agency deference.  The level of expertise and effort that went into the rule quite evidently dwarfs the level of expertise and effort that went into the court’s ruling, which barely even appears to have been proof-read.  But that seems not to have troubled the court at all.

On Rapanos, the problems are more subtle but still quite real.  The court relied heavily—almost entirely—on a Rapanos passage in which Justice Kennedy expressed reservations about a jurisdictional rule that would extend to remote tributaries.  The district court quoted Justice Kennedy’s words accurately, and they do express some concern about broad assertions of jurisdiction.  But that was just two sentences in a long opinion.  Elsewhere in his opinion, Justice Kennedy disagreed at length with the Rapanos plurality’s argument that intermittent waterways should be categorically non-jurisdictional.  And his opinion also evinces a clear expectation that jurisdiction would extend to waterways that have, individually or collectively, a significant nexus to water quality in navigable-in-fact waters, and that significant nexus determinations would be heavily informed by science.  EPA and the Army Corps now have made that significant nexus determination, and it is overwhelming supported by scientific research.  Yet that part of Justice Kennedy’s opinion also is largely absent from Judge Erickson’s reasoning.  As a consequence, Justice Kennedy’s vaguely-implied preference for narrow jurisdiction seems to have trumped the legal rule he actually articulated.

Other Problems

The opinion isn’t long, but it still gives rise to many other critiques.  The court’s persistent references to “EPA regulation” and "EPA’s position" clearly echo the talking points of conservative critics of the rule—EPA is a popular villain these days--but they ignore the reality that this rule was the joint work of EPA and the Army Corps.  Its weighing of hardships suggests very little understanding of how the section 404 program actually is implemented, and by whom, and also assigns absolutely no weight to the public interest in environmental protection.  Its “logical outgrowth” argument ignores a key purpose of that doctrine, which is to allow agencies to make some adjustments based on the comments they receive.  But perhaps those are subjects for another post.  The key point is just that this opinion distorts law and wishes away the central facts of the case.  The sooner an appellate court does some real judging, the better.

- Dave Owen

stream image from usfs.gov.

August 27, 2015 | Permalink | Comments (0)

Saturday, August 8, 2015

The Perils of Cleaning up the Environment

Last summer, my family and I went rafting down the Animas River in Durango, Colorado. I took this picture during the trip:

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This is what the Animas River looks like today:

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The orange colored water you see here contains sediment mixed with a soup of heavy metals (including iron, zinc, lead, cadmium, arsenic, and copper). It was released in a mishap at the Gold King Mine, when 1 million gallons of contaminated mine waste was accidentally released into the river. You would be right to conclude that "but for industrial development this accident would not have occurred." Yet that does not tell the entire story. This release into the river was not caused by industry. It was caused by none other than the U.S. Environmental Protection Agency. The EPA was attempting to clean the site through its CERCLA Superfund program, which it has used to target a number of mines in the region. Runoff from these mines has led to the continued degradation of the Animas (which even before the spill had become toxic to fish). The team was using heavy equipment and accidentally breached a berm that was holding the contaminated water inside the mine.

The pollution has caused a great deal of uncertainty along the Animas and downstream in the San Juan River. The river has now been closed to recreational activities and downstream users have been warned to shut off their intake valves. David Ostrander, EPA’s director of emergency preparedness for the region, summed the situation up quite bluntly: "This is a huge tragedy. It’s hard being on the other side of this. We typically respond to emergencies, we don’t cause them." 

The lesson from this tragedy is not that we shouldn't clean up contamination. These incidents are infrequent, especially when compared to the number of successful cleanups that have occurred without incident and have done great good for society. And yet, sometimes the risk of cleanup is greater than the risk of leaving contamination in place. It calls to mind the Rocky Mountain Arsenal, described as an "ironic natural park" because, while it is highly contaminated with everything from nerve gas to nasty pesticides, it is also teeming with wildlife in an ecosystem that has returned to the site in force. I joke in class that if it weren't for the waste (and for being federally owned), the area would likely be cleared so yet another big box retailer and strip mall development could come in and pave the whole area over....so maybe humans are worse for the environment than nerve gas. OK, not really. But in all seriousness, Jim Rasband, Jim Salzman, and Mark Squillace raise the question of what is more "natural" in these situations? To leave the site contaminated and allow the wildlife to remain, or to disturb the ecosystem that has arisen and attempt to clean up the contamination? The answer is not so clear. In the long run cleaning up the Gold King Mine seems worth it. But if the risk of greatly damaging the river ecosystem in the short run is great, what steps should be taken? It is not clear that the risk was great here, as this appears to have been a simple accident, but one can imagine situations where the choice is not apparent. And we make these choices quite frequently in environmental law. CERCLA, for example, weighs factors like exposure pathways, proximity to the public, and degree of toxicity to prioritize whether and when a site should be cleaned up. Sometimes, even if toxicity is high, if the public and natural resources are not near and are not being directly harmed, and if exposure pathways are low, it is best to just let the contamination be for a while.

The Chernobyl nuclear site presents a similar conundrum. Trees in the area are absorbing radioactive contamination, which assists with cleanup and also houses wildlife. But what happens when the forest burns? According to Scientific American,"[i]f these forests burn, strontium 90, cesium 137, plutonium 238 and other radioactive elements would be released." The radioactive smoke would likely have profound health impacts hundreds of miles from the site. So do you allow the ecosystem to "self-repair" or do you cut the forest down and dispose of the trees as hazardous waste?

While some caution must be taken at the stage when we decide whether to remediate a contaminated environment or not, the more important lesson here is that government agencies tasked with cleaning up sites are subject to the same risks of harming the environment as the entities they regulate. The EPA and similar agencies, however, should arguably be held to a higher standard. Indeed, much of the backlash against the government for this incident - rightly or wrongly - revolves around "hypocrisy" and the penalties the government would readily dole out if it was industry that made this mistake. 

The circumstances surrounding this incident have yet to become clear, and people seeking to criticize environmental regulatory agencies should not view it as an opportune time to lambaste them for trying to do their job. Accidents happen. But the incident is a good reminder that sometimes the cure can be worse than the disease, and if the government plans to implement a cure it had better ensure that it is prescribing the right medicine.

- Blake Hudson

August 8, 2015 | Permalink | Comments (4)