Friday, June 12, 2015

Ninth Circuit Upholds Interior Department’s Approval of Shell Oil Spill Response Plans for Alaska Offshore Oil Development

On June 12, the Ninth Circuit (Farris, Nelson (dissenting), Nguyen) issued a decision in Alaska Wilderness League v. Jewell.  In 2012, the Bureau of Safety and Environmental Enforcement within the Department of the Interior approved oil spill response plans for Shell’s efforts to develop offshore oil and gas resources in the Beaufort and Chukchi seas of Alaska.  Several environmental organizations sued to challenge the agency’s decision, the district court granted judgment for the agency, and the environmentalists appealed.

The Ninth Circuit affirmed.  First, the court held that, contrary to the environmentalists’ assertions, Shell’s plans did not assume that cleanup efforts would recover 95% of oil released in a spill.  The court went on to uphold as reasonable the agency’s interpretation of the Oil Pollution Act as requiring the agency, without discretion, to approve any spill response plan that satisfies the Act’s requirements.  Because the agency lacked discretion with respect to spill plan approvals, the decision to approve did not trigger the Endangered Species Act’s consultation requirements or NEPA’s environmental review requirements.

Judge Nelson dissented.  She would hold that the agency retains sufficient discretion in its approval of spill response plans under the Oil Pollution Act such that the agency was required to consult pursuant to the Endangered Species Act and to comply with NEPA.

—Todd Aagaard

June 12, 2015 | Permalink

Wednesday, June 10, 2015

Ninth Circuit Sets Aside EPA Emissions Limits at Two Montana Power Plants

On June 9, the Ninth Circuit (O’Scannlain, Berzon, Tallman) issued a decision in National Parks Conservation Association v. EPA.  In 2012, EPA issued a Federal Implementation Plan (FIP) for control of regional haze in Montana pursuant to Clean Air Act § 169A and 169B, 42 U.S.C. §§ 7491, 7492.  EPA’s FIP included emissions limits for nitrogen oxide and sulfur dioxide at two power plants operated by PPL Montana.  PPL filed a petition for review challenging the emissions limits as too stringent; three environmental organizations (National Parks Conservation Association, Montana Environmental Information Center, and Sierra Club) filed a petition for review challenging the emissions limits as too lax. 

The Ninth Circuit granted the petitions in part, holding that EPA failed to justify its selection of pollution control technologies for the power plants.  In particular, according to the court, EPA did not explain why its selected technologies are cost-effective and other technologies are not.  In addition, the court held that EPA failed to explain how its analysis justifies visibility improvements that are allegedly too small for EPA’s model to predict with confidence.

Judge Berzon concurred, writing separately to highlight her understanding that the panel’s opinion does not impugn EPA’s model (CALPUFF) generally.

—Todd Aagaard

June 10, 2015 | Permalink

Eighth Circuit Affirms Corps of Engineers Decision Revoking Shoreline Permits for Arkansas Lakeside Vacation Home

On June 8, the Eighth Circuit (Murphy, Colloton, Kelly) issued a decision in McClung v. Paul.  John and Kim McClung own a vacation home on Greers Ferry Lake in Arkansas.  The Army Corps of Engineers manages the lake pursuant to the 1944 Flood Control Act.  The McClungs applied to the Corps and received a permit to maintain a boat dock and stone steps on public land between their property and the lake.  Contrary to their permit conditions, the McClungs sprayed herbicide on the shoreline and then removed brush from the sprayed land.  As a sanction, the Corps revoked the McClungs’ permit for the dock and steps. The McClungs sued, challenging the sanctions.  The district court upheld the sanctions, and the Eighth Circuit affirmed.  The court of appeals held (a) that the district court properly refused to supplement the administrative record with additional exhibits proffered by the McClungs; (b) that the sanctions imposed by the Corps were not arbitrary and capricious; and (c) that the Corps’ action could not have deprived the McClungs’ of their constitutional due process rights, because the McClungs had no property right in their shoreline permits. 

—Todd Aagaard

June 10, 2015 | Permalink

Tuesday, June 9, 2015

D.C. Circuit Rejects Premature Challenge to EPA’s Proposed Clean Power Plan Rule

On June 9, the D.C. Circuit (Henderson, Griffith, Kavanaugh) issued a decision in In re Murray Energy Corporation, the closely watched suit brought by several states and coal industry organizations seeking to stop EPA from issuing its Clean Power Plan.  On the merits, the suit raises the serious question whether EPA can regulate existing power plants under Clean Air Act § 111(d), 42 U.S.C. § 7411(d).  Petitioners argued that section 111(d) precludes EPA from issuing emission standards for existing sources of air pollution that are already regulated under Clean Air Act § 112, 42 U.S.C. § 7412, which addresses emissions of hazardous air pollutants.

Procedurally, however, this was an easy case.  Judicial review of administrative agency action is limited to “final” actions, such as the final rule that EPA intends to issue—but has not yet issued—for the Clean Power Plan.  Because EPA has only issued a proposed rule, this suit was premature, and the D.C. Circuit accordingly denied the petitions.  The underlying question of whether EPA has authority to regulate existing fossil fuel-fired power plants under Clean Air Act § 111(d) will have to be adjudicated in a later case, brought after EPA issues its final rule.

Judge Henderson wrote separately, concurring in the judgment.  She would hold that the All Writs Act gives the court jurisdiction to issue a writ of prohibition despite the limitations on judicial review of agency action, but that such a writ was unwarranted in this case, because EPA will soon issue a final rule, which the petitions may challenge on the same grounds alleged in this suit.

—Todd Aagaard

June 9, 2015 | Permalink

Thursday, June 4, 2015

How Much Difference Will the WOTUS Rule Make?

EphemeralLast week, EPA and the Army Corps of Engineers released their new “Waters of the United States” rule, which is designed to clarify the jurisdictional limits of the Clean Water Act.  Well before it was released, the rule was a source of intense controversy, and that shows no signs of letting up.  To provide just one example, Congressman John Boehner released a statement charging that

The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs…. [T]he rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.

(And no, just to be clear, that’s not a satire of a press release.  It’s the real thing.)

But how important will this rule really be?  A lay observer could be forgiven for being confused. 

On the one hand, anti-regulatory conservatives and environmental groups seem united on one, and only one, point: this is really important. 

Their conventional wisdom goes something like this.  During the 1980s and 1990s, EPA and the Army Corps of Engineers started asserting Clean Water Act jurisdiction over smaller and smaller water features.  But in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers and then, later, in Rapanos v. United States, the United States Supreme Court either:

(a) undercut badly needed protections and threw the scope of Clean Water Act jurisdiction into massive confusion; or

(b) established a badly needed check on federal overreach, but did so with enough ambiguity to leave the scope of Clean Water Act jurisdiction subject to massive confusion.

Following those decisions, conventional wisdom on all sides is that the confusion has continued unabated.  And now, the new rule would either:

(a) restore badly needed protections, allowing expanded coverage under Clean Water Act sections 402 and 404, and reduce confusion; or

(b) bring back federal overreach, along with even more confusion.

But on the other hand, EPA has argued (when it isn’t itself talking about how important the rule is) that the import of the rule, positive or negative, has been badly overstated.  Many of its recent public statements have emphasized that the rule will make only very modest changes to traditional protections.

So who is right?  I think the reality is going to be at the modest change end of the spectrum.  There are a few reasons for that.  One is that EPA’s summary are quite accurate with respect to the written changes.  The other reason is that much of the new written content is consistent with established practices.

Over the course of a recent research project (discussed in more detail in my previous post), I spent a fair amount of time talking to Army Corps and, to a lesser extent, EPA staff about jurisdictional determinations under the Clean Water Act.  What I heard was at odds with some of the conventional wisdom about the new rule.  As Corps staff recount the story, assertions of jurisdiction did expand in the 80s and 90s, and SWANCC and Rapanos did establish checks.  The cases also did create confusion when they came out.  As one staff member explained:

To me, when that first, when the decision first came down, there was a lot of head-scratching and gnashing of teeth within the Corps of Engineers, because… you know, you’ve read the decision and everything, and we had to put it into guidance.  And so we came out with this JD Form guidebook, a nine-page JD form.  To me, at the end of the day, I still think we’re being fairly consistent… I think we’re still regulating what the Clean Water Act wants us to regulate and what Congress wanted.  That’s my opinion, and I think the Corps’ philosophy has always been, in most instances where I’ve seen it is, if there’s any question about jurisdiction, generally we’ve erred on the side… we’ve been conservative, and not regulated.  I know everyone reads a lot in the newspaper about how we’re going to regulate every drainage ditch on every farmer’s property.  But in my experience, most Corps districts have been pretty sensible in interpreting the regulations and knowing when we’re walking a thin line between jurisdiction and non-jurisdiction.

In other words, the agency reacted to the confusion by establishing guidance and protocols, and now things aren’t so confusing any more.  Of course, the latter part of that quote might seem consistent with the common charge, usually from environmentalists, that the Army Corps has fixed the confusion by regulating too little.  But I heard plenty of indications to the contrary.  For example, one district chief, describing her district’s practices with respect to headwater streams (natural features, not artificial drainage ditches), told me:

Even in Clean Water Act guidance that they’re proposing to make… you know, what’s jurisdictional, to us, it’s not changing what we do here very much.  You read all this stuff in the paper like, “Oh my gosh!  Y’all are taking everything now!”  Well, we already were taking everything here in this district, practically.

And is the Army Corps providing consistency in those determinations?  This particular chief thought her district might be a bit of an outlier, at least compared to districts where larger wetlands and waterways are abundant.  But the general answer to my are-your-JDs-consistent questions was an emphatic yes, with the caveat that aquatic resources themselves are quite different across the country.  Indeed, my sense, often, was that people were a little bit annoyed that I would even ask, and at the whole debate surrounding the new rule.  As one regulatory district chief explained:

With ephemeral headwater streams, I think that’s one of the biggest issues that we have as far as a perception of different implementation.  If you ask the question “how do you determine headwater determination for ephemeral channels?” and you may get a couple sentences of narrative of what may be perceived as different, but when you’re in the field together everyone stops at the same point.   I often find that it’s confusing and frustrating when you’re talking and you’re not in the field.  So I think we’re actually closer than we think we are.  It’s when you’re sitting an office and looking at a picture or just talking about things.  And one district may have something in mind of what they thing an ephemeral stream is and you know we have something different in mind and ultimately I think when we’re in the field and not labeling things our calls are the same.

Not everyone agreed with this view.  One EPA staff member, for example, said (after offering several caveats about the Corps’ professionalism and his respect for the agency) that he thought jurisdiction was asserted more broadly, particularly with ephemeral streams and seasonal wetlands, along the coasts than in the interior of the country.  And a few Corps staff did say they would expect some differences from place to place.  But the majority view seemed to be that the new rule would really just provide greater clarity about what already is present and consistent practice.

So what does that mean for the new rule?  I think it matters, because providing clarity is hardly ever a bad thing.  And there are likely to be a few places where it leads to greater protection of headwater streams.  But on the whole, the new rule matters less than the public reaction might lead one to believe.

- Dave Owen

June 4, 2015 | Permalink | Comments (0)

Saturday, May 23, 2015

The Waters of the United States Rule, Congress, and "Washington bureaucrats"

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in this morning's New York Times):

"This rule is not designed to protect the traditional waters of the United States.  It is designed to expand the power of Washington bureaucrats."

This is a familiar refrain.  Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act.  On environmental issues, this kind of rhetoric is particularly prevalent.  And in this circumstance--and, I suspect, many others--it's just not true.

For a recent paper (forthcoming in the UCLA Law Review), I spent many hours researching the practices and bureaucratic organization of the Army Corps, the agency with primary responsibility for implementing section 404 of the Clean Water Act (the section 404 permitting program, which governs the filling of "waters of the United States," is the regulatory program likely to be most impacted by the rule).  The findings of that research are very difficult to reconcile with the claim that this rule would just empower bureaucrats in Washington.  For example:

- Of the 1,200 to 1,300 Army Corps staff in the agency's regulatory program, ten are based in Washington D.C.  Of those ten, two are on rotation from an office elsewhere in the country.  The rest of the regulatory program staff are based in division, district, and field offices across the nation.  And that's where the real power lies.  As one of the few headquarters staffers explained to me, district commanders "“are the ones who make the decision, and we reinforce that every chance we get.”

- Many of those non-DC staff were born and raised in the areas where they presently work.  Others have moved around, but staff told me that having some staff with roots in the areas where they work did matter.  As one said, "you know the culture, you were raised here and know the challenges people are having and you want to help them as much as you can." 

- Even most of the DC staff have extensive field experience.  As one district chief explained to me:

"Over the years, the people who have gotten in managerial positions have gotten there through the ranks.  So… they know the real world, and that is even consistent with the people in headquarters.  Most of those people have come from the district offices [and] were at one point a project manager processing permit applications."

- That geographic distribution of personnel matters to the implementation of the program.  It lets non-DC staff tailor the program to local environmental conditions.  It enables extensive communication and coordination with state agencies.  And it allows for extensive, often face-to-face contact with the people who are regulated by, and who benefit from, the program.  The DC office isn't irrelevant, of course, and Corps staff repeatedly told me about efforts to ensure consistency across the nation.  But I do not think anyone who takes a close look at the program could say, with a straight face, that this new rule is just about empowering Washington bureaucrats.

And therein lies the larger motivation for the research project.  Senator Barrasso is hardly alone in equating federal law with Washington DC bureaucracy.  Other politicians say similar things all the time, as do legal academics.  And while Senator Barrasso is unlikely to abandon a resonant political line just because it rests on dubious factual premises, those of us who profess to speak accurately ought to be more careful.  In some federal programs, Washington bureaucrats play dominating roles, and in a few, all the bureaucrats really are in Washington.  But in many contexts, federal offices spread across the country really do matter, and we ought to pay attention to what they do.  The waters of the United States controversy is just one of many in which that attention would be well justified.

- Dave Owen


May 23, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

Legal Services and the Farm

BerriesIn recent years, Maine, like many other states, has seen a resurgence of interest in farming.  A new generation of farmers is starting up small, diversified farms, and they are supplying a growing number of farmers’ markets and farm-to-table restaurants.  In many ways, it’s a wonderful trend.  It brings young people and new economic activity to rural areas that have faced declining economies, shrinking populations, and aging populations.  It gives urban dwellers access to produce grown without pesticides and meat produced without massive feedlots.  And the trend is boosting a food scene that has turned Maine into even more of a tourist destination.

But getting started in farming is hard work, and just one of the many things that makes it hard is the tendency for legal issues to arise.  Negotiating and contracting for land access, navigating tort liability and employment law, creating business structures, and navigating employment law requirements are just a few of the many issues that farmers often face.  For lawyers, that might sound like an exciting opportunity, and increasing numbers of our students now express interest in legal issues associated with food.  But farmers—particularly new ones—often can’t afford lawyers, and even if they could, hiring lawyers just isn’t part of traditional farming culture.  So a lot of legal needs are going unmet.

With the CongresswomanThis past semester, several of our students got involved in an innovative effort to respond to that problem.  The Conservation Law Foundation, a regional environmental group, has launched a “Legal Service Food Hub” initiative.  The initiative is designed to match small-scale farmers and food businesses with pro bono attorneys, and to provide those attorneys with training on the distinctive issues associated with representing this new kind of client.  As part of these efforts, four Maine Law students, working with CLF attorney Ben Tettlebaum, spent the past semester creating a guidebook on some of the key legal issues that confront farmers in Maine (the guidebook is modeled on a similar book, jointly created by CLF and Harvard Law School, for attorneys in Massachusetts).  Last Monday, CLF officially launched its Maine hub, and several of our students (here pictured with Congresswoman and farmer Chellie Pingree) spoke at the event.

It’s an exciting initiative, and I hope and expect it will continue.  It's also a model I think would work well in other places.  One of the concerns people often raise about the rise of sustainable food law is that it's unclear who will pay for it.  But there's a lot of meaningful legal work to be done for people who can't afford lawyers, and if that work offers law students and lawyers a chance to learn about representing small businesses as well as giving back to their communities, so much the better.

- Dave Owen

May 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 2, 2015

Pace Future Environmental Law Professors' conference

Last year, Pace started a new conference designed to help aspiring environmental law professors prepare for the job market.  This year, the Pace faculty are doing it again.  The announcement is below.

If you're seriously thinking about going on the job market, this is a great opportunity.  Attending certainly doesn't guarantee you a job; the market was brutal last year.  And, unfortunately, that market is likely to stay tough in the years to come.  But three participants did get hired, with others still in the mix, and I suspect they'd say the conference gave them a leg up in their preparations.

- Dave Owen

Friday, September 18, 2015
Pace Law School, White Plains, New York

Designed for visiting assistant professors, fellows, researchers, law clerks, practitioners and others who are, or plan to go on, the academic teaching market in the areas of environmental law, natural resources law, food and agricultural law, animal law, energy law, land use planning, or ocean and coastal resources law.

  • Receive advice on the environmental law teaching market
  • Obtain an insider’s view of the appointments process from faculty with extensive hiring experience
  • Learn about the history and future of environmental law in law schools
  • Participate in a mock AALS interview and gain feedback from environmental law professors
  • Present your work to future colleagues in the environmental law academy
  • Hear a Keynote Address by Yale Law Professor Douglas Kysar about environmental legal scholarship

Register by clicking HERE. There is no cost to register. Participants are responsible for their own travel and lodging.

Preliminary Schedule
9:00 Introductory remarks by Professor Jason Czarnezki (Pace) and Continental Breakfast
9:30 Panel discussion with Professors Mary Jane Angelo (Florida),Kevin Leske (Barry), and Margot Pollans (Pace) —“How To Be Successful on the Environmental Law Professor Job Market”
10:45 Break
11:00 Mock interviews
12:00 Keynote lunch address by Professor Douglas Kysar (Yale)
Afternoon Job talk presentations with feedback provided (Selected participants will be asked to present their job talks.)

May 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

ABA Student Writing Competition deadline extended

Several weeks ago, we posted about the ABA ADR Committee's student writing competition.  The deadline for that competition has been extended to May 27, so if you're thinking about submitting something, you still have a chance.  Details here.

May 1, 2015 | Permalink | TrackBack (0)

Monday, April 6, 2015

An Administrative Law Practicum

Over the last few years, many law schools have introduced a legislation and regulation course into the 1L curriculum.  This is a very positive trend, and one I’m glad to be part of.  But it does create some curricular challenges. 

A typical leg-reg (or leg-admin, as we call it here) curriculum mixes some statutory interpretation with a condensed version of an upper-level administrative law course.  That makes a traditional upper-level admin class partly redundant, but not completely redundant, because you just can’t cover as much in a two thirds of a semester.  Something has to go, and not something trivial; the traditional admin curriculum is filled with important stuff.  That then leads to a big question: what should schools that teach 1L leg-reg do about upper-level admin?

One of my colleagues has developed a great answer.  Last fall, Jeff Thaler, a visiting professor at Maine Law, piloted a course called the “Administrative Law Practicum.”  Over the course of the semester, Jeff took students through the processes of permitting wind energy developments.  They did this in a highly hands-on way, drafting documents, preparing and examining expert witnesses (who were real-life consultants to wind energy developers), and working up toward simulated administrative hearings at the end of the course.  The students who took the class already had received, in their 1L year, a general introduction to the roles of administrative agencies within our governance system.  This course built on that foundation by helping students start thinking of those agencies as people, and as people that a good lawyer can persuade.

Did it work?  Many of Jeff’s students left his class and walked, just a few minutes later, into my environmental law class, so I got a fresh, first-hand account of how the course was going.  They loved it. And they seemed to be doing a ton of learning.  Jeff also was doing a lot of work, but the results seemed to me to be completely worthwhile.

If you’re interested in finding out more about the course, Jeff has posted a short descriptive account here.  I think it’s a great concept, and one that could be reproduced, with some modification, for many other types of administrative proceedings.

- Dave Owen

April 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Fifth Circuit Affirms Dismissal of Seaman’s Manslaughter Charges Against BP Employees

On March 11, a panel of the Fifth Circuit (Higginbotham, Jones, Prado) issued a decision in United States v. Kaluza, a criminal prosecution arising out of the Deepwater Horizon disaster in 2010 in the Gulf of Mexico.  Robert Kaluza and Donald Vidrine were “well site leaders,” the highest-ranking BP employees working on the Deepwater Horizon rig.  A federal grand jury indicted Kaluza and Vidrine on 23 counts:  11 counts of involuntary manslaughter in violation of 18 U.S.C. § 1112, 11 counts of seaman's manslaughter in violation of 18 U.S.C. § 1115, and 1 count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3).  The defendants moved to dismiss the seaman’s manslaughter counts on the grounds that, among other things, the Deepwater Horizon was outside of the territory covered by the seaman’s manslaughter statute and defendants were not within the categories of persons covered by the seaman’s manslaughter statute.  The district court rejected the defendants’ extraterritoriality argument but granted the defendants’ motion to dismiss the seaman’s manslaughter counts for failure to charge an offense.  The government appealed.

The Fifth Circuit affirmed.  First, it held that the defendants, by failing to cross-appeal, had waived their extraterritoriality argument. Second, it held that the seaman’s manslaughter statute, which applies to “[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel,” encompasses “a class of persons dealing with the operation and navigation of the vessel” and does not include the defendants, whose duties were unrelated to the “transportation function” of the Deepwater Horizon.

—Todd Aagaard

March 17, 2015 | Permalink | TrackBack (0)

Ninth Circuit Upholds EPA Approval of South Coast Air Quality Management District Rule 317

On March 11, a panel of the Ninth Circuit (Schroeder, Silverman, Garbis (by designation)) issued a decision in NRDC v. EPA.  In 2011, the South Coast Air Quality Management District adopted Rule 317, which imposes fees on certain programs aimed at reducing emissions from mobile sources that are primarily responsible for air pollution in the area of Southern California governed by the District.  The District proposed Rule 317 to EPA as an alternative means of complying with Clean Air Act § 185, 42 U.S.C. § 7511d, which requires states to assess penalties on major stationary sources in severe or extreme ozone nonattainment areas.  EPA approved Rule 317 as a modification to California’s Clean Air Act state implementation plan (SIP), on the ground that pursuant to the Clean Air Act’s anti-backsliding provision, § 172(e), 42 U.S.C. § 7502(e), EPA may approve alternative pollution controls “which are not less stringent” than prior controls.  On its face, however, Clean Air Act § 172(e) applies when EPA has relaxed an ambient air quality standard.  Here, EPA had revised the applicable air quality standard to make it more stringent.  Accordingly, NRDC and Communities for a Better Environment petitioned for review of EPA’s approval, arguing that Clean Air Act § 172(e) did not allow EPA to approve alternative pollution controls when an air quality standard has been tightened rather than relaxed.

The Ninth Circuit upheld EPA’s approval of Rule 317.  First, the court noted that Clean Air Act § 172(e) “does not provide for what happens in any context except when the NAAQS has been ‘relaxe[d].’ ”   Thus, the language of § 172(e) does not unambiguously preclude EPA’s interpretation.  Second, the court concluded that EPA’s interpretation of § 172(e) was reasonable, “both textually and as a matter of policy and Congressional intent.”  Probably most important to this analysis, the court agreed with EPA that its interpretation promotes alternative programs such as Rule 317 that promote better air quality.

—Todd Aagaard

March 17, 2015 | Permalink | TrackBack (0)

Thursday, March 12, 2015

The Advisory Concurrence

On Monday, the Supreme Court decided Perez v. Mortgage Bankers Association, a case in which all the fun is in the concurrences.  The Court’s opinion, written with efficiency and clarity by Justice Sotomayor, disposes of the Paralyzed Veterans line of cases from the D.C. Circuit.  Those cases held that an agency must go through notice and comment if it wants to change its interpretation of a regulation.  The Court rejected that requirement, holding that it was foreclosed by the plain text of the Administrative Procedure Act.

Justices Alito, Scalia, and Thomas, all of whom concurred, had no disagreement with that outcome, and they joined much of the reasoning; the decision was unanimous.  But they each wrote separately to explain why a separate line of Supreme Court cases, all according deference to agencies’ interpretations of their own regulations, should be overturned.  Yet Seminole Rock or Auer deference, as this doctrine is known, wasn’t at issue in the case at bar.  Indeed, Justice Alito and Justice Thomas both ended their opinions by noting that their arguments could be relevant in some future case—which, quite clearly, they eagerly await.

This practice isn’t unprecedented.  Supreme Court justices often speculate about how they would resolve disputes not currently before them.  Concocting and analyzing hypotheticals, after all, are key parts of judges’ stock in trade.  Similarly, opinions announcing interest in enacting a new rule of law are neither unheard of nor unique to the Court’s conservative wing.  But still, there’s something about all of this that seems a little weird.

The reason, of course, is Article III of the United States Constitution.  Article III grants the federal courts jurisdiction over “cases and controversies,” and that jurisdictional grant, the courts routinely remind us, exists to ensure that judges hear actual, live cases, all based on real facts and litigated by parties directly interested in the questions at bar.  As every 1L learns, Article III precludes advisory opinions.  Yet what Justices Alito, Scalia, and Thomas have done in Perez is write advisory opinions; they make no pretense that the rules of law they promote would be dispositive in the case at bar.  And that raises the question: if issuing those advisory opinions would be constitutionally questionable, at best, for a federal district court judge disposing a case, or for a majority on a circuit court of appeals or the Supreme Court, does it become constitutionally permissible when a justice writes alone?

With that said, another related question also arises: should we care?  Constitutional or not, is there any harm in this practice?  After all, there are some potential benefits.  The advisory opinions may signal, much like a policy statement from an administrative agency, future legal changes the Court might produce, and those signals might help private parties and government agencies order their affairs before Auer deference comes crashing down (if it does).  They also guide litigants looking for creative new theories, and they give law professors new things to write about.  Finally, perhaps they provide some benefit by helping to demolish the confirmation-hearing myth that judges just call balls and strikes as they’re thrown.  Here, the better analogy is that judges are previewing their rule changes for a game that has yet to be played.  But with all that said, if we really are committed to the notion that better judging occurs in the context of a live, concrete factual dispute, these kinds of opinions ought to be troubling.

Thankfully, there is a potential remedy.  A wonderful outlet exists for the kind of writing the concurring justices (particularly Justice Thomas, at least in this case) seem to want to do.  And while it’s a form of writing that some judges disparage, I doubt there are any hard feelings; given the stature of the authors, their work probably would be accepted with open arms.  Law review submissions season is upon us.  And while that season is getting on, it’s not too late.  With relatively little revision, Justice Thomas’s concurrence would be ready to go as a law review article.  I suspect it would place well.

- Dave Owen


March 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

Settlement in Vermont Clean Water Case May Serve as Model for Managing New Discharges to Impaired Waters

Restoring impaired waters in the face of ongoing development pressures is one of the more nettlesome problems under the Clean Water Act. EPA rules provide that no permit may be issued to a new discharger if the discharge will “cause or contribute” to the violation of water quality standards. 40 C.F.R. § 122.4 (i) (2000). Courts have strictly interpreted this prohibition. See Friends of the Wild Swan v. EPA, 74 F. App’x 718 (9th Cir. 2003). The rule does make an exception where there is an available load allocation for the pollutant of concern under an approved TMDL and a compliance schedule demonstrating how and when compliance with water quality standards will be achieved. In Friends of Pinto Creek v. EPA, the 9th Circuit held that the compliance schedule must include all point source dischargers to the impaired waters and suggested that nonpoint sources must also be included if necessary to achieve standards. 504 F.3d 1007 (9th Cir. 2007).

In the absence of a TMDL load allocation, the permit applicant must prove that the new discharge will not contribute to violation of any water quality standard. One way to do this is to demonstrate, through offsets, that there will be no net addition of the pollutant of concern. This approach has been approved in a number of state court decisions. Cf. In re: Cities of Annandale and Maple Lake, 731 N.W.2d 502 (Minn. 2007); Crutchfield v State Water Control Board, 612 S.E.2d 249 (Va. Ct. App. 2005). The problem with offsets of course is how to assure they will work and how much new development should be allowed in the impaired waters before restoration efforts prove successful.  

These issues were recently presented in the appeal of stormwater discharge permits issued by the Vermont Agency of Natural Resources, Department of Environmental Conservation (Department) to Jay Peak Resort, a fast-growing, four-season ski resort in northern Vermont. The Environmental and Natural Resources Law Clinic of Vermont Law School (ENRLC) represented the Vermont Natural Resources Council (VNRC) before the Vermont Environmental Court. The permit issued by the Department was problematic because it lacked adequate protective measures and increased the sediment pollution into the area’s streams, even though those streams have failed to meet water quality standards for at least a decade. 

In 2004, the Department found that Jay Branch and Tributary 9 of Jay Branch were impaired by sediment pollution and failed to meet applicable minimum state water quality standards for aquatic life support.  According to the Department, the initial impairment of the Jay Branch was attributed to the failure to comply with applicable Vermont construction and erosion control permits and operational stormwater permits.  Recently, an additional stream, Tributary 3 of South Mountain Branch, was identified as impaired.  Despite implementation of several water quality remediation plans approved by the Agency over the past ten years, the streams remain impaired.

In 2014, VNRC and ENRLC negotiated a comprehensive settlement that, for the first time, requires that the area’s streams meet water quality standards by a date certain before Jay Peak can begin significant new development projects.  Another innovative part of the agreement requires Jay Peak to offset sediment discharges for any new discharges so there is no net increase of sediment into impaired streams. The agreement also sets forth detailed stream remediation and monitoring requirements, as well as an enforceable schedule for compliance with water quality standards. 

On February 20, 2015, Judge Thomas Durkin issued an order approving the settlement agreement between VNRC, Jay Peak Resort, and the Department.  We hope this agreement will set a benchmark for future permits issued to other ski resorts in Vermont and serve as a model for citizen actions not only in Vermont but across the country.

- Guest Bloggers Rachel Stevens, Fellow, ENRLC, and Pat Parenteau, Senior Counsel (both at Vermont Law School)


March 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

ABA Student Writing Competition

The ABA Section on Environmental, Energy, and Resources just announced a student writing competition.  Here's the blurb, with details about where to submit and what you can win:

The Alternative Dispute Committee is pleased to announce the 2015 Law Student Writing Competition--Alternative Dispute Resolution.

: Discuss any aspect of dispute resolution practice, theory or research related to environmental, energy, or natural resource conflicts or should critique or analyze the dispute resolution process used in a particular case. Submissions may advocate a position, educate the reader, or analyze one or more cases.

Submission Deadline
: April 13, 2015

View the ADR Topic- Writing Competition Rules.

Submission Requirements: All submissions must be the original work of the entrant. Any relevant article or essay may be submitted for the competition, including writing submitted for academic credit. Submissions must not have been previously published in any media. Only one essay, per competition theme, may be submitted by each entrant. (More details.)

: The competition is open to any student enrolled in an ABA-accredited law school during the academic year of the competition who is a legal resident of the United States. Directors, officers and employees of the ABA and their immediate family or household members are not eligible.

Prizes: For each competition theme, the first place winner will receive a $1,000 cash prize, the second place winner will receive $750, and the third place winner will receive $500. The winners will be announced in e-News, the Section's monthly electronic newsletter, as well as on the Section’s website. The three winning essays will be posted on the Section’s website in a pdf format. Winning essays will appear in an upcoming issue of the Section’s Alternative Dispute Resolution Committee Newsletter. Winners must submit a completed W-9 to receive their cash prize. The full fair market value of the prize will be reported on a 1099. Winners are responsible for all taxes in connection with receiving a prize.

Deadline for Submissions: Entries must be submitted by e-mail on or before Monday, April 13, 2015, by 11:59 p.m. (central).

Questions? Please contact Cristina Vautier at (312) 988-5625 or

March 4, 2015 | Permalink | TrackBack (0)

Tuesday, February 24, 2015

Dams, Environmental Trading Systems, and the Future of Hydropower

Several months ago, Secretary of Energy Ernest Moniz made waves with a bold prediction: the United States could double its hydropower capacity by 2030.  And that doubling, the Department of Energy argues, could be sustainable.  If that prediction even comes close to coming true—and there are many reasons why it might not—a Maine project and some Maine-based research may provide some important guidance.

Penobscot damOf course, this all may seem rather implausible.  Dams, according to many environmentalists, are “evil, placed and solid,” as John McPhee wrote in Encounters with the Archdruid.  The notion of sustainable hydropower therefore may sound, to many people, like an ironic joke.  And partly because of its environmental impacts, hydropower has been in decline.  Legal attention has reflected that decline.  Go to an energy law conference these days, and you’ll probably hear a lot about wind, solar, and fracking and little or nothing about dams.  You might walk away thinking that hydropower is yesterday’s energy.

But there is some basis for Moniz’s enthusiasm about hydropower.  In the United States, hydropower still generates more electricity than all other sources of renewable energy—combined.  And across the nation, there are tens of thousands of existing dams and other waterworks that don’t generate hydropower.  Putting turbines in those places would be a great way to generate relatively clean energy without creating significant environmental impacts.  Sometimes, in places where downstream reaches have low dissolved oxygen levels, installing a new turbine can even bring environmental benefits.  And if we compensated for the environmental impacts of new dams (and minimized those impacts by placing dams carefully) by taking out old, decrepit dams on river mainstems, new dam construction could actually have net environmental and energy benefits.

For over a year, Colin Apse, a scientist with The Nature Conservancy, and I have been thinking about legal structures that would facilitate that win-win future.  Our conceptual model is the Penobscot River Restoration Project, an innovative and ambitious project that allowed continued operation of some dams in return for removals of other dams (and payment of a large sum of money).  The net result of the project should be massive environmental improvements and a slight gain in hydropower capacity.  Our study asks how that circumstance could be replicated, and, more broadly, how environmental trading system concepts could play a role in that replication.  We don’t suggest that it will be easy.  But we identify a list of legal reforms that could facilitate the same sort of win-win outcomes elsewhere, and, more broadly, could help achieve a better balance between hydropower development and environmental protection.

- Dave Owen

(The photograph (from shows the Howland Dam).

February 24, 2015 | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Rejects Challenge to FERC Order Approving Cost Pooling Agreement for Trans Alaska Pipeline

On February 20, the D.C. Circuit (Griffith, Kavanaugh, Wilkins) issued a decision in Tesoro Alaska Co. v. FERC.  Tesoro Alaska and Anadarko Petroleum ship oil on the Trans Alaska Pipeline System between points within Alaska.  In 2013, FERC approved a cost pooling agreement among the owners of the pipeline.  Tesoro Alaska and Anadarko Petroleum filed petitions for review challenging FERC's approval of the agreement.  The D.C. Circuit denied the petitions, holding (1) that the Interstate Commerce Act gives FERC authority over intrastate oil pipeline traffic, at least where, as here, regulating the intrastate traffic is a necessary incident to regulating interstate traffic; and (2) that FERC did not act arbitrarily or capriciously and had sufficient evidence for its findings.

—Todd Aagaard

February 24, 2015 | Permalink | TrackBack (0)

Tuesday, February 17, 2015

Big Oil v. Little City

Tanker imageFor years now, national attention has been focused on the Keystone XL Pipeline saga.  But it isn’t the nation’s only pipeline fight.  Here in Maine, what could be some very interesting pipeline litigation has just begun.

The case involves a pipeline that transports oil from South Portland, Maine to Montreal.  Since World War II, oil in the pipeline has flowed only north.  But with Albertan oil production escalating dramatically, Canada’s need for oil imports has declined, and the pipeline company would like to reverse the flow.  That would mean turning the port of Portland, Maine into a major export site for tar sands oil.

But there’s a hitch.  The southern terminus of the pipeline lies at the mouth of Portland Harbor, adjacent to South Portland’s most important park and across the water from parks and the Old Port district in Portland.  Casco Bay, into which the harbor enters, is a beloved scenic and recreational resource for residents and a major destination for tourists.  Still, seventy years ago, this was exactly the kind of place where cities would put oil pipes and tanks; providing industries with good water access often trumped everything else.  But values have changed, and South Portland has started envisioning a different future for this part of its waterfront.  When the pipeline proposal emerged, the city (through a long process described in more detail here) responded by enacting an ordinance restricting the construction of new “bulk oil” export facilities on its eastern waterfront.

Is that ordinance valid?  According to a federal court complaint just filed by Portland Pipe Line Company, the answer is an emphatic no.  The complaint foreshadows a whole host of arguments, most of them grounded in the idea that the ordinance is just regulating the contents and flow direction of an international pipeline, and such regulation is the exclusive province of the federal government.  As the complaint succinctly puts it, “[o]ne city in Maine cannot impede federal decision-making on international relations, trade, and resource transportation and replace it with its own foreign policy.”  And as Maine goes, so goes the nation and, perhaps, the world.  The complaint warns of drastic consequences if the ordinance stands: it “sets a precedent for inconsistent local harbor regulation that could cripple import and export activities nationally and invite reciprocal commerce curtailment from other nations.”  Even the founding fathers would be horrified.  South Portland, according to the complaint, has “contravene[d] fundamental principles upon which our Republic was founded,” and the complaint offers Federalist Papers citations to back that claim up.

South Portland, of course, will have a different story.  The ordinance clearly was kick-started by larger-scale events, and it may well have ramifications that extend beyond South Portland’s boundaries.  But local land use ordinances are often inspired by larger events, and they often have consequences extending across city lines.  That alone, the city will argue, does not make them constitutionally suspect.  Indeed, there are dozens, if not hundreds, of cities whose land use ordinances would probably preclude construction of new oil export facilities.  Are those ordinances also unconstitutional?   If they are, then another venerable constitutional principle—respect for local land use planning authority—may well be in danger.

Beyond that basic conflict, the case will raise many more intriguing sub-issues.  By my rough count, perhaps a dozen law school courses seem implicated by the complaint, and once the litigation proceeds, that number could easily get higher.  And these questions aren’t just academic.  The tension between energy development and transport and local governance has become one of the central legal issues of our age, with very real economic and environmental consequences. 

For me, there’s also a personal dimension to the fight.  I live in South Portland, about a mile from the oil terminal.  And while others deserve far more credit (or blame) than me, I did play a minor part in getting the ordinance passed, and, more generally, in advocating for South Portland to begin thinking about a future in which it no longer is the East Coast’s second largest oil port.  I won’t be here to see that future; in a few months, I move back to the San Francisco Bay Area.  But the neighborhood in dispute will always be the place where my children were born, and a place that I love.  I hope it also will be a place that gets to decide its own future.

- Dave Owen

February 17, 2015 | Permalink | Comments (1) | TrackBack (0)

Friday, February 6, 2015

D.C. Circuit Upholds Park Service Plan to Manage Deer Population in Rock Creek Park

On January 20, the D.C. Circuit (Garland, Pillard, Sentelle) issued a decision in Grunewald v. Jarvis.  The National Park Service adopted a plan in 2012 for managing the deer population in Rock Creek National Park in Washington, D.C., by lethal and non-lethal means.  Animal rights advocates sued to prevent the agency from killing deer.  The district court granted summary judgment for the Park Service, and the D.C. Circuit affirmed.  First, the court held that the deer management plan was consistent with the Rock Creek Park Enabling Act, which the court interpreted to allow killing some animals within the park to prevent serious harms to other natural resources.   Second, the court held that the Park Service had adequately supported its findings that lethal action to manage the deer population was warranted to protect park resources. Third, the court held that the Park Service’s Environmental Impact Statement complied with the National Environmental Policy Act.  The Park Service appropriately set the objective of reducing the deer population in Rock Creek Park; reasonably decided to analyze an exotic plant plan in a separate, rather than single consolidated, Environmental Impact Statement; and adequately considered the effects of its plan on humans who might witness the killing of deer.

Although animal rights advocates and environmentalists are often aligned, this case is one of several in which efforts by federal agencies to manage animal populations that are damaging public lands lead to conflicts between animal rights and environmental interests.  See, e.g., In Defense of Animals v. U.S. Dep't of Interior, 751 F.3d 1054 (9th Cir. 2014) (wild horses and burros); Feldman v. Bomar, 518 F.3d 637, 640 (9th Cir. 2008) (feral pigs).

—Todd Aagaard

February 6, 2015 | Permalink | TrackBack (0)

Sixth Circuit Holds that Clean Water Act Permit Shield Allows Discharges from Mine

On January 27, the Sixth Circuit (Merritt, Gibbons (dissenting), McKeague) issued a decision in Sierra Club v. ICG Hazard, LLC.  ICG Hazard, LLC, operates the Thunder Ridge surface coal mine in Kentucky under a Coal General Permit issued by the Kentucky Division of Water pursuant to the federal Clean Water Act.  ICG’s permit did not contain a discharge limit for selenium.  Kentucky does, however, have a state water quality standard for selenium.  Some of ICG’s discharges from the Thunder Ridge mine caused exceedances of the selenium water quality standard.  Sierra Club filed a Clean Water Act citizen suit based on the selenium discharges.  The district court granted summary judgment for ICG, and the court of appeals affirmed.  The court upheld EPA’s interpretation of the Clean Water Act’s permit-shield provision, which states that “compliance with a permit . . . shall be deemed compliance” with the statute, 33 U.S.C.§ 1342(k), as allowing discharges of pollutants not specifically listed in a general permit.  The court of appeals saw no distinction to be made on this question as between individual permits and general permits.  Because the Clean Water Act by its interpretation authorized ICG’s selenium discharges, the court held that the Surface Mining Control and Reclamation Act did not apply.

Judge Merritt dissented.  He would have held that ICG, by causing water quality violations, violated the Clean Water Act.

—Todd Aagaard

February 6, 2015 | Permalink | TrackBack (0)