Thursday, September 4, 2014
On September 3, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Alaska Community Action on Toxics v. Aurora Energy Services, No. 13-35709. The plaintiff environmental organization filed a Clean Water Act citizen suit against Alaska Railroad Corp. and Aurora Energy Services, alleging that the Seward Coal Loading Facility, owned by Alaska Railroad Corp. and operated by Aurora Energy Services, was spilling coal into Resurrection Bay in violation of the Act. The defendants claimed the spills were covered by the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity. The district court agreed with the defendants and entered summary judgment for them. The plaintiffs appealed, supported by the United States as amicus curiae. Numerous amici curiae, including the State of Alaska and agricultural, mining, petroleum, and railroad associations, filed briefs on the side of the defendants. The Ninth Circuit reversed. The court of appeals reasoned that, although the General Permit does authorize certain categories of non-stormwater discharges, the Seward Facility’s alleged discharges of coal into the Bay do not fall within any of the authorized categories.
Tuesday, September 2, 2014
Seventh Circuit Holds That Clean Air Act § 307(b)’s Timing and Venue Limitations Are Not Jurisdictional, Creating Circuit Split
On August 29, the Seventh Circuit (Easterbrook, Sykes, Tinder) issued a decision in Clean Water Action Council of Northeastern Wisconsin v. EPA, No. 12-3388. This case arose out of Wisconsin’s and EPA’s decisions to approve the renewal of a Clean Air Act Title V permit for a paper mill owned by Georgia-Pacific. The Clean Water Action Council objected to the permit, arguing that when Georgia-Pacific modified the plant in 2004, all of the plant’s emissions—rather than just the increase caused by the modification—should have counted against the applicable PSD Increment. Clean Water Action Council filed a petition for review in the Seventh Circuit. EPA and Georgia-Pacific argued that the petition for review was untimely and brought in the wrong court, because although couched as a challenge to Georgia-Pacific’s permit renewal, it essentially challenged a nationally applicable EPA regulation regarding Title V permit renewals and therefore had to be brought in the D.C. Circuit within sixty days of promulgation of that regulation. The Seventh Circuit held that, contrary to decisions of the Tenth and D.C. Circuits, the timing and venue restrictions in Clean Air Act § 307(b) are non-jurisdictional claim-processing rules. Concluding that the requirements of § 307(b) are non-jurisdictional allowed the court of appeals to reject Clean Water Action Council’s petition on other grounds, without reaching the question whether the petition challenged a nationally applicable EPA regulation and should have been brought in the D.C. Circuit. On the merits of Clean Water Action Council’s petition, the Seventh Circuit upheld as reasonable EPA’s interpretation that the Clean Air Act allows the agency to count only the emissions increase caused by the modification against a PSD Increment.
Thursday, August 28, 2014
On August 27, the Ninth Circuit (Tashima, Murguia, Carney (by designation)) issued a decision in Asarco, LLC v. Union Pacific Railroad Company, No. 13-35356. This case arose out of the ongoing cleanup of contamination resulting from mining in Idaho’s Coeur d’Alene River watershed. Asarco and Union Pacific were among the parties liable for the cleanup costs. In 2009, Asarco entered into a settlement with the United States resolving its liability for response costs and natural resource damages associated with the site. Asarco then filed a contribution action against Union Pacific seeking to recoup some of the costs Asarco paid under the settlement. Union Pacific argued that Asarco’s complaint was time barred and precluded by a 2008 settlement between Asarco and Union Pacific. The district court held that Asarco’s complaint was not time barred, but dismissed Asarco’s complaint on the ground that it was barred by the terms of the 2008 settlement. On appeal, Union Pacific renewed its statute of limitations argument in addition to defending the district court’s holding that Asarco’s complaint was barred by the earlier settlement. The Ninth Circuit reversed, holding (a) that Asarco’s claim was not time barred because its complaint related back to an earlier complaint, even though Asarco’s amended complaint covered claims associated with geographic areas specifically excluded in its original complaint; (b) that Asarco’s earlier complaint was timely because CERCLA § 113(g)(3) does not override Federal Rule of Civil Procedure 6(a)’s “anniversary method” of counting time; and (c) that Asarco’s earlier settlement with Union Pacific did not unambiguously bar Asarco’s contribution action and therefore raised a fact issue not resolvable on a motion to dismiss.
Wednesday, August 27, 2014
On August 26, the D.C. Circuit (Garland, Srinivasan, Sentelle) issued a decision in Sierra Club v. Jewell, No. 12-5383. The plaintiffs in the case are environmental and historical preservation organizations seeking to protect the area of Blair Mountain, West Virginia—site of a landmark armed labor conflict in 1921—from the effects of surface mining. The Blair Mountain Battlefield was listed on the National Register of Historic Places in 2009, but then quickly delisted in response to apparent objections from landowners. (For a site to be listed, a majority of property owners in the area must not object.) The plaintiffs sued to challenge the delisting, but the district court dismissed for lack of standing. The D.C. Circuit reversed, holding (a) that the plaintiffs had demonstrated enjoyment of the Battlefield for its aesthetic and historical value; (b) that the plaintiffs had shown a substantial probability the Battlefield will be subject to surface mining that would impair the plaintiffs’ enjoyment; and (c) that listing on the Register arguably provides the Battlefield with greater protection from mining impacts than if the Battlefield were not listed. On the last point, the court reasoned that, although the Department of the Interior argued the Battlefield, even if it were listed, would not receive the protections in West Virginia law cited by the plaintiffs, for purposes of establishing standing the plaintiffs needed only to make a “non-frivolous” argument that listing would protect the Battlefield.
On August 26, the D.C. Circuit (Garland, Srinivasan, Millett) issued a decision in West Deptford Energy v. FERC, No. 12-1340. The Federal Power Act, through what is known as the filed rate doctrine, requires regulated utilities to charge only rates that are on file with FERC. In this case, however, there was a question of which of two rates should be treated as on file with the agency. Petitioner West Deptford Energy submitted a request to interconnect new electric power generation facilities with PJM. Under PJM’s tariff on file at the time, West Deptford would have had to reimburse other generators for certain upgrades necessitated by the proposed interconnection. While West Deptford’s request was pending, however, PJM submitted tariff amendments to FERC; under these amendments, West Deptford would not have to pay for the upgrades. In the process of approving West Deptford’s interconnection request, PJM determined that the prior tariff controlled and that West Deptford had to pay for the upgrades. FERC sided with PJM. West Deptford filed a petition for review challenging FERC’s decision, and the D.C. Circuit granted the petition. Without holding that FERC had to apply the later tariff, the court held that FERC had acted arbitrarily and capriciously by failing to provide a reasoned explanation for its decision to apply the earlier tariff. Neither PJM’s tariff amendments nor FERC’s correspondence with PJM regarding the amendments specified how the amendments would apply to pending interconnection requests. FERC precedent seems to apply the tariff in effect when the interconnection agreement is executed or when an interconnection agreement is filed with FERC, not when a generator makes its interconnection request. The court also held that FERC had erred by failing to address West Deptford’s argument that, if it was responsible for reimbursing other generators to pay for the upgrades, it was due offsets for amounts that those generators already had been collected.
Tuesday, August 26, 2014
In recent years, renewable energy siting decisions have generated some of the U.S.'s most interesting and complex environmental controversies. Troy Rule (Arizona State) has just put out a new book on the subject. If you're interested in the intersection of land use, environmental, and energy law, you might want to take a look.
Tenth Circuit Affirms Order Denying Preliminary Injunction Against Eastern New Mexico Rural Water System Project
On August 25, the Tenth Circuit (Hartz, Ebel, Phillips) issued a decision in Village of Logan v. U.S. Department of Interior, No. 13-2082. The Eastern New Mexico Rural Water System Project, which will include a pipeline and associated facilities, is being constructed to deliver water from the Ute Reservoir to a group of participating communities. The Project will allow the participating communities to reduce their reliance on groundwater from the Ogallala aquifer, which is suffering declining water levels and water quality from overuse. The Village of Logan, New Mexico has a right to some water from the Ute Reservoir, but it will not benefit from the Project. If Logan wants to receive water from the Reservoir, it will have to construct its own delivery project. The Bureau of Reclamation issued an Environmental Assessment and Finding of No Significant Impact for the Project, and Logan made no comments or objections. More than a year later, Logan sued to enjoin the project, alleging violations of NEPA. The district court denied the motion. Logan appealed, and the Tenth Circuit affirmed. In rejecting Logan’s arguments, the Tenth Circuit held (a) that Logan had not shown it would suffer irreparable harm from the Project, because most of its alleged injuries were either already complete or speculative; (b) that the harms of delaying construction of the Project outweigh any injuries to Logan; (c) that the public interest favors allowing the Project to proceed; and (d) that Logan was unlikely to succeed on the merits of its NEPA claims because it waived most of its challenges by failing to raise them during the administrative proceedings.
Friday, August 22, 2014
On August 20, the Ninth Circuit (Fernandez, Smith, Murguia) issued a decision in Center for Community Action and Environmental Justice v. BNSF Railway Company, No. 12-56086. The plaintiffs were environmental organizations whose members live near railyards owned and operated by the defendant railway companies. Locomotives, trucks, and other heavy-duty vehicles on or near the railyards emitted diesel exhaust containing particulate matter. The plaintiffs filed a citizen suit under RCRA seeking to enjoin the particulate matter emissions as disposals of a solid or hazardous waste that presented an imminent and substantial endangerment to health or the environment. The Ninth Circuit held that the defendant’s diesel exhaust emissions do not constitute a “disposal” of solid waste within the meaning of RCRA and on that ground affirmed the district court judgment in favor of the defendants. The Ninth Circuit reasoned that “disposal” under RCRA does not encompass emissions of solid waste into the air. The court further reasoned that, although air emissions from railyards and other indirect sources are not regulated by either RCRA or the Clean Air Act, this “regulatory gap” reflects a conscious decision by Congress not to regulate such sources. The court did not reach the issues of whether diesel particulate matter is “solid waste” under RCRA or whether the defendants’ emissions, if covered by RCRA, would “present an imminent and substantial endangerment to health or the environment.”
Tuesday, August 5, 2014
Several weeks ago, a Superior Court in Sacramento County, California issued an important public trust doctrine decision. The case concerned the Scott River, which flows through the coast ranges of northern California. According to the plaintiffs, groundwater pumping was depleting flows in the river and harming its fish. The plaintiffs argued that because of these harms, Siskiyou County was obligated to consider the public trust doctrine before issuing well drilling permits. The county defended the case by arguing, among other things, that the public trust doctrine does not apply to tributary groundwater.
In its recent decision, the court decided that legal question in favor of the plaintiffs. The case isn’t over; the plaintiffs still need to prove their factual allegations of harm. But the court’s decision was still a big win for the plaintiffs. While the court did not find that the groundwater itself is a public trust resource, it concluded that the public trust doctrine does apply to groundwater withdrawals that impact a surface water stream. Consequently, according to the court, Siskiyou County was obliged to consider the public trust doctrine when it permitted irrigators to drill and operate wells.
In a recent post at Legal Planet, Holly Doremus has described the case in more detail. This post raises a different question: what impact would the court’s holding, if it stands (as I think it should and will), have on groundwater regulation in California? One might assume the answer is simple: applying the public trust doctrine to groundwater pumping will lead to increased regulatory control of groundwater use, and to increased environmental protection of surface water systems that depend upon groundwater recharge. And that is a possibility. But the reality may be more complex, and below are a few other potential outcomes:
- The case leads to reduced regulation of groundwater use. This may sound like an odd result, until one considers this basic fact: while local governments in California clearly have the ability to regulate groundwater use, see Baldwin v. County of Tehama, 36 Cal. Rptr. 2d 886 (1994), they don’t have a legal obligation to do so. Similarly, California’s State Water Resources Control Board, which arguably has the ability to regulate groundwater use, hasn’t actually exercised that regulatory authority. This all may change soon, as Rick Frank recently pointed out in another Legal Planet post. But so long as regulating groundwater is something governmental entities may decline to do, their decision-makers might think, “well, if we regulate, we have to worry about the public trust doctrine, and if we don’t, the public trust doctrine is someone else’s headache. So let’s not regulate.”
Of course, if a court holds that the public trust doctrine not only obligates government agencies to consider public trust values when they allocate groundwater, but also to create groundwater regulatory programs, that particular perverse incentive would vanish. But the latter holding would be much bolder than the former, and I would be surprised to see it emerge from the litigation.
- The case leads to increased regulation of new groundwater users but doesn’t change circumstances for existing users. This also may sound surprising, because one of the most-heralded aspects of California’s public trust doctrine is its potential, at least in theory, to change existing water rights. But in a 2012 study, I found that for surface water users, the doctrine has hardly ever been used this way. I found that it did operate—in conjunction with many other environmental laws—as a constraint on new water users. But existing water users had generally been left alone.
- The case changes little, because courts view compliance with other California environmental laws as satisfying the public trust doctrine. The extent to which public trust doctrine analysis is distinct, as a legal matter, from other California and federal environmental requirements has been an issue in some recent litigation. As a practical matter, in my 2012 study I found only limited evidence that public trust protections had exceeded those that would have occurred anyway under other environmental laws.
- The case does lead to important changes in groundwater management. This could happen because many local government entities in California do regulate groundwater, and because their regulatory approaches are allowing many impacts that slip through the cracks of other California environmental laws. Perhaps the public trust doctrine will be an important gap-filler. Where local governments already are motivated to address groundwater impacts, the application of the public trust doctrine also might provide some additional support for the exercises of regulatory authority. These, of course, are the outcomes the plaintiffs are hoping for.
So which result will happen? My timid prediction is: all of the above. California groundwater management is presently such a hodge-podge, with many different entities involved and many others choosing to stay out, that all of these reactions are likely to occur in some places.
Friday, July 11, 2014
For several years, all eyes have been on the proposed Keystone Pipeline. But Keystone isn’t the only pipeline that could connect Canadian tar sands crude to a United States port. Another possibility has its southern terminus about a mile from my house.
The pipeline has its origins in World War II. During the early stages of the war, when the United States was still nominally neutral, Canada needed an oil supply port. South Portland, Maine, where I live, became that port, and to this day, a pipeline carries oil from tankers docking in Portland Harbor through northern New England and on to refineries near Montreal. But as Canada’s tar sands bonanza has reduced the country’s need for oil imports, the amount of oil passing through the pipeline has declined, and its owners began to consider whether oil might flow more profitably in the opposite direction.
Most of New England wants no part of this. But state and local governments lack the authority to regulate the contents or safety of interstate pipelines. So, unless the pipeline company needs to build new facilities within their towns—and, in most places, it does not--most New Englanders hold only political leverage over the possible reversal. My city is in a different position. Turning an import facility into a tar sands oil export facility would require the construction of new infrastructure, and that infrastructure would be built right next to the city’s most popular and scenic waterfront park, and in an area where the city hopes to see mixed-use development. The possibility of a pipeline reversal therefore confronted the city with a land use question: do we want new crude oil export facilities on our waterfront?
Addressing that kind of land use question is a classic prerogative of local governments, and last night, the city council took a big step toward answering “no.” For the past six months, and through a series of public meetings, a small committee has been working on drafting an ordinance that would address the local environmental threats posed by new export facilities. Their task was not easy. The ordinance can’t exceed municipal authority, and it also needs to address the desire, shared by many voters in South Portland, to protect the city’s eastern waterfront while protecting industrial jobs and maintaining an active working port in the western part of the city. But I think the committee did an excellent job, and the city council seems to agree. The process isn’t over—planning board review and another city council vote still will occur—and the oil industry is already making noises about a ballot initiative or litigation. But Wednesday’s vote still was a big step, and I’m proud of my city. Through a careful, deliberative, and highly public process, we’ve decided that we’re not going to be the endpoint of the East Coast’s Keystone.
- Dave Owen
(the meeting photo above first appeared in the Portland Press Herald, which has run a series of informative articles about the controversy.)
Thursday, July 10, 2014
In April, 2013, I wrote a post about The Aransas Project v. Shaw, a case involving water management agencies, whooping cranes, and the Endangered Species Act. The defendant water agencies had issued permits for water withdrawals upstream of important whooping crane habitat. According to the plaintiffs, the combination of those permits and the 2008-09 drought reduced freshwater inflows to the estuary where whooping cranes feed, leading to food shortages that killed off large numbers of whooping cranes. Those deaths, the plaintiffs argued, were unpermitted "takes" and were prohibited by section 9 of the ESA.
A federal district court agreed with this theory, but on June 30, the Fifth Circuit reversed. It determined that the district court had failed to apply a "proximate cause" analysis to the take claims. Because the district court failed to apply the correct legal standard, the Fifth Circuit found that it owed no deference to the district court's factual findings. Considering the record de novo, the Fifth Circuit concluded that the water agencies' activities were not the proximate cause of the whooping cranes' deaths.
The reasoning that led the Fifth Circuit to its de novo standard is, to say the least, interesting. In fact, the district court did recite the proximate cause standard, and it did purport to apply it. It just applied it in a way that the Fifth Circuit found overly simplistic. That could be a basis for reversal--appellate courts do review factfinders' factual conclusions for abuses of discretion--but it doesn't seem like a basis for de novo appellate review.
There's also a whiff of hypocrisy in the Fifth Circuit's reasoning. It concluded that the district court had been too simplistic because it had failed to engage with the complexities and contingencies of the alleged causal chain. Perhaps that's a fair critique (for an argument that the district court made a mess of the case, see the comments on my earlier post); I am not familiar enough with the factual record of the case to know.
But the Fifth Circuit's substitute reasoning is also simplistic. Its core conclusion is that "[c]ontingencies concerning permittees' and others' water use, the forces of nature, and the availability of certain foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected 2008-09 die-off found by the district court." That conclusion contains a big logical leap, which I don't think is remedied elsewhere in the opinion: it ignores the reality that uncertainty is often a matter of degree. Just identifying some uncertainty within a chain of causation does not mean that the ultimate outcome could fairly be described as "fortuitous." Instead, one must ask how contingent the links in the causal chain were, how much other contributing causes might have added, and how long the causal chain was.
To put it in simple mathematical terms, suppose that event A has a 90% chance of causing event B, which has a 90% chance of causing event C, which has a 90% chance of causing event D. There is uncertainty at every stage of this causal chain, yet the odds of event A leading to event D still are just under 66%. We'd probably be comfortable calling event A the proximate cause of event D. On the other hand, if each event has only a 30% chance of causing the next event, then the odds of event A leading to event D are less than 1%. Contingencies are present in both causal chains, and the chains themselves are the same length. But the causal relationships are drastically different.
Or consider historical examples. One hundred years ago, Gavrilo Princip fired two shots that set in motion a series of events culminating in the slaughter of World War I. In hindsight, history often looks falsely inevitable, yet I suspect most historians would agree that the links between those shots and the horrors of trench warfare in northeastern France were too many, and too contingent, to identify Princip as the proximate cause of the Battle of the Somme. But historians probably will identify the 9/11 attacks as the proximate cause of the U.S. invasion of Afghanistan, even though a contingent causal chain linked those events as well.
The point, again, is that it's not enough to just name uncertainties or other contributing causes, though that's a logical first step in the analysis. We also need to think about how much they matter. And the Fifth Circuit didn't really do that. If it had, the results might have been different. The relationship between permits that allow water withdrawals and actual water withdrawals is pretty direct. So too is the relationship between upstream water withdrawals and downstream reductions in flow. The occurence of a severe drought in 2008-09 was, of course, a chance event, but there's very little chance of Texas avoiding severe droughts throughout the entire duration of a water use permit. The last links in the causal chain--reduced inflows allegedly causing ecological effects to ripple up the food chain, causing whooping cranes to die off--are probably the most uncertain, but reduced inflows damaging an estuary's food chain is pretty plausible, and just labeling that outcome contingent ought to have been the start, not the end, of the analysis.
So how much does the case mean for ESA litigation? The answer, I suspect, is not a whole lot. Even if courts were committed to embracing the gory details of uncertainty analysis, winning ESA section 9 cases would still be a challenge, for the evidentiary burdens plaintiffs face would be substantial. For that reason, plaintiffs don't often try. This latest decision will likely just reinforce that reality.
- Dave Owen
Thursday, June 5, 2014
Last year, the Department of Energy published a short pamphlet on the future of hydropower in the United States. The pamphlet contains this graphic, which shows sites where existing dams and waterworks have significant hydropower potential but don't actually produce hydropower. From an environmental perspective, those are very promising sites; the environmental consequences of adding hydropower to an existing dam or lock compare rather favorably to the consequences of building a new dam--or fossil fuel power plant.
What's particularly striking about the graphic is where the greatest potential is concentrated: near the heart of coal country. Why does that matter? On Monday, EPA released its proposed CAA section 111 rules covering greenhouse gas emissions from electrical generating units. The proposed rules would impose statewide limits but would leave states with flexibility to decide on their approach to meeting those limits. One possible approach, which EPA specifically notes in the proposed rule, is to switch from carbon-intensive energy sources, like coal, to energy sources that with lower carbon intensity. Given its current availability and price, natural gas is one likely beneficiary of the new rules. But this map shows that coal country has another intriguing alternative.
The ABA Section on Energy and Environment would like law professors in the U.S. to fill out the survey linked here. It takes only about ten minutes, at most. For more details, see below.
On behalf of the American Bar Association Section of Environment, Energy, and Resources ("SEER"), we would like to solicit input from law professors on an issue very important to SEER: the participation of environmental, energy, and natural resources law professors-a group that is typically under-represented in the Section. We would like your feedback on the types of benefits SEER can provide that would be of most interest to you. One of SEER’s specific goals is to increase the diversity of its membership to include more environmental, energy, and natural resources law faculty.
To that end, we ask that you follow the link below and complete a short survey that will help us to understand how SEER can best serve the academic community, and how SEER can encourage more academic participation and tailor SEER events to your specific interests. The survey should only take a few minutes to complete and will give each participant a chance to win a fee waiver to a SEER conference of his or her choosing, a value of up to $800.00!
The survey needs to be completed by no later than Friday, June 20, 2014.
Survey Link: americanbar.qualtrics.com/SE/?SID=SV_2o7Mqo96Sic71pX
Thanks for your time, and please do not hesitate to contact Omar Ortiz, Membership and Marketing Associate on ABA SEER staff, at firstname.lastname@example.org with any questions or feedback.
ABA SEER Members and Leadership Development Program Participants
Tuesday, May 13, 2014
CALL FOR PRESENTERS
AALS Section on Property
“The Place and Scope of Economic Analysis
within Competing Conceptions of Property”
2015 AALS Annual Meeting
January 2-5, 2015
The AALS Section on Property is pleased to announce this Call for Presenters for its program during the 2015 AALS Annual Meeting in Washington, D.C. The Section’s broadly-themed program, entitled “The Place and Scope of Economic Analysis within Competing Conceptions of Property,” will include a diversity of opinions on the proper place, scope, role, and utility of economic analysis in understanding, evaluating, and comparing varying conceptions of property. Confirmed speakers include Eric Claeys (George Mason University School of Law), Henry Smith (Harvard Law School), Laura Underkuffler (Cornell Law School), and Lua Yuille (University of Kansas School of Law). Through this Call for Presenters, the Section seeks one additional speaker who will advance this session’s broad theme and complement the scholarly perspectives of the confirmed speakers.
Full-time faculty members of AALS member law schools are invited to submit a one-page abstract of their presentations to Timothy Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at email@example.com by June 20, 2014. A review panel consisting of five property scholars will select a submission for inclusion in the program and notify the selected presenter by mid-July. The selected presenter will be responsible for paying his/her annual meeting registration fee and travel expenses.
There is no publication commitment associated with this panel. However, the Texas A&M University Law Review graciously has offered to publish essays or articles authored by any or all of the presenters on the topic of the panel.
Please feel free to direct questions to Professor Mulvaney at firstname.lastname@example.org.
Friday, May 9, 2014
Today, the Department of the Interior and the Department of Commerce released two proposed rules and one proposed policy, all pertaining to the Endangered Species Act’s treatment of critical habitat. One rule would make some subtle changes to the standards used in designating critical habitat, and the other would update the regulatory definition of “adverse modification” of critical habitat. The proposed policy would provide guidance on the standards used to exclude areas of habitat from critical habitat designations.
This post provides a quick first take on the rules, with a primary focus on the redefinition of adverse modification.” That redefinition could be a big deal. Section 7 of the ESA prohibits federal agencies from taking actions likely to adversely modify critical habitat, and that might seem, at first blush, like the most stringent provision in a law that is already legendary for its stringency (whether it deserves that fearsome reputation is another question). Implementing the ESA’s critical habitat provisions has also been difficult—years ago, Oliver Houck aptly referred to critical habitat as “an agony of the ESA”—and these rulemaking processes offer the Fish and Wildlife Service and the National Marine Fisheries Service the opportunity to relieve some of that difficulty.
Why promulgate these new rules? The short answer is litigation. Until 2004, the services operated under 1986 regulations that defined “adverse modification.” But multiple courts rejected that definition, finding that it illegally excluded actions that would compromise species’ recovery but not their survival. The last of those decisions, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) sounded the death knell for the old regulations. Both services sent memos to their biologists instructing them to cease relying upon the regulatory definition. The process of replacing the defunct regulations hasn’t exactly proceeded quickly, but those court decisions made it all but inevitable.
In addition to court cases, the adverse modification standard has been beset by a few other problems. One is its uncertain relationship to ESA section 7’s prohibition on federal agency actions likely to “jeopardize” the continued existence of listed species. In the 1990s, the Department of the Interior often asserted (partly in reliance on the now-defunct regulations), that the two standards were functionally identical, and that the adverse modification prohibition had no independent function. Even after the Gifford Pinchot decision, practice continued to reflect those earlier claims. In a study of over 4,000 biological opinions issues between 2005 and 2009, I found none that reached an adverse modification finding without also finding jeopardy (the prohibition wasn’t completely inconsequential; biologists told me that it affected their negotiations over project changes). As a basic matter of statutory interpretation, that seems problematic. Lawyers generally presume that Congress doesn’t put redundant words in statutes, yet the services’ implementing approaches turned the adverse modification prohibition into something close to surplusage.
The third problem involves de minimis harms. The ESA itself contains no de minimis exception to the adverse modification prohibition, but the services have never wanted to apply that prohibition to every federal action that modifies critical habitat for the worse. So they wrote a rather fuzzy de minimis standard into their old regulations and guidance, which applied the adverse modification only to actions that “appreciably diminished” the value of critical habitat. “Appreciably diminish,” in turn, meant “considerably reduce” that habitat’s value. In that same study, I found that in practice, the services often applied these definitions in ways that tolerated fairly substantial alterations of critical habitat, and that the services lacked a coherent and principled basis for distinguishing harms that counted as adverse modification from those that were truly de minimis. That seems rather problematic, and a new rulemaking would afford the services an opportunity to address the de minimis problem in a more rigorous and transparent way.
The Proposed Rule
So does the proposed rule address these issues? The answers, in sequence, are yes, partly, and not really at all.
First, the proposed rule does fix the heart of the services’ Gifford Pinchot problem. It makes very clear that impacts to recovery must be considered in an adverse modification inquiry. Here’s the proposed definition:
“Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.
Second, the proposed rules clarify the relationship between jeopardy and adverse modification. The claims that the adverse modification standard is redundant are conspicuously absent, and instead the services provide this clear statement (from the designation rule preamble rather than the adverse modification rule):
In addition to serving as a notification tool, the designation of critical habitat also provides a significant regulatory protection—the requirement that Federal agencies consult with the Services under section 7(a)(2) of the Act to ensure that their actions are not likely to destroy or adversely modify critical habitat.
In the 1990s, and even in the 2000s, the services weren’t saying things like that.
The services also provide some clarification about when the adverse modification standard will add something to the protections provided by the jeopardy standard. Specifically, they anticipate the adverse modification provision becoming significant when habitat destruction is unlikely to affect a species’ present-day population dynamics—perhaps because the habitat is unoccupied—but is likely to affect a species’ recovery prospects. The most concise explanation comes from the preamble to the designation rule:
This benefit should be especially valuable when, for example, species presence or habitats are ephemeral in nature, species presence is difficult to establish through surveys (e.g., when a species such as a plant’s “presence” may be limited to a seed bank), or protection of unoccupied habitat is essential for the conservation of the species.
The preamble to the adverse modification rule fleshes out that concept in more depth.
While that helps clarify the relationship between jeopardy and adverse modification, other important questions remain unresolved. One particularly important question is whether adverse modification should have a lighter threshold than jeopardy even where the habitat in question is occupied. I’ve argued elsewhere that it should, and some others—both within and outside the services—agree. But that issue isn’t really addressed here.
That reflects a broader problem. On the de minimis question, the services have provided a little bit of clarification, but I see only a hint at the principles that might define the difference between regulated adverse modifications and non-regulated de minimis changes. The services have excised the phrase “considerably reduce” from their definition of adverse modification, and have tried to provide more clarification of what “appreciably diminish” means. That's a step forward, but only a step, and what comes next isn't clear. Rather than try to paraphrase a discussion that I’m not sure I understand, I’ll just paste the key passage below:
To determine the appropriate meaning of the term “appreciably,” we ultimately found it helpful to look at the definition of “appreciate,” which means to “recognize the quality, significance, or magnitude” or “grasp the nature, worth, quality or significance.” This usage makes more sense to us in the actual application of the phrase “appreciably diminish.” The relevant question, then, becomes whether we can recognize the quality, significance, or magnitude of the diminishment. In other words, is there a diminishment to the value of the critical habitat that has some relevance because we can recognize or grasp the quality, significance, magnitude, or worth of the diminishment in a way that affects the conservation value of the critical habitat.
It is important to understand that the determination of “appreciably diminish” will be based upon the effect to the conservation value of the designated critical habitat. That is, the question is whether the “effects of the action” will appreciably diminish the conservation value of the critical habitat as a whole, not just in the area where the action takes place. For example, an action may have an adverse effect to a portion of critical habitat. The question would be, then, whether the adverse effect in that one part of the critical habitat will diminish the conservation value of the critical habitat overall in such a manner that we can appreciate the difference it will have to the recovery of the listed species. Specifically, some factors to be considered will be: will recovery be delayed, will recovery be more difficult, and will recovery be less likely. At the appropriate time after rulemaking, the Services plan to update guidance or handbook material to reflect any identified changes to the “appreciably diminish” definition in the March 1998 Consultation Handbook. These considerations should be applied cautiously so the Services do not apply a standard that is either too sensitive in light of the particular circumstances, or not sensitive enough.
Translated, I think that means something like, “observable diminishment in the value of critical habitat will count as adverse modification, unless that standard is too sensitive, in which case… well, we’ll get back to you.”
To be fair, I think that the services face a really difficult problem. Finding a de minimis threshold that (a) fits with the statutory language; (b) will not become administratively overwhelming; and (c) will fulfill the statutory goals of protecting species is going to be very challenging. I think the services’ best options for finding such a standard, and making it work, would have to be linked to regulatory efforts under other parts of the ESA. A recovery plan, for example, would be a useful document for thinking through thresholds for adverse modification and jeopardy. That hasn’t been past practice but, to the services’ credit, an “integration” group is already trying to think of ways to draw these kinds of regulatory linkages (I don’t know whether this specific one is on the table). So this rulemaking effort may just represent a step in a process toward articulating a more transparent, functional, and protective adverse modification standard.
- Dave Owen
Wednesday, May 7, 2014
In my short time as an academic, I’ve noticed an increasingly common practice: when law professors cite the work of other law professors in their articles, they tend to precede the person’s name with the title “professor.” So, for example, I might write, “as Professor Blake Hudson has pointed out, many states do very little to regulate timber harvests from private land.”
I don’t think this is a good practice. That may sound like a funny thing to say; after all, the practice is motivated by courtesy and politeness, and those are generally good things. But I think the practice creates a distinction, and implies an unjustified hierarchy, between professors and other researchers.
Consider this scenario. I’m writing a sentence that will cite two experts, who we’ll call John Poe and Jane Doe. John Poe is a professor, and Jane Doe is a public-sector attorney. The sentence might read like this: “Jane Doe has argued X, but Professor John Doe disagrees, explaining that…” For at least some readers, the title will now become relevant to their assessment of the disagreement; the implication is, “well, he’s a professor, and she isn’t, so we probably ought to give greater weight to his view.” (Of course, some people will have exactly the opposite reaction.) But Jane Doe may well have a deeper understanding of the subject, and a lot of great research comes from people who aren't professors. The better practice, I think, is to let the views stand on their merits, not based on the titles of their authors.
That doesn’t mean titles will never be relevant. Sometimes the title does help readers judge the authoritativeness of an opinion. For example, if a judge writes something about problems with the rules of evidence, it’s helpful to know that the article comes from a judge, who presumably has direct experience with the subject she describes. But for the most part, I think we should just do what academics in other fields do: provide names, not titles.
Friday, May 2, 2014
Also, and critically, the court rejected the counties' assertion that state law should determine the entire scope of an R.S. 2477 rights of way, holding that state law has provided "convenient and appropriate principles" for determining the scope and validity of an R.S. 2477 right of way, but it can be dismissed when it "contravenes congressional intent." Lastly, the court rejected the claimants' argument that using Salt Creek road to access grazing allotments could satisfy the "use" element of an R.S. 2477 claim because that use was authorized by federal grazing permits. So, in essence, ranchers holding permits couldn't assert their permitted use of federal lands as an element of what is essentially an adverse possession claim against the federal government, which makes sense.
Thursday, May 1, 2014
For a spice lover and an environmentalist there could be little more disconcerting than to learn that one's favorite hot sauce is a source of public nuisance caused by the odor of ground peppers. So, when I first learned that the City of Irwindale was threatening to seek closure of the beloved Sriracha sauce factory for causing odor pollution, I was dismayed with the prospect of choosing between my two passions. However, as my colleague Ernesto Hernandez, who has written an op-ed piece (as well as an interview) on the matter after attending a local public hearing clarified, the local environmental protection department seem to have little concern about pollution abatement at the Sriracha factory. While news reports are abuzz with this very hot issue indeed, the outcome is as yet unclear. The City of Irwindale is yet to adopt a resolution on closure of the factory. Relieving though this is, the Sriracha saga nevertheless is an intriguing issue and developments regarding this issue could well provide important lessons in bargaining.
Monday, April 28, 2014
Pace Law School seeks applicants for a new Visiting Assistant Professor (VAP) in Environmental Law. The VAP in Environmental Law will hold a one-year appointment, renewable for a second one-year term. The appointment is designed to mentor and train future environmental law professors.
The VAP will have a reduced teaching load of one course per semester, the opportunity to focus on scholarly research and writing, and the expectation that s/he will enter the law school teaching market. The VAP will receive the same office and administrative support as other faculty members, is invited to participate fully in faculty activities, and will receive a small travel and research fund. Additionally, the VAP will present a work in progress at Pace Law School’s Future Environmental Law Professors Workshop, receive feedback and mentoring from other scholars, and present a finished manuscript to the faculty at our weekly scholarly colloquium.
The salary for the VAP in Environmental Law is $55,000 per year plus benefits, including health and dental insurance. The VAP will not be eligible for a full-time tenure-track or tenured faculty appointment at Pace Law School until after six years following the completion of his/her term in residence.
Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. Pace is committed to achieving equal opportunity in all aspects of University life. Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school. Pace is committed to achieving completely equal opportunity in all aspects of University life.
Applicants should submit:
- Curriculum Vitae (that lists three references and law school courses the candidate would be interested in teaching)
- If possible, one published scholarly article or unpublished paper draft that reflects the candidate’s scholarly interests and potential
The application deadline is May 1, 2014.
If you would like to be considered for a Visiting Assistant Professor in Environmental Law appointment beginning in the Fall of 2014, please send your application materials via email to Professor Jason J. Czarnezki at email@example.com. Only electronic submissions will be accepted.
Thursday, April 24, 2014
China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?
News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.
Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.
Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?