Friday, October 9, 2015
This morning, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule. This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory. Those proclamations will conceal, however, a few layers of complexity and irony.
The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule. Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new. That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment. Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon which no one would have thought to comment.
According to the plaintiffs—and, now, the Sixth Circuit—EPA and the Army Corps violated that principle when they included distance-based jurisdictional criteria in the final rule. Under the new regulations, wetlands that are more than 4,000 feet from a categorically jurisdictional water feature are categorically non-jurisdictional. Under the proposed rule, those wetlands would have been subject to case-by-case jurisdictional determinations. The final rule also includes specific numeric distance limitations on the definition of “adjacent” waters, which also are categorically jurisdictional. These distance limitations, the court concluded, were not logical outgrowths of the proposed rule, and it therefore stayed implementation of the rule in its entirety.
The irony here is that, in the long term, the states may have shot themselves in the foot. Or, at best, they’ve just achieved a little bit of largely inconsequential delay. The state plaintiffs brought their claims for fundamentally anti-regulatory reasons: they wanted less federal jurisdiction, and they wanted more predictable limits upon that jurisdiction. And the numeric distance limitations did just what the states wanted (though not as much as they wanted): they established boundaries on federal jurisdiction, and they did so on the basis of distance, which is typically more transparent and predictable than a complex science-based determination about hydrologic and ecological connectivity.
Indeed, that move from science-based, site specific analysis to more blunt and categorical exclusions is precisely why environmental groups are upset about the distance limitations. Those groups generally favor the new rule, but they have brought suits specifically focused on the very distance limitations that gave the states their “victory” today. And if the ultimate result of this victory is that the distance limitations come out of the rule, the states will have succeeded in making the rule—from their anti-regulatory perspective—worse than it is at present. The environmental groups, meanwhile, may just have achieved a key step toward excising the part of the rule that they particularly dislike.
Of course, all of this may turn out to be a tempest in a teapot. As I’ve argued previously (and as EPA itself has repeatedly pointed out), the new rules don’t mark much of departure from previous practices. In the field, this court decision won’t change much. And the decision itself may not last. As dissenting Judge Keith pointed out, the Sixth Circuit still has to decide whether it actually has jurisdiction to issue this stay. If it finds that it lacked jurisdiction, the matter will revert to the district courts. And if the issue does remain with the Sixth Circuit, this is just a preliminary stay. I think there is some credible basis for these logical outgrowth arguments, but there also are some very credible responses. With another round of briefing and argument, and a bit more time to think, the Sixth Circuit could come to a different outcome—which, then, may well be reviewed by the United States Supreme Court.
So stay tuned, and remember that in this dispute, things are not always as they seem.
Wednesday, October 7, 2015
Idaho Law Review Call for Papers - Hydropower and the Energy of the Future: Is there a Place for Dams?
CALL FOR PAPERS
HYDROPOWER AND THE ENERGY OF THE FUTURE: IS THERE A PLACE FOR DAMS?
The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.
The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.
For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at: firstname.lastname@example.org, or Professor Jerrold Long at email@example.com. Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at http://www.uidaho.edu/law/law-review/articles.
October 7, 2015 | Permalink
Monday, October 5, 2015
An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law
On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands. In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being. The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people. Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . . values” on public lands. This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research.
The fracturing rules that the BLM finalized in March 2015 are primarily informational. (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.) They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices. The rules also require operators, after conducting a fracturing operation, to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information. Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status. Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing. Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions. This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.
In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation. Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example. For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate. Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state. For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands. These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.
The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes. It also has broader implications for environmental and land use law. In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA). And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow. This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act. Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act. Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution.
The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws. For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands? It would, it seems, following the court’s logic. Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.
Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law
EPA decided on Thursday to issue a new national ambient air quality standard (NAAQS) for ozone. EPA’s final rule sets the ozone NAAQS at 70 parts per billion (ppb), 5 ppb more stringent than the previous standard of 75 ppb, but at the upper (more lenient) end of the range of 60-70 ppb that was recommended by the agency’s Clean Air Science Advisory Committee. The final rule is widely perceived as a compromise between public health objectives and concerns over the economic impacts of a more stringent ozone standard. Under the Clean Air Act, however, it is well established that EPA’s judgment in choosing a NAAQS standard is supposed to be guided entirely by science, not economic costs. See Whitman v. American Trucking Assns., 531 U.S. 457 (2001).
Environmental and public health advocacy organizations are criticizing the new standard as inadequately protective and scientifically indefensible. One can indeed fault the Obama Administration for playing politics by compromising the Clean Air Act’s public health objectives, as it also did in 2011 when it rejected EPA’s attempt to promulgate a more stringent ozone standard. But environmental politics are of course vitally important to obtaining results. The new compromise ozone standard will make it more difficult for industry to lobby Congress to enact legislation overriding EPA’s standard than it would have been if the standard were more aggressive. The political risk, not just to the Obama Administration generally but to the ozone standard specifically, of a more stringent standard would have been considerable. The Administration’s compromise, by virtue of its political resilience, thus might actually result in cleaner air than a more aggressive but more politically susceptible standard. The Administration’s compromise also undermines a broader caricature of EPA as a blindered agency unattentive to the economic consequences of its policies—a narrative that is both dangerous and untrue. In this way, the Administration’s discretionary judgment to choose a new ozone NAAQS at the more lenient end of the scientifically defensible range of options acts as a potentially beneficial safety valve, mitigating the political firestorm that might have resulted from a more aggressive new rule.
The role of political safety valves in environmental law and politics has received some attention from environmental law scholars, but could use more. In a recently posted draft paper on SSRN, Nathan Richardson (South Carolina) argues that the major questions doctrine, which allows courts to avoid giving deference to agency interpretations of statutes where the issue implicates particularly weighty policy questions, can serve as a beneficial safety valve that may reduce courts’ urge to jettison deference to agency interpretations altogether. Like the new ozone rule, the major questions doctrine has elicited concern about whether it will undermine environmental policy—for example, by making it easier for courts to invalidate EPA’s new Clean Power Plan. Richardson’s paper, however, argues that in the long run, the doctrine may help preserve agency deference.
Similar controversies have long plagued federal lands disputes, where Congress has sometimes enacted appropriations riders that create isolated exceptions to federal environmental requirements, such as a provision in a 1995 appropriations bill that streamlined environmental planning for certain timber projects on public lands. Richard Lazarus, among others, has criticized such appropriations riders as “nondeliberative, back-door, private deal-making.” This characterization may be accurate, and the appropriations process clearly is not an ideal forum for deliberative democracy, but the safety valve that it offers may have some important pragmatic benefits that should be considered.
My point is not that political compromise is always justified. But a political compromise may sometimes be justified at least partly on the basis of its safety valve benefits. Whether a particular political compromise is justified because of its safety valve benefits will depend on weighing the various possible outcomes, and reasonable and informed minds will likely differ in making that assessment.
October 5, 2015 | Permalink
Friday, September 25, 2015
On September 21, the Seventh Circuit (Bauer, Kanne, Williams) issued a decision in Peoples Gas Light and Coke Co. v. Beazer East, Inc. This case involves liability under CERCLA for response costs associated with the Crawford Station site, the location of a former coke plant in Chicago. Both Peoples Gas Light and Coke Co. and Koppers, Beazer East’s predecessor, were involved with the construction and operation of the coke plant in the 1920s. When decades later Peoples incurred liability and response costs in connection with the Crawford Station site, Peoples sued Beazer East under CERCLA for cost recovery and contribution. The district court dismissed the cost recovery claim because Peoples had resolved its liability to the United States via an administrative settlement and dismissed the contribution claim because it was time barred and barred by a 1920 agreement between Peoples and Koppers. Peoples appealed the dismissal of its contribution claim.
The Seventh Circuit affirmed. The 1920 agreement between People and Koppers absolved Koppers of “liability of any character . . . except as expressly assumed under the terms of this contract.” According to the court, reading this provision to bar Peoples’ contribution claim was consistent with the overall agreement, which limited Koppers’ role in the coke plant to financing and operating the plant for a limited time until it had been repaid. In addition, the provision was general enough to cover CERCLA liability. Because the court concluded that the 1920 agreement barred the contribution claim, it did not reach the question whether some aspects of the claim were time barred.
September 25, 2015 | Permalink
Thursday, September 17, 2015
On September 17, the Ninth Circuit (Schroeder, Callahan, Pratt (by designation)) issued a decision in Center for Biological Diversity v. Fish and Wildlife Service. In 2002, the Nevada state engineer ordered water rights holders in the Coyote Spring Valley of Nevada to conduct a study of the effects of groundwater pumping in the area. The Fish and Wildlife Service (FWS) was concerned about the potential effects of the pump test on the Moapa dace, a small endangered fish in the minnow family. FWS entered into a memorandum of agreement with the other rights holders to take certain conservation measures to protect the Moapa dace from the potential impacts of the pump test. Pursuant to its obligations under the Endangered Species Act, FWS issued a Biological Opinion analyzing the pump test’s impacts on the Moapa dace and concluding that the test would not be likely to jeopardize the continued existence of the Moapa dace. The Coalition for Biological Diversity sued to challenge the adequacy of the Biological Opinion. The district court granted summary judgment for FWS.
The Ninth Circuit affirmed. First, the court held that CBD had standing to bring its suit, because setting aside FWS’s Biological Opinion could result in stronger conservation measures. Second, the conservation measures identified in the Memorandum of Agreement qualify as enforceable under the ESA. Because the Agreement—not the underlying groundwater pumping—was the federal action triggering the ESA, it was not necessary for the conservation measures to be enforceable against the private parties engaged in the pumping. Third, the fact that the terms of the Agreement were negotiated does not support a conclusion that the Biological Opinion’s analysis of the Agreement was not supported by the best available science. Fourth, the record supported the Biological Opinion’s conclusion that the Agreement’s conservation measures will adequately protect the Moapa dace.
September 17, 2015 | Permalink
Tuesday, September 15, 2015
On June 12, the Ninth Circuit (Fisher, Bea, Murguia) issued a decision in Cascadia Wildlands v. Bureau of Indian Affairs. Under the Coquille Restoration Act, 25 U.S.C. § 715c, the federal government holds and managed the lands of the Coquille Forest along the southwest Oregon coast in trust for the benefit of the Coquille Indian Tribe. The Bureau of Indian Affairs (BIA) approved the Alder/Rasler timber project in 2011 and the Kokwel timber project in 2013 on adjacent and overlapping lands within the Coquille Forest.
Three environmental groups—Cascadia Wildlands, Oregon Wild, and Umpqua Watersheds—sued the BIA, alleging that the BIA’s approval of the Kokwel project violated the National Environmental Policy Act (NEPA) because it did not adequately consider the project’s cumulative environmental impact in light of the Alder/Rasler project and violated the Coquille Restoration Act because the project is inconsistent with the U.S. Fish and Wildlife Service's (FWS) Recovery Plan for the northern spotted owl. The district court granted summary judgment for the BIA.
The Ninth Circuit affirmed. With respect to the NEPA claim, the court held that the BIA permissibly considered the impacts of the Alder/Rasler project, which had been approved but not completed, as part of the baseline for the Kokwel project. Moreover, the BIA allowably aggregated the impacts of the Alder/Rasler project along with other previously approved projects in the area. With respect to the Coquille Restoration Act claim, the court held that the Act, which requires the BIA to manage the Coquille Forest consistently with federal “standards and guidelines,” does not require the BIA to comply with Fish and Wildlife recovery plans for endangered species such as the northern spotted owl. Rather, the court interpreted “standards and guidelines” to refer to standards and guidelines in applicable federal forest plans, such as the Northwest Forest Plan. Although the Coos Bay District Resource Management Plan specified consistency with recovery plans as an “objective,” the court declined to hold that the Act’s reference to “standards and guidelines” included the Coos Bay Plan’s “objective.”
September 15, 2015 | Permalink
Friday, September 11, 2015
On September 4, a Fifth Circuit panel (Davis, Jones, Clement) issued a decision reversing the convictions in a Clean Air Act and Migratory Bird Treaty Act (MBTA) prosecution against CITGO. A March 2002 inspection of a CITGO refinery in Corpus Christi, Texas, found 130,000 barrels of oil floating in uncovered equalization tanks. Equalization tanks are used to store wastewater temporarily so as to equalize the flow of wastewater to secondary treatment systems. Under Clean Air Act regulations, if the tanks were oil-water separators, CITGO had to cover them to limit emissions of volatile organic compounds. Following a trial, CITGO was convicted of two counts of violating the Clean Air Act and three counts of taking migratory birds in violation of the MBTA.
The Fifth Circuit reversed. With respect to the Clean Air Act counts, the court of appeals held that the district court erred by instructing the jury to find that Clean Air Act regulations for oil-water separators applied if CITGO was using its tanks as oil-water separators. The court instead interpreted the regulations to define an oil-water separator based on how the equipment is used and on its constituent parts. Thus, even though CITGO was using the equalization tanks to separate oil from water, the tanks were not necessarily subject to regulation as an oil-water separator. With respect to the MBTA convictions, the court of appeals—siding with the Eighth and Ninth Circuits and against the Second and Tenth Circuits—held that the MBTA’s prohibition against “taking” migratory birds “is limited to deliberate acts done directly and intentionally to migratory birds.” The court reasoned that Congress intended to retain a narrow common law definition of “take,” as opposed to more expansive meaning in the Endangered Species Act.
September 11, 2015 | Permalink
Friday, August 28, 2015
Eighth Circuit Affirms $2.2 Million Judgment for Clean Water Act Violations at Nebraska Rendering Plant
On August 27, the Eighth Circuit (Wollman, Smith, Benton) issued a decision in United States v. STABL, Inc. STABL owned and operated a rendering plant that discharged wastewater to the Lexington, Nebraska, wastewater treatment plant. STABL’s discharge monitoring reports indicated that the plant repeatedly discharged excessive amounts of pollutants in violation of its pretreatment permit. The United States and the State of Nebraska brought an enforcement action against STABL alleging violations of the federal Clean Water Act and the Nebraska Environmental Protection Act, respectively. The district court granted partial summary judgment on liability for the government and imposed a $2.3 million civil penalty. STABL appealed.
The Eighth Circuit affirmed. First, the court held that STABL’s own discharge monitoring reports were admissible evidence of the company’s violations. A defendant that asserts its own discharge monitoring reports were erroneous bears a heavy burden, which STABL did not meet in this case. Second, the court held that the district court did not abuse its discretion in admitting the testimony of an EPA compliance officer as lay testimony rather than as expert testimony. Third, the district court did not abuse its discretion in allowing a government expert to update her expert report to incorporate previously unknown information about the economic benefit STABL received from its violations. Fourth, the district court properly allowed a government witness to correct his data, especially when the corrections favored STABL. Fifth, the city’s monitoring records were reliable and admissible evidence of STABL’s violations. Sixth, any error in denying STABL a jury trial on the number of violations was harmless, because the district court could have granted judgment as a matter of law on that issue.
August 28, 2015 | Permalink
Thursday, August 27, 2015
Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule). And if ever there was a judicial opinion begging for prompt reversal, this is it. EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position. The court pretended—among other errors—that all that effort and evidentiary support simply did not exist.
The Clean Water Rule determines the scope of federal jurisdiction under the Clean Water Act. More specifically, it includes within federal jurisdiction any tributary of a navigable-in-fact waterway, and the definition of tributary encompasses any stream—even intermittent or ephemeral ones—so long as that stream has a bed, banks, and an ordinary high water mark. That part of the rule, Judge Erickson has concluded, is inconsistent with the Clean Water Act and the Supreme Court’s Rapanos decision and is arbitrary and capricious (the court also held that another element of the rule was not a logical outgrowth of the proposed rule). And that holding, in turn, is premised on all kinds of problematic reasoning.
Ignoring the Facts
One crux of the court’s reasoning was its assertion that the rule lacked any support in the administrative record. The court left no doubt on this point: it charged that “the agencies’ internal documents reflect the absence of any information about how the EPA obtained its presented results;” that “review of what has been made available reveals a process that is inexplicable, arbitrary, and devoid of a reasoned process;” that “[t]he rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity of any navigable-in-fact water;” and that “[n]o evidence points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”
These statements are just plain false. In the rule itself, EPA and the Corps explained in great depth, and over and over again, why tributaries, including ephemeral tributaries, have a significant nexus to water quality in traditionally navigable waters. The rule also cited and summarized a technical support document—which the court purported to have read—that explained the connections in even greater depth. And the technical support document in turn cited a massive EPA study of the scientific literature on connections between tributaries and other forms of wetlands and water quality in navigable-in-fact waterways. That study in turn involved a review of about 1,200 scientific studies. The support documents also were vetted by EPA’s science advisory board—which concluded, in no uncertain terms, that "[t]here is strong scientific evidence to support the EPA’s proposal to include all tributaries within the jurisdiction of the Clean Water Act."
Over the past few months, I have read the rule, the technical support document, the science literature review, and the SAB report, and I have also read many of the studies cited by the science review. They contain a mountain of evidence that even intermittent streams and what the court described as “remote wetlands” do have a significant nexus to water quality in navigable-in-fact waterways. Study after study explains how even intermittent streams process nutrients, reducing downstream algae blooms; process carbon, providing the basis for food chains throughout river systems; provide breeding grounds for a wide variety of aquatic species; and provide a host of other water quality benefits throughout river systems. I honestly cannot imagine how any federal court judge could write that no such evidence informed EPA’s and the Army Corps’ decision. At best, that assertion is the wishful guess of an ideologue who had not actually read any of the relevant documents. At worst, it is just a bald-faced lie.
Distorting the Law
The district court’s opinion also displays a fairly flip attitude toward governing law. That attitude is on display in both the court’s discussion—or lack thereof—of agency deference and in its application of the Rapanos standard itself.
Deference isn’t much in evidence here. The idea that EPA and the Army Corps were basing the rule on scientific determinations that were within their expertise, and that a court should not lightly second-guess, appears nowhere in the opinion. Nor does even a mention of Chevron deference, even though the court was reviewing a challenge to two agencies’ interpretation of their governing statutory law. That is somewhat ironic, for the opinion itself provides rather compelling support for arguments in favor of agency deference. The level of expertise and effort that went into the rule quite evidently dwarfs the level of expertise and effort that went into the court’s ruling, which barely even appears to have been proof-read. But that seems not to have troubled the court at all.
On Rapanos, the problems are more subtle but still quite real. The court relied heavily—almost entirely—on a Rapanos passage in which Justice Kennedy expressed reservations about a jurisdictional rule that would extend to remote tributaries. The district court quoted Justice Kennedy’s words accurately, and they do express some concern about broad assertions of jurisdiction. But that was just two sentences in a long opinion. Elsewhere in his opinion, Justice Kennedy disagreed at length with the Rapanos plurality’s argument that intermittent waterways should be categorically non-jurisdictional. And his opinion also evinces a clear expectation that jurisdiction would extend to waterways that have, individually or collectively, a significant nexus to water quality in navigable-in-fact waters, and that significant nexus determinations would be heavily informed by science. EPA and the Army Corps now have made that significant nexus determination, and it is overwhelming supported by scientific research. Yet that part of Justice Kennedy’s opinion also is largely absent from Judge Erickson’s reasoning. As a consequence, Justice Kennedy’s vaguely-implied preference for narrow jurisdiction seems to have trumped the legal rule he actually articulated.
The opinion isn’t long, but it still gives rise to many other critiques. The court’s persistent references to “EPA regulation” and "EPA’s position" clearly echo the talking points of conservative critics of the rule—EPA is a popular villain these days--but they ignore the reality that this rule was the joint work of EPA and the Army Corps. Its weighing of hardships suggests very little understanding of how the section 404 program actually is implemented, and by whom, and also assigns absolutely no weight to the public interest in environmental protection. Its “logical outgrowth” argument ignores a key purpose of that doctrine, which is to allow agencies to make some adjustments based on the comments they receive. But perhaps those are subjects for another post. The key point is just that this opinion distorts law and wishes away the central facts of the case. The sooner an appellate court does some real judging, the better.
- Dave Owen
stream image from usfs.gov.
Saturday, August 8, 2015
Last summer, my family and I went rafting down the Animas River in Durango, Colorado. I took this picture during the trip:
This is what the Animas River looks like today:
The orange colored water you see here contains sediment mixed with a soup of heavy metals (including iron, zinc, lead, cadmium, arsenic, and copper). It was released in a mishap at the Gold King Mine, when 1 million gallons of contaminated mine waste was accidentally released into the river. You would be right to conclude that "but for industrial development this accident would not have occurred." Yet that does not tell the entire story. This release into the river was not caused by industry. It was caused by none other than the U.S. Environmental Protection Agency. The EPA was attempting to clean the site through its CERCLA Superfund program, which it has used to target a number of mines in the region. Runoff from these mines has led to the continued degradation of the Animas (which even before the spill had become toxic to fish). The team was using heavy equipment and accidentally breached a berm that was holding the contaminated water inside the mine.
The pollution has caused a great deal of uncertainty along the Animas and downstream in the San Juan River. The river has now been closed to recreational activities and downstream users have been warned to shut off their intake valves. David Ostrander, EPA’s director of emergency preparedness for the region, summed the situation up quite bluntly: "This is a huge tragedy. It’s hard being on the other side of this. We typically respond to emergencies, we don’t cause them."
The lesson from this tragedy is not that we shouldn't clean up contamination. These incidents are infrequent, especially when compared to the number of successful cleanups that have occurred without incident and have done great good for society. And yet, sometimes the risk of cleanup is greater than the risk of leaving contamination in place. It calls to mind the Rocky Mountain Arsenal, described as an "ironic natural park" because, while it is highly contaminated with everything from nerve gas to nasty pesticides, it is also teeming with wildlife in an ecosystem that has returned to the site in force. I joke in class that if it weren't for the waste (and for being federally owned), the area would likely be cleared so yet another big box retailer and strip mall development could come in and pave the whole area over....so maybe humans are worse for the environment than nerve gas. OK, not really. But in all seriousness, Jim Rasband, Jim Salzman, and Mark Squillace raise the question of what is more "natural" in these situations? To leave the site contaminated and allow the wildlife to remain, or to disturb the ecosystem that has arisen and attempt to clean up the contamination? The answer is not so clear. In the long run cleaning up the Gold King Mine seems worth it. But if the risk of greatly damaging the river ecosystem in the short run is great, what steps should be taken? It is not clear that the risk was great here, as this appears to have been a simple accident, but one can imagine situations where the choice is not apparent. And we make these choices quite frequently in environmental law. CERCLA, for example, weighs factors like exposure pathways, proximity to the public, and degree of toxicity to prioritize whether and when a site should be cleaned up. Sometimes, even if toxicity is high, if the public and natural resources are not near and are not being directly harmed, and if exposure pathways are low, it is best to just let the contamination be for a while.
The Chernobyl nuclear site presents a similar conundrum. Trees in the area are absorbing radioactive contamination, which assists with cleanup and also houses wildlife. But what happens when the forest burns? According to Scientific American,"[i]f these forests burn, strontium 90, cesium 137, plutonium 238 and other radioactive elements would be released." The radioactive smoke would likely have profound health impacts hundreds of miles from the site. So do you allow the ecosystem to "self-repair" or do you cut the forest down and dispose of the trees as hazardous waste?
While some caution must be taken at the stage when we decide whether to remediate a contaminated environment or not, the more important lesson here is that government agencies tasked with cleaning up sites are subject to the same risks of harming the environment as the entities they regulate. The EPA and similar agencies, however, should arguably be held to a higher standard. Indeed, much of the backlash against the government for this incident - rightly or wrongly - revolves around "hypocrisy" and the penalties the government would readily dole out if it was industry that made this mistake.
The circumstances surrounding this incident have yet to become clear, and people seeking to criticize environmental regulatory agencies should not view it as an opportune time to lambaste them for trying to do their job. Accidents happen. But the incident is a good reminder that sometimes the cure can be worse than the disease, and if the government plans to implement a cure it had better ensure that it is prescribing the right medicine.
- Blake Hudson
Wednesday, August 5, 2015
An intriguing little sub-drama is unfolding with the new EPA/Army Corps jurisdictional rule. Late in the rulemaking process, EPA added a limitation that would place most wetlands located more than 4,000 feet from a “tributary” outside the scope of federal jurisdiction. In internal memos, which have now gone public, Army Corps staff criticized that change, arguing that it would reduce the scope of federal protection—and, in so doing, undercut some of the other assumptions in the analyses supporting the rule.
The first interesting thing about this controversy is what it reveals about interagency dynamics. For the Army Corps to be criticizing EPA for reducing the scope of the 404 program might seem, as Pat Parenteau put it in a recent Greenwire story, “amazing.” But while I’m a little surprised that EPA would be on the receiving end of the criticism, the Army Corps’ commitment to wetland protection is less surprising. The Corps took some time, several decades ago, to embrace the 404 program, but the many staff I’ve talked to take the protective mission quite seriously. Sometimes the past really is past.
The other intriguing issue is whether the limits are significant. The basic question, distilled as much as possible (which isn’t very much), is this: how many wetlands are there that (a) aren’t within 4,000 feet of a tributary (which the rule defines expansively); (b) aren’t within the 100-year floodplain of a tributary; (c) aren’t California vernal pools, prairie potholes, pocosins, Delmarva bays, Carolina bays, or Texas coastal prairie wetlands; and (d) were previously jurisdictional? I suspect the answer is very few. The simple reason is that, in most landscapes, wetlands and streams occur in association. Even if a wetland doesn’t connect to at least an ephemeral stream—and most do—a stream is at least likely to be nearby, for if there’s enough precipitation to create static pools on a landscape, there’s probably also enough precipitation to create flow. And if a stream isn’t nearby, jurisdiction, at least since the U.S. Supreme Court's SWANCC decision, was probably unlikely.
Now, in a perfect world, the best answer to this question wouldn’t be educated guesswork. Running GIS analyses on a few sample landscapes (for example, in my previous home state of Maine, where vernal pools are abundant) would probably reveal much, and perhaps EPA and the Corps should have done those analyses (or maybe we'll learn, as this controversy unfolds, that they did). And, more importantly at this stage, perhaps some of the environmental groups contemplating lawsuits still could have their technical staff spend some time with maps. The analysis might reveal that, despite the Corps’ initial concerns, the changes in the scope of jurisdiction are quite minimal. And if that’s true, a lawsuit would be unlikely to produce any greater level of protection, even if it does prevail. From an environmentalist's perspective, there's a lot to like about these rules. It would be a shame if they got challenged for reasons that might well turn out to be inconsequential.
- Dave Owen
Sunday, July 26, 2015
This month NASA released a new photo of Earth, taken by the Deep Space Climate Observatory satellite. The satellite was launched in February, 2015 and actually orbits the Earth at a distance 4 times further out than the orbit of the moon. The image, below, is the first taken of the entire sunlit side of the Earth since the Apollo 17 mission took the iconic "blue marble" photo of Earth in 1972.
Data from the satellite will be used to measure ozone and aerosol levels in Earth’s atmosphere, cloud height, vegetation properties, and the ultraviolet reflectivity of Earth. NASA will use this data to, for example, develop dust and volcanic ash maps of the entire planet.
When you view the Earth from this distance, it seems like nothing more than a biological system. The greens hues are clearly the result of photosynthesis. The blue water is a resource that intelligent entities are likely to know is essential to life. And so even though you cannot identify any organism in particular, you can tell that earth is alive. And while this observation is nothing new, it is useful to be reminded of Earth's unique status as the only planet we know of that harbors life - especially since the image can be very different once you land on Earth's surface. Once at the surface, places may very well look something like this...
In fact, images from further out demonstrate that more than biological processes are taking place. Consider space junk (note that the satellites in the below rendering are not actually that big, but rather are drawn larger to aid observation)...
Or, the earth at night, demonstrating the generation of electricity through technical means...
While humans are obviously biological entities, we undertake a great deal of mechanical, technological activity. The term "bionic" simply means "having artificial body parts, especially electromechanical ones." It seems clear that allowing the Earth to go down the road seen in the Matrix or Terminator movies would be a bad move. We cannot replace all of the biological systems upon which we depend with human made systems and maintain any meaningful quality of life. And it seems clear also that each small loss of biological processes on earth - though perhaps individually insignificant - reduces long term human well being when those losses are aggregated in an increasing manner (obviously if those losses are being offset by gains elsewhere, then that changes the analysis).
For these reasons I am increasingly perplexed by the tendency, even in environmental legal scholarship, for those who are environmentally concerned to advocate for tepid responses to what amounts to a global biological crisis (an observation that is admittedly anecdotal, from my review of environmental scholarship over the last decade). In the name of being nuanced, fair, balanced, and thoughtful, scholars too often understate what is needed to forestall tipping the scales too far toward a mechanical Earth. The Intergovernmental Panel on Climate Change (IPCC) - at the forefront of sounding the alarm on climate change - has even been accused of responding too conservatively to the science. Apparently we have a tendency to temper the truth for fear that we will lose the audience - a large portion of which does not want to hear the truth. In this way, advocates also allow the practical difficulties of implementing the policies they would suggest get in the way of their advocacy. They see local government capture or state government self-interest or federal government constitutional constraints as rendering some policy responses not even worth advocating for. I fundamentally disagree. Over the next few years I plan to explore in my scholarship ways in which we can strike a better symbiosis between biological and mechanical systems within the context of land use planning. And some of those suggestions, while nothing new, are fairly radical in nature. I believe we need to take drastic action to curb urban sprawl and other land-use maladies if we are to maintain adequate biological systems for generations to come.
Recently, I have attempted to determine what bothers me so much about the replacement of natural capital in our land use activities. I recently had an executive with Southwestern Energy speak to my environmental law class. I asked him which federal statutes he would most like to see amended or changed. I thought he would say the Clean Air Act or the Clean Water Act because of the sheer complexity and costs of meeting all of the technological requirements of those statutes. Instead, he said the Endangered Species Act and section 404 of the Clean Water Act (dealing with wetland fill permitting). In some ways, this is why industrial pollution per se doesn't bother me as much as the clearing of land. With enough investment there will always be technological fixes to pollution, if we are willing to spend the money and forgo the short-term benefits. The responses and controls are infinite and limited only by human ingenuity, which itself is not easily limited. But there is only a finite amount of land. This is why some of the policies that are most severely needed to maintain Earth's biological systems are also the most controversial. Telling people they cannot develop a parcel of land or a certain percentage of a parcel of land often does not go over very well. But that is exactly what is needed. We have to do a better job through land use planning of saving biological spaces, and concentrating mechanical spaces in smaller areas. Otherwise, we end up with a mishmash - a bionic system that is increasingly becoming mechanized.
In the end, we can be thoughtful, acknowledge that progress and economic development need to take place, and still feel very strongly about where and how that development should proceed. If we don't move away from tepid suggestions and toward an acknowledgement of the reality of what we are doing to the Earth's land base, we will likely find ourselves living in a world of reduced richness and that looks very different through the lens of future satellites.
- Blake Hudson
Saturday, July 25, 2015
On July 21, the D.C. Circuit (Griffith, Pillard, Williams) issued a decision in National Association for Surface Finishing v. EPA. Both industry and environmental petitioners filed petitions for review challenging a 2012 EPA regulation revising the National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for hexavalent chromium, which is emitted from chrome-finishing processes. The 2012 rule strengthened emissions limitations and phased out fume suppressants containing perfluorooctyl sulfonate (PFOS). EPA denied the petitions for review. Rejecting the environmental petitioners’ arguments, the court held (a) that EPA was not required to calculate a new technology-based emissions stringency floor, which would be independent of cost considerations, when it revised the emissions standards; (b) that EPA did not ignore emissions data from California in calculating the revised standards, but rather appropriately took into account that California plants are not representative of nationwide emissions. Rejecting the industry petitioner’s arguments, the court held (c) that EPA reasonably concluded that technological developments had occurred since the prior standard, thus justifying revising the standard; (d) that the administrative record supported EPA’s conclusion that non-PFOS-based fume suppressants can achieve the new emissions limits, and (e) that EPA’s risk review included the requisite margin of safety, was consistent with EPA’s prior determination in 2010 that new emissions standards were unnecessary at that time, and did not rely on inaccurate data.
July 25, 2015 | Permalink
Tuesday, July 21, 2015
D.C. Circuit Holds that Environmental Group Falls Outside of Zone of Interests of NEPA and the Clean Water Act
On July 21, the D.C. Circuit (Rogers (dissenting in part), Brown, Ginsburg) issued a decision in Gunpowder Riverkeeper v. FERC. Gunpowder Riverkeeper, an environmental organization, filed a petition for review challenging FERC’s decision to issue a certificate of public convenience and necessity conditionally authorizing Columbia Gas Transmission to extend a natural gas pipeline in Maryland. Gunpowder Riverkeeper alleged that FERC issued the certificate in violation of NEPA and the Clean Water Act. The D.C. Circuit denied the petition on the ground that Gunpowder Riverkeeper’s asserted interests in the certificate fell outside of the zone of interests of NEPA or the Clean Water Act. To establish an injury that satisfied Article III’s standing requirements, Gunpowder Riverkeeper relied on the taking of land by Columbia under eminent domain enabled by the certificate. The court of appeals held that such an injury met the Article III standard, but because Gunpowder Riverkeeper did not claim an environmental injury from the threat of eminent domain, its interests lay outside of the zone of interests of NEPA or the Clean Water Act. Judge Rogers dissented in part but concurred in the judgment. She would have held that Gunpowder Riverkeeper stated an environmental interest within the scope of NEPA and the Clean Water Act, but would have rejected the petitioner’s claims on the merits.
At first glance, the majority’s conclusion that Gunpowder Riverkeeper, an environmental group, did not state environmental interests seems strange. In reading Judge Rogers’s dissent, however, she explains that Gunpowder Riverkeeper argued only that its interests fell within the zone of interest of the Natural Gas Act, which created the cause of action. This created a problem for Gunpowder Riverkeeper, because D.C. Circuit case law provides that petitioners must assert interests within the zone of interests of the statutes allegedly violated—here, NEPA and the Clean Water Act. Judge Rogers thought it was sufficiently clear from the record that Gunpowder Riverkeeper had asserted interests congruent with NEPA and the Clean Water Act, but apparently Gunpowder Riverkeeper never made such an argument in its briefs.
July 21, 2015 | Permalink
Wednesday, July 15, 2015
On July 14, the D.C. Circuit (Tatel, Kavanaugh, Pillard) issued a decision in Energy Future Coalition v. EPA. The Clean Air Act requires vehicle manufacturers to test emissions from their vehicles, and EPA regulations require vehicle manufacturers, in these emissions tests, to use test fuels that are commercially available. EPA accordingly has not approved the use of E30, a fuel containing 30% ethanol, as a test fuel because it is not commercially available. Biofuel producers filed a petition for review challenging EPA’s exclusion of E30.
The D.C. Circuit denied the petition. As to threshold questions, the court of appeals held in favor of the petitioners, concluding (a) that the petitioners had standing to challenge EPA’s decision, which served as a regulatory impediment to selling their product; (b) that the petitioners were within the zone of interests protected by the Clean Air Act; (c) that the petition for review was timely because it was filed within sixty days of a final rule extending the test fuel regulation to light-duty cars and trucks; and (d) that the petition for review was ripe, because it presented only purely legal questions and therefore did not require further factual development.
As to the merits, however, the court upheld EPA’s requirement that test fuels must be commercially available, noting that “[i]t is entirely commonsensical and reasonable for EPA to require vehicle manufacturers to use the same fuels in emissions testing that vehicles will use out on the road.” The court acknowledged that the requirement imposes somewhat of a Catch-22, because a test fuel must be commercially available but the Clean Air Act prohibits the sale of fuels that are not substantially similar to test fuels. The court noted, however, that the Clean Air Act itself, not EPA’s regulations, creates this problem.
July 15, 2015 | Permalink
Tenth Circuit Holds that Colorado’s Renewable Energy Mandate Does Not Violate Dormant Commerce Clause
On July 13, the Tenth Circuit (Tymkovich, Ebel, Gorsuch) issued a decision in Energy and Environment Legal Institute v. Epel. In 2004, Colorado enacted a Renewable Energy Standard requiring Colorado utilities to generate or otherwise obtain specified quantities of electricity from renewable sources. The Energy and Environment Legal Institute, which advocates for free markets, sued to challenge the renewable energy standard on the ground that it violates the dormant Commerce Clause, a principle that polices against state interference with interstate commerce. In the district court, EELI argued that the mandate violates the dormant Commerce Clause (a) under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), because its burdens on interstate commerce outweighed any local benefits; (b) under City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), because it clearly discriminates against out-of-state businesses; and (c) under Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), because it regulates extraterritorial conduct. The district court rejected each of these arguments.
On appeal, EELI argued only the extraterritoriality point. The Tenth Circuit affirmed, holding that Colorado’s renewable energy mandate lacks the essential characteristics of cases in which courts have found invalid extraterritorial effects: “it isn’t a price control statute, it doesn’t link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters.” The court noted that EELI had not explained how Colorado’s mandate disproportionately harms out-of-state businesses. Without naked discrimination against out-of-state businesses, the court held, the renewable energy mandate would fall under the Pike balancing test, which EELI had not raised on appeal. The court rejected EELI’s contrary reading of Baldwin and its progeny, which according to EELI prohibits any state regulation that has the practical effect of controlling conduct beyond the state’s borders.
July 15, 2015 | Permalink
Tuesday, July 7, 2015
In his post yesterday, Todd provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL. This is an interesting and important case, and it will take a while to digest. But just based on a preliminary read, a few issues seem particularly interesting and important.
What does TMDL mean? The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs. The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act. The Third Circuit rejected that argument, instead concluding that “’total maximum daily load’ is a term of art meant to be fleshed out by regulation, and certainly something more than a number.”
The importance of that conclusion could go beyond this case. In some TMDLs, EPA or the states have done quite a lot of fleshing out, sometimes using TMDLs to set budgets for things, like impervious cover area or stormwater flow, that aren’t pollutant masses at all. They have done so, I’ve argued elsewhere, for very good practical reasons. But courts have questioned the legality of those alternative approaches to TMDL writing, instead viewing the literal language of section 303 as setting not just requirements for action but also boundaries upon what EPA can do. The reasoning of this particular decision, however, would support greater flexibility.
Federalism. The Farm Bureau also grounded its argument in its particular version of federalism, under which canons of statutory construction require a court to disfavor any legal interpretation that would push water quality law into the realm of land use regulation. The court described these arguments as “long on swagger but short on specificity.” And it concluded that the infringements upon state land use authority, to the extent they existed, came from clear statutory requirements, and that the Farm Bureau had overstated the extent of those infringements. Nevertheless, it seemed to accept the general principle that an ambiguous statute ought not be construed to change the balance of federal and state authority over land use.
Why does this matter? On the one hand, I think it’s quite nice that the court held as it did, and its reading of the Clean Water Act seems correct. But even partly accepting the Farm Bureau's asserted canon of construction seems like a further, if slight, step in the courts’ constitutionalization of the boundary between state land use and federal environmental law. And that doesn’t make a whole lot of sense. In practice, that boundary is incredibly murky, if it’s discernable at all, and the feds and the states do some of their best work when they collaborate in the zones where that boundary is not at all clear. Judicially-enforced lines aren't likely to be very much help.
This is a very minor quibble, of course, with a well-reasoned decision that produced a sensible outcome. But the future constitutional status of that boundary is something to watch in future cases.
- Dave Owen
Monday, July 6, 2015
On July 6, the Third Circuit (Ambro, Scirica, Roth) issued a decision in American Farm Bureau Federation v. EPA. The American Farm Bureau, other agricultural interests, and the National Association of Home Builders sued EPA to challenge EPA’s promulgation, pursuant to the Clean Water Act, of Total Maximum Daily Load requirements for the Chesapeake Bay watershed. The plaintiffs argued that the Clean Water Act allows EPA only to regulate the total amount of a pollutant that can be discharged into a particular segment of water, and that EPA exceeded its authority by including additional requirements that specified how Chesapeake Bay TMDLs should be allocated among types of sources, set target dates for reducing discharges, and obtained assurances from states that they would effectuate the TMDLs. The district court held in favor of EPA, and on appeal the Third Circuit affirmed. The court of appeals held that EPA has considerable discretion in deciding how to implement the Clean Water Act’s broad mandate to establish TMDLs, and that EPA’s actions with respect to the Chesapeake Bay TMDL were reasonable and complemented the purpose of the Clean Water Act’s TMDL mandate.
July 6, 2015 | Permalink
Tuesday, June 23, 2015
Ninth Circuit Upholds EPA Decision Retroactively Correcting Prior Erroneous Approval of Clean Air Act State Implementation Plan for San Joaquin Valley
On June 23, the Ninth Circuit (Schroeder, Silverman, Garbis (by designation)) issued a decision in Association of Irritated Residents v. EPA. In 2004, EPA approved revisions to the Clean Air Act state implementation plan for the San Joaquin Valley of California that would have required new source permits and offset requirements for all new and modified sources of air pollution. Existing California legislation, however, exempted certain minor agricultural sources from such requirements. In 2010, EPA realized that it accordingly should not have approved the revisions insofar as they were inconsistent with the legislation. EPA retroactively corrected its error, purporting to act under Clean Air Act § 110(k)(6), 42 U.S.C. § 7410(k)(6), which allows EPA to revise a prior decision erroneously approving or disapproving a state implementation plan revision. The Association of Irritated Residents (AIR), which opposes the minor source exemptions, petitioned for review to challenge EPA’s action.
The Ninth Circuit upheld EPA’s decision retroactively correcting its error. First, the court held that EPA reasonably concluded that it had in fact erroneously approved the plan revisions. EPA relied on a reasonable interpretation of California law, supported by an opinion from the California Attorney General. Second, the court held that Clean Air Act § 110(k)(6) gives EPA authority to amend its 2004 approval decision retroactively to correct its error.
June 23, 2015 | Permalink