Friday, August 28, 2015

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

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

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

—Todd Aagaard

August 28, 2015 | Permalink

Thursday, August 27, 2015

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

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

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

Ignoring the Facts

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

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

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

Distorting the Law

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

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

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

Other Problems

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

- Dave Owen

stream image from

August 27, 2015 | Permalink | Comments (0)

Saturday, August 8, 2015

The Perils of Cleaning up the Environment

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


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 maybe humans are worse for the environment than nerve gas. OK, not really. But in all seriousness, Jim Rasband, Jim Salzman, and Mark Squillace raise the question of what is more "natural" in these situations? To leave the site contaminated and allow the wildlife to remain, or to disturb the ecosystem that has arisen and attempt to clean up the contamination? The answer is not so clear. In the long run cleaning up the Gold King Mine seems worth it. But if the risk of greatly damaging the river ecosystem in the short run is great, what steps should be taken? It is not clear that the risk was great here, as this appears to have been a simple accident, but one can imagine situations where the choice is not apparent. And we make these choices quite frequently in environmental law. CERCLA, for example, weighs factors like exposure pathways, proximity to the public, and degree of toxicity to prioritize whether and when a site should be cleaned up. Sometimes, even if toxicity is high, if the public and natural resources are not near and are not being directly harmed, and if exposure pathways are low, it is best to just let the contamination be for a while.

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

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

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

- Blake Hudson

August 8, 2015 | Permalink | Comments (4)

Wednesday, August 5, 2015

Does the Waters of the United States Rule Give Up Key Protections?

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

August 5, 2015 | Permalink | Comments (0)

Sunday, July 26, 2015

The Bionic Earth - Tipping Toward Biological or Mechanical?

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...


....or 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 Sw1060712cd_lrnothing 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

July 26, 2015 | Permalink | Comments (0)

Saturday, July 25, 2015

D.C. Circuit Upholds EPA Hexavalent Chromium Rule

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.

—Todd Aagaard

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.

—Todd Aagaard

July 21, 2015 | Permalink

Wednesday, July 15, 2015

D.C. Circuit Rejects Biofuels Producers’ Challenge to EPA Test Fuel Regulation

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.

—Todd Aagaard

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.

—Todd Aagaard

July 15, 2015 | Permalink

Tuesday, July 7, 2015

Two Interesting Things About the Chesapeake Bay TMDL Decision

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

July 7, 2015 | Permalink | Comments (0)

Monday, July 6, 2015

Third Circuit Upholds Chesapeake Bay TMDL

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. 

—Todd Aagaard

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.

—Todd Aagaard

June 23, 2015 | Permalink

Thursday, June 18, 2015

A Fathers' Day Post

Lawnmowers make my think of my father.  Not the loud, smoke-belching kind; we never had those.  Ours were always hand mowers.  And because my father discovered, almost fifty years ago, that one of the benefits of stumbling into a relatively affluent suburb was the take-it-or-leave-it pile at the town dump, they were always used.  He fixed them up, added some grease if they needed it, and the only sound from our lawn being mowed was the gentle whir of spinning blades.

There was a declaration of identity in that quiet sound.  We were a used, hand-powered mower kind of family.  Leafblowers and weed-whackers were unthinkable, and I grew up believing, at least for a little while, that nature specials were the only worthwhile thing on television, and that ordering truckloads of horse manure for your front-yard vegetable garden was a normal thing for a suburban family to do.  We hiked, paddled, and camped, and, lest I think the places we went were to be taken for granted, The Amicus Journal always seemed to be sitting on the coffee table.  In my family, frugality was more powerful than environmentalism, but both were always there.

But kids don’t always follow their parents.  Parents’ political views, according to multiple studies, are pretty good predictors of their children’s preferences, at least through high school.  But then comes college, or other life experiences, and with those experiences come new perspectives.  The apples may not fall far from the tree, but they can start to roll.  And so it was, at least a little bit, with me.  I misbehaved in the usual ways, with the usual spats of callow snark, and though I fancied myself more of a rebel than I ever really was, I was determined to follow my own course. 

Yet the outdoors and the environment remained constant threads.  They were never forced upon me, but the opportunities and the examples were just there, and growing older just meant bigger mountains.  Along the way, I simply absorbed that power tools had no place in lawn care, that working for the Natural Resources Defense Council would be the pinnacle of achievement, and that sometimes the only way to make sense of the world is to walk uphill for a very long time.  Even when my father started to think, well before I had come around, that law school might make sense for me, he didn’t tell me to do it.  He just put me in touch with an acquaintance who was embroiled in a water law case, and I was hooked.

So now I am an environmental law professor, and I have my own lawnmower.  It’s not from the town dump, because while an appreciation for the environment passes from generation to generation, a talent for fixing machinery apparently does not.  And it’s somewhat wasted on our lawn, which, unsprinkled and unfertilized, grows a wide variety of species, few of them tall enough to actually merit mowing.  But it is a hand mower, quiet and free of smoke.  After all, we make our own way, but our parents are always there.

I suspect that while the details of this story are unique, the themes are not.  Most of us are in this profession not just because of a fascination with the law, but also, at least partly, because at some time in our childhoods, adults took us into the woods and we were amazed.  And for many of us, those adults were our parents.  This week seems like a particularly good time to give thanks for that.

- Dave Owen


June 18, 2015 | Permalink

Friday, June 12, 2015

D.C. Circuit Holds that Timber Companies Lack Standing to Challenge BLM and Forest Service Timber Sales in Oregon and Washington

On June 12, the D.C. Circuit (Garland, Rogers, Randolph) issued a decision in Swanson Group Manufacturing LLC v. Jewell.  Two timber companies and three timber organizations sued the Secretaries of Interior and Agriculture alleging that the Bureau of Land Management and Forest Service had sold inadequate quantities of timber in Oregon and Washington in violation of the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937, 43 U.S.C. §§ 1181a-1181j.  The district court granted summary judgment for the timber companies and issued an injunction requiring the agencies to sell additional timber. 

The D.C. Circuit reversed for lack of jurisdiction, holding that the timber companies lacked Article III standing to assert their claims.  The court reasoned (a) that the companies could not rely on documents submitted after the entry of judgment in the district court; and (b) that the companies’ pre-judgment declarations regarding injury “are speculative with respect to the claimed threat to the plaintiff’s interest and conclusory or silent with respect to their claims of causation and redressability.”  In particular, the plaintiffs failed to identify any specific injuries to their business resulting from the alleged shortfalls in timber sales.

—Todd Aagaard

June 12, 2015 | Permalink

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

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

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

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

—Todd Aagaard

June 12, 2015 | Permalink

Wednesday, June 10, 2015

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

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

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

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

—Todd Aagaard

June 10, 2015 | Permalink

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

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

—Todd Aagaard

June 10, 2015 | Permalink

Tuesday, June 9, 2015

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

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

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

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

—Todd Aagaard

June 9, 2015 | Permalink

Thursday, June 4, 2015

How Much Difference Will the WOTUS Rule Make?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Dave Owen

June 4, 2015 | Permalink | Comments (0)

Saturday, May 23, 2015

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

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

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

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

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

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

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

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

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

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

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

- Dave Owen


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