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)