Environmental Law Prof Blog

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 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

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

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

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

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

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

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