Should Watersheds Have Standing? Should Corporations?

In his seminal essay in 1972, Christopher Stone famously asked “Should Trees Have Standing?” trees 2Apart from Justice Douglas’s dissent in Sierra Club v. Morton, the idea has never gained much traction, at least in United States courts.  Now, due to the passage of a “Community Bill of Rights” ordinance by the Grant Township (Pennsylvania) Supervisors, the concept is about to get a legal test.

It appears that the ordinance was drafted by the Community Environmental Legal Defense Fund, and the Supervisors have retained CELDF to defend the ordinance against a challenge by the Pennsylvania General Energy Company, which apparently wants to dispose of fracking wastewater in Grant Township.

According to the complaint challenging the ordinance, the ordinance does not just enshrine nature with rights; it would deprive them to corporations.  Allegedly, the ordinance states that corporations challenging the ordinance are:

not deemed to be ‘persons,’ nor possess any other legal rights, privileges, powers, or protections which would interfere with the rights or prohibitions enumerated by [the] Ordinance.

Good luck defending that one in court.  Call me an old-fashioned anthropocentric, but I prefer defending protections for natural systems and the environment on the ground that such protections are good for people.

 

Is Obesity an Environmental Problem?

Like Canada, environmental contamination gets blamed for a lot of things wrong in America.  But a recent study in a respected NIH journal, Environmental Health Perspectives, offers a novel expansion of what in our lives  that is wrong that we can now blame on the environment.   In an article with the catchy title, “A Longitudinal Cohort Study of Body Mass Index and Childhood Exposure to Secondhand Tobacco Smoke and Air Pollution: The Southern California Children’s Health Study,” the authors report that it is not the calories that you eat that make you overweight; it’s the polluted air that you breathe.

According… More

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.”  However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require.  As with any MEPA (or NEPA) analysis, it has two parts:  identification of impacts and discussion of mitigation measures.

Regarding impacts, the Adaptation Policy would require that proponents “identify potential project vulnerabilities under certain future climate conditions consistent with the anticipated lifespan of the project.”  More reasonably, the Policy would require proponents to “identify any impacts the project, or associated changes to the site, could have on adjacent land uses, including exacerbating flooding, erosion, or urban heat island effect.”

This latter requirement goes to issue of jurisdiction I raised yesterday.  If climate change will have impacts on a proposed project which will, in turn, cause the project to have impacts on the environment different than they would otherwise have been, that seems to me a legitimate issue for MEPA to explore – as long as this iterative process does not become an infinite loop, requiring assessment of ever more attenuated 2nd and 3rd – and nth – order impacts.

To give just one example, the Policy states that:

energy generating facilities may be required to demonstrate what impact temperature changes would have on emissions of air pollutants or the effectiveness of air pollution control systems. Hospitals or housing for the elderly may consider design elements necessary to protect people during heat waves and/or power outages.

So proponents of energy generation projects will have to assess how generation and emissions will be different in 40 years due to climate change?

The next hypothetical is of even greater concern.  How is an assessment by hospitals regarding how to protect their patients from climate change related to a statute the requires project proponents to examine the impact of their project on the environment?

The requirement to address potential mitigation measures presents the same issues.  If the proponent must assess ways to ensure that flooding on her property induced by climate change does not exacerbate flooding on nearby properties, that seems well within the ambit of MEPA.  If, on the other hand, the point of the policy is to “reduce risk, property damage or provide other benefits to a property owner,” then I think that property owners may politely respond:  “Thanks for the help, but I can make my own judgments about how best to protect my property.”

We’re the government and we’re here to help.

Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?

Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment.  In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy.  The policy seems sufficiently important to warrant more than one post.  Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy.  Tomorrow, I’ll look at some of the specifics.

Under the Adaptation Policy, proponents of projects required to prepare an Environmental Impact Report would have to assess the impact of climate change on the project, as well as the impact of the project on the environment.  It is not obvious to me that EOEEA has authority to require such analysis.  The Draft Policy points to two sources.  First, the MEPA office must:

consider the reasonably foreseeable climate change impacts and GHG emissions of projects subject to MEPA review … and ensure that projects subject to MEPA take all feasible measures to avoid, minimize, or mitigate “Damage to the Environment”.

This language is clearly focused on the impacts of the project on the environment, not the impacts of the environment on the project.  Second, permitting agencies must:

also consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise.

This too seems focused on the traditional impact analysis.

Of course, because the Policy is just that – a policy – it may not be considered final agency action and thus may not be subject to judicial review.  Even if it is, I’d expect it to be upheld, given the extremely deferential standards used by Massachusetts courts to review agency action.

That does not mean that it should be.  Why should a statute focused on preventing damage to the environment be used to require project proponents to minimize environmental damage to their project?

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Superfund Rant For a New Congress

So the new Congress will be controlled by the GOP.  The House and Senate will consider various bills to rein in EPA authority.  Here’s one relatively modest suggestion for congressional consideration:  amend CERCLA to limit EPA’s authority to recover oversight costs.

How many of us in the private sector have been in meetings with EPA where EPA had more technical people in attendance than the PRPs who were performing the remedy?  How many of us have had clients receive oversight cost bills where the total amount of the oversight costs approached the amount spent on actually performing the remedy?  How many us have had oversight requests that have turned response actions into research projects?  All of this for a program that EPA’s own analyses always show to be at the bottom of the barrel when it comes to actual risks to the public.

Here’s the proposal.  I’m not suggesting that EPA have no authority to recover oversight costs.  Just limit it to 10% of the response costs incurred to actually design and implement the remedy.  Make it 15% if you want to be generous.

Mitch McConnell, are you listening? rantimage_lrg

 

 

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer.  The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP, DOT reasonably performed a qualitative analysis of PM concentrations based on a receptor five miles from the project area.

The regulations require the proponent to demonstrate that the project will not “increase the frequency or severity of any existing violation of any standard in any area.”

“Any area” is not defined.  EPA and DOT jointly promulgated guidance governing these types of analyses, but the guidance also does not define “any area.”  NRDC’s position was basically that “any” means any, which really means “every.”  The Court agreed that “any” is normally read expansively, but still concluded that it is ambiguous in this context – which was pretty much the end of the game.

The Court found that:

the governing regulations do not decisively answer whether the CAA required qualitative hot-spot analysis within the immediate vicinity of the project area during the time period at issue.

The Court then found that the EPA/DOT guidance “implicitly, but authoritatively, fills this void.  Finally, citing Auer, the court stated that:

Because this interpretation is not “plainly erroneous or inconsistent with the regulation,” we must afford it considerable deference.

NRDC loses.

Let me be clear.  In the modern administrative state, Congress isn’t going to answer questions at this level of detail, and, at least for now, the non-delegation doctrine seems pretty much a dead letter.  However, let’s not kid ourselves about how much authority we really are giving to agencies.

Kind of depends on whose ox is being gored.

Do Takes of the Utah Prairie Dog Affect Interstate Commerce? Only When McDonalds Starts Serving Prairie Burgers

Earlier this week, in a suit brought by the beautifully named People for the Ethical Treatment of Property Owners, Judge Dee Benson ruled that the United States Fish and Wildlife Service could not regulate takes of the Utah prairie dog UPD_1on private land.  Relying on the Supreme Court decisions in United States v. Lopez and United States v. Morrison, the court conclude that, because the Utah prairie dog exists only Utah, and because it is a homely little creature that does not stimulate tourism and is not yet known to be of any medical or scientific value, any impact on interstate commerce is too remote and attenuated to justify federal regulation.

I’m not buying it.  Notably, while the court acknowledged that the FWS had pointed to five separate appellate decisions rejecting constitutional challenges to ESA protection of solely intrastate species, the Court did not come to grips with any of those other holdings; addressing instead only the arguments made by the FWS in this case.  Indeed, the Court did cite to one of the cases, GDF Realty Investments v. Jones, to support its conclusion that potential future impacts on commerce are not sufficient to justify regulation.  While the Court acknowledged that the GDF Realty decision in fact supported regulation, it did not discuss the GDF Realty’s holding or rationale.

GDF Realty upheld FWS authority on the ground that takes of multiple individually insignificant endangered specifies may, in the aggregate, affect interstate commerce.  As the court there stated, the FWS:

maintains that takes of any species threaten the “interdependent web” of all species. Congress described this “critical nature of the interrelationships of plants and animals between themselves and with their environment”. In fact, according to Congress, the “essential purpose” of ESA is “to protect the ecosystems upon which we and other species depend.

Our analysis of the interdependence of species compels the conclusion that regulated takes under ESA do affect interstate commerce.

I don’t see the 10th Circuit saying anything different.  Absent a circuit split, I don’t see the Supreme Court taking the case, though I wouldn’t rule that out.  If that were to happen, PETPO – not as beautiful as an acronym – might win, but I’d actually expect the Supreme Court to give Chevron deference to FWS’s view that it is inappropriate to look at the isolated impact of individual species, rather than the cumulative impact of takes on all endangered species.

MassDEP Releases Its Draft Vapor Intrusion Guidance

VI GraphicMassDEP has recently released for public comment draft Guidance on Vapor Intrusion.   The proposed guidance would replace MassDEP’s December 2011 Interim Final Vapor Intrusion Guidance, which saw minor revisions in the spring of 2013.  The guidance has undergone a substantial revision, largely to make changes that correspond to the recent regulatory reforms to the Massachusetts Contingency Plan.

The guidance provides MassDEP’s recommended technical and regulatory approaches to addressing the vapor intrusion pathway at sites contaminated with releases of oil and/or hazardous materials regulated under the MCP. The issue… More

Regulation of GHG Emissions Becomes Real: Hyundai and Kia Settle For $350 Million

If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of EPA’s GHG tailpipe standards.  The details may matter only to those subject to the tailpipe rule, but they do demonstrate that EPA is not merely regulating GHG emissions for show; they genuinely mean it and are getting down in the weeds to ensuring compliance.

The specific allegation in the complaint was basically that Hyundai and Kia understated the “road load force” – essentially the resistance faced by a vehicle – on a number of different models, thus overestimating fuel efficiency and underestimating GHG emissions.  My favorite allegation is that

Hyundai and Kia relied predominantly on data gathered when test vehicles were aided by a tailwind.

Oops.

The costs to Hyundai and Kia are not trivial.  They will pay a $100 million penalty, largest in CAA history.  They will forfeit $200 million in GHG emission credits – basically giving up the economic benefit of noncompliance.  Finally, the cost of the remedial program to ensure that the violations do not recur will be approximately $50 million.

Yup.  GHG regulation has arrived.

EPA’s Clean Power Plan: Potentially New and Improved?

On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June.  My immediate reaction?  My head hurts.

I don’t mean to trivialize the implementation issues that would likely arise if Congress enacted either a cap-and-trade system or a carbon tax, but they’ve got to pale in comparison to the Rube Goldberg-like 2014-09-08-401kfeedisclosuresystem that’s going to be in place once EPA promulgates a final rule.  This is not meant as a criticism of EPA.  To the contrary.  The agency has to know that it’s not going to get any credit from the right for any improvements that it makes to the Clean Power Plan.  Thus, the only explanation for all the agency’s efforts, including this NODA, is that they really want to get this right and have the ultimate plan be as cost-effective as possible, given the serious constrains under which they are operating.

That being said, I’ll briefly discuss just one issue raised in the NODA.  The state targets proposed in June are based on two arguably inconsistent assumptions.  With respect to Building Block 2, increased use of natural gas combined cycle generation, the proposal assumes that increased NGCC generation will replace older fossil fuel, i.e. coal, generation.  However,  with respect to Building Blocks 3 and 4, increased use of renewable energy (RE) and energy efficiency (RE), EPA assumes instead that RE and EE simply add incrementally to baseline generation, rather than displacing such generation.

In the NODA, EPA is now asking for comment regarding whether it should assume that RE and EE displace existing baseline generation and, if so, should it assume that RE and EE replace all existing generating sources pro rata or that RE and EE preferentially replace coal first.  As EPA has acknowledged, if the rule assumes that RE and EE replace baseline generation, rather than adding to it, the result would be to reduce GHG emissions, thus leading to more stringent state reduction targets.

I’m not sure I know the answer, but I admit I don’t see a reason for treating generation from RE and EE any differently than generation from NGCC.  In any case, keep those comments coming into EPA.  It appears that the agency really wants to know what you think.

Tenant Who Sublets A Superfund Site Is Not Likely To Be A CERCLA Liable Party

It is generally the rule that a lessee who does not operate the property it rents will not be liable under CERCLA except in the unusual circumstance where the lessee qualifies as an “owner” of the property.  Typically, this means that a lessee who sublets the rented property will not be liable under CERCLA.   That was the holding in a recent federal case in New York, Next Millennium Realty, LLC v. Adchem Corp.   There, the owner of a property contaminated with dry cleaning solvents sued a former tenant for CERCLA contribution because that tenant had sublet the property to a now defunct dry cleaner whose… More

FERC’s Order 745 — Still In Effect For Now

The D.C. Circuit Court of Appeals has stayed its mandate vacating FERC Order no. 745, regarding demand response.  The mandate is stayed at least until December 16, 2014, by which point FERC must petition the Supreme Court for review.  If FERC does seek cert., the stay will continue until the Supreme Court denies the petition or rules against FERC on the merits.

I don’t know if FERC will seek cert.  I know that the Commissioners supporting the order were disappointed that the D.C. Circuit did not grant en banc review, given the strong dissent by Judge Edwards.  Since FERC sought the stay, the Commission must at least be considering a cert. petition.

As I discussed when the decision was issued, the dissent has a lot of force and FERC stands a reasonably good shot before the Supreme Court.  The decision would seem to come down to whether a seemingly increasing reliance on Chevron deference overcomes the court’s strong federalism agenda, favoring state over federal authority.

News Flash: Cap-and-Trade Remains the Most Efficient Way to Reduce Emissions

Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions.  Although the acid rain provisions of the Clean Air Act are the most well-known example, the CAA also provides for cap-and-trade programs to implement its regional haze regulations.  regional hazeOn Monday, the 10th Circuit Court of Appeals affirmed the cap-and-trade program adopted by New Mexico, Utah, and Wyoming.

Given that conservatives have abandoned their support for market-based regulation in opposing climate change legislation, it is perhaps comforting to return to the historical lineup in which it is environmental groups who challenge the cap-and-trade program as inferior to the traditional command and control approach.  At least it’s a world I recognize, even if it’s wrong-headed.  Fortunately, the 10th Circuit was not having any of it.

The ruling is too complicated to summarize here, but two points are worth noting

  • The Court gave significant deference to EPA’s interpretation of its own regulations – a notable point given that some members of the Supreme Court seem interested in revisiting the scope of Auer deference.
  • The Court affirmed EPA’s use of a “weight of the evidence” approach in determining that the cap-and-trade program would yield better results than simply imposing Best Available Retrofit Technology on all subject sources.  Specifically, it allowed EPA to rely on qualitative evidence as well quantitative evidence.

At bottom, this should not have been a difficult case.  EPA’s regulatory interpretations get deference.  Once that deference was provided, it is hard to see how a court could have concluded that EPA’s application of those interpretations was arbitrary and capricious.

Long live cap-and-trade!

More Sauce For the Standing Goose: Industry Associations Cannot Challenge EPA’s E15 Rule

I have previously noted that standing is a double-edged sword.  Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court.  However, as the D.C. Circuit Court of Appeals demonstrated yesterday, the regulated community is sometimes hoist on its own collective petard.petard

The decision in Alliance of Automobile Manufacturers v. EPA in the challenge to EPA’s E15 rule wasn’t surprising.  After all, it was the second time that the Court concluded that the industry petitioners don’t have standing.  The Court stated that both plaintiffs “failed to offer evidence connecting sales of E15 under the regulation to injuries that [their] members are sufficiently likely to suffer so as to afford [them] standing.”

To me, the more interesting question is why this case was brought.  Given the prior decision in Grocery Manufacturers Association v. EPA, this case was always going to be, at best an uphill battle.  Given that the standing shoe will generally be on the other foot – so to speak – it seems to me that regulated companies might think twice before bringing cases in which standing is a close question.  Even if the court finds standing exists, the company might just have set a precedent that will come back to haunt it in the future when it is trying to argue that some citizens group does not have standing.

UCS Says to Add More Renewables to the Clean Power Plan; If It’s Better, Does that Make It Best?

The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy energy-renewable-two-workers-installing-rooftop-solar-panels“building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that, just relying on existing trends and compliance with renewable energy standards, renewable energy can supply 23% of electricity sales nationally by 2030, well above the 12% assumed by EPA. This would translate into a 40% reduction in GHG emissions, rather than the 30% that EPA says the proposed CPP would attain.

I don’t know if UCS is correct, though I’ve assumed that EPA’s projections are conservative, in order to make it easy for the skeptical to support the plan. I’m interested here in two legal issues implicitly raised in the UCS report. EPA, in regulating under § 111(d) of the Clean Air Act, must establish standards of performance based on the “best system of emission reduction” (which must take into account the cost of emission reductions). UCS’s fundamental argument is that EPA’s system is not the “best,” because EPA can obtain greater reductions than what it has proposed with almost no impact on electricity prices.

The administrative law question would then be whether promulgation of the CPP as currently drafted would be arbitrary and capricious because it would not represent BSER. I think that would be an uphill battle, but it would of course depend on the record ultimately before EPA when it promulgates the final rule.

The flip side of this issue is not new; it’s been at the core of all the questions raised about the CPP. As I’ve noted in the past, I’m sympathetic to EPA here. Climate change is a real problem. Congress hasn’t enacted legislation putting a price on carbon. EPA feels it must do something and wants to make its rules take as much advantage of market incentives as the law will allow. I get all that. What I don’t get is how the building blocks of the CPP, other than the required heat rate improvements at generation facilities, constitute “standards of performance for any existing source….” How can that be, when most of the plan has nothing to do with emissions from sources?

I think I hope EPA wins that battle, but it does not seem a foregone conclusion to me. If EPA does win, it will be interesting to see if UCS can persuade a court that EPA has failed to require what is in fact the “best” system of emissions reduction, because they have not given renewable energy its full and proper role.