Did Trump’s Election Increase the Odds of NPDES Delegation in Massachusetts? I Sure Hope So.

As I noted last spring, the Baker administration had filed legislation to support NPDES delegation to Massachusetts.  At the time, I supported the delegation effort and pleaded with my friends in the environmental community to support it.  Sadly, my pleading fell on deaf ears and the legislation was not enacted.

In supporting the legislation, I pointed out that it would be foolish to oppose delegation on the ground that a Democratic administration in Washington would do a better job protecting the environment from evil polluters than a Republican administration in Boston.  sauce for the goose

Occasionally, I’m right.  On November 8, we held an election.  Now, the shoe is on the other foot, the chickens have come home to roost, and what’s sauce for the goose is also sauce for the gander.  In other words, do my friends in the environmental community still think that federal EPA will do a better job enforcing the Clean Water Act in Massachusetts than the Baker administration?

I hope that the administration promptly refiles the necessary legislation and that it is promptly enacted.

Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain, rather than constitute a means of compliance with Kain.

As a reminder, Kain challenged MassDEP’s failure to promulgate regulations under § 3(d) of the Global Warming Solutions Act, gwsa-2which required MassDEP to “promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources.”

MassDEP argued, in part, that the RGGI regulations, promulgated under § 3(c) of the GWSA, satisfied the 3(d) requirement.  The SJC disagreed, but the basis for its disagreement is important and I don’t think that MassDEP has read Kain as carefully as it should have.  In short, I think that the SJC concluded that §§ 3(c) and (d) are separate and distinct.  In other words, while regulations under § 3(c) do not satisfy § 3(d), it is also true that the two sections are intended to regulate different types of sources, and that electric generating sources are simply not subject to regulation under § 3(d).

What is the evidence for this conclusion?  The opinion is replete with it (all emphases are mine):

[The GWSA], § 3 (c), specifically carves out a separate process by which emissions levels and limits associated with the electric sector are established in consultation with the secretary and the Department of Energy Resources and are to take into account the RGGI.[23] By doing so, the Legislature recognized that a significant part of the electric sector would already be subject to regulations associated with the RGGI.  The RGGI is also addressed extensively in G. L. c. 21A, § 22, lending further support to the conclusion that the Legislature intended to treat emission reductions associated with the electric sector differently from other reductions in other sectors of the economy.

The department asks us to read the statutory provisions together, as directing the department to promulgate regulations establishing “a desired level of declining annual aggregate emission limits,” G. L. c. 21N, § 3 (d), and with respect to the electric sector, “tak[e RGGI] into account,” G. L. c. 21N, § 3 (c).  We disagree, as this reading ignores the Legislature’s intent that regulations related to electric sector be treated differently from regulations promulgated under § 3 (d).

I’m sorry, but this sure sounds to me as though the SJC understands the GWSA to regulate electric generating sources under § 3(c) and all other sources under § 3(d). Here’s a rhetorical question that makes the point.  How could the electric sector be treated differently from regulations promulgated under § 3(d) if in fact it is regulated under § 3(d)?

Finally, this reading has the virtue of making the SJC decision Kain less at odds with the actual goals of the GWSA.  As the Court noted, the legislature acknowledged RGGI in § 3(c).  Why would the legislature “specifically carve[] out a separate process by which emissions levels and limits associated with the electric sector are established” if it anticipated that the electric sector could also be regulated under § 3(d) in a way that is fundamentally inconsistent?

This is a case I’d enjoy litigating.

EPA Surrenders in the Regional Haze Dispute With Texas

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze regional-haze-2plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations. I assume that Texas just pretty much pulled the plug.

EPA’s status report to the Court announcing its intention to seek a voluntary remand says little about EPA’s reasoning – but it says enough:

In light of the Court’s July 15 Opinion and the fact that the parties’ settlement discussions were unsuccessful, EPA intends to seek a voluntary remand of the final rule in this Court.

Translation? We lost the injunction. We were going to lose on the merits. Trump’s victory eliminated any incentive Texas had to compromise. We have no options left. Discretion is the better part of valor.

It looks as though we may have seen the first concrete implications of the election on environmental policy.

DEP Is Trying to Implement Kain. How Are They Doing?

When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given.  To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.

I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts.  The ways that the approach required by Kain is flawed are almost too numerous to mention – certainly in one blog post.  Here’s one contrarian’s quick summary – regulations promulgated under § 3(d) will have almost no impact on the GWSA’s GHG reduction goals.

According to MassDEP’s background materials on the § 3(d) regulatory effort, by 2013, the Commonwealth had reduced GHG emissions by 19.7% below 1990 levels, leaving 5.3% more to reach the 25% target.  There are three logical targets to find the remaining reductions:  buildings, transportation, and power plants.

MassDEP is not currently proposing to regulate buildings under § 3(d), which is understandable, because it would be nearly impossible to do so in a way that would comply with the SJC’s interpretation of § 3(d).  MassDEP is planning to promulgate regulations for the transportation sector, but more than 75% of the reductions will come from regulations separate from § 3(d).

So what about power plants?  MassDEP proposes both a Clean Energy Standard and a declining emission cap for fossil fuel generation facilities.  The CES would not satisfy § 3(d) and is not being promulgated under § 3(d).  The declining cap will be under § 3(d).  Unfortunately, because the cap is limited to Massachusetts facilities, it does not play well with RGGI.  In fact, while a facility could technically comply with both RGGI and with the proposed Massachusetts cap, the Massachusetts regulations would make RGGI functionally irrelevant in Massachusetts.  I thought that the point of RGGI was to demonstrate the power and efficiency of interstate trading.  What if facilities in Maryland can reduce emissions more efficiently than a Massachusetts facility?  Too bad.

Finally, I take issue with the required annual declining cap.  I recently came across this picture, electric-lightwhich makes my point.  We’re not going to solve climate change by 2.5% annual reductions in power plant emissions.  The only way to comply with an annual 2.5% reduction is to keep burning gas, but burn less of it.  On the other hand, the only way to solve climate change is to establish long-term goals that provide the incentive for research to develop disruptive technologies.  Instead of 2.5%/year, the requirement should be something like 12.5% over five years, or 25% over ten.

Bottom line?

The rules MassDEP plans to promulgate pursuant to § 3(d) would make almost no difference in GHG emissions.  The one 3(d) rule that would do so would undermine the interstate trading benefits of RGGI.  Section 3(d) is a side-show which is distracting from the hard work of really reducing GHG emissions.

Let the Environmental Trade Wars Begin!

While speculation is rampant regarding just far President Trump will go to roll back progress on climate change in the United States, Nicolas Sarkozy has fired what might be called a metaphorical shot across Trump’s bow.  In a recent interview, Sarkozy, who is running once again in the French presidential race, stated that, if the United States jettisons the Paris agreement, Europe should impose a carbon tax of 1%-3% on goods from the United States.smoot_and_hawley_standing_together_april_11_1929

I don’t know if this will happen – Sarkozy is not currently favored – but one can certainly imagine all heck breaking loose if it does.  Environmentalists in the U.S. will certainly cheer.  The new Trump administration apparently will only like international trade if President Trump gets to dictate the terms, so one can imagine this prompting some tit-for-tat tariffs.  Can anyone here say “Smoot-Hawley”?

My crystal ball isn’t good enough to see where this is going to end – and I’m not sure I want to know.

Trump’s Impact on Environmental Law? Let the Speculation Begin!

What will a Trump Presidency mean for environmental law?  trump-climateI’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:

  • It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules.  I don’t see Clean Air Act amendments happening.  Significant amendments might be possible to the Endangered Species Act and Superfund.
  • Changing regulations is more difficult than one might think.  As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives.  For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it.  The Clean Power Plan is another matter.  All Trump needs there may be a new Supreme Court Justice.
  • The easiest target is executive orders.  The social cost of carbon?  Toast.  Guidance on incorporating climate change into NEPA?  Toast.

Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.

Trump Presidency?

Deep-six the Clean Power Plan

Goodbye to winter


A Reminder of the Progress We’ve Made

A car makes its way amidst the heavy smog in New DelhiGiven how easy it can be to get discouraged about progress in addressing climate change, I think it’s helpful periodically to remember how much progress the U.S. has made in fighting air pollution.  It thus seemed useful to note this story about current conditions in New Delhi, where PM levels are so high that one million (!) students are being kept home from school.

It’s also helpful to remember the tension inherent in the climate change fight.  One of the biggest obstacles to progress is the desire of developing countries to raise their standards of living with cheap energy.  At the same time, developed countries find it easier to incur the short-term costs required to attack air pollution aggressively.  Threading that needle remains one of the most difficult problems in mitigating climate change.

The Army Corps Is Nicer Than I Am

After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home.  The statute does not require the Corps to issue JDs.  To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop.  Wetlands

This week, the Corps proved that it is made of tougher stuff.  It issued a Regulatory Guidance Letter, explaining how the JD process will work following Hawkes.  In the RGL, the Corps states that:

The Corps recognizes the value of JDs to the public and reaffirms the Corps commitment to continue its practice of providing JDs when requested to do so.

The logic apparently is that the vast majority of cases can be resolved with a JD, that very few JDs will in fact be appealed, and that, on balance, the JD process remains the most cost-effective way to determine jurisdiction.  I hope that the Corps is correct in that assessment.

Transportation CO2 Surpasses Power Sector CO2: Good News or Bad?

Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978.  co2-sources-since-1973Why?  The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.

The real question is whether this is good news or bad news.

On the bright side, unless the apocalypse arrives next Tuesday and we enter an era of “dig, baby, dig”, it’s hard to see an increase in coal-fired generation in the power sector.  On the darker side, the troubling part of the transportation equation is that, short of taxing people based on miles driven – makes sense to me! – it’s difficult to control transportation sector emissions.

I think that the answer to this question really depends on how quickly one thinks that electric vehicles will move from a small niche to the core of our vehicle fleet.

It’s Foreseeable That More Species Will Be Listed Under the ESA Due to Climate Change

The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow.  In February, the 9th Circuit reversed a district court decision and approved the Fish and Wildlife Service’s designation of critical polar bear habitat.  In April, Judge Christensen of the District of Montana vacated FWS’s decision to withdraw a proposed listing of the wolverine.  Now, the 9th Circuit has again weighed in, again reversing a district court judge.  This time, the 9th Circuit affirmed the decision by the National Marine Fisheries Service to list the bearded seal bearded_seal_noaa-1as threatened due to “foreseeable” loss of sea ice.

These cases are beginning to reflect a pattern.  NMFS put together an expert panel.  The expert panel looked at numerous models regarding the extent of sea ice to the end of the century.  They examined the impact on a reduction of sea ice, particularly shallow sea ice, on the life cycle of the bearded seal.  They concluded that shallow sea ice would decrease substantially after 2050 (and maybe before then), and that that loss of sea ice would threaten the bearded seal.  NMFS then called in a peer review group, which confirmed the conclusions of initial panel.

As I noted in connection with the wolverine decision, agency regulation in the face of scientific uncertainty isn’t new.  As the 9th Circuit said here:

The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process. The ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute. “[W]here the information is not readily available, we cannot insist on perfection: [T]he best scientific . . . data available, does not mean the best scientific data possible.”

Case closed.

As I also noted in discussing the wolverine case, the ESA may not be the best vehicle for addressing the impacts of climate change, but that’s not going to stop an increasing number of such claims making their way through the courts.  And if I may speculate for a minute, those in favor of greater protections are going to win most of these cases, at least until Donald Trump has appointed most of the federal judiciary.

EPA Must Evaluate Job Losses From Its Regulations: Blame Ralph Nader!

Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it:

Conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision [sic] of the Clean Air Act….

I’ve noted in the past that good lawyering matters.  Why do I repeat that now?  Because I think that Judge Bailey probably got this one wrong, but EPA and DOJ did nothing to help the government’s cause and much to harm it.  What did they do wrong?

  • First, EPA failed to acknowledge that in the early 1970s, EPA actually performed such analyses – before § 321 was even added to the CAA! – but EPA stopped for reasons EPA cannot even determine. That EPA previously performed such analysis sure makes it look as though EPA recognized their utility and their feasibility.
  • Gina McCarthy repeatedly asserted that EPA had no obligation to perform the required analyses and that such analyses would be “of limited utility.” This is an argument for Congress not to have enacted it, but it hardly justifies EPA’s noncompliance.  Moreover, these statements made EPA’s later arguments to the court that the Regulatory Impact Analysis that EPA does perform satisfies the requirements of § 321.  Instead, the Court – rightly – rejected EPA’s argument as made purely for purposes of defending the litigation.

I should note that there are serious issues about whether § 321 imposes a non-discretionary duty and whether the plaintiffs have standing.  EPA could win those issues on appeal, but it’s not obvious to me that EPA will or should.  I think EPA’s strongest argument would have been, had it been handled differently, that the specifics of the requirement are sufficiently ambiguous that EPA has leeway in how to comply and that the RIAs were and are sufficient.

And why is this mess Ralph Nader’s fault?  ralph-naderWell, in 1971, he testified before Congress that transparency on the economic impacts of EPA regulations was necessary to maintain public support.  Indeed, Nader actually proposed that Congress look into:

Requiring the Administration of [EPA] investigate every plant closing or threat of plant closing involving 25 or more workers, which he has reason to believe results from an order or standard for the protection of environmental quality.

OK, that’s not precisely what § 321(a) provides, but it’s good to be able to blame Ralph Nader for something.

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the ESA.  Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine DPS is back in play.  Specifically, the FWS announced that

we will be initiating an entirely new status review of the North American wolverine, hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

What a Surprise! Increased Renewable Energy Decreases GHG Emissions.

Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.”  The EIA gave three reasons for the drop in CO2 emissions.  eia-chart2

  • Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.
  • A decrease in coal consumption of 18% from 2015.
  • An increase in renewable fuel use of 9% from 2015. Wind supplied half the increase; hydroelectric power supplied 35%, and solar supplied 13%.

I understand concerns about how fast we need to de-carbonize the economy, but it’s better to be moving in the right direct rather than the reverse.

Massachusetts Innovates Again, This Time With New Climate Change Litigation

As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy.  Last week, news arrived of more innovation in Massachusetts – this time on the legal front.  CLF sued Exxon Mobil for not adapting its Everett storage exxon-everettterminal to harden it against the effects of climate change.

I’ve previously raised the possibility that, at some point, citizen suits on climate change could be like tobacco litigation or marriage equality litigation, originally, dead losers that were a minor nuisance to defendants, but which ultimately became major fronts on the winning side of the issue.  I’ve also noted occasional skepticism of that possibility.

I’m right in the middle on the CLF litigation.  That’s because this is a different type of case and differences matter.  It’s about adaptation, not mitigation.  It’s about a specific facility.  And it is set squarely in the framework of existing laws and regulations.  That means that those specific laws and regulations matter.  I’ll give just one example.

While the complaint is long and complex, there is one core allegation:  ExxonMobil has not adequately planned for sea level rise, and future storms could cause significant flooding and, as a result, releases of pollutants from the ExxonMobil facility.  This may be all true and ExxonMobil has an obligation to prepare for floods.

What it doesn’t need to do, I think, is make its own judgments about sea level rise based on its expertise in climate science, and adapt accordingly.  In fact, we don’t want each individual corporation or property owner developing its own estimates of sea-level rise.

In short, that’s the government’s job.  The complaint does refer to the new FEMA flood maps.  I think it’s a fair allegation to say, if true, that ExxonMobil’s SWPPP does not reflect current FEMA flood maps.  I also think that it’s a fair defense to say, if true, that ExxonMobil’s SWPPP does address current FEMA maps and that ExxonMobil has no obligation to prepare for some hypothetical next-generation FEMA flood maps.

It thus seems to me that all the allegations in the complaint about ExxonMobil’s research on climate change are irrelevant.  This isn’t a fraud law suit, or shouldn’t be.  More broadly, I can certainly imagine many other such suits being brought, but they’re going to have to be based on provable facts.

An outlandish notion in today’s world, I know.

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.