The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404.  black-warrior-river

The plaintiffs argued that NWP 21 was arbitrary and capricious because the Corps imposed numeric limitations on new projects – and described those limitations as “necessary” to prevent more than minimal environmental harm – but did not impose those same numeric limitations on existing projects. For existing projects, however, NWP requires that the district engineer certify that activities under the permit “will result in minimal individual and cumulative adverse effects….”

I don’t think that the arbitrary and capricious standard was even necessary to affirm the Corps here.  As long as the Corps gets any discretion at all, the Court made the right call.  While it is true that NWP imposes numerical limits on new mines not applicable to existing mines, there are two good reasons for doing so.  First, because NWP 21 requires district engineer certification for existing projects, the grandfathering provision really becomes a kind of simplified individual permit.  District engineer review is not required for new mines, where the numerical criteria effectively substitute for individual review.  Moreover, as the Court noted, there is data on the environmental impacts of the existing mines, which the district engineer can review prior to providing the required certification under NWP 21.

The Corps made a perfectly reasonable call in distinguishing between new and existing surface mining projects.  The Court correctly deferred to the Corps’ approach.

The Social Cost of Carbon Passes Its First Judicial Test

Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment.  This is a big deal in its own right, simply because the numbers are really large – according to DOE, the rule will save 2.89 quadrillion BTUs over the lifetime of equipment purchased under the rule.  It’s a reminder that energy efficiency remains a key to reducing carbon emissions.

Aside from the bottom line, the case is notable for two reasons, one fascinating to administrative lawyers and the other to climate policy wonks.  First up, the administrative lawyers.

As with my post from last week, the case is largely a 68-page recital of Chevron deference.  Unlike the D.C. Circuit’s affirmance of the Boiler MACT rule, the 7th Circuit only mentioned Chevron five times, but the case is all about deference to agency decisions that are not arbitrary and capricious.  One element of the deference here is noteworthy.  Plaintiffs challenged DOE’s engineering analysis, on the ground that DOE had not adequately validated its model against real-world data.  The Court rejected the challenge, stating that:

“That a model is limited or imperfect is not, in itself, a reason to remand agency decisions based upon it.”  Rather, we will remand only if the model “bears no rational relationship to the reality it purports to represent” or if the agency fails to provide a full analytical defense” when the model is challenged.

I think that most scientists would say that that is a pretty generous standard!

For the climate policy wonks, the big news is that the Court blessed DOE’s use of the administration’s determination of the “Social Cost of Carbon” scc-tablein determining the environmental benefits of the rule.  First, the Court concluded that DOE had authority to consider the SCC in formulating the rule.  Since DOE’s statutory authority requires it to consider “the need for national energy … conservation,” it was not a reach for the Court to agree with DOE that the potential environmental benefits of the rule are appropriately part of the calculus in determining the need for energy conservation.

The plaintiff also challenged DOE’s calculation of the SCC.  The Court pretty much rejected the claim out of hand, finding that DOE’s seemingly barebones response to comments was sufficient, and noting that DOE had referenced in its response various comments that had also supported DOE’s SCC values.

It’s not much to go on, but given the certainty of additional litigation involving the SCC, I’m sure that DOE – and EPA and environmentalists – are pleased to have survived this first hurdle.

A Foolish Consistency Is the Hobgoblin of Little Minds: So Said Emerson, So Says EPA

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.”  The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are applicable.  Emerson1859

Previously, EPA’s Clean Air Act regulations specifically required EPA to “assure fair and uniform application [of the CAA]  by all Regional Offices.” As I previously discussed, this regulation came back to haunt EPA in National Development Association’s Clean Air Project v. EPA, when the Court said that, while EPA might otherwise be free to engage in what is known as “intercircuit nonaquiescence”, EPA is bound by its own regulations, so that, at least under the CAA, it is required to follow adverse judicial decisions nationally, in order to maintain regional consistency.

I actually think EPA got this one right.  The law does not otherwise require EPA to follow an adverse 7th Circuit judicial decision outside the 7th Circuit.  Why should it voluntarily choose to do so?  Moreover, what if, after an adverse decision in one circuit, another circuit rules in favor of EPA?  How should it maintain consistency in such circumstances?

The regional consistency rule also seems relevant in light of the recent decision rejecting EPA’s disapproval of the Texas regional haze SIP.  EPA argued that the case should be heard in the D.C. Circuit, because it was of “national scope.”  The 5th Circuit disagreed.  It now turns out that EPA may have won by losing.  If the Texas SIP had been reviewed by the D.C. Circuit because it had nationwide scope, EPA would have been required to follow the Court’s ruling nationwide.  Under the new rule (assuming that it applies to decisions issued before the rule is finalized!), EPA may ignore the Texas SIP decision outside the 5th Circuit.

Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission


Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities, the Department of Energy Resources, the electric distribution companies and other agencies.

Here are some of the highlights of the Act and selected differences compared to the House and Senate’s prior standalone bills:

  • Offshore Wind: Distribution companies must jointly conduct competitive solicitations for the procurement of and enter into suitable long term contracts (with terms of between 15 and 20 years) for a nameplate capacity of approximately 1,600 MW by June 30, 2027 from eligible offshore wind power projects.
    • The Act splits the difference between the Senate’s offshore wind requirement of approximately 2,000 MW and the House’s vision for no less than 1,200MW.
    • The Act retains the House bill’s requirement that offshore wind facilities operate in a designated wind energy area under a federal lease, but added a requirement that such a lease must have been entered into as a result of a competitive process after January 1, 2012.
    • A first solicitation must occur not later than June 30, 2017; each solicitation must be for a minimum of 400 MW and each subsequent solicitation must occur within 24 months of the previous solicitation.
  • Hydro and Class I Renewables: Distribution companies must jointly conduct competitive solicitations and enter into suitable contracts for the procurement of 9,450,000 MWH of “clean energy generation” by December 31, 2022 from hydroelectric and new RPS eligible Class I renewable generation.
    • The Act largely blends the House and Senate definitions of “clean energy generation,” which is defined to permit participation by firm hydroelectric generation alone, Class I RPS eligible resources on their own, or Class I RPS eligible resources firmed with hydro.
    • The Act adopts the House’s lower MHW level for clean energy generation on a longer time frame compared to the Senate’s initial proposal for 12,450,000 MWH by December 31, 2018.
    • At least an initial solicitation under a staggered procurement schedule must occur prior to April 1, 2017.
  • Utility Remuneration: In the compromise, the legislature will provide an opportunity for distribution companies to receive “remuneration” of up to 2.75 percent of the annual payments under long term contracts for offshore wind energy and clean energy generation.

In addition to its headline procurement provisions, the Act implements other significant changes favoring energy storage projects, transmission, small scale hydroelectric generation, property-assessed clean energy bonds for commercial buildings (C-PACE), as well as utility ownership of transmission and energy storage assets, including the following:

  • Energy Storage: The Act includes significant provisions for energy storage.
    • Distribution companies will be permitted to own energy storage systems.
    • DPU regulations implementing the competitive procurement programs are required to allow offshore wind energy generation resources and clean energy generation “to be paired with energy storage systems.”
    • DOER is tasked with determining whether to establish targets for the procurement of energy storage resources by distribution companies.
    • DOER would determine the need for such a program prior to December 31, 2016 and would be required to adopt such targets by July 1, 2017.
    • Initial procurement targets would need to be met by January 1, 2020 and would be reevaluated not less than once every three years.
  • Transmission Costs: The Act adopts the Senate bill’s directive that the Department of Public Utilities (DPU) promulgate regulations requiring transmission costs to be included into bid proposals with the possibility of such costs being recovered under federal rates. The House’s version had merely permitted inclusion of such costs.
  • Small Hydro: Small hydro projects (with a nameplate capacity of 2 MW or less) will be permitted to participate in the state’s net metering program and to receive remuneration based on the “default” service rate under a “small hydro tariff.”
    • No more than 60MW of nameplate capacity may participate in the small hydro tariff under net metering for small hydro.
  • C-PACE: The Act adopts the House bill’s authorization for the Massachusetts Development Finance Agency (aka Mass Development) to implement a commercial property-assessed clean energy (C-PACE) financing mechanism and to issue PACE bonds.
    • The program will be open to any commercial or industrial property owned by any person other than a municipality or other governmental entity that meets applicable guidelines.

Several other provisions in the Senate bill were dropped or modified in the final Act:

  • The Act does not include a program from the Senate bill under which DOER would have been required to adopt an energy rating system for residential dwellings in which a home’s rating, along with its energy audit reports, would be disclosed prior to a sale.
  • The Act removes the Senate bill’s proposed doubling from one to two percent of the amount of renewable energy utilities must purchase under the RPS for compliance years after 2016.
  • The Act does not include the Senate bill’s proposals for creation of energy efficiency and renewable energy finance task forces or a requirement for DOER’s study of grid modernization.

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule.  boiler-mactThe industry challenges were a complete washout.  The environmental petitioners won one significant victory and a number of smaller ones.

The environmental petitioners’ one significant victory is important.  EPA included within relevant subcategories any source that burns a fuel containing at least 10% of the “subcategory-defining fuel.”  However, for defining MACT, EPA included only those sources that burn fuel containing at 90% of the subcategory-defining fuel for existing sources, and 100% for new sources.  The Court rejected this approach.

The CAA, however, demands that source subcategories take the bitter with the sweet. Section 7412 mandates, without ambiguity, that the EPA set the MACT floor at the level achieved by the best performing source, or the average of the best performing sources, in a subcategory. It thus follows that if the EPA includes a source in a subcategory, it must take into account that source’s emissions levels in setting the MACT floor.

Which brings me to my big take-away from this decision.  Chevron lives.  By my count, The Court cited Chevron 30 times.  Chevron pervades the decision.  Even in the one big issue that EPA lost, the Court’s decision was based not on a rejection of EPA’s interpretation of an ambiguous provision under step 2 of Chevron, but on a plain meaning interpretation of § 112.  EPA defined what a source is, but it then refused to calculate MACT based upon the performance of all of the sources in a given subcategory.  The statute simply did not allow EPA that leeway.

Other than EPA’s attempt to avoid taking “the bitter with the sweet”, however, the Court’s deference – by three Republican appointees – to EPA’s technical decisions was notable.  Not every case is the Clean Power Plan.  Where EPA is not really pushing the boundaries, I don’t see the Supreme Court weakening Chevron any time soon.

No Deference to State Settlements Under CERCLA? No Problem!

I will confess that I do enjoy being correct.  In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree.  procedural-fairness (1)Various parties and commentators promptly began, if I may say so, to run around like chickens with their heads cut off.  However, I remained calm.  I stated then:

I’m assuming that, on remand, the district court will engage in the required review and again approve the settlements.

On July 13, the District Court on remand did exactly that.  In a concise opinion, Judge Jorgenson ran through the established criteria used to establish procedural and substantive fairness and – properly – blessed the settlements.

The original 9th Circuit decision did no more than ensure that district courts would not rubber stamp state consent decrees under CERCLA.  This is a good outcome, one which did not impose any unreasonable burden either on state agencies or district courts.

Forecast is Hazy For EPA’s Regional Haze Oversight Authority

Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan.  The opinion is a thorough rejection of EPA’s decision.  Although this was only a stay order, I would rate EPA’s likelihood of ultimately prevailing on the merits as approximately zero.  There are a number of significant take-aways from the decision:

  • EPA’s assessment of regional haze SIPs is not generally of “nationwide scope or effect” and therefore will be subject to review in the court of appeals responsible for the state at issue, rather than in the D.C. Circuit.
  • EPA did not have authority to require Texas to “conduct a source-specific analysis.”
  • EPA could not impose emissions controls that would not even take effect until outside the time period covered by the SIPs at issue.  As the Court noted, the Regional Haze Rule itself requires states to:

consider . . . the emission reduction measures needed to achieve [the reasonable progress goal] for the period covered by the implementation plan

  • EPA failed to address adequately the reliability concerns raised by the plaintiffs.  Here, it is noteworthy that the Court refused to grant EPA any real deference, because EPA is an expert on environmental issues, but not on energy reliability.

I was disappointed that the Court concluded it did not have to address whether EPA’s decision to set a cost threshold on a $/ton basis rather than a $/deciview basis was flawed.  As I have previously ranted, the point of the regional haze rule is to increase visibility.  We have a measure of visibility – deciviews.  What possible justification is there for EPA to measure cost-effectiveness by using a proxy — $/ton of pollutant removed – when there is no need to use a proxy, because we have a measure of the actual goal we are seeking to attain?Sir_Henry_Raeburn_-_Portrait_of_Sir_Walter_Scott

There’s actually an answer to this question, which I had not realized until I read the decision.  It may be cynical, but it appears that EPA wants to use $/ton removed, because those tons removed help EPA attain other environmental benefits that are ancillary to the Regional Haze Rule goals, thus making the cost-effectiveness calculus look much more attractive.

Oh, what a tangled web we weave

When first we practice to deceive!

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit.  In 2014, the District Court rejected Mingo Logan’s challenge to EPA decision on the merits, finding that EPA’s withdrawal was not arbitrary and capricious.  Finally, early this week, the D.C. Circuit affirmed the District Court, holding that EPA had adequately justified withdrawal in this case, concerning Mingo Logan’s Spruce Number 1 mine.  spruce mine

The primary focus of Mingo Logan’s challenge was that EPA had failed to consider the costs that Mingo Logan had incurred in reliance on permit issuance and, in particular, had failed to balance those costs against the harm EPA alleged would result from the fill activities.  The Court explicitly did not decide whether such cost considerations might ever be relevant.  Instead, it rejected Mingo Logan’s claim as forfeited, because Mingo Logan’s comments on the withdrawal proposal, its complaint challenging the withdrawal, and its briefs to the District Court in support of its challenge all failed to raise the cost balancing issue.  While Judge Kavanaugh dissented, I think that the Court plainly got this one right.

Mingo Logan’s second line of argument was that EPA may not reject a fill site based on water quality impacts downstream of the fill location, where the state has issued an NPDES permit under § 402 of the CWA.  The Court concluded that EPA did not “intrude on West Virginia’s authority to regulate water quality.”  Instead, EPA assessed whether discharging fill would produce “unacceptable adverse effect[s]” on wildlife.

Mingo Logan also argued that, once a permit is issued, EPA faces a heightened burdened to demonstrate that the disposal sites are unacceptable, and that EPA failed to meet that burden.  The Court did not explicitly address how high a burden EPA faces in these situations, because it concluded that EPA’s explanation was sufficient, regardless of the burden.  In particular, EPA noted that EPA did rely on new information obtained since the permit was issued, included information from the operation itself.

Game, set and match.

FWIW, it’s not obvious to me why a court would conclude that EPA must take reliance costs into account when it considers post-permit withdrawal.  The statute simply says EPA may withdraw a specification for a site:

whenever [the EPA Administrator] determines, after notice and opportunity for public hearings, that the discharge of such materials into such area [specified for disposal] will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

That does not look to me like the type of language Congress has traditionally used when requiring EPA to consider costs.

Finally, the court acknowledged that having disposal sites withdrawn after a permit has issued:

will perhaps inevitably leave a permittee feeling as if the rug has been pulled out from under it.

However, as the Court noted, “this power is one the Congress has authorized the EPA to exercise….”

Exxon Sues Massachusetts AG to Block Civil Investigative Demand

Fuel StationOn June 15, 2016, Exxon sued Massachusetts AG Maura Healey in federal court in Texas, seeking to bar the enforcement of AG Healey’s April 19, 2016 civil investigative demand, issued pursuant to M.G.L. c. 93A, the Commonwealth’s unfair and deceptive practice statute.  Under c. 93A, § 6, the AG may issue investigative demands “whenever [s]he believes a person has engaged in or is engaging in any method, act or practice” prohibited by c. 93A.  The April CID states that Exxon’s “marketing and/or sale of energy and other fossil fuel derived products to consumers in the Commonwealth” and “marketing and/or sale of securities” to Massachusetts investors are both under investigation.

The complaint argues that Exxon cannot have committed any c. 93A violations within the statute’s four-year limitations period. See M.G.L. c. 260, § 5A. Additionally, Exxon asserts that the CID is “pretextual” and “political,” and that AG Healey’s true purpose is to “silence, intimidate and deter” Exxon in the ongoing climate change debate, violating Exxon’s constitutional rights.

Though directed to AG Healey, the complaint also attacks NY AG Eric Schneiderman and Virgin Islands AG Claude Walker at length for what Exxon alleges is an impermissible alliance between state AGs and climate change activists.

Exxon has paired the Texas federal court suit with a state court action in Massachusetts, seeking to set aside the CID.  The state court complaint largely mirrors the federal one, asserting that the CID is “a pretextual use of law enforcement power to deter ExxonMobil from participating in ongoing public deliberations about climate change.”

AG Healey’s office in a statement fired back that Exxon’s complaints constituted “an unprecedented effort to limit the ability of state attorneys general to investigate fraud and unfair business practices.”

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.

An image of a "No Trespassing" sign on a tree.

In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.

The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”.  Judge Skavdahl wasn’t having any of it.

Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others.  Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy.

Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin.  The Judge was not sympathetic here, either.

The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes.

The Court also rejected the equal protection claim.  Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny.  The Court found a rational basis in discouraging trespassing.

Finally, the Judge addressed the issue most significant from my point of view:  May information gathered as a result of a trespass be used in enforcement proceedings?  The statute requires “expungement” of such data.  The Court held that the Supreme Court has largely rejected facial challenges to such provisions.  Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.

Why does this matter?  Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property.  Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped.  Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!

I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.

Violations of Environmental Law Are About To Get More Expensive

On July 1, EPA promulgated an interim final rule making inflation adjustments to the civil penalties under statutes it administers.  The adjustments are required by statute.  The new amounts apply to violations that occurred after November 2, 2015 and that are assessed after August 1, 2016, which is the effective date of the rule.

The rule has a handy table to locate the new penalty amounts, but to give you some sense, the maximum civil penalty for Clean Water Act violations, which was $25,000 per day in the statute and has been $37,500 based on the most recent adjustment, will rise to $51,570 per day.

Perhaps civil violations don’t pay.

The Antarctic Ozone Hole Is Healing. Full Stop.

An article published Friday in Science reports that the Antarctic ozone hole ozonemaximagereleaseis healing.  As the article notes, there was some previous evidence about global improvement in stratospheric ozone levels, but this is the first to document improvement in Antarctica.

Aside from the fact that good news is always welcome, it’s also a useful reminder that environmental regulation can work.  In the developed world, with sophisticated environmental regulation, air is cleaner, water is cleaner, and the land is less contaminated than 50 years ago.  Work is of course, not done (see, e.g., Flint).  There’s also that pesky climate change issue.

Nonetheless, progress is progress, and should be recognized and celebrated.

TSCA Reform Is Real: EPA Publishes Its “First Year Implementation Plan”

On Wednesday, EPA released its “First Year Implementation Plan” for the recently enacted TSCA reform legislation.  Toxic-Substances-Control-Act (1)chem_head

Before getting to the details, it’s worth emphasizing what a significant accomplishment it was to get TSCA reform passed in the current Congress.  It’s also enlightening, because the message of TSCA reform may be that reform of existing legislation is possible, but only if the existing legislation is so obviously broken that it harms everyone.  TSCA was ripe for amendment because not only was it not working, but it was a negative sum game:  it was bad for business and it was bad for the environment.  I’m not sure it provides much of a model for efforts to amend the Clean Air Act to address climate change or the Clean Water Act to figure out what a “water of the United States” is.

So, what is EPA’s plan for implementing the amendments?  Here’s an example, the first item in the Plan:

New Chemicals

Requirement: Review and make an affirmative determination on all premanufacture notices (PMNs) and significant new use notices (SNUNs) before manufacturing can commence.

Goal: Meet the applicable deadlines. (My emphasis.)  For companies that submitted PMNs prior to enactment and are currently undergoing review, EPA will make every effort to complete its review and make a determination within the remaining time under the original deadline. However, as a legal matter, the new law effectively resets the 90-day review period.

It’s not obvious to me that meeting the applicable deadlines constitutes an actual “plan.”  It is, as EPA says, a “goal.”  What would be interesting to know would be EPA’s actual plan for meeting that goal.  To some extent, the prior version of TSCA failed because it simply wasn’t feasible to implement.

Good luck.  Everyone wants this to work.

Massachusetts Energy Bill Emerges from Senate Committee on Ways and Means

windmill-640x426-1Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018. Importantly, the Senate defines “clean energy generation” more broadly to permit new Class… More

I Have Seen the Future and It Is Hot and Wet

The City of Boston has just released its “Climate Projections Consensus.”  It’s not a pretty picture.  Here are the lowlights:

  • Average summer temperatures will be 4-5 degrees F. warmer by 2050 Boston temps
  • Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.
  • The number of “extreme precipitation” events has been increasing and that increase will continue.

On this day after the Brexit, one wishes that we could just take a vote to leave.  Unfortunately, as Ben Franklin said, I think we must all hang together, or assuredly we shall all hang separately.  join or die