Opposing NPDES Delegation to Massachusetts Is So 20th Century

On Tuesday, the Boston Globe joined most local environmental organizations in opposing delegation of the NPDES program to Massachusetts.  How wrong is this?  Let me count the ways.

  1. Donald Trump
  1. Even recognizing, as the Globe points out, that presidential administrations are only four years, does anyone seriously expect the federal EPA budget to be anything other than massively underfunded for the foreseeable future?
  1. The Globe says that the current arrangement, while “unusual,” has “worked.” Methinks that the Globe editorial staff has been taking too much advantage of marijuana legalization in Massachusetts.  Did they bother to ask – or did any of the environmental organizations bother to tell them – how long it currently takes EPA to renew NPDES permits in Massachusetts?  For permits of any complexity, delays of more than ten years are not uncommon.  The Globe’s definition of a program that works is different than mine.
  1. The Globe did not mention that MA is one of only three states – the other two being New Hampshire and Idaho – that don’t have NPDES delegation. This is the company we want to keep?  Blue states such as the entire west coast and the mid-Atlantic states manage to operate NPDES programs without kowtowing to polluters.  Why can’t we?
  1. The Globe’s editorial closes with the argument that turning

oversight of river pollution to the state brings polluters one step closer to their regulators, and that would be a mistake.

To which I can only say, how clueless can the Globe get?  The reason to support delegation is not that it’s a good idea in spite of “bringing polluters closer to regulators,” but precisely because it would bring polluters closer to regulators!  That’s why it’s a good idea.

I had thought that we were past the point in Massachusetts of casting the regulated community as the devil and the regulators as the angels.  Regulatory programs work best when the regulators and the polluters do know each other, and get to understand each other’s problems, and can work together for positive-sum results.  That’s why environmentalists should support NPDES delegation.

Opposition to delegation is simply an embarrassment.

Coming Soon to a Northeast or Mid-Atlantic State Near You: Regulations on Carbon Emissions From Transportation

Yesterday, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation.  The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”

Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this:  RGGI for transportation.

To give one an idea of the momentum that is finally building in support of regulation of transportation sector GHG emissions, one need look no further than the recent letter sent jointly by the New England Power Generators Association (our client), the NRDC, the Sierra Club, the Union of Concerned Scientists (also our client!), and the Acadia Center to four New England governors, requesting that they

develop and participate in a regional, market-based policy to address greenhouse gas emissions from the transportation sector.

If the letter seems at first blush to involve strange bedfellows, think again.  From NEPGA’s perspective, its members are reasonably sick and tired of being the only target of GHG emissions regulations – particularly given that electric generation now represents less than ½ the GHG emissions from transportation.  From the perspective of the environmental groups, they know that it will be literally impossible to meet targets of 80% reductions in GHG emissions by 2050 without very substantial reductions in emissions from transportation.

For too long, states focused on electric generation emissions to the exclusion of transportation for one reason only.  Transportation will be difficult.  Difficult is no longer an excuse.

It’s about time.

When Is a Discharge to Groundwater Subject to the Clean Water Act? Can You Say “Significant Nexus”?

Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not.  As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water, making all such discharges subject to the CWA.  How can that be, given that groundwater is not considered to be “waters of the United States?”

Chief Judge Waverly Crenshaw recently addressed the issue in Tennessee Clean Water Network v. TVA.  Judge Crenshaw’s solution was creative – meaning he pretty much made it up out of whole cloth.  That doesn’t necessarily mean that it’s wrong, however.

The case involves coal ash management at the TVA’s Gallatin plant.  Some of the – unlined – ponds directly abut the Cumberland River.  The plaintiff citizen groups brought claims under the CWA, alleging that TVA was discharging pollutants to the River – via groundwater – without an NPDES permit.  They requested an injunction requiring that the TVA remove the coal ash from the ponds, at a cost of $2 billion.

Judge Crenshaw was frustrated by an absolutist position on either side.  Clearly, he does not think that any link between groundwater and surface water, no matter how attenuated, can be enough for jurisdiction to attach.  On the other hand, he was also trying to reckon with the specific case in front of him.  As he saw it, the Gallatin ash ponds were a complete environmental mess.  They immediately abut the Cumberland River, clearly a water of the United States.  Can the outcome really be different if the ponds discharge directly to the River than if they discharge to groundwater 10 feet from the River, where that groundwater then discharges to the river?

His solution?

the Court concludes that a cause of action based on an unauthorized point source discharge may be brought under the CWA based on discharges through groundwater, if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced.

I confess I like this solution, because it is practical and will generally yield reasonable results.  It avoids either effectively regulating all groundwater under the CWA or having to conclude that the CWA can’t reach situations such as the Gallatin ash ponds.

The problem?

There’s no textual support for this solution in the CWA.  To me, this test sounds a lot like Justice Kennedy’s “significant nexus” in Rapanos.  There too, his position received a lot of support at a practical level, while many commentators noticed that the CWA says nothing about a “significant nexus.”

We all know how well that’s worked out.

If the Apocalypse Approaches, But the Administration Ignores It, Will It Make a Sound?

Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment.  It makes grim reading – or perhaps more accurately, grim reaper – reading.  Here’s what we might call the executive summary of the Executive Summary.  First, the bottom line:

This assessment concludes, based on extensive evidence, that it is extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.

In addition to warming, many other aspects of global climate are changing, primarily in response to human activities. Thousands of studies conducted by researchers around the world have documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor.

And the highlights (or lowlights):

Global annually averaged surface air temperature has increased by about 1.8°F (1.0°C) over the last 115 years (1901–2016). This period is now the warmest in the history of modern civilization. 

global average sea level has risen by about 7–8 inches since 1900, with almost half (about 3 inches) of that rise occurring since 1993.

Heavy rainfall is increasing in intensity and frequency across the United States and globally.  

Heatwaves have become more frequent in the United States since the 1960s.

The incidence of large forest fires in the western United States and Alaska has increased since the early 1980s.

Since this recitation has something of the ten plagues about it, at this point, I’ll say “Dayenu!”

It’s certainly more than enough for me, but what about this administration?  I’m not going to begin to speculate on how the administration will go about ignoring the Report, though I’m confident that it will.  I’ll only add that, at the very least, this report makes abandonment of the endangerment finding by EPA even more infeasible than it already was.  When the government itself says that it is extremely likely that release of GHGs is the dominant cause of warming, it would seem to be the definition of arbitrary and capricious were the government somehow still to conclude that the endangerment finding should be withdrawn.

Of course, this is an administration that has already abandoned years of GOP support for cost-benefit analysis in favor of cost-only analysis, so nothing would really surprise me at this point.

Massachusetts Department of Public Utilities Investigates Issues Relating to Net Metering, Energy Storage, and Forward Capacity Market Participation

On October 3, 2017, the Massachusetts Department of Public Utilities (“DPU”) opened a new docket (D.P.U. 17-146) to investigate two issues: whether energy storage systems paired with net metering facilities are eligible for net metering and what should be done to clarify the rights of net metering facilities to participate in the Forward Capacity Market (“FCM”).

These issues have been percolating for years.  In fact, D.P.U. 17-146 follows directly from prior dockets in which the DPU avoided addressing these policy issues.

  • In June of 2015, SolarCity filed a petition for an advisory ruling on whether a project that combined solar generation and energy storage was eligible to net meter as a Class II net metering facility.  SolarCity resolved the issue underlying its petition outside of the DPU process and withdrew its petition before further proceedings took place. However, National Grid filed comments noting the importance of investigating the issue and urging DPU action.
  • In its recent rate case, National Grid initially proposed ratemaking treatment for the costs and proceeds associated with bidding the capacity of net metering facilities into the FCM.  However, the issue was not addressed because, in February of 2016, the DPU severed National Grid’s proposal from the rate case and reserved it for a future proceeding.
  • In July of 2016, Genbright petitioned the DPU for a declaratory order regarding net metering facilities’ rights to participate in the FCM and for clarification on the applicability of net metering regulations to energy storage projects.  Last month, the DPU suspended its review of that petition in order to open this new docket.
  • In May of this year, Tesla filed a petition for declaratory relief and an advisory ruling with respect to the eligibility of energy storage and solar facilities to net meter where (1) the solar net metering facility has a capacity of less than 60kW, (2) the battery storage charges only from the solar net metering facility, and (3) the battery storage does not export power to the grid.  The DPU issued a narrow advisory ruling, applicable to Tesla only, that such facilities “should be eligible to net meter,” but reserved broader policy issues for this new docket.

For now, the DPU is just seeking comments.  Comments on issues relating to the eligibility of energy storage systems to net meter are due on November 17, 2017, and comments on net metering facilities and the FCM are due on February 1, 2018.

Don’t underestimate this docket.  It reflects a frequent reality in clean energy policy: regulatory frameworks change more slowly than technology.  As the deployment of energy storage with renewable generation becomes more common, and as greater interest develops in accessing the FCM value associated with net metered systems, regulatory frameworks will need to adapt.  The comments received in this docket are likely to set the stage for future policy actions, and policymakers’ early decisions on these issues could have long-lasting consequences.

Sometimes Guidance Actually Provides Guidance

As regular readers know, the tension between guidance and regulation is one of my favorite topics.  My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued, it is treated by those implementing it in the agency street-level bureaucracy as though it were a rule.  Nonetheless, guidance is sometimes appropriate.  The recent decision in Sierra Club v. EPA is one of those cases.

In 2010, EPA issued guidance on how it would review particulate matter emissions resulting from transportation projects to ensure that the projects conform with state implementation plans for attaining compliance with the NAAQS for PM.  When EPA revised the guidance in 2015, the Sierra Club sued.

The decision is in two parts.  First, the Court ruled that the Sierra Club did not have standing to challenge the guidance with respect to PM2.5, because it had not shown that it would be harmed by implementation of the guidance with respect to PM2.5  The part of the decision that interests me, though, concerns PM10.  There, the Court concluded that the Sierra Club had standing, but found that issuance of the guidance was not final agency action subject to judicial review.  In other words, it was guidance, and not a rule. 

Why?  The key was simply this:  “On its face and as applied, the 2015 changes to the PM10 methodology are not binding.”

Contrary to petitioners’ assertions, this is not a case in which the guidance document signals that the agency “will not be open to considering approaches other than those prescribed” therein. We said of the guidance at issue in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), that “from beginning to end . . . [it] reads like a ukase. It commands, it requires, it orders, it dictates.” Id. at 1023. This is no ukase.

What’s really important is that the Court did not just take EPA’s word or rely on the disclaimer in the guidance.  Instead, it looked to how EPA had implemented the guidance in practice and found that EPA had used it flexibly and invited project sponsors to use methodologies other than those described in the guidance.

Score one for guidance.

It’s the Externalities, Stupid.

Last week, the Lancet Commission on pollution and public health (free registration required) released a study on the annual costs of pollution.  There’s bound to be argument about the specifics, but it’s difficult to argue with the conclusion that those costs are really, really, big.  The study estimates the annual global welfare loss due to pollution at $4 trillion – $6 trillion.  The Lancet says that this is more than 6% of global economic output.  It’s important to note that The Lancet treats “pollution” differently from climate change, so this study does not include losses related to climate change.

It’s also important to note the range of impacts – and some of the progress we’ve made in the developing world.  The study points out that the elimination of lead from gasoline has increased the IQ of American children born since 1980 by 2-5 points.  The economic gain just from this intelligence increase is estimated to be in the trillions of dollars since 1980.

One final point of emphasis:  while others may disagree, The Lancet very firmly takes the position that countries don’t have to get rich before they can address pollution issues.

To me, whether the study’s conclusions are right or not, its approach certainly is.  And it highlights one of the many weirdnesses of the current US administration.  An administration that should care about economics has simply ignored one of economics’ fundamental principles, that negative externalities create social welfare losses.  That’s why, for example, the Administration’s 2-for-1 Executive Order is so wrongheaded.  It pretends that externalities don’t exist and that regulations don’t have any benefits.

We can argue over the amount of benefit and make cases against regulations that cannot survive a rigorous cost-benefit analysis.  We can argue that even regulations whose benefits exceed their costs should also be subject to cost-effectiveness analysis.

But let’s not pretend that externalities don’t exist.  Social welfare losses from pollution may not be $6 trillion annually, but they’re pretty (expletive deleted) substantial.

DOE NOPR Faces Criticism But Remains on Fast-Track, with Initial Comments Due October 23

On September 28, 2017, Secretary of Energy Rick Perry sent a letter to FERC enclosing a Notice of Proposed Rulemaking(NOPR), which Secretary Perry asserts “requires the Commission-approved organized markets to develop and implement market rules that accurately price generation resources necessary to maintain the reliability and resiliency of our Nation’s electric grid.” Both the timing and substance of the proposal have been criticized by energy industry representatives, lawmakers, and current and former FERC commissioners, but the Commission has denied requests to extend the comment period on the proposal (see the notice here and analysis here), and acting Chairman Neil Chatterjee has recently confirmed that it will take some action within the 60-day timeline set by the NOPR.

Here’s a recap of some of the key developments to date:

  • August 23: DOE released the Staff Report to the Secretary on Electricity Markets and Reliability. Secretary Perry cites the report in arguing that there is an urgent need for FERC to take action to address reliability and resiliency, but critics of the NOPR have argued that the proposal is inconsistent (see examples here and here) with the report’s conclusions.
  • September 28: Secretary Perry submitted the NOPR, which would require Commission-approved ISO or RTOs to “establish a tariff that provides a just and reasonable rate [including pricing to ensure full compensation for “reliability, resiliency, and on-site fuel-assurance”] for the (A) purchase of electric energy from an eligible reliability and resiliency resource and (B) recovery of costs and a return on equity for such resource dispatched during grid operations.” A “grid reliability and resiliency resource” is an electric generation resource that, among other things, is able to provide essential energy and ancillary reliability services and has a 90-day fuel supply on site.
  • October 2: Eleven trade organizations filed a Joint Motion requesting that FERC allow for at least a 90-day period for initial comments and convene a technical conference prior to the comment deadline. On the same day, FERC issued a Notice Inviting Comments on the NOPR, and set an October 23 deadline for initial comments and a November 7 deadline for reply comments.  Critics also argued that the rule fails to demonstrate how it would improve resilience, and that it “would blow the market up.”
  • October 3: In response to the Notice, the energy trade organizations moved for an extension that would provide a 90-day initial and 45-day reply comment period. Representatives from some of those organizations, along with others from the energy sector, also testified at a House Committee on Energy and Commerce, Subcommittee on Energy, hearing on “Defining Reliability.” Views at the hearing were predictably split between natural gas, solar, and wind industry representatives, who opposed the NOPR, and coal, nuclear, and hydropower representatives, who expressed at least qualified support for the substance of the rule.
  • October 4: FERC issued a Request for Information, which poses 30 questions concerning, among other things, the need for reform, “grid reliability and resiliency resource” eligibility, the 90-day fuel supply requirement, rule implementation, and rate calculation.
  • October 5: Witnesses, including Dr. Joseph Bowring, PJM Independent Market Monitor, and Rebecca Tepper, Chair of the Consumer Liaison Group for ISO-NE and Chief of the Energy and Telecommunications Division in the Massachusetts Attorney General’s Office, testified at a House Subcommittee on Energy, hearing on consumer perspectives on improving the nation’s electricity markets. All six witnesses stated that they took issue with both the process and substance of the NOPR.
  • October 10: The Grid Resiliency Pricing Rule was published in the Federal Register. The published version of the rule adds language that limits its application to regions “with energy and capacity markets.”
  • October 11: FERC denied requests for extension of the NOPR comment period.
  • October 12: Secretary Perry testified at a hearing on the DOE’s “Missions and Management Priorities,” before the House Subcommittee on Energy.  He called the idea of a free market in electrical generation a “fallacy” where every state regulates the energy industry and stated that the proposal was a way to “kick-start” a conversation about grid resiliency and reliability.
  • October 13: Chairman Chatterjee explained that his goal is to “correct market deficiencies . . . in a legally defensible manner that doesn’t blow up the markets.” He also stated that FERC has “numerous tools at its disposal,” including issuing an advanced or superseding NOPR, extending the comment period, convening a technical conference, or issuing a final rule, to respond to the NOPR within 60 days.
  • October 16: Eleven Democratic Senators sent a letter to FERC “remind[ing] the Commission of its procedural and substantive obligations under the Administrative Procedure Act and Executive Order 12866,” noting several “inaccuracies and mischaracterizations” in Secretary Perry’s letter and the NOPR, and urging FERC to reject the rule.
  • October 19: Eight former FERC Commissioners filed comments arguing that the proposal would be a “significant step backward from the Commission’s long and bipartisan evolution to transparent, open, competitive wholesale markets,” and encouraging the Commission to modify the proposal or “initiate regional proceedings to examine resilience issues and consider the need for market rule changes.”
  • October 23: Initial comment deadline.

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

EPA Administrator Scott Pruitt today issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support.  These include:  (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.

So far, so good.  However, at a certain point, the Administrator seems to have gone off the rails.  First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.”  Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?

What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.”  Instead, the Directive merely states that:

It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.

The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”

The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson.  I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water.  Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.  

SMART Moves to a New Forum: Massachusetts Department of Public Utilities to Consider a SMART Tariff

Stakeholders have been following the development of “SMART” as a successor to the SREC program in Massachusetts for more than a year.  (See our previous posts on the development process herehere, and here.)  As it stands, SMART reflects a determined effort by the Department of Energy Resources (“DOER”) to craft a program that balances multiple interests and sets a sustainable path for solar development in Massachusetts.  The result of that effort, as we’ve noted before, is complicated.

DOER finalized its SMART regulations in August after making some significant changes to the emergency version it filed in June.  (Among other changes, DOER raised the ceiling price for the competitive procurement that will set compensation rates, modified aspects of the procurement process, clarified some siting issues, and changed the way in which the value of “adders” – increased compensation based on location, off-taker, or facility characteristics – will decline over time.)

Despite their complexity, DOER’s regulations do not fully implement the SMART program.  While DOER’s regulations fastidiously set the levels of compensation for which various configurations of solar generation will be eligible (once an initial procurement sets a baseline rate from which other rates will be calculated), they leave the details of how that compensation will occur to the Department of Public Utilities (the “DPU”), which needs to approve a tariff to implement the program.

The action now moves to the DPU, where the Massachusetts electric distribution companies filed a proposed SMART tariff on September 12.  Many important aspects of the program will be hashed out in that proceeding.  In particular, the proceeding will determine how the SMART mechanism for transferring bill credits outside of net metering (referred to as an “Alternative On-bill Credit”) will function, an element of the program that may prove critical if net metering caps bar future projects from net metering.

Staying in DOER’s court: how to manage the transition from SRECs to SMART.  The Tariff proceeding at the DPU is likely to extend into the first half of 2018.  As we discussed back in March, DOER has guidelines in place that provide for reduced SREC factors for units based on size and the date a unit is authorized to interconnect.  Currently, SREC factors are set to decline for units over 25 kW DC that are not mechanically complete or authorized to interconnect as of March 31, 2018.

The DPU docketed the SMART tariff proceeding as D.P.U. 17-140 and put out a notice on October 3.  A public hearing will be held on Tuesday, October 24, and the Department is accepting written comments until that date.  The deadline for parties to intervene and participate in the evidentiary phase of the proceeding is October 19.

How Wrong Does a District Court Have to Be to Abuse Its Discretion?

The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to 1999.  TDY has sought contribution from the United States, which was the source of the vast majority of TDY’s business, and which directed TDY to use certain hazardous substances, release of which caused the relevant contamination.

What makes the case so interesting was that the District Court had found that both TDY and the United States were liable parties, held a lengthy trial on the allocation issues, and made specific findings justifying its 100% allocation share to TDY.  The Court of Appeals repeatedly noted that its review was subject to an abuse of discretion standard, and acknowledged that the facts found by the District Court justified a significant allocation to TDY.

And yet, the Court of Appeals found the 100% allocation to be an abuse of discretion.  Why?  I’m not sure that the case really provides any answer, other than that 100% was just plain too much.

Surely that the US was by far the plant’s biggest customer could not by itself be a reason to require that the District Court allocate a non-zero share to the United States.  The only solid fact cited by the Court was that the United States required TDY to use two of the three hazardous substances that were released from the facility.  That was certainly the view of the concurrence, which went out of its way to make clear that the District Court, on remand, did not have to allocate a very large share to the United States.

I have often noted that facts matter and evidence matters.  Here, the concurrence includes this tantalizing statement:

As far as the record discloses, those are chemicals TDY might have chosen not to use if left to its own devices.

Really?  An aeronautical parts manufacturing plant operating from 1939-1999?  Would any such company not have used chlorinated solvents for parts cleaning and chromium for corrosion resistance?  Couldn’t the government have found an expert witness to testify that usage of these compounds was routine in the industry during this time?

And if such a witness had testified, would the Court of Appeals have affirmed the 100% allocation to TDY?

Court Rejects BLM’s Efforts to Unbalance the Scales of Justice

Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands.  If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise.  BLM based its postponement of the compliance deadlines on § 705 of the APA, which authorizes agencies to “postpone the effective date” of regulations “when justice so requires.”  However, every court that has looked at the issue has concluded that the plain words of the APA apply only to the “effective date” of a regulation and not to any “compliance date” contained within the regulation.

It seems clearly right to me.  For Chevron geeks out there, I’ll note that the Court stated that, because the APA is a procedural statute as to which BLM has no particular expertise, its interpretation of the APA is not entitled to Chevron deference – a conclusion which also seems right to me.

What particularly caught my eye about the decision was the Court’s discussion of the phrase, “when justice so requires.”  In a belt and suspenders bit of analysis, the Court also made findings that justice did not require postponement.  BLM’s argument was that justice required the postponement because otherwise the regulated community would have to incur compliance costs.  However, as the Court noted, “the Bureau entirely failed to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced public revenues.”  Indeed:  

If the words “justice so requires” are to mean anything, they must satisfy the fundamental understanding of justice: that it requires an impartial look at the balance struck between the two sides of the scale, as the iconic statue of the blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” Without considering both the costs and the benefits of postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” of the problem into account and was therefore arbitrary.

I think I detect a theme here.  Some of you will remember that Foley Hoag filed an amicus brief on behalf of the Union of Concerned Scientists, supporting the challenge to President Trump’s “2-for-1” Executive Order.  We made pretty much the same arguments in that case that Magistrate Judge Laporte made here – minus the reference to the scales of justice.

Unless SCOTUS gets rid of all agency deference, the Trump Administration is going to get some deference as it tries to eliminate environmental regulations wherever it can find them.  However, if it continues to do so while looking solely at the costs of the regulations to the business community, while ignoring the benefits of the regulations, it’s still going to have an uphill battle on its hands.

First Electric Generation. Then Transportation. What About Buildings?

On Monday, EnergyWire (subscription required) reported that New York City Mayor Bill de Blasio has unveiled a plan to cap fossil fuel use in buildings in New York City.  (I haven’t seen the specific plan, but it is referenced in City’s overall plan, “1.5°C:  Aligning New York City with the Paris Climate Agreement,” that the City just released.)  The building plan is based on data gathered as a result of local ordinances requiring buildings with more than 25,000 square feet to report energy and water use.  EnergyWire quotes Office of Sustainability Direct Mark Chambers as saying the focus of the effort will be to move the lower performing buildings up to the average.

Of course, there are generally reasons why the worst performers are not the best performers.  Building owners will be interested to know the details of the City’s commitment to provide financing assistance to make the necessary efficiency upgrades.

As we reported in 2013, Boston has a similar benchmarking law.  At the time, the City was insistent that this was simply a reporting law – the idea being that the presence of an “MPG sticker” on a building would allow the market to work, as buyers and renters began to insist that buildings be more energy efficient.

When the Boston ordinance was proposed, I stated that:

Whether, at some point down the road, the City starts regulating energy use intensity is a question for another day.

I think that the day is arriving, and sooner than many people expected.

We’re Number 1! (And California Isn’t)

The American Council for an Energy-Efficient Economy just released its 2017 Energy Efficiency ScorecardAfter sharing the top spot with California in the 2016 Scorecard, Massachusetts is back where it belongs – alone at the top.

The ACEEE notes that Massachusetts offers “some of the most comprehensive services in the country, addressing a range of customers and building types.”  It also noted Massachusetts’ efforts to make energy more available to those with lower incomes, through its “Affordable Access to Clean and Efficient Energy Initiative.

Ball’s in your court California.  To paraphrase some lottery advertising, this is a contest where everyone wins — as long as you’re really in the game.