Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought $642,697,500) against ExxonMobil in a Clean Air Act citizens’ suit brought by Environment Texas and the Sierra Club concerning the ExxonMobil facility in Baytown, Texas. baytown-night-lights_supporting_image (1) The plaintiffs lost even though Judge Hittner did find a number of violations of the CAA.  Why did plaintiffs lose?  Here are some of the reasons:

*  ExxonMobil never exceeded any annual limits on emissions

*  Emissions from the facility were steadily decreasing over the time period covered by the suit

*  Exxon had spent hundreds of millions of dollars annually on facility maintenance

*  Exxon did careful root cause analyses of every apparent violation and persuaded the court that it was dedicated to preventing recurrences

*  The sheer size of the facility actually worked in ExxonMobil’s favor; the Court found that it is literally impossible to prevent all violations

*  The plaintiffs’ experts were not found credible in demonstrating that ExxonMobil benefitted economically from the non-compliance

*  The plaintiffs were not able to demonstrate any link between any of the proven violations and any impact to public health or the environment

On the legal side, the Court’s conclusion that imposition of any penalty at all is within a judge’s discretion is obviously critical.  Similarly, the Court concluded that the requested injunction – which was that ExxonMobil comply with the CAA for five years –

would be an excessively intrusive remedy, because it could entail continuing superintendence of the permit holder’s activities by the federal court – a process burdensome to court and permit holder alike.

Finally, I note that the Court’s detailed discussion of the witnesses put forward by the parties on the issues of economic benefit of noncompliance and the impacts – or lack thereof – of the violations are well worth reading.  It really does matter how you put on a case.

Final score, Goliath 1, David 0.

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations.  The program will establish a market in phosphorus and nitrogen removal credits.  Although the program is welcome news, it should be neither earthshattering nor controversial.  After all, as we noted more than two years ago, a study by the Chesapeake Bay Commission demonstrated that use of nutrient trading would substantially reduce the cost of  the Chesapeake Bay restoration project.

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Since I have a gift for the obvious, I’ll remind readers that we’ve been trading credits in SO2 emissions for almost a quarter-century, in a program that, even in today’s completely polarized environmental debates, does not have any real critics.  While there may be some additional complexities in regulating nutrient run-off from agricultural activities, the regulations seem both rigorous and practical.

It may be more hope than expectation, but my prediction is that nutrient trading systems will be considered routine a quarter century from now and, like the acid rain program, we’ll be wondering what the fuss was all about.

Cole Porter Was Right: The Economic Cost of Climate Change

There has already been significant discussion of the economic impacts of climate change.  Damage from catastrophic events, the cost to build adaptation measures such as sea walls; these have all been examined.  Now, a National Bureau of Economic Research Working Paper suggests a much more direct measure.  Apparently, we’re just not as productive as the planet warms.

Cole Porter knew what he was talking about.

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745.  Whereas the United States had previously only indicated that it was considering filing a cert. petition, the latest filing clarifies that the United States has definitively decided to seek Supreme Court review.  On Monday, Chief Justice Roberts granted the extension.  The United States now has until January 15, 2015 to file a cert. petition.

As I noted at the time of the original Circuit Court decision, I think that the dissent had a lot of force.  I will be intrigued to see how the Supreme Court review plays out, because this case implicates both Chevron deference and important questions of federalism, and it is by no means obvious how the Court will rule.

Definitely stay tuned on this one.

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act.  It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act.  Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor, ok?), and finalized a rule revising in part the definition of “solid waste” under RCRA.  Solid_Waste_Types

Although the rule is complicated enough to take up 507 pages in the prepublication version, and EPA has provided a fact sheet for those who don’t have time to read the entire rule, the blog version is fairly simple.  The rule amends the rule promulgated as the Bush administration was on its way out the door in late 2008 exempting certain materials from the definition of solid waste when recycled.  The new rule largely leaves the same types of waste exempt, but imposes some significant new obligations on recyclers if they want to take advantage of the exemptions.  Recyclers claim that the new requirements are sufficiently onerous that they will discourage recycling and result in more disposal of wastes at landfills and incinerators.

The question for the day is this.  Isn’t 40 years or so sufficient to come to agreement on such fundamental terms as “source”, “waters of the United States”, and “solid waste”?  Mightn’t it be appropriate to step back and ask ourselves whether this uncertainty about some fairly basic terms should give us pause about how we are implementing our environmental protection regimes?  Shouldn’t we at least acknowledge that the uncertainty about fundamental definitions – heightened by not so infrequent regulatory changes in the definitions – imposes costs on the economy?

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.

WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”

What was the basis for the alleged nondiscretionary duty?  It was section 166(a) of the CAA:

(a) Hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides

In the case of the pollutants hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides, the Administrator shall conduct a study and not later than two years after August 7, 1977, promulgate regulations to prevent the significant deterioration of air quality which would result from the emissions of such pollutants. In the case of pollutants for which national ambient air quality standards are promulgated after August 7, 1977, he shall promulgate such regulations not more than 2 years after the date of promulgation of such standards.

WildEarth Guardians read the second sentence to require new standards within two years of any revision to a NAAQS.  EPA’s view was that the first two sentences have to be read together.  The first sentence requires PSD regulations for criteria pollutants already established when section 166 was added to the CAA; the second sentence addresses new criteria pollutants added later, and requires only that PSD regulations be promulgated within two years after the pollutants are first listed.

The Court found both readings plausible, and tie goes to EPA.  As the Court noted, in interpreting section 304(a)(2) of the CAA, the Court has required that the duty “be clear cut.”

We must be able to identify a “specific, unequivocal command” from the text of the statute at issue using traditional tools of statutory interpretation; it’s not enough that such a command could be teased out “from an amalgamation of disputed statutory provisions and legislative history.

Nice try by WildEarth Guardians, but this is clearly right.  Courts really do have to be leery of finding nondiscretionary duties if they are going to avoid tying agencies in knots.  Of course, EPA may never revise its ozone PSD regulations, but there are two responses to that issue.  First, Congress can direct EPA to do so.  Second, do we want EPA to update its regulations?

When Will My Leftover Turkey Power My Electric Car: A Post Thanksgiving Reflection on the Promise and Challenge of Food Waste Bans

Food is a big part of why Thanksgiving is my family’s favorite holiday.  Over the years, we have tried to eat sensibly and sustainably, and to waste less food. But on the Monday after Thanksgiving, I suspect we are not alone as we contemplate the wilted salad, the wan sweet potatoes, and the last of the now not-so-attractive leftover turkey.  Indeed, one recent study by NRDC estimated that Americans throw away 40% of their food.

In the last few years, declining capacities at conventional solid waste disposal facilities, combined with the realization that there are more beneficial… More

EPA Finally Proposes a Revised Ozone Standard, Sort Of

Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – Ozone_Molecule_Formulaexcept that the agency is still hedging its bets.  The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of 0.060 to 0.070 ppm.  EPA has narrowed the range slightly, proposing a revised NAAQS of from 0.065 to 0.070 ppm, but still has not yet picked a number.

EPA’s waffling is particularly annoying because it is of course taking comment on alternatives both below and above the 0.065 to 0.070 ppm range that it is proposing.  First, with regard to levels below 0.065, EPA stated that:

Recognizing that the CASAC recommended a range of levels from 0.060 ppm to 0.070 ppm, and that levels as low as 0.060 ppm could potentially be supported, the Administrator solicits comment on alternative standard levels below 0.065 ppm, and as low as 0.060 ppm. However, the Administrator notes that setting a standard below 0.065 ppm, down to 0.060 ppm, would inappropriately place very little weight on the uncertainties in the health effects evidence and exposure/risk information.

This actually should give some comfort to opponents of a lower standard.  As we noted previously, CASAC concluded that there are:

clinically significant lung function decrements and airway inflammation, after exposures to 60 ppb ozone in healthy adults with moderate exertion.

We have blogged extensively about the role of CASAC in judicial review of EPA decisions.  The current situation appears to be that, if EPA relies on CASAC, it will be affirmed – meaning that a standard of 0.060 ppm would probably survive judicial review – but that courts have given EPA some leeway to depart from CASAC recommendations.  EPA’s statement about the uncertainties in data at levels below 0.065 ppm appears to be setting the stage for EPA justifying a standard greater than 0.060 ppm.

EPA is also taking comment on keeping the current ozone NAAQS of 0.075 ppm.  I think that the likelihood of EPA keeping that standard is approximately zero – and the likelihood that a decision to do so would survive judicial review is not much greater than zero.

We’re going to end up in the 0.065 to 0.070 ppm range and EPA just seems to want to keep us guessing on the actual number for a little while longer.

By the way, get those permit applications in asap, because EPA will be grandfathering projects that have filed completed applications prior to the effective date of the new standard.

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with the federal or state government and were limited to Section 113(f) CERCLA contribution claims with three year statute of limitations and (2) PRPs who were permitted to pursue cost recovery claims under Section 107 of CERCLA with joint and several liability and a six year statute of limitations. A recent decision by a federal court in the Southern District of New York, More

I’m Still a Cockeyed Optimist When It Comes to Climate Change

Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050.  And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions.  NRG’s statement indicated that it had already reduced emissions by 40% since 2005.  By my math, that means that the 2030 and 2050 reductions would be 70% and 94%, respectively, below 2005 emissions.

If NRG can do it, why not others?  And if others do it, we will certainly be on a path to mitigating the worst impacts of climate change, according to John Sterman of MIT’s Sloan School, as quoted in the Times story on the NRG announcement.

I still don’t know quite how we get from here to there.  While voluntary commitments are nice, we’re going to need a cap-and-trade program or carbon tax at some point.  Nonetheless, taking the long view, I see momentum building in the right direction.

Call me a cockeyed optimist.

Should Watersheds Have Standing? Should Corporations?

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

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

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

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

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

 

Is Obesity an Environmental Problem?

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

According… More

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

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

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

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

To give just one example, the Policy states that:

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

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

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

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

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

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

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

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

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

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

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

This too seems focused on the traditional impact analysis.

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

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

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Superfund Rant For a New Congress

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

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

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

Mitch McConnell, are you listening? rantimage_lrg