Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states.  Only four states aren’t delegated:  Idaho, Massachusetts, New Hampshire, and New Mexico.  How is it that progressive Massachusetts, always confident that it can do environmental regulation better than anyone else, never obtained delegated authority?

Like Tevye, I’ll tell you.  I don’t know.

I do know that it’s good news that Governor Baker just submitted legislation necessary for Massachusetts to assume NPDES delegation.  It’s about bloody time.  I hope my friends in the environmental community – you know who you are – don’t oppose delegation on the assumption that this is a nefarious Republican plot to turn back the clock on environmental regulation.  There is no procedure for assuming delegation authority when the Republicans are in charge in Washington and the Democrats are in charge in Massachusetts, but handing it back to EPA when the situation is reversed.

Massachusetts knows how to do this and local control is better.  End of story.  Let’s get this done.

Coming Soon To A Roof Near You: Solar Panels (At Least If You Live in SF)

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems.  solar_homes_310x224I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.

It will be interesting to see how this plays out in San Francisco and elsewhere.  We all know how expensive San Francisco is.  It’s hard to see how this helps.  In Boston and environs, there are those who would say that the single biggest obstacle to maintaining our strong economic position is that we have insufficient housing for young families, leading too much of our young talent to move elsewhere.

Boston residents know how little we like playing second fiddle to San Francisco on anything, and certainly on being green.  How will we balance the urge to one-up San Francisco with the need keep construction costs manageable?

Will the City on the Hill trump the City by the Bay?  Stay tuned!

Stop the Presses! EPA Still Thinks that the MATS Rule Is a Good Idea

Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards matsare “appropriate and necessary.”  I don’t have much to add to our post at the time of the proposed Supplemental Finding.  In short, the Supplemental Finding isn’t going to change anyone’s mind, but it should be sufficient to withstand judicial review as long as the courts still believe in Chevron deference.

Big Changes With Little Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects.  The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21.  MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”  MAP 21

The NPRM addresses this criterion, focusing largely on emissions of criteria pollutants.  However, buried in the 423-page NPRM is a six-page section labeled “Consideration of a Greenhouse Gas Emissions Measure.”

And thus the FHWA drops a bomb that could revolutionize federal funding of transportation projects.  It’s important to note that this may not happen.  If the next President is Republican, it certainly won’t.  Even if the FHWA goes forward, there would be legal challenges to its authority to use GHG as part of the performance measures.

If it does go forward though, it really would be revolutionary.  As the NPRM states, transportation sources are rapidly increasing as a source of GHG emissions:

GHG emissions from on-road sources represent approximately 23 percent of economy-wide GHGs, but have accounted for more than two-thirds of the net increase in total U.S. GHGs since 1990.

The enormity of both the challenges facing the FHWA in attempting to establish a performance measure for GHG emissions and the potential impact implementation of a GHG performance measure would have is reflected in some of the 13 questions that FHWA posed for comment:

  • Should the measure be limited to emissions coming from the tailpipe, or should it consider emissions generated upstream in the life cycle of the vehicle operations?
  • Should CO2 emissions performance be estimated based on gasoline and diesel fuel sales, system use (vehicle miles traveled), or other surrogates?
  • Would a performance measure on CO2 emissions help to improve transparency and to realign incentives such that State DOTs and MPOs are better positioned to meet national climate change goals?
  • How long would it take for transportation agencies to implement such a measure?

Welcome to the brave new world of integrated planning to manage GHG emissions in a critical sector of our economy.

MassDEP and CZM Propose Changes to Chapter 91 Regulations

DEP CZMMassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday, May 9th.

The changes are summarized as follows:

Facility of Public Accommodation Regulations

Chapter 91 regulations generally require the provision of “Facilities of Public Accommodation” (FPAs)… More

EPA Releases Long-Awaited MS4 Permit for Massachusetts

NPDESlogo_forwebAs announced in the Federal Register this week, EPA finally released the General Permit for small Municipal Separate Storm Sewer Systems in Massachusetts (say that three times fast!)

This permit has been in the works for quite a while. As we wrote last year at this time, MassDEP has expressed some serious reservations about the MS4 permit throughout the drafting process. Just before EPA issued the permit, MassDEP issued a final Comment Letter announcing… More

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust Mosaic_of_Justinianus_I_-_Basilica_San_Vitale_(Ravenna) (1)case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere.  Perhaps in response to that case, the plaintiffs here appear to have focused their arguments on the government’s public trust responsibilities with respect to various waters of the United States, though the opinion does not make clear precisely what the complaint alleges to be the subject of the public trust obligation.

The plaintiffs not only allege that the United States has violated its public trust obligations, but that that violation in turn constitutes a violation of the plaintiffs’ substantive due process rights.  Magistrate Judge Coffin takes pains to make clear that this is only about a motion to dismiss, but I still think he got it wrong.

Indeed, I think that Magistrate Judge Coffin ignored that well known latin maxim:  “Oportet te quasi ludens loqui.” (Which is how the on-line translator I used translated “You must be joking.”  I hereby disclaim any warranty that this is even close to correct.)

Call me old-fashioned, but I believe in judicial restraint.  And that applies to everyone.  Traditionally, conservatives have accused liberals of judicial activism.  To my totally objective mind, in recent years at least, it is the conservative judges who could more fairly be called activist.  For one case, at least, the shoe seems to be back on its original foot.  I just cannot see this decision standing.  The District Judge should reject Magistrate Judge Coffin’s Findings and Recommendation.  If he or she doesn’t, this case is sufficiently novel and important to warrant interlocutory appeal, and the 9th Circuit should reverse.  And if that doesn’t happen, it will be up to the eight (oops, I meant nine) members of the Supreme Court to get it right.  One of them surely will.

EPA Continues to Dismantle Clean Air Act Affirmative Defenses — Blame It On the Judge(s)

On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register.  EPA describes most of the changes as “technical corrections,” but there is one important substantive change.  EPA has deleted the affirmative defense for violations caused by equipment malfunctions.

The change follows EPA’s 2015 SIP call requiring states to delete affirmative defenses for violations related to startup, shutdown, or malfunction SSMevents.  As we noted then, the culprit is the decision in NRDC v. EPA, which held that EPA did not have authority to create such affirmative defenses.

As before, EPA has emphasized that it has sufficient enforcement discretion to take SSM issues into account.  It also noted that alleged violators may still raise SSM issues with the courts, should they face citizen enforcement, and that the courts similarly have discretion to consider SSM events.

EPA’s argument may be cold comfort to generators, but the agency’s hands really were tied here.

Water Turning To Blood; Flies; Hail? How About Water-borne Illness, Extreme Weather, and Actual Plague?

Passover starts later this month.  Just in time, the U.S. Global Change Research Program has given us an updated list of plagues.  What’s fascinating is that the new list actually bears a certain similarity to the biblical list.

Why has the U.S. updated the list of plagues?  It’s actually part of a report on “The Impacts of Climate Change on Human Health in the United States:  A Scientific Assessment.”  What’s climate change going to do to us?  Instead of lice, flies, boils, Plaguesand the like, we now have the following list:

  • Temperature-related death and illness
  • Poor air quality
  • Extreme weather events
  • Vector-borne diseases
  • Water-related illness
  • Problems with food safety
  • Mental Illness

A prize will be offered for the reader who best correlates the traditional list with the new list.  All kidding aside, it makes for some sobering reading.  Climate change is not just about a few more hot days or the loss of some endangered species (not to suggest that a loss of biodiversity is not itself very important).

The full text of the report is here.

A more interactive version is here.

Climate Change and the ESA: Protecting the Wolverine in the Face of Uncertainty

Under the Endangered Species Act, a species is “threatened” when it is “likely to become an endangered species within the foreseeable future.”  As scientists continue to predict that climate change will alter habitat over the coming century, it certainly seems “foreseeable” that more species will become endangered.  That’s what the Fish & Wildlife Service concluded about the wolverine WolverineSnowin early 2013.  When FWS backtracked in 2014, Defenders of Wildlife sued.  Earlier this week, Judge Dana Christensen held that FWS’s decision to withdraw its proposed listing of the wolverine was arbitrary and capricious.

The case is important for two reasons.  First, as the FWS acknowledged with more than a hint of trepidation:

The situation [the Service] face[s] with the wolverine – whether a species is likely to become endangered in the foreseeable future because of climate change effects – will become a common source of petitioned actions and threaten the Service’s resources to address priority issues.

In short, holy helplessness, Batman.

Which leads to the next reason why the case is important.  As the FW&S gets deluged with petitions requesting that various species be threatened because it is “foreseeable” that habitat loss resulting from climate change will cause them to become endangered, how must the FWS assess the science supporting a listing petition?  The FWS is supposed to look to the “best scientific and commercial data available”.

With respect to the wolverine petition, those challenging the proposed listing and the FWS when it backtracked both pointed to substantial uncertainties about the two key studies on which the petition and the proposed listing were based.  However, neither the opponents nor the FWS pointed to any better science; all they did was point out alleged flaws and uncertainties in the studies.  To which the Court responded:

Quite simply, the Service cannot demand a greater level of scientific certainty than has been achieved in the field to date – the ‘”best scientific data available’ … standard does not require that the [Service] act only when it can justify its decision with absolute confidence,” and “the ESA accepts agency decisions in the face of uncertainty.”

The Court certainly got this one right.  As we’ve noted previously in this space, at least since Ethyl Corp. v. EPA, the courts have acknowledged that agencies can and sometimes must regulate “with developing evidence, with conflicting evidence, and, sometimes, with little or no evidence at all.”

Finally, it’s important to acknowledge the elephant in the room – politics.  The FWS service cannot roll back climate change through its listing decisions, but those decisions can have very broad consequences.  When the Court asked why the FWS tried to backtrack from its proposed listing, its answer was brief and again almost certainly correct:

the Court suspects that a possible answer to this question can be found in the immense political pressure that was brought to bear on this issue, particularly by a handful of western states.

This is not a problem that’s going to go away any time soon.

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government.  Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are final agency subject to judicial review.  The reach of Sackett expands a bit more.

As we noted after the 8th Circuit decision in Hawkes, the government does not have a weak position on the law.  There are plenty of reasons to find that JDs are not final agency action and, indeed, until Hawkes, that was the conclusion of the circuit courts to decide the issue.  What’s really interesting from a jurisprudential point of view is the Court’s apparent focus on the practical impact of Corps jurisdictional determinations.

What is the practical impact of a JD that finds a property is subject to CWA requirements?  We all know the answer to that.  The property owner is screwed.  It’s the dilemma at the heart of all of these cases.  The government wields a mighty power of coercion.  It is salutary when courts recognize the power of government coercion and take measures to restrain it.

The problem in this specific case – and the courts are supposed to decide specific cases – is that JDs are not a creature of statute.  They are a creature of regulation, intended to help property owners by giving them the opportunity – which they don’t have to utilize – to determine in advance whether a particular project is in a wetland Wetlandsand would be subject to jurisdiction.  What happens if the response of the Corps to a decision in favor of Hawkes is to revise the regulations to eliminate the JD process entirely?

It is true that the burden would then shift back to the government.  Property owners who believe that they are not subject to the CWA could then simply commence projects, forcing the government to take enforcement action to stop the project.  Given limited governmental resources, that burden shifting may make a difference.

But what about property owners who genuinely want to comply?  For them, the absence of the JD process would be a real loss.  As the 5th Circuit noted in Belle Company v. Army Corps of Engineers, in which the court held that JDs are not subject to judicial review:

authorizing judicial review of JDs, to the extent that it would disincentivize the Corps from providing them, would undermine the system through which property owners can ascertain their rights and evaluate their options with regard to their properties before they are subject to compliance orders and enforcement actions for violations of the CWA.

I hope that property owners don’t end up regretting this case.

About those calls from MassDEP…

TCE_moleculesLast month, we wrote about MassDEP’s trichloroethylene (TCE) site reevaluation initiative. MassDEP has begun the process of screening sites previously closed under the MCP to look for sites where TCE might exceed the new groundwater concentration standard of 5 μg/L.   At yesterday’s meeting of the Waste Site Cleanup Advisory Committee, MassDEP provided an update on this initiative.

MassDEP has not yet begun contacting owners of closed sites.   Their focus to date has been on addressing open sites where TCE has created vapor intrusion in indoor air. However, as we noted last month, MassDEP’s initial screening has identified 200 priority sites, and MassDEP reported this week that the calls will begin soon.

A few new details on what to expect:

  • Calls to site owners will come directly from the Deputy Regional Directors, with the goal of ensuring consistency in messaging throughout the state.
  • MassDEP’s first point of contact will be with the site owners. Depending upon the specifics of the site and the current owner’s relationship with the prior LSP, MassDEP may also notify the LSP of record.
  • MassDEP will be notifying municipal boards of health as it notifies site owners. MassDEP is holding a series of meetings with the Massachusetts Health Officers Association in advance of the notifications so that the relevant municipal boards are provided with the context for the vapor intrusion initiative in advance.
  • MassDEP will be willing and able to provide preliminary testing services to site owners to determine if current conditions pose a public health risk. Site owners will be free to use their own LSP if they prefer to do so.

CSAPR > BART: The Eighth Circuit Affirms Minnesota’s Regional Haze Plan

Environmental lawyers live for acronyms.  Why is CSAPR > BART?  Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards attaining EPA’s regional haze goals than would application of best available retrofit technologies to those sources that would otherwise be subject to BART.  On Monday, the 8th Circuit agreed that EPA’s decision that the Transport Rule is better than BART was not arbitrary or capricious.

The opinion breaks no new ground, but does provide a useful reminder of the courts’ limited role in these cases:

Maybe time will prove [petitioner] right on some of these fronts; maybe not.  But arbitrary and capricious review does not ask who is right. It asks whether the EPA followed a defensible process in assessing who is right.

Otherwise, the most notable aspect of this case is the “reasonable further progress” goals that Minnesota identified and that EPA approved.  Minnesota has two star_trek_s_william_shatner_make_a_good_master_-william-shatner-to-appear-in-star-trek-3-as-captain-kirk-jpeg-139506“class 1” areas, Boundary Waters Canoe Area Wilderness and Voyageurs National Park.  Minnesota concluded that Boundary Waters could reach natural visibility by 2093 and that Voyageurs could reach natural visibility by – I kid you not – 2177.

I’m going to let James T. Kirk tell me whether we’ve met that goal.

The Statute of Limitations Narrows a Bit More on PSD Violations: Sierra Club Suffers a Self-Inflicted Wound

The law is full of fine distinctions.  Today’s example?  A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s Muskogee plant muskogeebecause the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction.

I have not seen any other cases present this issue so squarely.  For the majority, the decision was relatively easy.  Because the CAA has no limitations provisions, the default five-year limitations period set forth at 28 USC § 2462 applies.  Section 2462 provides that suits must be brought “within five years from the date when the claim first accrued.”  That “first accrued” language was Sierra Club’s downfall.  The court decided that a claim “first accrues” when a plaintiff has a right to bring a claim.  In the PSD context, that is when a defendant commences construction or modification without a permit.  Because the Sierra Club did not file within five years after OG&E commenced construction, the complaint was late.

Not so fast, argued the dissent.  As the dissent rightly noted, the CAA does not make commencing construction or modification without a required PSD permit a violation; it makes “the construction or modification of any source” without a permit a violation.  Thus, the dissent argued, OG&E was still “constructing” its project without a permit during a period less than five years before Sierra Club brought suit and was still in violation, so the suit was timely.

I should note that, whether the dissent is correct or not, it did rightly distinguish two other cases, United States v. Midwest Generation and United States v. EME Homer City Generation, which have been cited in opposition to “continuing violation” theories.  As the dissent emphasized, those cases concerned whether operation of the modified facility, after construction was complete, constituted continuing violations.  The dissent agreed that post-construction operations cannot effectively toll the statute of limitations. However, that is a different question than whether continuing construction keeps the limitations period open.  Indeed, the EME Homer City decision specifically contemplated the possibility that:

the maximum daily fine accrues each day the owner or operator spends modifying or constructing the facility – from the beginning of construction to the end of construction.

That sounds like a basis for new claims accruing each day, thus triggering a new limitations period.  I think that this case is a close question. However, as interested as the Supreme Court seems to be in the CAA these days, I don’t see it taking this case, and certainly not before there is a circuit split on the issue.

What is impossible to determine is what caused the Sierra Club to wait.  Why take the chance?  It does seem a self-inflicted wound either way.

(Very quickly, I’ll note that the majority also dismissed Sierra Club’s injunctive relief claims under the concurrent remedies doctrine.  That’s an important issue, but not a difficult or interesting one, at least where the government is not a party.)

Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

I know it may surprise some litigators, but occasionally the allegations in a complaint do matter.  In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, ohioagainst alleged former owners.  The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA.  While most of the elements of CERCLA liability focus on whether a “release” occurred, liability may be imposed against a former owner only if the defendant owned the facility “at the time of disposal of any hazardous substance.”

The definition of “release” includes a range of passive events.  However, a “disposal requires evidence of ‘active human conduct.’”  The Court cited a number of cases holding that passive releases do not constitute disposal.  Because the complaint contained “no factual allegations … to support a finding that, as the result of ‘active human conduct,” any hazardous substance was discharged,…” and because the “[c]omplaint simply alleges that hazardous substances were used in the paper-making process, and were later found at the Site,” the Court allowed the defendants’ motion to dismiss.

The Court did dismiss without prejudice and allowed the plaintiff 20 days to refile.  The plaintiff should be able to draft a complaint that meets the pleading requirements of Rule 12.  Even so, this case is a victory for the defendants, as well as for the proposition that, at the very least, complaints have to include allegations sufficient to give the defendant some idea of the plaintiff’s theory of liability.