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



BLM Has No Authority To Regulate Fracking, At Least For Now

Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking.  frackingI think Judge Skavdahl probably got it right, but I also think it’s a much closer question than the Judge acknowledged and I could imagine either the 10th Circuit or the Supreme Court reaching a different conclusion.

Judge Skavdahl first reviewed the various statutes cited by BLM as providing authority for the rule.  He concluded that none of them specifically authorize fracking regulation by BLM and, moreover, than none seem to provide BLM with any kind of environmental regulatory authority.  However, as the Judge recognized, through the Federal Land policy and Management Act of 1976:

Congress authorized the BLM, “by regulation or otherwise,” to “take any action necessary to prevent unnecessary or undue degradation of the lands” and to promulgate regulations necessary to achieve FLPMA’s goals.

Absent anything else, that seems to me unambiguously to provide BLM with sufficient authority to regulate fracking.  One might even say that the very purpose of statutes such as the FLPMA is to provide such general authority – precisely because Congress is aware that it cannot anticipate every specific evil that might make itself known in the future.

Here’s where it gets more tricky.  The Safe Drinking Water Act authorizes EPA to regulate “underground injection.”  Until 1997, EPA took the position that its authority over UI did not give it power to regulate fracking.  In 1997, in Legal Envtl. Assistance Foundation v. EPA, the 11th Circuit Court of Appeals rejected EPA’s position, concluding that the SDWA unambiguously did give EPA such authority.

Congress responded to the LEAF case in the Energy Policy Act of 2005, explicitly excluding fracking from the definition of UI (unless the fracking involves diesel fuel).  To Judge Skavdahl, the Energy Policy Act was determinative.  How could Congress forbid EPA from regulating fracking, but still allow BLM to do so?  Judge Skavdahl was particularly persuaded by the fact that EPA had specific authority over fracking, whereas BLM does not, and EPA is the environmental regulatory agency, whereas BLM is a land management agency.

These arguments have some force, and they may be right, but they are not as compelling to me as they were to the Judge.  I would pose the question a different way.  Congress obviously knew how to limit EPA’s authority.  It could have done the same for BLM as it did for EPA.

Isn’t it equally possible that Congress precluded EPA from regulating fracking, precisely because it preferred to leave authority over fracking on federal lands with BLM?  Perhaps it wanted BLM, rather than EPA, in charge of fracking, because BLM has a statutory obligation to balance productive use of federal lands with preservation of those lands, while EPA’s only mandate is environmental protection.

I don’t know if BLM made those arguments before Judge Skavdahl, but that’s the case I’d make on appeal, were I in BLM’s unenviable position.

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

If you needed any further proof that energy elec_mag_fieldlaw is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions.

Why, you ask?

  • The panel  opinion, by Judge Loken, stated that the Minnesota statute violates the dormant Commerce Clause, by regulating purely “extraterritorial” economic activity.
  • Judge Murphy, in the first concurrence, disagreed with Judge Loken’s conclusion that the statute violates the dormant Commerce Clause, but joined the judgment, because she concluded that the statute is preempted by the Federal Power Act.
  • Judge Colloton, in the second concurrence, agreed with Judge Murphy that the statute does not violate the dormant clause, but also concurred in the judgment. Judge Colloton concluded that, to the extent that the “statute bans wholesale sales of electric energy in interstate commerce,” it is preempted by the Federal Power Act.  However, Judge Colloton wrote separately, because he at least partially disagrees with Judge Murphy (as well as with Judge Loken) and does not believe that the Minnesota statute constitutes a complete ban on wholesale sales of energy that increase CO2 emissions.  However, Judge Colloton concluded that, to the extent that the statute is not preempted by the Federal Power Act, it is preempted by the Clean Air Act.

Is that sufficiently clear?

I do feel compelled to add two final notes.  First, I don’t understand why Judge Loken wrote the panel opinion, when his rationale did not command a majority.  Indeed, as Judge Colloton pointed out, the Court should not even have reached the constitutional issue, since a panel majority existed that was prepared to strike down the Minnesota statute on statutory grounds.  (Preemption is considered a statutory, not a constitutional, rationale.)

Second, don’t analogize the electric energy transmission to the flow of water in a pipe, at least before Judge Murphy.  Here’s your electricity and magnetism primer for the day, courtesy of the Judge.

In the electricity transmission system, individual electrons do not actually “flow” in the same sense as water in a pipe. Rather, the electrons oscillate in place, and it is electric energy which is transmitted through the propagation of an electromagnetic wave.

Certainly brought me back to course 8.02 at MIT.  Not one of my favorites.

NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego.  tule-support-buttonIt’s not exactly earthshattering, but it is a helpful decision both for decisionmakers reviewing wind farm applications and for wind farm developers.  Here are some of the highlights:

  • BLM’s inclusion of DOI’s goal under the 2005 Energy Policy Act to increase nonhydropower renewable energy on federal lands as part of the “purpose and need” statement under NEPA was appropriate.
  • Exclusion of a distributed generation alternative was appropriate, at least in part because use of rooftop solar to generate the same amount of power would have required 100,000 new rooftop solar units and BLM reasonably concluded that such a massive expansion of rooftop solar would be “speculative.”
  • Use of an “adaptive management plan” as part of the mitigation measures was reasonable.
  • BLM approval of the right of way did not violate the Migratory Bird Treaty Act, even assuming that the project would result in migratory bird fatalities, where BLM was acting in a “purely regulatory capacity” and nothing BLM did would be a proximate cause of any “take” of migratory birds.

This last is probably the most important aspect of the case.  As BLM noted, its approval of the right-of-way is contingent upon Tule Wind complying with all applicable laws – meaning that, if operation of the wind farm might cause a take, it had better comply with the MBTA and the Bald and Golden Eagle Protection Act.

The potential significance of this aspect of the case is indicated by the fact that, within a day of the Court’s decision, both the plaintiffs and the defendant in the Cape Wind litigation had sent letters to the court in that case discussing whether the holding in the Tule Wind case applied to the Cape Wind appeal.  Plaintiffs there distinguished Cape Wind from Tule Wind, so time will tell, but it is certainly an issue that may recur.

One Final Word on Peterborough Oil: Yes, MTBE Is An Additive

The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan.

I have to say that I’ve done few posts in recent years that have prompted more immediate responses than those on this case.  After yesterday’s little birdie suggesting that MassDEP might be taking the position that MTBE is subject to the oil exemption, another little birdie, this time from MassDEP, quickly contradicted the first one.

Not only is the second little birdie from the horse’s mouth, bird horseas it were, but she pointed me to the following MassDEP MCP Q&A from 2008:

QUESTION: 793. I have two release sites in Zone II’s whose groundwater is categorized as GW-1 solely because of the Zone II. They are a former and a current gasoline station located in a commercial district served by municipal water supply. There are no on-site or offsite impacts, however we have not achieved GW-1 standards at either location. We are trying to achieve closures via Method 3 risk characterizations. At one of the sites, all gasoline-related contaminants have been reduced to less than GW-1 standards except for MTBE. In regard to the new section dealing with Zone II’s under 40.0924(2)(b)3.a., which is applicable to Oil contamination, does Oil include MTBE associated with gasoline? (i.e. can this section be used for a site with residual MTBE contamination above GW-1 standards?)

ANSWER: It is not explicit in the definition of Oil that MtBE is excluded, but it is the Department’s intent that MtBE not be included. The attached link [which I’ve deleted because it appears to be broken] contains MassDEP’s response to comments on the proposed regulations. On page 7 of the comments you will see that MassDEP was asked to consider including MtBE under the proposal and our response indicates that we chose not to include MtBE. The reasoning for not including MtBE is because it does not biodegrade readily and within a short distance from the source area as do the petroleum constituents.

Seems right to me.  End of story, finally?

More on the Peterborough Oil Case: Is MTBE An “Additive”?

Since yesterday’s post on the Peterborough Oil case, a little birdie told me that MassDEP may be taking the position that MTBE mtbeis covered by the “oil exemption”, because it is a hydrocarbon.  If so, that would be good news for PRPs, because most cleanups don’t involve third parties.  If MassDEP says that MTBE is covered by the exemption, then a PRP cleaning up a site with an “oil” release containing MTBE could still close out the site based on the MassDEP interpretation.

However, I think that that interpretation is at best on shaky ground and if I were litigating a private action where the scope of an MTBE cleanup was at issue, I know which side I’d rather represent.  EPA’s MTBE web site states that:

MTBE(methyl tertiary-butyl ether) is a chemical compound that is manufactured by the chemical reaction of methanol and isobutylene. MTBE is produced in very large quantities (over 200,000 barrels per day in the U.S. in 1999) and is almost exclusively used as a fuel additive in motor gasoline.

I don’t think anyone would dispute that the environmental concerns with MTBE relate to its use as an “additive” in gasoline to increase octane.  The SJC decision certainly seems to take the position that additives are not subject to the oil exemption.

If MassDEP believes that MTBE in gasoline poses different risks of migration than lead in gasoline, and that those different risks justify different regulatory treatment, that would be excellent news for PRPs – but that’s not the exemption that MassDEP promulgated.

When Is Gasoline Not Oil (At Least In Massachusetts)? When It’s Leaded, Of Course.

Unlike CERCLA, the Massachusetts Superfund law, Chapter 21E, does include oil within its ambit.  However, oil is not treated exactly the same as hazardous materials.  One difference is that, in 2007, MassDEP revised the Massachusetts Contingency Plan to provide that, in certain circumstances, where “Contamination is limited to oil,” the exposure point concentration is measured at the Public Water Supply well, rather than in each of the monitoring wells, as is otherwise the case.

It is understood that oil includes gasoline, but what if the spill was in 1994 and the gasoline was leaded?  leaded gasYesterday, the SJC ruled in Peterborough Oil Company v. DEP that “additives” are not covered by the oil exemption, so that compliance with MCP standards for lead must be measured at the monitoring wells and not at the Public Water Supply wells.

I think that this would have been a close question, but for one fact.  The exemption was promulgated by MassDEP by regulation in 2007.  At the time, MassDEP received a comment requesting that the regulation apply explicitly to additives, and MassDEP replied to the comment by stating that the “proposal was not extended to additives.”  I think that MassDEP gets to interpret its own regulatory proposals, at least in this context.

It’s important to note that the decision in Peterborough Oil applies to any additive, mtbeso it would appear that the oil exemption also would not apply to MTBE – and any other hazardous substances that are not present in oil or products refined from oil, but which instead are added to the oil for some functional purpose.

If You Don’t Like Nukes, Petition Congress: The D.C. Circuit Affirms the NRC’s GEIR On Nuclear Waste Storage

On Friday, the D.C. Circuit Court of Appeals rejected challenges by several states and the NRDC to the Nuclear Regulatory Commission’s Generic Environmental Impact Statement analyzing the impacts of continued on-site storage of spent nuclear fuel.  Yucca MountainThe decision is largely a plain vanilla application of Administrative Procedure Act deference to agency decisionmaking, but there were a few interesting nuggets.

  • The Court agreed with the NRC that the GEIR itself was not a licensing action, and thus did not require that the NRC consider alternatives to licensing.
  • The GEIS discussion of mitigation for pool fires did not violate NEPA’s “rule of reason.”  The Court also noted that site-specific mitigation measures can be addressed in facility-specific licensing decisions.
  • The Court did not require that the NRC utilize “conservative bounding assumptions.  Instead, the Court concluded that the

NRC may generically analyze risks that are ‘essentially common’ to all plants so long as that analysis is ‘thorough and comprehensive.’

  • The NRC’s “qualitative analysis of the likelihood of a failure to site a [permanent] repository” was sufficient.

The decision’s real interest lies in its conclusion, which I’ll reproduce in full:

We acknowledge the political discord surrounding our nation’s evolving nuclear energy policy. But the role of Article III courts in this debate is circumscribed. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” To the extent that the petitioners disagree with the NRC’s current continued storage of spent nuclear fuel, their concerns should be directed to Congress.

To which I can only say, good luck with that.