CLF Questions Secretary’s Chapter 91 Discretion

Last week the Conservation Law Foundation (CLF) announced it has filed suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan.  In the Commonwealth, coastal communities can create Municipal Harbor Plans (MHPs) to guide planning and development along the shoreline.  If approved by the Secretary, MHPs can create substitute provisions that modify the Commonwealth’s underlying Chapter 91 standards governing public and private use of land and water along the coastline.

The South Boston Waterfront District MHP Amendment, approved by the Secretary on December 21, 2016, created such substitute provisions applicable only to an approximately half-acre site located at 150 Seaport Boulevard.  The site is currently home to two single-story restaurants, but is proposed to be redeveloped as a residential tower.  The substitute provisions pave the way for construction of a building 250 feet tall (vs. the 55 feet allowed under baseline regulations), for lot coverage up to 75% (vs. the 50% maximum allowed under baseline regulations), and for a reconfiguration of the water-dependent use zone (in which housing and other uses unrelated to the water are not permitted.)

CLF’s complaint alleges that the Secretary abused his discretion in approving this MHP amendment and that his decision was arbitrary and capricious.  CLF argues that the Commissioner has an independent duty to ensure that a proposed MHP complies with the public purposes of protecting the Commonwealth’s rights in tidelands and that the Commissioner cannot delegate this duty to the Secretary.  CLF requests multiple forms of relief, including injunctive relief preventing the Commissioner from issuing a Chapter 91 License for the site.

The case has the potential to be important, not just in the intersection of Chapter 91 and MHPs, but for administrative law in Massachusetts more generally.  The scope of the Secretary’s discretion in these cases is not exactly crystal-clear.  Just how unfettered is it?  Similarly, how expansive a record must the Secretary put together in order to satisfy a court that substantial evidence supports his decision?

We’ll be watching this one closely, given our front-row seat.

 

Managing Water Releases From Dams to Protect Fish: A Tale of Good Legislation and Bad Engineering

Earlier this week, the 9th Circuit found that the Bureau of Reclamation had authority under 1955 legislation to order additional releases of water to the Trinity River from the Lewiston Dam beyond the amount designated in an official release schedule, where necessary to protect downstream fish populations.  The Court basically held that general language in the 1955 Act trumped later legislation that seemed to prescribe or at least authorize more limited releases.

The 1955 Act was intended to make more water available to the famous – or infamous – Central Valley Project.  It was based on findings by the Department of Interior that much more water could be provided to the CPV without harming fish resources.  Notwithstanding that conclusion, Congress wrote into the act general protection of fisheries:

Subject to the provisions of this Act, the operation of the Trinity River division shall be integrated and coordinated, from both a financial and an operational standpoint, with the operation of other features of the Central Valley project, as presently authorized and as may in the future be authorized by Act of Congress, in such manner as will effectuate the fullest, most beneficial, and most economic utilization of the water resources hereby made available: Provided, That the Secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife. 

The Court, rightly, I think, concluded that this unambiguously gave BOR the authority it needed to order the releases.  As the Court noted,

Congress wanted to, and thought it could, maintain the rivers and their fish populations below the TRD while diverting substantial inflow to the Sacramento River.  However, Congress was not sure what these effects would be. So, to account for unintended consequences, Congress used general language, with no geographic limitation, to empower the Secretary to take any measures it found necessary to preserve all fish and wildlife.

In short, there is a reason why Congress writes in broad terms and delegates details to those hated bureaucrats.  Such delegation allows for do-overs, such as what we saw in this case, without the need for additional legislation.  All of which is the perfect segue to my next point.

I am a generally a technological optimist.  (For example, I still think we can address climate change.)  As the Court told the tale,

Reports suggested that only 120,500 acre-feet of water were needed to maintain the fishery resources of the Trinity and Lewiston Rivers. These reports also suggested that the construction of dams on the Trinity would actually help the fishery resources. Congress ultimately concluded that 700,000 acre-feet of the Trinity’s annual flow was being lost to the Pacific Ocean and could be  diverted to the Central Valley without harming the Trinity or lower Klamath Rivers.

The dams were built and the diversions to the CPV were made and, lo and behold,

The construction and operation of the TRD had devastating effects on the Trinity River environment and fish populations.

Optimism is one thing, but, as Congress recognized in 1955, hubris is another.

The Latest on the DEP’s “Pile Policy”: If the Tides Rise, Do Structures Still “Exist”?

Back in September, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal.  The issue that the policy seeks to address arose as the DEP reviewed an application for a Chapter 91 license for Lewis Wharf in Boston.   The Lewis Wharf developers are seeking to build a luxury hotel on the waterfront over the footprint of an old pile field, portions of which have fallen into disrepair.

MassDEP published the proposed interpretation for public comment, and received 194 pages of comment letters.  Commenters had a lot to say, much of it supporting the interpretation on grounds not even mentioned in the policy.   Numerous individual commenters supported the policy as a way to stop the Lewis Wharf project, preserve existing view corridors, protect the “charm” and “character” of the neighborhood, prevent increased traffic, etc.   Of the comments that focused on policy (vs. project-specific) issues, most supported the interpretation as public safety measure, hoping it would encourage the removal of dilapidated and broken piles and the elimination of navigational hazards.

One might say these grounds for support are unrelated to the policy’s purpose, but that would require the policy to have a stated purpose.   The closest thing to a statement of purpose it provides is a notation that its interpretation is “important” to the Lewis Wharf project and will provide “guidance on how the Department will analyze future projects on sites with historic pile fields.”

Safety and navigational hazards are not mentioned anywhere in the interpretation.  This is almost certainly because the Department already has provisions in its Chapter 91 regulations it can utilize to require the removal of any structures that are deemed to be a hazard to navigation.  Importantly, those provisions require the Department to notify the license holder and allow for a reasonable opportunity to repair or reconstruct a structure (310 CMR 9.26(1)(a)).  Under the new interpretation, no notice or opportunity to correct is provided, nor is there any time period provided to come into compliance with the new de facto maintenance standards.

Among other flaws resulting from addressing a site-specific issue with a broad brush, the Department has provided an interpretation of “existing” that would apply not only to pile fields, but also to piers, wharves, and other filled and pile-supported structures.  “Existing”, under the new definition, would require “any extant structures” to “remain above the highest predicted tidewater elevation at a specific site (Extreme High Water Mark)”.  As we all know, the highest of high tides in Boston can put many parts of Boston’s waterfront underwater, as shown in the photo below from the October 18, 2016 King Tide at Lewis Wharf.   Careful kids, don’t you know that wharf doesn’t exist?

Source: Boston.com

The Department has listed the interpretation as one of its policy initiatives for 2017.  Stay tuned.

EPA Has a Nondiscretionary Duty to Review West Virginia’s Failure to Submit TMDLs

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity.  Ionic toxicity is a consequence of mountaintop removal coal mining.  In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).

WVDEP’s action – or inaction – eventually led to litigation, when the Ohio Valley Environmental Coalition sued EPA for failing to take action requiring WVDEP to promulgate the TMDLs.  In an opinion that thoroughly castigated WVDEP for its failure to make any progress on the TMDL front, Chief Judge Robert Chambers ruled that the “failure of a state to submit TMDLs is a ‘constructive submission’ to EPA of no TMDLs.”  In this case, Chief Judge Chambers found that:

All of WVDEP’s plodding and EPA’s appeasement have resulted in an abjuration of WVDEP’s and EPA’s duties committed to each by the CWA. WVDEP has publically stated that it will not develop TMDLs for biologic impairment and has continued to move the goalposts for when it will begin developing them once again. Consequently, WVDEP has constructively submitted no TMDLs for biologic impairment to EPA, triggering EPA’s duty to approve or disapprove of the submission.

I don’t mean to make light of WVDEP’s failure to act.  It’s fairly clear that they’ve been given instructions not to move forward with TMDLs in order to protect mountaintop removal.  However, when the courts have to gin up a doctrine – constructive submission – in order to have a mechanism to require EPA to step in when states don’t comply with the Clean Water Act, I think we have pretty good evidence that the TMDL-setting process in the CWA just doesn’t work.  I don’t expect Congress to do step in and fix it, but in a different world, that’s what would happen.

(I feel compelled to note that Judge Chambers did not invent the “constructive submission” doctrine.  It’s been utilized in prior TMDL cases.  Nonetheless, the Judge should not expect a valentine from theWVDEP next year.)

Wind Power Is Now the Largest Installed Renewable: 82,000 MW And Counting

According to the American Wind Energy Association blog, installed wind capacity in the United States has reached 82,000 MW.  That puts it past the 80,000 MW of installed hydropower capacity and makes wind the largest installed renewable energy resource.  

While the overall number represents a significant milestone, some of the details are interesting as well.  Wind represents 5.5% of US generation.  Moreover, a substantial amount of that wind power is generated in some extremely red, extremely resource-rich states.  Not only do Texas and North Dakota have more oil than the rest of us; they also seem to have more air.

Of course, one reason why the plains states generate so much of our wind power is that, to date, offshore wind hasn’t really gotten going in the United States.  Current efforts to advance offshore wind, such as the Massachusetts legislation providing for a 1,600 MW procurement for offshore wind, will only boost wind’s share of electricity generation even higher.

Six 5th Circuit Judges Oppose USFWS’s Critical Habitat Designation: Sounds Like Certiorari to Me

The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog.  There are only 100 of these “shy” frogs left, and none of them live in the area in Louisiana designated as critical habitat by the FWS.

The focus of the panel decision – and both the panel dissent and the dissent from the denial of en banc review – was whether private land could be considered critical habitat for the dusky gopher frog if no frogs live in the area and the area could not currently support the frog.

The panel majority, relying significantly on Chevron deference, decided that the FWS reasonably concluded that the answer was yes.  The two dissents thought Chevron inapplicable, because the case turned “essentially on statutory construction, not on deference to administration discretion or scientific factfinding.”

It’s a close case.  I think that the panel majority probability got it right, but I can imagine that the Supreme Court might disagree and I wouldn’t be shocked if they granted certiorari.

I can’t resist pointing out that both dissents need a lesson in logic, which I hereby graciously provide.  The dissents argued that land cannot be essential to the frog if the frog doesn’t actually live there.  That’s a logical non-sequitur.  Just because the frog doesn’t currently live in Louisiana doesn’t mean that the area designated as critical habitat isn’t essential – necessary – critical – to the frog’s survival.  There are only 100 dusky gopher frogs left.  As the panel opinion noted:

The Service [found] that designating the occupied land in Mississippi was “not sufficient to conserve the species.” The Service explained that “[r]ecovery of the dusky gopher frog will not be possible without the establishment of additional breeding populations of the species,” and it emphasized that it was necessary to designate critical habitat outside of Mississippi to protect against potential local events, such as drought and other environmental disasters.  The Service therefore determined that “[a]dditional areas that were not known to be occupied at the time of listing are essential for the conservation of the species.”  In sum, all of the experts agreed that designating occupied land alone would not be sufficient to conserve the dusky gopher frog.

In short, if the frog would become extinct without the land in Louisiana as habitat, then that land is critical habitat.  It may be that it’s too late to save the dusky gopher frog.  That would be too bad.  I think it’s rather cute.  More to the point, the ESA doesn’t really have a “don’t bother; it’s too late” provision.

Climate Change Will Increase Peak Energy Demand By More Than We Thought: More Storage, Perhaps?

In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood.  They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.

The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage could play a role in mitigating the need for new generation sources to meet peak demand.

This is why storage should actually be thought of as a form of generation.  It’s also why my biggest take-away from this article is that the need for a robust storage market is even more important than we had already realized.

The Conservative Uphill Slog for a Carbon Tax

Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!).  It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.

Here are the highlights:

  • A gradually increasing carbon tax, starting somewhere around $40/ton.
  • Return of all revenue from the tax to citizens through dividend checks.  The CLC predicts that the 70% of Americans with lowest income would receive more in dividends than they would pay in taxes.
  • Border carbon adjustments.
  • Elimination of existing carbon regulations.  It’s not clear what this would cover, but it would include at least the Clean Power Plan.  It would also include elimination of tort liability (presumably limited to tort liability related to claims concerning climate change).

I’d sign up for this today, but I’m not exactly one of the people that needs convincing.  According to GreenWire (subscription required), former Secretary of State James Baker, who led the public presentation of the report, acknowledged that attaining enactment of the proposal would be an “uphill slog.”  I think that’s putting it mildly.  The CLC members are basically a who’s who of the old-line GOP mainstream – precisely the types that President Trump appears to have consigned to the dustbin of history.

Nonetheless, hope springs eternal and we have to start somewhere.

EPA Wins Another Round In PSD Litigation: More Evidence that the Program Is Flawed.

Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility.  As I noted when Judge Sippel denied cross-motions for summary judgment, the result is not really a surprise.

Moreover, Judge Sippel’s decision is not based on any extreme reading of the law.  For example, on the critical issue of the applicability of the routine maintenance defense, Judge Sippel found that the projects at Rush Island were not routine, even at the industry level, let alone the project level.  The Court’s bottom line?

Based on the evidence presented at trial, I conclude that the projects cannot be considered routine maintenance under the law. The Rush Island boiler refurbishments at issue were the most expensive boiler projects ever performed on an Ameren boiler. They involved the redesign and replacement of major boiler components that were intended to improve the performance of the units and enable them to burn coal they were not originally intended to burn. They were the first such replacements in the history of each unit, are rarely done at any unit in the industry, and the combination of boiler replacements has rarely, if ever, been done in the industry. Under the appropriate legal standards, every factor of the routine maintenance test weighs heavily against classifying the work as routine maintenance, repair, and replacement.

Ouch.  These are the types of factual conclusions – particularly when made at the end of a painstaking and detailed review of the evidence – that are granted significant deference by appellate courts.  I might also note that, even though these projects began after DOJ’s PSD/NSR enforcement initiative, Ameren Missouri referred to the projects internally as “major modifications.”  Oops.

Thus, notwithstanding speculation in the trade press about how this decision will fare under the Trump administration, I just can’t see this case being reversed, and the Sierra Club has already vowed to step in, should DOJ somehow change course.

I’m still not a fan of the PSD program or DOJ’s enforcement efforts, however.  It remains one of Congress’s worst compromises and a prime example of how not to regulate.  Put simply, why would we decide to regulate existing facilities only when they make significant upgrades that make them more efficient?  Wouldn’t it make more sense to regulate the existing facilities that remain inefficient?

In a sane world, we would have fixed this long ago.

Trump Signs Executive Order Expediting Environmental Permitting for High Priority Infrastructure

In one of the first acts of his presidency, Donald Trump signed an Executive Order entitled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”, with a stated goal of streamlining environmental permitting for infrastructure projects.

The order establishes a process by which the Chairman of the Council on Environmental Quality may be petitioned to designate an infrastructure project as “high priority”.  The Chairman may decide whether a given project should be so designate based on the project’s “importance to the general welfare, value to the Nation, environmental benefits, and other factors.”  Upon such designation, the Chairman must establish “expedited procedures and deadlines” for completion of all environmental reviews and approvals.  All federal agencies must comply with the established deadlines.  If the deadlines are not met, the head of the agency must provide a written explanation to the Chairman regarding the cause of the delay and outlining steps to complete review as soon as possible.

The order states that the expedited schedule established by the Chairman must be “consistent with law”, so the extent to which a permitting timeline could be compressed would depend on the underlying statutory and regulatory framework.

The order provides a few hints as to which types of projects might be deemed high priority, including “improving the U.S. electric grid and telecommunications systems and repairing and upgrading critical port facilities, airports, pipelines, bridges, and highways.”

The Conservative Case For Chevron Deference

With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs.  Put simply, I don’t get it.  There are at least two good reasons why conservatives should prefer Chevron deference to no deference.

First, the alternative is for courts to decide all questions of agency authority.  But haven’t conservatives railed against unelected judges for years?  Bureaucrats are unelected, but at least they work for the elected President.  Isn’t EPA more likely to be responsive to President Trump than federal judges would be?

Second, the EDFs and NRDCs of this world would laugh hysterically at the notion that they have more sway with EPA than the regulated community.  Anyone ever heard of “Regulatory Capture”?

The argument in support of Chevron was made cogently by Ed McTiernan in a recent blog post, but the strength of the argument was really brought home by the decision this past week in Catskill Mountains Chapter of Trout Unlimited v. EPA, in which the 2nd Circuit Court of Appeals – to fairly wide surprise – reversed a district court decision that had struck down EPA’s “water transfer” rule.  

The rule was much favored by the regulated community, but there were very good jurisprudential reasons to affirm the District Court.  Indeed, the decision was 2-1 and even the majority opinion repeatedly noted that, were it writing on a blank slate, it might well prefer an interpretation that would strike down the rule.

Why, then, did the Appeals Court reverse the District Court and affirm the rule?  Chevron deference, of course.

Conservatives, be careful what you wish for.

Stop the Presses: NPDES Permitees Must Comply With Their Permits

Earlier this month, the 4th Circuit Court of Appeals concluded that NPDES permit holders must comply with all of the terms of their permits.  I’m not sure why this should be earthshattering news, but the case does have some relevance for defining the scope of the permit shield.

The case involved the Fola Coal Company and the recurring issue of high conductivity resulting from surface coal mining operations.  Fola Coal was issued an NPDES permit by the West Virginia Department of Environmental Protection.  In applying for the permit, Fola Coal disclosed the conductivity issue.  The permit did not contain any numerical limits on conductivity.  Fola Coal thus took the position that, since its permit did not specifically limit conductivity, and it had fully disclosed the conductivity issue, it was entitled to the permit shield, protecting it from claims related to conductivity.

Unfortunately for Fola Coal, its permit did contain an explicit provision prohibiting it from causing any violation of water quality standards.  As the Court made clear, the permit shield provision does not protect permittees who comply with numerical limitations in their permit.  Rather, it protects permittees who comply “with the express terms of the permit.”  Since the permit expressly required compliance with water quality criteria and since the District Court found that Fola Coal’s conductivity discharges had caused violations of water quality criteria, the permit shield did not apply and Fola Coal was subject to enforcement.

Case over.

The NSR Regulations Still Make No Sense: The 6th Circuit Reverses the DTE Decision Based on a 1-Judge Minority Opinion

Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations.  According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.

One might well be surprised by the result, but the result itself is not the most surprising part of the case at this point.  What’s really surprising is that the United States won the case even though only one of the three judges on the panel agreed with EPA’s position.

How could such a thing happen, you might ask?  Here’s the best I can do.  Judge Daughtrey, author of the panel opinion, believes that EPA has the authority to second-guess DTE’s estimates if they are not adequately explained.  Judge Rogers disagreed and dissented.  Judge Batchelder also disagreed with Judge Daughtrey’s views, pretty much in their entirety.  However, Judge Batchelder concluded that she had already been outvoted once, in the first 6th Circuit review of this case and she felt bound to follow the decision in DTE 1.  The law remains an ass.  

Even were Donald Trump not about to nominate a Supreme Court justice, I’d say that this case is ripe for an appeal to the Supreme Court and, if I were DTE, I’d pursue that appeal vigorously and with a fairly optimistic view of my chances.

And once again, I’ll suggest that the very fact that the NSR program can repeatedly thrust such incomprehensible cases upon us is itself reason to conclude that the entire program is ripe for a thorough overhaul – or perhaps elimination.

EPA Wins a Round Against CLF in Residual Designation Authority Litigation

Earlier this week, Judge Mary Lisi, of the District Court of Rhode Island, dismissed the Conservation Law Foundation’s Residual Designation Authority law suit against EPA.  CLF had asked the Court to order EPA to require permits from stormwater dischargers alleged by CLF to be contributing to exceedances of the Total Maximum Daily Load established by Rhode Island for certain impaired water bodies. spectacle-pond

CLF alleged that EPA’s approval of the TMDLs constituted a determination that certain stormwater dischargers were contributing to exceedances of water quality criteria and that the controls on these dischargers are necessary to meet the TMDL and thus attain the water quality criteria.

The Court disagreed, finding that approval of the TMDLs does not by itself constitute a decision by EPA that any stormwater source or sources necessarily have to be regulated.  Seems right to me.  Here’s what the relevant EPA regulations say.  They require an NPDES permit when:

(C) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that storm water controls are needed for the discharge based on wasteload allocations that are part of “total maximum daily loads” (TMDLs) that address the pollutant(s) of concern; or

(D) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that the discharge, or category of discharges within a geographic area, contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.

The Court reviewed the TMDL reports and EPA’s decision and concluded that:

Nothing in the EPA approval document indicates (1) that EPA has conducted its own analysis or fact finding; that (2) that EPA has made an independent determination that the stormwater discharge into Mashapaug Pond contributes to a violation of water quality standards.

I agree, but I think that there’s an even simpler path to the same decision.  If EPA had intended to require a permit any time it approved a TMDL, then the regulations could simply have said that an NPDES permit is required “for any stormwater discharge to a water of the United States for which a TMDL has been established.”  The regulations don’t do that.  Instead, they contemplate a two-step process.  First, the TMDL is established.  Only if the TMDL is established, and only if, after that, EPA determines that “storm water controls” are needed…”, is a permit required.

Because EPA has not made the second-step determination, it has no non-discretionary duty to require permits.

It will be interesting to see what impact this decision has on other RDA litigation around the country.

EPA Adds Vapor Intrusion to Hazard Ranking. Can You Say “Deck Chairs on the Titanic?”

EPA has finally issued a final rule including vapor intrusion in the Hazard Ranking System.  The good news is that this is appropriate, because VI is one of the few real hazards regulated by the Superfund program.  The bad news is that the Superfund program is so hopeless that promulgation of the rule will probably substantially multiply the cost of addressing VI without buying an ounce of additional public health protection.

In a blog post more than five years ago, I provided a rant that I feel has stood the test of time.  In that post, I asked why Superfund was ill-suited to address VI, even though it’s precisely what EPA should be doing.

Why should this be so? Could it be because CERCLA is the last bastion of almost totally pure command and control regulation? Might CERCLA remedy decisions take less time if EPA did not have to select remedies, but instead only identified appropriate cleanup standards and let PRPs select the remedy? Might cleanups get implemented faster if the PRPs’ obligation was simply to meet cleanup standards and provide sufficient information to EPA or 3rd party auditors to demonstrate that the cleanup standards have in fact been met?

I hope that the new administration doesn’t roll back this rule while leaving CERCLA in place, because that would be backwards.  I hope instead that the administration leaves the rule in place, but takes a hard run at really reforming CERCLA.  The administration could work with Congress to amend CERCLA to provide that EPA would promulgate cleanup standards for different media and then allow PRPs to attain those standards without direct government oversight.

This is, of course, not a massive right-wing plot.  Many left-leaning states, including the great Commonwealth of Massachusetts, have done exactly that.  Massachusetts has been operating a privatized system for more than 20 years.  If CERCLA were thus amended, I think I could die, or at least retire, happy.  

And I won’t even try to pretend that this clip is really relevant, but it just seemed right.