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 affirming 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.

Some Regulations to Reduce GHG Emissions Probably Won’t Be Rolled Back By the New Administration.

This week, the Department of Energy finalized regulations to increase energy efficiency for central air conditioners and heat pumps.  heat-pump-acThe regulations apply to products manufactured or imported into the United States beginning in 2023.  DOE estimates that, over the following 30 years, the regulations will reduce GHG emissions by 188.3 million metric tons, and will also result in similarly substantial reductions in emissions of conventional pollutants.

Given the timing, I’ve already been asked whether these regulations won’t just be rolled back by the new administration.  I’m assuming not.  The regulations were the product of a negotiated rulemaking and they are supported by the manufacturers.  Was there some implicit coercion to bring the manufacturers to the table?  I don’t know, though it’s certainly possible.  Might some manufacturers have second thoughts?  I suppose so.  Nonetheless, given the amount of time and effort put into these regulations, I still think that they’ll stick.

All of which raises two points.  First, it’s an important reminder that not all environmental regulations are promulgated by DEP and the best way to reduce emissions is to reduce electricity demand.

The second is to wonder about the answer to two related questions.  How did this happen and why doesn’t it happen more often?

Did Trump’s Election Increase the Odds of NPDES Delegation in Massachusetts? I Sure Hope So.

As I noted last spring, the Baker administration had filed legislation to support NPDES delegation to Massachusetts.  At the time, I supported the delegation effort and pleaded with my friends in the environmental community to support it.  Sadly, my pleading fell on deaf ears and the legislation was not enacted.

In supporting the legislation, I pointed out that it would be foolish to oppose delegation on the ground that a Democratic administration in Washington would do a better job protecting the environment from evil polluters than a Republican administration in Boston.  sauce for the goose

Occasionally, I’m right.  On November 8, we held an election.  Now, the shoe is on the other foot, the chickens have come home to roost, and what’s sauce for the goose is also sauce for the gander.  In other words, do my friends in the environmental community still think that federal EPA will do a better job enforcing the Clean Water Act in Massachusetts than the Baker administration?

I hope that the administration promptly refiles the necessary legislation and that it is promptly enacted.

Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain, rather than constitute a means of compliance with Kain.

As a reminder, Kain challenged MassDEP’s failure to promulgate regulations under § 3(d) of the Global Warming Solutions Act, gwsa-2which required MassDEP to “promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources.”

MassDEP argued, in part, that the RGGI regulations, promulgated under § 3(c) of the GWSA, satisfied the 3(d) requirement.  The SJC disagreed, but the basis for its disagreement is important and I don’t think that MassDEP has read Kain as carefully as it should have.  In short, I think that the SJC concluded that §§ 3(c) and (d) are separate and distinct.  In other words, while regulations under § 3(c) do not satisfy § 3(d), it is also true that the two sections are intended to regulate different types of sources, and that electric generating sources are simply not subject to regulation under § 3(d).

What is the evidence for this conclusion?  The opinion is replete with it (all emphases are mine):

[The GWSA], § 3 (c), specifically carves out a separate process by which emissions levels and limits associated with the electric sector are established in consultation with the secretary and the Department of Energy Resources and are to take into account the RGGI.[23] By doing so, the Legislature recognized that a significant part of the electric sector would already be subject to regulations associated with the RGGI.  The RGGI is also addressed extensively in G. L. c. 21A, § 22, lending further support to the conclusion that the Legislature intended to treat emission reductions associated with the electric sector differently from other reductions in other sectors of the economy.

The department asks us to read the statutory provisions together, as directing the department to promulgate regulations establishing “a desired level of declining annual aggregate emission limits,” G. L. c. 21N, § 3 (d), and with respect to the electric sector, “tak[e RGGI] into account,” G. L. c. 21N, § 3 (c).  We disagree, as this reading ignores the Legislature’s intent that regulations related to electric sector be treated differently from regulations promulgated under § 3 (d).

I’m sorry, but this sure sounds to me as though the SJC understands the GWSA to regulate electric generating sources under § 3(c) and all other sources under § 3(d). Here’s a rhetorical question that makes the point.  How could the electric sector be treated differently from regulations promulgated under § 3(d) if in fact it is regulated under § 3(d)?

Finally, this reading has the virtue of making the SJC decision Kain less at odds with the actual goals of the GWSA.  As the Court noted, the legislature acknowledged RGGI in § 3(c).  Why would the legislature “specifically carve[] out a separate process by which emissions levels and limits associated with the electric sector are established” if it anticipated that the electric sector could also be regulated under § 3(d) in a way that is fundamentally inconsistent?

This is a case I’d enjoy litigating.

EPA Surrenders in the Regional Haze Dispute With Texas

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze regional-haze-2plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations. I assume that Texas just pretty much pulled the plug.

EPA’s status report to the Court announcing its intention to seek a voluntary remand says little about EPA’s reasoning – but it says enough:

In light of the Court’s July 15 Opinion and the fact that the parties’ settlement discussions were unsuccessful, EPA intends to seek a voluntary remand of the final rule in this Court.

Translation? We lost the injunction. We were going to lose on the merits. Trump’s victory eliminated any incentive Texas had to compromise. We have no options left. Discretion is the better part of valor.

It looks as though we may have seen the first concrete implications of the election on environmental policy.

DEP Is Trying to Implement Kain. How Are They Doing?

When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given.  To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.

I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts.  The ways that the approach required by Kain is flawed are almost too numerous to mention – certainly in one blog post.  Here’s one contrarian’s quick summary – regulations promulgated under § 3(d) will have almost no impact on the GWSA’s GHG reduction goals.

According to MassDEP’s background materials on the § 3(d) regulatory effort, by 2013, the Commonwealth had reduced GHG emissions by 19.7% below 1990 levels, leaving 5.3% more to reach the 25% target.  There are three logical targets to find the remaining reductions:  buildings, transportation, and power plants.

MassDEP is not currently proposing to regulate buildings under § 3(d), which is understandable, because it would be nearly impossible to do so in a way that would comply with the SJC’s interpretation of § 3(d).  MassDEP is planning to promulgate regulations for the transportation sector, but more than 75% of the reductions will come from regulations separate from § 3(d).

So what about power plants?  MassDEP proposes both a Clean Energy Standard and a declining emission cap for fossil fuel generation facilities.  The CES would not satisfy § 3(d) and is not being promulgated under § 3(d).  The declining cap will be under § 3(d).  Unfortunately, because the cap is limited to Massachusetts facilities, it does not play well with RGGI.  In fact, while a facility could technically comply with both RGGI and with the proposed Massachusetts cap, the Massachusetts regulations would make RGGI functionally irrelevant in Massachusetts.  I thought that the point of RGGI was to demonstrate the power and efficiency of interstate trading.  What if facilities in Maryland can reduce emissions more efficiently than a Massachusetts facility?  Too bad.

Finally, I take issue with the required annual declining cap.  I recently came across this picture, electric-lightwhich makes my point.  We’re not going to solve climate change by 2.5% annual reductions in power plant emissions.  The only way to comply with an annual 2.5% reduction is to keep burning gas, but burn less of it.  On the other hand, the only way to solve climate change is to establish long-term goals that provide the incentive for research to develop disruptive technologies.  Instead of 2.5%/year, the requirement should be something like 12.5% over five years, or 25% over ten.

Bottom line?

The rules MassDEP plans to promulgate pursuant to § 3(d) would make almost no difference in GHG emissions.  The one 3(d) rule that would do so would undermine the interstate trading benefits of RGGI.  Section 3(d) is a side-show which is distracting from the hard work of really reducing GHG emissions.

Let the Environmental Trade Wars Begin!

While speculation is rampant regarding just far President Trump will go to roll back progress on climate change in the United States, Nicolas Sarkozy has fired what might be called a metaphorical shot across Trump’s bow.  In a recent interview, Sarkozy, who is running once again in the French presidential race, stated that, if the United States jettisons the Paris agreement, Europe should impose a carbon tax of 1%-3% on goods from the United States.smoot_and_hawley_standing_together_april_11_1929

I don’t know if this will happen – Sarkozy is not currently favored – but one can certainly imagine all heck breaking loose if it does.  Environmentalists in the U.S. will certainly cheer.  The new Trump administration apparently will only like international trade if President Trump gets to dictate the terms, so one can imagine this prompting some tit-for-tat tariffs.  Can anyone here say “Smoot-Hawley”?

My crystal ball isn’t good enough to see where this is going to end – and I’m not sure I want to know.

Trump’s Impact on Environmental Law? Let the Speculation Begin!

What will a Trump Presidency mean for environmental law?  trump-climateI’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:

  • It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules.  I don’t see Clean Air Act amendments happening.  Significant amendments might be possible to the Endangered Species Act and Superfund.
  • Changing regulations is more difficult than one might think.  As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives.  For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it.  The Clean Power Plan is another matter.  All Trump needs there may be a new Supreme Court Justice.
  • The easiest target is executive orders.  The social cost of carbon?  Toast.  Guidance on incorporating climate change into NEPA?  Toast.

Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.

Trump Presidency?

Deep-six the Clean Power Plan

Goodbye to winter

 

A Reminder of the Progress We’ve Made

A car makes its way amidst the heavy smog in New DelhiGiven how easy it can be to get discouraged about progress in addressing climate change, I think it’s helpful periodically to remember how much progress the U.S. has made in fighting air pollution.  It thus seemed useful to note this story about current conditions in New Delhi, where PM levels are so high that one million (!) students are being kept home from school.

It’s also helpful to remember the tension inherent in the climate change fight.  One of the biggest obstacles to progress is the desire of developing countries to raise their standards of living with cheap energy.  At the same time, developed countries find it easier to incur the short-term costs required to attack air pollution aggressively.  Threading that needle remains one of the most difficult problems in mitigating climate change.

The Army Corps Is Nicer Than I Am

After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home.  The statute does not require the Corps to issue JDs.  To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop.  Wetlands

This week, the Corps proved that it is made of tougher stuff.  It issued a Regulatory Guidance Letter, explaining how the JD process will work following Hawkes.  In the RGL, the Corps states that:

The Corps recognizes the value of JDs to the public and reaffirms the Corps commitment to continue its practice of providing JDs when requested to do so.

The logic apparently is that the vast majority of cases can be resolved with a JD, that very few JDs will in fact be appealed, and that, on balance, the JD process remains the most cost-effective way to determine jurisdiction.  I hope that the Corps is correct in that assessment.

Transportation CO2 Surpasses Power Sector CO2: Good News or Bad?

Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978.  co2-sources-since-1973Why?  The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.

The real question is whether this is good news or bad news.

On the bright side, unless the apocalypse arrives next Tuesday and we enter an era of “dig, baby, dig”, it’s hard to see an increase in coal-fired generation in the power sector.  On the darker side, the troubling part of the transportation equation is that, short of taxing people based on miles driven – makes sense to me! – it’s difficult to control transportation sector emissions.

I think that the answer to this question really depends on how quickly one thinks that electric vehicles will move from a small niche to the core of our vehicle fleet.