Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

In what might not be an overstatement, Seth has described Massachusetts' Global Warming Solutions Act (GWSA), as "the future of everything".  If so, welcome to the future of the future of everything.  The GWSA requires the Executive Office of Energy and Environmental Affairs (EEA) to set a 2020 goal for state-wide reductions of greenhouse gas emissions, and, before January 1, 2011, to create a plan outlining how to get there.  Just in time, EEA yesterday released the Clean Energy and Climate Plan for 2020, which sets the 2020 emissions goal at 25% below 1990 levels (the maximum reductions authorized by the GWSA) and outlines how the Commonwealth will comply with that limit. 

The 2020 Plan announces a portfolio of policies in five categories – buildings, electricity, transportation, non-energy emissions, and cross-cutting policies (essentially agency procedures that do not fit into the other categories) – representing the suite of policies that the Patrick-Murray administration is committed to pursuing over the next four years, to work toward the 2020 emissions limit.  Together, the policies could result in as much as a 33% reduction of greenhouse gases below 1990 levels, and set the groundwork for the 80% reductions required by 2050 under the GWSA.  EEA also predicts that these policies will reduce Massachusetts’ reliance on imports of energy and fuels, and create or maintain 42,000 to 48,000 jobs in Massachusetts in 2020.

For a summary of specific points included in the 2020 Plan, keep reading after the jump.
 

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Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to regulate GHGs, the PSD/NSR program or the NSPS program.

As with the PSD/NSR regulations, I remain sympathetic to EPA in that, once you take Massachusetts v. EPA as a given, and if you accept the logic of the Endangerment Finding, then it is difficult to see how EPA can avoid these regulations. Moreover, EPA has described its expected set of performance standards as “modest” – though modesty, of course, is in the eyes of the beholder. 

Nonetheless, it’s not surprising that opponents of GHG regulation see this as another stick in the eye. Here is what Senator Murkowski’s spokesman, Robert Dillon, had to say:

The administration used the threat of EPA regulations as a cudgel to force Congress to pass cap and trade. It was a strategy that failed.  You've opened Pandora's box now. You've let the agency loose with these new regulations when they're interpreting the law.

Of course, it’s EPA’s job to interpret the law. That doesn’t make me happy about it.

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It says something about where our politics are today when Republican Senator Lindsey Graham has to ask that question. Of course, there’s reason to wonder what the answer is. It was certainly not intentional irony when, shortly after this story appeared about Senator Graham, Senator Rockefeller announced that he has given up on legislation that would delay implementation of EPA GHG rules because the bill has lost Republican support. The reason? It’s not that the Republicans are opposed to the delay; it’s just that it’s more important to the Republicans that they be able to make political hay out of the issue when they are in the majority next term. Then there’s Texas Representative Joe Barton, who has made it his mission to save the incandescent light bulb. I wonder what he would say if he had a horse shoe factory in his district?

Political prognostication is neither my strong point nor the purpose of this blog. I note only that, while the Democrats are in retreat now, it was only two years ago that many were predicting a lengthy time in the minority for the Republicans. Senator Graham seems to be one of the few taking the long view:

I'm concerned that if the Republican Party doesn't embrace the idea [that] it's OK to clean up the air, we're gonna lose young people forever, Graham told ClimateWire. Whether you like it or not, young people are environmentally sensitive. I happen to like it.

At a practical level, Senator Graham’s concerns seem focused in the short run on legislation that would enact some kind of clean energy standard, or CES – like an RES, but including nuclear energy and clean coal. In many ways, imposing a CES or RES seems like more of an interference in the market than simply putting a price on carbon, which is what free market economists would say is necessary to internalize an externality. However, with climate legislation dead for the near term, and with a focus on jobs, CES legislation might have some chance of moving forward. 

Will it pass? I’ll leave the prognostication to others.

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Sometimes, good lawyering does matter. When DVL found PCBs on its property in Fort Edward, New York, and when it looked up and realized that GE had operated a manufacturing facility which utilized PCBs “almost adjacent” to DVL’s property, DVL and its attorneys may have thought that they had a slam dunk case on liability. Not so fast. Last week, in DVL v. General Electric, Judge Lawrence Kahn awarded GE summary judgment on liability, because DVL had failed to provide even enough evidence of GE’s liability to survive summary judgment. 

DVL did have more than just GE’s proximity on its side. The types of PCB Aroclors used by GE at its facility were the same as were found at the DVL property. There was contamination on GE’s property. However, GE denied disposing of its contamination on DVL’s property, DVL never saw any GE capacitors on its property, and groundwater wells installed by GE on DVL property to determine if contaminated groundwater had migrated off of GE’s property were non-detect for PCBs. 

Unfortunately for DVL, that was the limit of its evidence. It did obtain a declaration from James Ludlam, an employee of the New York Department of Environmental Conservation, who clearly is no fan of GE, and who stated that GE wastes were at the DVL property. However, DVL did not identify Mr. Ludlam as an expert and Mr. Ludlam had no personal knowledge that GE disposed of anything at the Site. Judge Kahn ruled that DVL was improperly trying to parlay a lay witness into an undisclosed expert witness and struck Mr. Ludlam’s declarations. 

Judge Kahn agreed that liability under CERCLA can be based solely on circumstantial evidence, “especially where the passage of time has made direct evidence difficult or impossible to obtain.” Nonetheless, he concluded that the circumstantial evidence proffered by DVL was not enough to establish its prima facie case. DVL’s case was basically that GE manufactured the types of PCBs found at the DVL property and that its historical disposal practices were, shall we say, messy. Judge Kahn concluded that this was not enough to establish that GE’s wastes had been disposed of at the DVL property. 

Evidence that merely “presents probabilities rather than proof,” “relies upon a collection of facts that could be summarized as ’if it is there, it must be theirs,’” or is “vague and imprecise, of questionable reliability, and therefore not sufficiently probative to create an issue for trial” is insufficient to hold a party liable under CERCLA. 

I think that the decision in DVL v. GE is probably correct. However, it’s hard not to be left with a nagging feeling that the PCBs probably were from the GE facility and that DVL was not well-served by its lawyers. DVL clearly did some looking, because they had a declaration from someone who used to play in the area.  However, were there really no former employees of GE or employees of any waste handlers of GE who could have testified? How about more sophisticated analytical work that would have not merely confirmed that the PCBs were the same Aroclors as used by GE, but were somehow fingerprinted as being the same as the PCBs found in the soil at the GE site? 

If this case stands for anything, it’s that the details matter; the actual evidence matters.

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As a follow-up to last week’s post, if you want a handy-dandy rundown of what U.S. carbon policy looks like in the absence of comprehensive federal legislation, take a look at the presentation I gave last week to the Harvard Electricity Policy Group, which summarizes federal, regional, and state regulatory efforts – many of which are not explicitly directed at CO₂ – that are likely to have significant impacts on U.S. CO₂ emissions. Thanks to Amy Boyd, who did the lion’s share of the work on this one.

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Bill Hogan at the Kennedy School (shameless plug for alma mater) kindly asked me to speak at a meeting this week of the Harvard Electricity Policy Group. I’ve titled my talk “Carbon Policy When There Is No Carbon Policy.” Several items that came across the wires in the past few days buttress the theory behind my presentation, which is that our current carbon policy really is “A little bit of this, a little bit of that.” 

First, Phillip Brooks, director of EPA’s Air Enforcement Division, told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and that it expects to continue to send out information requests to potential enforcement targets concerning those targets operation and maintenance activities. Brooks predicted more closures of old coal plants as a result of EPA’s NSR enforcement.

Second, a report just released on the economic impact of air emissions supports EPA’s Transport Rule, asserting that each dollar spent on upwind emissions reductions results in $50 to $100 dollars in avoided environmental costs in downwind states. Greenwire subtly noted that the research was funded by Excelon, which owns the largest fleet of nuclear power plants in the nation.

Third, the Ninth Circuit Court of Appeals just affirmed a decision by the San Joaquin Valley Air Pollution Control District to require construction companies to assess the indirect air emissions resulting from construction projects and potentially to reduce such such emissions or pay a mitigation fee. The decision in National Association Of Home Builders v. The San Joaquin Valley Unified Air Pollution Control District is likely to provide additional momentum to state and local efforts to regulate land use decisions as a way to reduce sprawl and, as a result, GHG emissions.

So, what’s our carbon policy today? A little bit of enforcement of existing regulations, a little bit of new federal regulations of traditional pollutants, and a potentially increasing dose of state and local land use regulation.

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Bismarck is supposed to have said that:  "Laws are like sausages, it is better not to see them being made.” EPA apparently disagrees, and has launched a new web site, known as Reg Stat, in order “to increase the transparency of regulatory activity.”

It’s a potentially helpful website. It has some useful data on the types of regulations EPA is pursuing (mostly air during the past five years; what a shock!) and how long it takes to promulgate them (too long; the average regulation takes almost three years to get out the door). I think that the “Regulatory Gateway,” containing information about regulations still in progress, may be the most helpful part of the site. For those not intimately familiar with every step EPA takes, the Regulatory Gateway will be a handy one-stop shopping location to find out where pending rules stand.

Personally, I think I’d rather see sausage being made, but since I do get paid to know what EPA is doing, it’s nice to see EPA trying to make information more available.

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When EPA creates a web page solely addressing one stormwater settlement, you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA’s announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – count ‘em, 21 – states should make everyone in the construction industry sit up and take notice.

The settlement requires Beazer Homes to pay a penalty of $925,000 (mostly to EPA, but some to each of the states). EPA estimated a price tag for the injunctive relief of almost $9,487,384. Basically, the consent decree simply requires Beazer Homes to comply with stormwater regulations, but EPA has imposed certain management requirements on Beazer Homes to ensure that compliance really will happen. Beazer Homes must develop an overall stormwater compliance program, designate a nationwide stormwater compliance manager, and also identify division-level compliance managers who must inspect every construction site within their jurisdiction at least quarterly to ensure that individual sites are in compliance. 

Stormwater is clearly one of EPA’s top priorities. The press release for the Beazer Homes settlement states so explicitly:

Keeping contaminated stormwater out of America’s waters is one of EPA’s national enforcement initiatives.

As concerns about nutrients increase, and EPA faces pressure from citizen groups regarding TMDLs for nutrients, we should only expect more such announcements. An ounce of prevention might be worth $9,487,384 of cure (not including a penalty).

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The 10th auction in the Regional Greenhouse Gas Initiative (RGGI) was held on December 1st.  In honor of this significant round number, I give you the top 10 interesting facts about the 10th RGGI Auction, all of which are based on today's market monitor report:

10)  In the Auction, 24,755,000 allowances from the 2009-2011 compliance period sold for $1.86 each (the floor price);

9)  That amount is only 57% of the 2009-2011 allowances offered for sale, the lowest yield from a current compliance period auction;

8)  38 entities bid on these current compliance period allowances, down from 45 in September and 51 in March;

7)  The generators subject to RGGI compliance and their affiliates (collectively "compliance entities") purchased 97% of the current compliance period allowances sold;

6)  1,172,000 allowances from the second compliance period (2012-2014) were also sold at $1.86 (the floor price);

5)  That amount is 57% of the 2012-2014 allowances offered for sale -- the lowest yield to date for this vintage of allowances -- and 100% of them were bought by just 4 compliance entities;

4)  In the 10 RGGI auctions, taken together, compliance entities have purchased 85% of all allowances sold;

3)  Due to trading on the secondary market, after the 10th auction purchases are settled, compliance entities will hold 95% of all RGGI allowances in circulation;

2)  All together, the 10 RGGI auctions have brought in more than $777.5 million for the 10 RGGI states;

and

1)  The RGGI states have collectively invested about 80% of the RGGI funds in strategic energy programs, most of which involve energy efficiency improvements in homes and businesses.   RGGI has created a website compiling the states' announcements on the success stories from these investments.

The next RGGI auction will be held March 9, 2011.  

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An adjudicatory hearing decision issued by MassDEP in September just came to my attention. The decision in the case, In the Matter of Town of Plymouth, is worth reading for those of you interested in the emerging issues related to concerns over nutrients and how nutrient discharges will be regulated in groundwater or surface water discharge permits.

What caught me eye about the decision, however, wasn’t its substance, but was instead its procedural history. The Town of Plymouth first obtained a permit for the groundwater discharge from its municipal wastewater treatment plant in 2000. The Eel River Watershed Association appealed that permit. (For my out-of-state readers, such permits are appealed administratively in Massachusetts.) Dispositive motions were filed in 2003 – but were never acted on. 

Although the Recommended Final Decision by the hearing officer (which was adopted by the MassDEP Commissioner) doesn’t provide the entire history, one assumes that Plymouth timely filed a renewal application before the permit’s 2005 expiration date. It took MassDEP until 2008 to issue a permit renewal – at which time the dispositive motions in the appeal of the 2000 permit were still pending. 

Not surprisingly, the Town of Plymouth and MassDEP filed motions to dismiss the appeal of the 2000 permit as moot, once the new permit was in effect. Equally unsurprisingly, those motions were granted. To give MassDEP its due, it has worked hard in recent years to shorten the time needed to resolve adjudicatory appeals. It is noteworthy that MassDEP issued the decision dismissing the appeal of the 2008 permit within two years. Nonetheless, it is sort of chilling that the resolution of a permit appeal can extend beyond the life of the permit being challenged.

Justice delayed is…, oh, never mind.

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