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

Since I already violated my rule against speculating on the outcome of a case based on oral argument, I might as well do it again. I have always said that EPA’s endangerment finding would survive judicial review and that conclusion seems only more likely to prove correct following yesterday’s oral argument before the D.C. Circuit Court of Appeals.

Both the Daily Environment Report and GreenWire noted in their reporting on the argument that the groups challenging the rule emphasized that EPA had not considered the policy implications of making the endangerment finding. Of course. Precisely. That’s because the Clean Air Act itself divorces the endangerment finding from its policy implications. If there were any doubt about that, Massachusetts to EPA would seem to have put such questions to rest.

Judges Tatel and Sentelle both seemed to understand this point. Judge Tatel apparently felt compelled to remind the petitioners that the Court of Appeals is bound by Massachusetts v. EPA. Judge Sentelle said that:

Sometimes in reading the petitioners briefs, I got the impression that Massachusetts had not been decided.

To which, the petitioners said “uh-oh”.

There are a lot of issues in these cases. EPA could lose parts of some of the rules under challenge. The Tailoring Rule in particular still seems on thin ice to me – though I don’t know what alternatives EPA really had (and all heck will certainly break loose if the endangerment finding is affirmed but the Tailoring Rule is overturned). Nonetheless, the endangerment finding itself seems compelled by the plain language of the CAA and the decision in Massachusetts v. EPA, unless EPA’s scientific conclusion is arbitrary and capricious – and it ain’t, by a long mile.

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On Friday, EPA released “Step 3” of the GHG Tailoring Rule. The big news is no news at all. EPA left the GHG permitting thresholds unchanged, at 100,000 tons per year of carbon dioxide equivalent for new facilities and increases of 75,000 tpy of CO_2e for existing facilities. In a phrase repeated in EPA’s fact sheet, keeping the thresholds unchanged is part of EPA’s “common sense … approach” to GHG permitting.

The proposal does include two options to allow GHG sources to streamline permitting, both of which may be of real value to some sources:

·         Provisions to “improve the usefulness of plantwide applicability limitations (PALs) for GHG."  Allowing compliance with GHG limits on a plantwide basis will provide meaningful additional flexibility for many facilities.

·         Use of synthetic minor permits to limit GHG emissions below GHG permitting thresholds. While the universe of facilities that can take advantage of this provision may be limited, it will be of significant benefit to facilities that can limit their emissions. Avoiding the PSD permitting meat grinder is always a plus.

To me, the most significant aspect of Friday’s announcement was how quietly it passed. There are several takes on this. One is that everyone is devoting their attention at this point to the litigation, and no one’s going to care much about rules tweaks until the litigation has been decided. The climate change skeptics only care about killing the entire program. The climate change advocates support the rule, but are just biding their time until either a cap-and-trade program or a carbon tax has renewed political viability. In the meantime, the boiler rule and utility MACT rules are seen to have more significance than the Tailoring Rule.

It may also be that the lack of fanfare means, in part, that GHG regulation has quietly become the norm. While the litigation is going on, GHG PSD review is slowly becoming part of the fabric of life for large emitters. Personally, I don’t think that this is a good thing, because the PSD/NSR program remains the least efficient way to regulate GHG emissions, notwithstanding EPA’s efforts to, as they say, tailor the program. I still dream that, if the Tailoring Rule is upheld, stakeholders will move back to talking about market-based approaches (as compared to the NSR program, I couldn’t care less whether it’s cap-and-trade or a carbon tax) to limiting GHG emissions.

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Two years ago, in posting about the brouhaha over the Climate Research Unit at the University of East Anglia, I noted that self-righteousness among climate advocates does not help their cause. I harbor no illusions about how widely this blog is read, but the more recent foolishness committed by Peter Gleick of the Pacific Institute, in impersonating a board member of the Heartland Institute in order to obtain internal emails about their anti-climate change strategy, demonstrates that climate change advocates have not lost any of their self-righteousness.

At a certain level, I sympathize with Gleick. After all, I too believe that there is overwhelming evidence supporting the conclusion that anthropogenic climate change is real. It is frustrating not to be believed, particularly when the stakes are so high. Sorry, Peter. That’s where my sympathy ends. Democracy is frustrating. And messy. And inefficient.

Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

Last time I looked, however, it’s still what we are stuck with. And in a democracy, self-righteousness will always lose. It was true in 2010. It remains true in 2012. Climate change advocates are their own worst enemies.

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According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million. I still don’t understand why Obama, particularly with Cass Sunstein still at OMB, hasn’t turned this problem into an opportunity. I know I’ve flogged this one before, but a significant part of the explanation for the size of the Superfund budget is related to CERCLA’s status as the last bastion of command and control regulation. Everyone who practices in this area could provide endless examples of the almost unbelievable extent of micromanaging indulged in by EPA and its consultants. Even where EPA is recovering oversight costs, such an approach taxes the system. 

(And don’t we care about those unreasonable costs being passed on to PRPs? Oops. I forgot. They’re the bad guys. Don’t care if they incur needless costs.)

Several states have now successfully privatized their state Superfund programs, saving both private and public sector funds, without any decrease in environmental protection. Now’s the time for feds to seize the opportunity presented by the budget cuts to change the way federal cleanups get done.

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On Friday, EPA finally issued its long-awaited revised risk assessment for tetrachloroethylene, also known as perc or PCE. EPA also issued a fact sheet summarizing its current views about PCE and how the new risk assessment fits into the Clean Air Act, Safe Drinking Water Act, and CERCLA regulatory regimes.

Because PCE is present at so many Superfund Sites, and given the number of dry cleaners – including many in residential areas – still using PCE, EPA seemed to go out of its way to minimize the significance of the new risk assessment. Among the points it made:

·         Having ones clothes dry cleaned with PCE will not result in increased risk

·         The new risk assessment will result in no immediate change to MCLs, Superfund cleanup levels, or the NESHAP for PCE.

Why do we even care, then? Because EPA will review its PCE NESHAP in 2014. Because EPA is reviewing its MCL for PCE, and a more stringent MCL will result in a new and more stringent ARAR for Superfund cleanups. Because site-specific risk assessments utilize the IRIS information and will thus now result in more stringent cleanup standards.

I should note that, precisely because this issue has been pending for some time, and the data on which the new risk assessment has been available to states, some states have already tightened risk assessment standards for PCE and have already ratcheted down, for example, permissible indoor air concentration limits. Nonetheless, for EPA to adopt this risk assessment on a nationwide basis remains significant.

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ClimateWire had a fascinating story on Monday about federal efforts to increase the energy efficiency of buildings, which are estimated to consume about 40% of our nation’s energy. The story concerns the less than inspiringly-named Greater Philadelphia Innovation Cluster for Energy-Efficient Buildings, which is seeking to substantially alter how building owners think about energy efficiency and the use of technology.

The problem facing GPIC, as it is known, is one with which I confess I was not familiar. According to the statistics from the Energy Information Administration:

Over the past 20 to 30 years, every important building component has improved in energy performance. From air conditioners to lighting to windows, construction crews today have an array of green technologies at their disposal. 

Once they're put together, though, the finished building performs no better than its predecessors of two or three decades ago. The parts have gotten better, but not the whole.

It’s not clear why this happens, but the theory is a combination of lack of coordination among different members of design teams, and a set of incentives that almost inevitably lead each individual component to be substantially overdesigned and thus incapable of taking advantage of the efficiencies provided by new technologies.

I have to say that this conclusion is sufficiently startling that I am skeptical. The EIA reports that, from 1986 to 1999, energy use per square foot of building did not change. Apparently, 1999 is the last year for which EIA has data. (Which of course is also troubling, in its own way.) It would be interesting to know if energy efficiency has increased at all since 1999.

Even if the situation is better than the EIA data suggest, it would not be surprising if the problem  does exist, at least to some extent. If so, it raises some very interesting issues regarding government regulation of building efficiency. States such as California and Massachusetts are likely to start regulating building efficiency at some point as part of their broader plans to attain GHG emissions targets. Will they be able to do so in a way that actually leads to decreased energy use per square foot? Based on this article, simply requiring use of more efficient components may not lead to the outcomes the states want. On the other hand, regulations that actually affect the design process will be considered by building owners to be unreasonably intrusive. 

This is definitely one to continue to watch.

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Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report. 

The EA also addresses the individual site assessment plans, or SAPs, that will have to be performed by each leaseholder. While BOEM retains the flexibility to determine whether the implementation of the SAPs is covered by the EA, there is certainly the suggestion that SAPs may be not require separate NEPA analysis.

The FONSI is of course not a full green light for wind development off the Mid-Atlantic coast. Once BOEM starts awarding leases, each lease-holder would ultimately have to prepare a Construction and Operations Plan, which would be subject to NEPA review and it would be quite surprising if individual wind projects were not obligated to prepare full EISs before proceeding to construction. 

Even so, establishing this process, and obviating the need for EISs prior to issuing leases and performing at least some SAPs, can only be helpful in getting siting of wind energy in this area off the ground.

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