If a Climate Change Report Falls in the White House, Does Anyone Hear It?

This week, the National Academy of Sciences Committee tasked with reviewing the Climate Science Special Report, issued by the Obama administration, basically blessed it.  They had some comments, but I’ve been through the NAS review process; they always have comments.  Their top line?  

The Committee commends the CSSR authors for producing an impressive, timely, and generally well-written draft report and was impressed with the breadth, accuracy, and rigor of the draft CSSR.

The real question is whether anyone in the current administration will pay any attention to the NAS.  Since the administration’s definition of good science is science that concludes that climate change either doesn’t exist or isn’t caused by human activities, I’m guessing that the NAS conclusion will be rejected out of hand.

Toto, I’m afraid we’re stuck in Kansas.

Investors Don’t Think That Climate Change Is A Hoax: BlackRock Is Losing Its Patience

BlackRock, which manages more than $5 trillion in assets, has released a statement on how it “engages with climate risk.”  The statement has three main elements.  

  • Support for the Financial Stability Board’s Task Force on Climate-Related Disclosures
  • Engagement with companies over assessment on climate risks
  • An indication of potential support for shareholder resolutions on climate risk, where such resolutions “address a gap in investment-decision and stewardship”, and “management’s response to our prior engagement has been inadequate.”

The statement emphasizes BlackRock’s long-term approach to investing, which is the source of the best line in the statement.  In summarizing letters from BlackRock’s CEO, Larry Fink, to CEOs, BlackRock notes that:

While we are patient investors, we are not infinitely patient.

I’m picturing James Earl Jones as Darth Vader saying that.  I wonder what energy executives are hearing.

CLF Takes Its MHP Fight Across the Fort Point Channel

BPDA South Boston Waterfront MHP

Last week we wrote about the Conservation Law Foundation filing 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 that suit, CLF alleged that the Secretary’s decision approving the plan was arbitrary and capricious.

This week, CLF is in the news again for sending a letter to Secretary Beaton requesting that he delay the state’s approval process for another Municipal Harbor Plan located just across the Fort Point Channel.

BPDA Downtown Waterfront MHP

The City approved the Downtown Waterfront Municipal Harbor Plan last week, covering an area stretching from Northern Avenue to Christopher Columbus Park, bound by the waterfront to the east and the Rose Kennedy Greenway to the west.  The plan would approve new height limits allowing for the redevelopment of the Boston Harbor Garage property owned by Don Chiofaro.

In its letter to Secretary Beaton, CLF alleged that the Municipal Harbor Planning process seemed developer-driven.  CLF suggested that if the Secretary approved the Downtown plan, CLF would add a challenge to that plan to its pending lawsuit on the South Boston plan.  Instead, CLF recommended that Secretary Beaton wait until the South Boston lawsuit is resolved before starting the public review and approval process for the Downtown plan.

CLF appears fully committed to seeking to enforce its view of what Ch. 91 requires and has backing for this pursuit.  The Barr Foundation awarded CLF $330,000 last year to “advance waterfront advocacy efforts”.  Developers contemplating waterfront projects should count on CLF watching closely and prepare for potential challenges.

The Conservative Case for Chevron Deference: Chapter 2

In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.

gray wolf, Canis lupus, Gary Kramer, USFWS

Last Friday, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis.  The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing.  Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions.  The Court of Appeals noted that the:

ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.

Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well.  When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.

Maybe I’ll make this a regular feature of this blog.  If I miss other cases making the conservative argument for Chevron, let me know.

The Executive Order on the WOTUS Rule: Will It Really Reduce Regulatory Uncertainty?

On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act.  It’s a curious order, for a number of reasons.

First, Section 1 of the EO states as “Policy” that “minimizing regulatory uncertainty” is in the national interest.  Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS.  The rule may not have succeeded perfectly, but does anyone really think that the purpose of the order is to reduce uncertainty?  It’s pretty clearly intended simply to reduce jurisdiction.

Second, in revisiting the definition of WOTUS, the EO states that EPA:

Shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.

I do love that “shall consider” language.  Raise your hand if you think that EPA will consider, but then reject, relying on Scalia’s approach.  More to the point, anyone reading this blog probably already knows that Scalia’s opinion did not command a majority of the court in 2006.  Moreover, even with Justice Gorsuch rather than Justice Garland, I don’t think it would command a majority of the court today.

The point of the rule, in addition to reducing uncertainty, was to make the definition of WOTUS consistent with Justice Kennedy’s concurrence in Rapanos, which most people still think, I believe, did command a majority of the Court.

One may fairly assume that the NGOs and states that supported the rule – or actually wanted something broader – aren’t going to give up the fight easily, and I still think that they have the better legal position.

The Wages of Trespass Is A Big, Fat, Penalty

Last year, I blogged about the 9th Circuit decision in United States v. Estate of E. Wayne Hage, in which the Court reversed a District Court decision rejecting United States claims that Hage had trespassed on federal lands by grazing livestock without a grazing permit.  The decision was notable for the Court’s explicit discussion of District Judge Clive Jones’s bias against the United States; the Court ordered that the case be reassigned to a different judge on remand.

This week, Chief Judge Gloria Navarro calmly issued an Order vacating Judge Jones’s findings in their entirety, concluding that Hage had no right to graze on federal land and that his repeatedly doing so was a willful violation, ordering him to pay the United States $587,294.28, and giving him 30 days to remove all livestock from federal lands.

Purely thumbing your nose at the United States government apparently only works if you are actually the President.

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.