NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of a TMDL to obtain NPDES permits.  Now, Judge George Russell has ruled that EPA does not have non-discretionary duty under the Clean Water Act to determine whether commercial, institutional, and industrial users contribute to a violation of water quality criteria in the Back River watershed. 

Do I detect a trend?

If EPA had such a duty, it was pursuant to its own regulations, not the CWA itself.  Here’s the critical language:

On and after October 1, 1994, for discharges composed entirely of storm water, … operators shall be required to obtain a NPDES permit only if … [t]he 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.

Sometimes language really is pretty clear.  As the Court noted, the non-discretionary duty here is on the operator, not on EPA.  If EPA finds a problem, then the operator must obtain a permit.  There is nothing in this language that requires EPA to determine whether or not the operator’s discharge in fact poses a problem.

Although the clarity of the language made it unnecessary, I will note that the Court relied on Auer v. Robbins, and emphasized that “EPA’s interpretation of its own regulations is entitled to significant deference.”

More support for the conservative case for Chevron – and Auer – deference!

Statutory Deadlines Matter — EPA Gets Taken to the Woodshed

Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut.  EPA did not dispute liability; it had clearly missed the original statutory deadline.  The case was all about the remedy.  EPA asked to be given until December 31, 2018 to respond.  Plaintiffs said EPA could respond within 60 days.

Noting the “heavy burden” EPA bears in trying to demonstrate that it cannot comply with the congressionally mandated timeline, The Court ordered a response within 60 days, concluding that:

Defendants’ proposed schedule contravenes the congressional intent that EPA “act quickly on a Section 126(b) petition.”

I noted last spring that we are likely to see more of these cases and I think we’re also going to see increasing judicial impatience with agency delay.  I also wonder if this case might be the first bit of evidence that Scott Pruitt’s order precluding the notorious – if mythical – practice of “sue and settle” may have come back to bite EPA.

EPA had to know it was going to lose this case.  In bygone days – meaning 2016 – EPA would have negotiated for the best schedule it could have gotten.  If EPA had told the plaintiffs it would respond to the petition within 90 or even 120 days, my guess is that the plaintiffs would have accepted such a proposal.  Given the Pruitt memorandum, that was not possible.  The outcome?  The worst possible result for EPA.

Just wonderin’.

(Full disclosure.  Foley Hoag has represented Talen Energy, owner of Brunner Island, on matters unrelated to Brunner Island.  We take no position on the merits of the underlying § 126(b) petition.)

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute.  Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater.  My advice to the County of Maui? File a certiorari petition.

It’s fairly certain that groundwater is not a water of the United States.  How then, can discharges of groundwater be subject to the Clean Water Act?  Good question.  Although not solidly grounded in the text of the CWA, I admit I like the approach taken in Tennessee Clean Water Network v. TVA, in which the Court concluded that discharges of groundwater are subject to the CWA:

if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced.

The decision avoids the seemingly ridiculous situation in which the outcome differs if the point source discharges to surface water or if the discharge is to groundwater 10 feet away from the surface water.

The 9th Circuit decision is much broader, finding jurisdiction so long as the “pollutants are fairly traceable from the point source to the navigable water.”  The 9th Circuit approach does not require that the connection be “direct” and “immediate.”

The problem with the 9th Circuit approach is demonstrated by regulations promulgated by the Massachusetts Department of Environmental Protection which basically provide that all groundwater should be assumed to discharge to surface water.  I’m skeptical that Congress intended discharges to groundwater to be subject to the CWA, in any case where an ultimate discharge to surface waters can be traced back to a point source discharging to groundwater.

As a practical level, I still like the Tennessee Clean Water Network case approach, but I’m not even sure that that interpretation would command a majority at the Supreme Court.

Settling Federal Environmental Enforcement Claims — Some Payments to Third Parties May Be Allowed (But Not Many)

Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions’ memorandum of June 5, 2017, generally barring payments to third parties as part of government settlements.  (And, yes, I know there should be another “s” after the apostrophe, but I’m hereby announcing a new rule; if I can’t pronounce it, I’m not writing it!) The Wood Memorandum affirms – of course – the June 5 Memorandum, but attempts to set forth in a little more detail what types of payments are exempt from the prohibition.  It also requires approval by the Assistant Attorney General of any settlements containing third-party payments.

The examples given in the memorandum are useful and should be carefully reviewed by practitioners.  The bottom line is that the scope of such payments will certainly be more limited than under prior administrations.

What I particularly liked about the Wood Memorandum was this language, repeated numerous times:

Care should be taken to ensure that the project does not mitigate harm out of proportion with the harm that resulted from the unlawful conduct.

I’m glad that ENRD will take care to ensure that defendants never make any 3rd party payments that would result in any extra remediation or mitigation!

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed.  This determination, in turn triggered a duty to notify the dischargers contributing to the waste load allocation that they need to apply for a permit.

To which the Court said “Holy non-discretionary duty, Batman!”

As the Court made clear, EPA’s approval of the TMDLs did not identify specific dischargers contributing to the problem.  To the contrary, the TMDLs specifically found that there was no sufficient information to apportion phosphorous loading.  Since the duty CLF sought to impose on EPA is triggered when an individual permit is required, how can such a duty exist when EPA does not know which property owners in fact require individual permits?

EPA also noted that the practical consequences of CLF’s position would be vast:

Under plaintiffs’ view of the case, in 1990, by enacting the regulations cited in this opinion, the EPA committed itself to notifying a very large number of companies and persons (perhaps as many as tens of millions) as it approved TMDLs covering storm water discharges across the country. Yet the record contains no suggestion whatsoever that either the EPA or the states or the regulated entities — or plaintiffs for that matter — viewed the storm water regulations as having such a far-reaching ramification.

Finally, EPA noted that Auer deference – the doctrine, like Chevron, that is under siege from conservatives – also supports EPA’s interpretation, since it requires deference to EPA’s interpretation of its own regulations, so long as it is not “plainly erroneous.”

The TMDL provisions of the CWA may be deeply flawed.  It is not, however, the courts’ responsibility to amend them to CLF’s specifications.

The Supreme Court Sends WOTUS Rule Challenges to the District Courts — It’s Good to Be King

On Monday, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts.  At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. 

After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories, for which cases are assigned to the circuit courts.  The government argued that two categories applied, actions either:

approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, [or] issuing or denying any permit under section 1342 of this title.

It seems pretty clear that a rule defining what constitutes a water of the United States is not an action promulgating an effluent limitation or other limitation – particularly when the WOTUS Rule itself states that it “imposes no enforceable duty.”  It seems even more clear that promulgation of the Rule was not the issuance of a permit – under section 1342 or any other section.

Thus, the challengers could easily have won under the “give me a break” doctrine of statutory interpretation.  And, by the way, it appears that “give me a break” was the tenor of most of the justices’ questions at oral argument.

The government had only one real argument in its favor:  sending these cases to the district courts is just plain nuts.  And it’s worth noting that the “just plain nuts” argument had triumphed over the “give me a break” argument in almost all of the lower courts to decide the issue.

The Supreme Court, however, sits on a higher throne.  It does not need to get its hands dirty with the practicalities of lower court review.  And, in fairness, it has an obligation to interpret the statute as it is written; it does not have an unlimited brief to fix all the mistakes made by Congress.

It’s good to be king.  In a democracy with separation of powers, it’s good to be the Supreme Court.

It’s Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases

In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script.  It was three sentences long.

Good afternoon, your honor.  My name is _____ and I represent the government in this case.  We win.

Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims.  The latest evidence is the Supreme Judicial Court’s opinion in Grand Manor Condominium Association v. City of Lowell, in which the SJC ruled that the plaintiffs had not missed the statute of limitations, notwithstanding that suit was filed more than three years after they learned that the condominiums were on top of a former City landfill and that contamination had been discovered that required reporting under the state Superfund law, Chapter 21E.  The Court stated that:

A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not remediation and response costs will fully compensate the plaintiff for the harm he or she has suffered, as well as the identity of the party who caused such harm. This will not ordinarily occur until the plaintiff learns that the damage to his or her property is not reasonably curable by the remediation process.

In so holding, the Court seemed simply to ignore that, traditionally, all that is required to trigger the statute of limitations in property damage cases is the knowledge that one has suffered some harm and of the identity of the person responsible for the damage.  It has never been the case that one could wait until every dollar of damage was quantified before bring suit.

Here, the Court seems to take the position that property damage is an all-or-nothing claim.  Either one has no damage at all or one’s property is irretrievably harmed.  If that were the case, then it would make sense to say that the statute does not run until the plaintiff obtains knowledge of the permanent damage.  What’s weird about the decision is that Court acknowledged that, in some cases, there can be temporary damage, but did not seem to understand the full implications of that acknowledgement.

Indeed, in many, if not most, cases, there will be temporary harms, even apart from the possibility of permanent damage.  There can be odors that cause a loss of quiet enjoyment.  What about someone who is looking to sell the property before the cleanup has been completed?  When does the statute of limitations run on those claims?  Are there multiple statutes of limitations for different types of property claims?

Avoiding such questions is precisely why there has always been one simple rule – the statute runs when the plaintiff knows it has suffered some harm, and knows who caused the harm.

Instead, the rule in Massachusetts seems to be that the statute of limitations begins no earlier than the date which still allows the SJC to preserve the claims.

When Did Chevron Become a Dirty Word?

Last week the 9th Circuit Court of Appeals rejected arguments that the Fish and Wildlife Service may only issue permits under the Migratory Bird Treaty Act for the “scientific use” of a species where the use will benefit the species being used.  The facts are interesting, if you enjoy nature red in tooth and claw. The Northern Spotted Owl is endangered and it appears that it is being outcompeted by the Barred Owl.  The FWS wanted to investigate whether the Northern Spotted Owl would do better if the Barred Owl were removed from its habitat.

The Court of Appeals carefully disposed of plaintiffs’ various arguments that the Migratory Bird Treaty Act unambiguously precluded the FWS from issuing the permit under the so-called “same species theory.”

What’s really interesting about the opinion is its handling of the Chevron issues that the case seems so obviously to present.  The FWS argued that, if the Court found the MBTA to be ambiguous, it should prevail under Chevron, because its interpretation of the statute is entitled to deference.  The Court, however, explicitly refused to rely on Chevron.

Because the plain text of the MBTA and the Conventions do not compel a same-species limitation, however, we need not consider the question of deference to the agency’s interpretation.

However, this seems to me to miss the point.  The Court also did not find that the statute precluded the plaintiffs’ interpretation; it specifically found that FWS could adopt the same species theory if it so chose.  That being so, where the statute does not unambiguously preclude either interpretation, it seems to me that the case very clearly becomes an issue of Chevron deference – was the FWS interpretation reasonable?

I still don’t understand fuss about Chevron.

EPA Does Have a Duty to Update Its Lead Paint Standards: Cass Sunstein Agrees With Me

As a follow-up to my post last week about the 9th Circuit decision requiring EPA to propose new lead paint standards under TSCA within 90 days, I was encouraged to see Cass Sunstein support the decision in a BloombergView piece.  Noting as I had the uphill battle plaintiffs face in these cases – and agreeing that they should in general face an uphill battle – Sunstein concisely summarized the issues:

In many contexts, it makes sense for agencies to refuse to regulate. And when agencies fail to act, courts are usually right to stand aside — and to defer to those who have political accountability and superior expertise.

But for the executive branch in 2018 and beyond, last week’s decision is a lesson, a warning and a promise: Some delays are unreasonable, and when human health is at stake, inaction may not be a legally acceptable option.

We must remember that EPA did not dispute the science here.  EPA acknowledged that the current standards simply are not protective.  Nonetheless, I doubt that this is a one-off.  There will be other cases in which agencies refuse to regulate notwithstanding that regulation would seem to be called for by the governing statute, even if the statute has no deadlines for action.

In those cases, protection of public health – consistent with the statutory goals – seems to me a sufficient basis for the type of decision issued by the 9th Circuit.

FERC Rejects Grid Reliability and Resilience Pricing — For Now!

Yesterday, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site.  The intent of the proposal was to compensate generators who provide reliability and resilience attributes to the grid.

The decision was unanimous, though there were several concurrences.  The commissioners were not persuaded that there is a reliability problem that requires immediate, out-of-market relief to coal and nuclear generators.

Neither the Proposed Rule nor the record in this proceeding has satisfied the threshold statutory requirement of demonstrating that the RTO/ISO tariffs are unjust and unreasonable. While some commenters allege grid resilience or reliability issues due to potential retirements of particular resources, we find that these assertions do not demonstrate the unjustness or unreasonableness of the existing RTO/ISO tariffs. In addition, the extensive comments submitted by the RTOs/ISOs do not point to any past or planned generator retirements that may be a threat to grid resilience.

It also has not been shown that the remedy in the Proposed Rule would not be unduly discriminatory or preferential.  For example, the Proposed Rule’s on-site 90-day fuel supply requirement would appear to permit only certain resources to be eligible for the rate, thereby excluding other resources that may have resilience attributes.

FERC did open a new docket, in which it will explore whether there is a reliability or resilience problem.  It asked RTOs and ISOs to provide answers within 60 days to questions it posed in the Order.

As a result, I don’t think we’ve heard the last of this issue.  Indeed, three of the commissioners wrote concurrences, laying down markers regarding what they see as potentially acceptable – or unacceptable – outcomes.  Commissioners LaFleur and Glick both made clear that they would not support any kind of payments to generators for providing “reliability,” though they both agreed that the discussions with the RTOs and the ISOs make sense.  Here’s LaFleur’s conclusion:

This proposed remedy, which simply designated resources for support rather than determining what services needed to be provided, would be highly damaging to the ability of the market to meet customer needs—including any demonstrated resilience needs—fairly, efficiently, and transparently. In effect, it sought to freeze yesterday’s resources in place indefinitely, rather than adapting resilience to the resources that the market is selecting today or toward which it is trending in the future.

Commissioner Glick was on the same page:

The Proposed Rule had little, if anything, to do with resilience, and was instead aimed at subsidizing certain uncompetitive electric generation technologies.

He also noted that it is transmission and distribution that raise the biggest resilience issues, not generation.

Finally, Commissioner Chatterjee weighed in as well.  As he has throughout the process, Commissioner Chatterjee has stated that he supports the intent of the NOPR, so long as protection for coal and nuclear generators would be “legally defensible” and “would not distort markets.”

I continue to think that that is a null set.

Does EPA Have a Non-discretionary Duty To Make a Statute Work?

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency.  That was the subject of last week’s decision in A Community Voice v. EPA, in which the 9th Circuit ordered EPA to issue a proposed rule updating its lead paint standards within 90 days, and a final rule within one year of issuance of the proposed rule.

Put simply, the case is a mess.  As Judge Smith noted in dissent, the majority tried to find a non-discretionary duty in the statute, but this was the best that it could do:

Despite the dissent’s attempt to recharacterize congressional intent, Congress did not simply state a goal when enacting the TSCA and the Paint Hazard Act; Congress established statutory standards that the EPA must enforce. (“Within 18 months after October 28, 1992, the Administrator shall promulgate regulations which shall identify, for purposes of this subchapter and the [Paint Hazard Act], lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil.”); (“The regulations may be amended from time to time as necessary.”).

A careful reader might note that, while the initial promulgation of regulations was clearly mandatory, the majority’s own citation seems to suggest that EPA does not have any obligation to amend the regulations.

EPA did accept a petition for a rulemaking to lower the standards in 2009 – but without committing to do what the petitioners had asked.  More than eight years later, EPA still has not acted on the petition, notwithstanding that there appears to be no scientific dispute that the current standards are not sufficiently protective.  Moreover, without disagreeing with the scientific evidence, EPA told the court that it would be 2021 before a proposed rule might be issued and 2023 before a final rule might be issued.

This delay might fairly be described as unconscionable.  Indeed, if Administrator Pruitt wants to bring EPA back to its core mission, one might think that tightening lead standards would fit within that characterization.  (And, in fairness, the delay occurred during the Obama administration and the court papers in the appeal were filed under the Obama administration.)  Even Judge Smith felt compelled to note that he was not actually in favor of poisoning children:

without a congressional mandate in the TSCA, we have no authority to mandate that the EPA act to meet Congress’s goals (even if we believe it is in the best interest of society for the EPA to act).

Although we may not like the actions of the agency, our jurisdiction is limited to determine whether the agency assumed a duty.

I think we’re going to see a lot more of these cases.  Scott Pruitt will look into his crystal ball and determine that some regulatory program he doesn’t like isn’t “core” to EPA’s mission.  He’ll avoid regulating wherever possible.  An NGO will bring a law suit to compel EPA action.  The science supporting regulation will be indisputable.

The only question will be whether the statutory basis for action cited by the NGO is sufficiently clear so as to give rise to a non-discretionary duty.  I wish I could be sanguine about the outcome.  I don’t think Judge Smith will be unique among appellate judges in his views on mandamus.

To be blunt, though, if enough judges act on similar views, people will be poisoned and people will die.

Some Extreme Climate Events Would Not Have Happened But For Climate Change: Lawyers Are Paying Attention

Today’s ClimateWire (subscription required) contained a long summary of evidence that scientists are increasingly able to demonstrate that climate change is what we lawyers would call the “but for” cause of extreme weather events.  One of the most interesting is the recent paper “Explaining Extreme Weather Events of 2016:  From a Climate Perspective,” from the Bulletin of the American Meteorological Society.  It looked at a number of extreme events and found – for the first time –

that some extreme events were not possible in a preindustrial climate.  The events were the 2016 record global heat, the heat across Asia, as well as a marine heat wave off the coast of Alaska.

A couple of years ago, I pondered whether climate change litigation might be similar to marriage equality  litigation, in that it would lose always and everywhere until, seemingly overnight, it would all of a sudden become inevitable.  The biggest problem with climate change litigation has always been the difficulty in proving causation.

These recent scientific studies at least suggest that improved scientific models have solved half of potential climate plaintiffs’ problem.  If an expert is willing to get on the stand and state that it is more likely than not that a particular event would not have occurred but for anthropogenic climate change, then plaintiffs will have given a factfinder a basis to conclude that their damages resulted from climate change.

Plaintiffs still have a significant mountain to climb.  There is no entity called “climate change” to name as a defendant.  Plaintiffs still have to establish the second part of the causation chain – that specific named defendants have in some way caused climate change.  That’s going to be difficult, but I can imagine a judge determining that defendants should be jointly and severally liable.

The Bloomberg story also mentions an article in Nature Geoscience, “Acts of God, human influence, and litigation (fee required) that makes the same point:

Developments in attribution science are improving our ability to detect human influence on extreme weather events. By implication, the legal duties of government, business and others to manage foreseeable harms are broadening, and may lead to more climate change litigation.

More litigation.  That’s generally a safe prediction.

The Migratory Bird Treaty Act No Longer Criminalizes Incidental Takes

Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds.  It’s a thorough Opinion.  While I disagree with it on some individual issues and I’m sure many will disagree with its conclusions, I think it should survive judicial review, assuming that a reviewing court can get past the fact that it directly contradicts a prior Opinion of the Interior Department issued less than a year ago.

First, on the fun facts to know and tell front, the Fish & Wildlife Service states that the largest “Human-caused” threat to birds – by almost an order of magnitude – is, you guessed it, cats!  Cats kill an estimated 2.4 billion birds a year.

The next highest on the list is building glass, at 303.5 million bird deaths.  In fairness to the new Opinion, these data do make a telling point.  Even if it’s not reasonable to say that human owners of pet cats can foresee that their cat will kill a migratory bird, it seems reasonable to me to conclude that developers who build buildings with glass can foresee that their building glass will cause migratory bird deaths.  Do we really think that they should be subject to criminal liability?  If not them, then why wind turbine developers (174,000 bird deaths)?  Or utilities that maintain transmission lines (25 million bird deaths)?

From a legal point of view, the only part of the opinion that really concerned me was the argument that statutory language is written in stone and “must be given the meaning [it] had when the text was adopted.”  As I have previously noted, judges have authority to change the landscape of the common law over time.  If the word “take” has in fact changed its common meaning since the statute was enacted more than 100 years ago, shouldn’t the word be given its current interpretation?  (And this isn’t an argument against the Opinion, which I think is reasonable.)

Shareholder Activism on Climate Is Only Going to Increase

While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive.  There were two developments worth noting this month.

First, Bloomberg Markets reported that BlackRock, which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures.  We had previously noted BlackRock’s new willingness to vote in favor of shareholder resolutions about climate reporting.

Second, the group of investors known as the Climate Action 100+ is going to start assessing how large emitters of GHG are doing in reducing emissions.  Bloomberg Environment refers to this as an effort to “Shame Top Carbon Emitters.”  Time will tell whether this effect succeeds.

Regardless of whether corporations can feel shame, there is little doubt that efforts such as these are going to continue.  Shame aside, the real question is whether private efforts to make corporations internalize the costs of carbon pollution can really work in the absence of government regulations.

The Members of EPA’s Superfund Task Force Had Really Good Memories

In July, EPA released the recommendations of the Superfund Task Force.  Public Employees for Environmental Responsibility filed a FOIA request, looking for documents related to the operation of the Task Force.  This week, the AP reported on EPA’s defense of the inevitable law suit that PEER filed when EPA did not turn over any documents.  

It turns out that, according to Johnny Walker, the DOJ attorney representing EPA in the litigation, there is a simple explanation for EPA’s failure to produce any documents – there aren’t any.  According to the AP, Walker has told PEER that the Task Force kept no minutes and no materials were presented to the Task Force.  The Task Force also retained no work product other than the final report.

That’s one way to minimize the impact of those pesky FOIA requests.  On the other hand, I suspect that it would be fun to depose those who managed the Task Force about how good their memories must have been to keep track of all of the recommendations as they were being developed.

Personally, I am keeping an open mind to the possibility that, like Athena, the Task Force report was born full-grown from the forehead of Scott Pruitt.