Finding the Path to a Necessary Future: CARB Chair Liane Randolph and ELI President Jordan Diamond Share Their Vision for California, Climate, and Energy in the Coming Decades

Join the California Air Resources Board (CARB), Environmental Law Institute (ELI), Foley Hoag LLP, and Baker Botts LLP for an intimate discussion with CARB Chair Liane Randolph and ELI President Jordan Diamond, two leaders in the field of environmental law and policy.  Both are tackling significant and pressing environmental and public health challenges from different perspectives. Our moderator will lead a conversation about how these two women got to this distinguished point in their careers,… More

Noise Isn’t an Inconvenience; It’s a Pollutant

I used to think that noise was something that grumpy old men complained about.  Then I became a grumpy old man.  And now I realize that noise really is a pollutant.  And so I was pleased to see The Effects of Noise on Health.  Spoiler alert; the effects are not positive.  Noise has been linked to adverse health effects ranging from cardiovascular disease to impaired cognition.  This shouldn’t be a surprise.  Noise causes stress – and stress causes a lot of bad outcomes.

One interesting note – because noise has been a poor stepchild among environmental problems, there have not been a lot of resources devoted to investigating noise.  One thing we do know that is important even if it’s not surprising?

people in neighborhoods with low socioeconomic status and higher proportions of residents of color bear the brunt of noise pollution in this country.

I may be old and cranky, but at least I can stop apologizing for my increasing obsession with noise pollution.

More About NEPA Reform; It’s Not Just About Renewable Energy

Last month, Oakland Mayor Libby Schaaf wrote to the Federal Highway Administration, stating that Oakland “is suffering from a crippling housing and homelessness crisis.”  Furthermore, she complained that:

Addressing this crisis requires flexibility and creativity. … Federal environmental responsibilities, such as the National Environmental Policy Act (NEPA), can slow, discourage, or prevent these creative solutions. We must streamline the NEPA process as much as possible, including maximizing the use of Categorical Exclusions for these types of projects.

As Greenwire (subscription required) noted, environmental activists were quick to assert that Schaaf’s complaints about NEPA were no different than those of the Trump administration.  However, simplistic demonization of all attempts at NEPA reform does not quite rise to the level of reasoned argument.

I mention Schaaf’s letter because it underscores the points I made in my most recent post about NEPA reform.  Schaaf also raises an important point that I did not address in my post, which focused on the need to reform NEPA in order to facilitate renewable energy development.  Mayor Schaaf focused on affordable housing.

However, it’s worth noting that the issues are not unrelated.  A lot of energy use in the United States is tied to housing patterns.  Solving the climate crises requires not just clean electricity.  It requires vibrant cities with functioning mass transit systems and green affordable housing.  Can you say transit-oriented development?

And yet, many transit-oriented development projects, which can provide needed affordable housing where residents have access to mass transit to get to work, face NEPA reviews that “can slow, discourage, or prevent these creative solutions.”

We need to figure out ways – creative solutions, dare I say? – to preserve the essential function of NEPA without bureaucratic paralysis that could obstruct progress towards mitigation of climate change – and other worthy social goals.

FERC Proposes to Reform Transmission Planning; It’s Not a Small Task

Late last month, FERC issued a notice of proposed rulemaking.  Its intent is to “remedy deficiencies in the Commission’s existing regional transmission planning and cost allocation requirements.”  In short, it’s time for a 21st Century grid that actually accommodates changes in how electricity is being generated.

I’m not sure I can improve much on FERC’s own summary of the NOPR:

the proposal would require public utility transmission providers to (1) conduct long-term regional transmission planning on a sufficiently forward-looking basis to meet transmission needs driven by changes in the resource mix and demand; (2) more fully consider dynamic line ratings and advanced power flow control devices in regional transmission planning processes; (3) seek the agreement of relevant state entities within the transmission planning region regarding the cost allocation method or methods that will apply to transmission facilities selected in the regional transmission plan for purposes of cost allocation through long-term regional transmission planning; (4) adopt enhanced transparency requirements for local transmission planning processes and improve coordination between regional and local transmission planning with the aim of identifying potential opportunities to “right-size” replacement transmission facilities; and (5) revise their existing interregional transmission coordination procedures to reflect the long-term regional transmission planning reforms proposed in this NOPR.

Getting all this done will be a huge effort.  With that in mind, I would emphasize three aspects of the notice:

  • First, and most importantly, the vote in favor of the NOPR was 4-1. Having buy-in from one of the GOP commissioners may be critical to the long-term success of FERC transmission reform
  • The proposal would reinstate a federal right of first refusal for existing transmission companies, so long as there is joint ownership. This proposal speaks to the continuing influence of existing utilities and reflects FERC’s judgment that there have to be some carrots for utilities if the proposal is going to go anywhere.
  • The proposal does not address delays that renewable projects face in interconnecting to the grid. If I were cynical, I might repeat my prior comment here.

This is not a perfect proposal, but it’s clearly a necessary move in the right direction.  The question remains whether we’ll be able to reform the grid sufficiently quickly to make the transition to a zero-emitting all-electric economy at the pace science is telling us we must do to avoid the worst implications of a changing climate.

Sometimes the Law Really Is Unambiguous — Clean Water Act Edition

Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or injunctive relief.  I don’t think that the decision would even have been newsworthy, if it hadn’t required that the Court overrule its 1991 decision in North and South Rivers Watershed Ass’n v. Scituate.

Water flowing into Blackstone Gorge just downstream from dam at Blackstone River & Canal Heritage State Park

The real question is what the panel in Scituate was thinking, because, in world where we’re all used to criticizing Congress’s incomprehensible drafting, the statutory language at issue here might be the least ambiguous in the entire environmental canon.  Here’s the relevant language, as selected, and with the emphasis supplied, by the Court:

Section 1319(g)(6)(A) is headed, “Limitation on actions under other sections.” It provides as follows:

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator’s or Secretary’s authority to enforce any provision of this chapter; except that any violation –

(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under subsection(d) of this section or section 1321(b) of this title or section 1365 of this title.

For some reason, Court felt it necessary to provide an extensive analysis of this text, including a discussion of the legislative history.  I believe that this is what might be called a “belt and suspenders” argument, because all that was really necessary to was underline the three words “civil penalty action” at the end of the quote.  Simply put, if Congress had meant to preclude actions for declaratory judgment and injunction, it could have simply said “an action”, rather than “a civil penalty action.”

I very much sympathize with those who dislike the decision.  It’s undoubtedly bad policy.  It discourages agencies from resolving these matters through their administrative authority.  It discourages the regulated community from entering into administrative settlements.  It’s another example of poor drafting in our environmental statutes.

But’s it’s not so absurd that a Court can simply rewrite the statute to make it better.  Unfortunately, given that Congress is patently incapable of doing its job, rewriting the CWA to fix this problem is still the responsibility of Congress.

Good luck with that.

CEQ Finalizes Phase I NEPA Regulations: Undoing Trump’s Regulations Is One Thing; Modernizing NEPA Is Another

Earlier this week, the Council on Environmental Quality promulgated its Phase I rule amending the NEPA regulations.  The final rule largely implements the proposed rule, though with some minor changes.  Since the final rule so closely tracks the proposal, I won’t repeat the analysis that I already provided regarding these changes. 

I will briefly repeat my concern that Phase II of the NEPA regulations is going to be very important.  Nothing in the Phase I regulations addresses the need to improve siting reviews to ensure that NEPA remains an effective shield to protect those impacted by projects without becoming a sword that allows well-funded opponents to utilize NEPA to delay or kill projects that are against those opponents’ self-interest.

If we can’t site renewable energy projects or the transmission infrastructure necessary to get renewable energy to customers, we’re not going to meet our climate goals.

Maura Healey Has a Climate Plan: Is It Too Ambitious Or Not Ambitious Enough?

Take my predictions with a grain of salt, because I still remember saying that Ronald Reagan would never fool enough voters to get elected, but it seems very likely at this point that Maura Healey will be the next Governor of Massachusetts.  That makes her release of a climate plan a matter of some significance. 

My take is that it is extremely ambitious, but rightly so.  We need to be ambitious.  The level of ambition does make implementation critical, and I note some of those tensions below.  Here are some of the important aspects of the plan.  First, it includes a number of specific commitments:

  • The Commonwealth will reach net-zero for its own operations by 2030.
  • Installation of one million heat pumps by 2030.
  • School buses and MBTA buses will be all electric by 2030
  • All public transportation will be electrified by 2040.
  • Sale of fossil-fuel cars and light duty trucks will end by 2035.
  • Massachusetts will have a 100% “clean electricity supply by 2030.” I assume that this means zero-carbon, but that’s not clear in the plan.
  • There is also a significant commitment to new levels of various kinds of carbon-free electrical generation, including:
    • More than 10,000 MW of offshore wind by 2035
    • More than 10,000 MW of solar by 2030
    • Quadrupling of energy storage deployment by 2030 (no mention of what they think the baseline is)

Did I mention that the plan is ambitious?

Notwithstanding its ambition, and notwithstanding the plan’s own statement that “kicking the can down the road will not be acceptable”, the plan still leaves a lot of elements to be filled in later.  It also fails to acknowledge some hurdles to attaining some of her underlying goals.  For example:

  • There is no mention of the Transportation Climate Initiative or any effort to implement regulations limiting emissions from vehicles, beyond the commitment to cease sales of certain types of vehicles with internal combustion engines by 2035.
  • The plan acknowledges the need to regulate emissions from buildings, but says only that “she will work with the Legislature to establish building emission standards like the new ordinance in effect in Boston….” If CO2 is a pollutant, would a Governor Healey need legislative authority?  Why couldn’t she just direct MassDEP to promulgate regulations limiting CO2 emissions from existing buildings over a certain size?  This issue is too big and important to leave to local municipal regulation.
  • The plan makes clear that a modern transmission grid will be necessary to “electrify everything”. However, it does not begin to explain how Governor Healey will reform our environmental assessment and permitting processes to streamline siting of the renewable energy facilities and the transmission lines necessary to carry all of the new renewable energy supplies to the ultimate end users, while also making good on her commitment to bring more public participation into those same assessment and permitting processes.

It is a sign of the scope of the problem that the plan is as ambitious as it is, while still leaving so much still to do.

Good luck, Governor-presumptive Healey.

Microplastics in the Lungs: The Next Asbestos or Are We Just Catastrophizing?

Two developments this week got me thinking about how our government deals – or fails to deal – with risk.  First, EPA proposed to ban the manufacture (including import) of chrysotile asbestos.  EPA’s authority for doing so is the Toxic Substances Control Act which provides that:  

if EPA determines through a TSCA section 6(b) risk evaluation that a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, under the conditions of use, EPA must by rule apply one or more requirements to the extent necessary so that the chemical substance or mixture no longer presents such risk.

One might ask – and I do – how one determines what constitutes an “unreasonable” risk, without consideration of cost.  If cost is irrelevant, wouldn’t any risk be “unreasonable”? I am not suggesting that the proposed rule is inappropriate.  I don’t know the science.  I just don’t see how rational risk-benefit decisions can be made without consideration of cost.

The second development was the news that researchers have now found microplastics in the lungs of living human beings.  Wisely, the authors do not take a position on any potential regulation of plastics or microplastics.  Instead, they appropriately note that:

The knowledge that MPs are present in human lung tissues can now direct future cytotoxicity research to investigate any health implications associated with MP inhalation.

Detecting small particles of microplastics in the lungs is troubling.  While my scientist friends keep reminding me of the limits of such analogies, the history of asbestos certainly supports the notion that the finding of small particles in the lungs is worthy of investigation.

At the same time, the “precautionary principle” is not a sound basis for regulations.  As Cass Sunstein has noted,

the precautionary principle provides help only if we blind ourselves to many aspects of risk-related situations and focus on a narrow subset of what is at stake.

In a more pithy op-ed context, Sunstein called the precautionary principle “deeply incoherent.”

So, let’s figure out what impacts plastics are having, and let’s regulate appropriately on the basis of what the science tells us.  And, just to be clear, I think we already know enough to take aggressive action with respect to certain types of plastic.

My only plea is that such regulation should be based on careful analysis of actual data, rather than on the simplistic approach represented by the precautionary principle.

The Latest IPCC Report — How Are We Doing on Mitigation?

Earlier this month, the Intergovernmental Panel on Climate Change released Climate Change 2022: Mitigation of Climate Change.  As all IPCC reports are, it’s a serious piece of work and not easily summarized at blog length.  Nonetheless, here are some of what seemed to me to be important takeaways:

  • Firstly, and most importantly, we’re not doing a very good job at mitigating greenhouse gas emissions.  I suspect that, if one asked the average American whether GHG emissions increased or decreased from 2010 to 2019, they would say that emissions decreased.  Sadly, that’s not the case.  GHG emissions in 2019 were 12% higher in 2019 than 2010.  The best we can say is that the rate of increase has slowed.  (In case you didn’t know, that’s not good enough!)
  • It is still possible to meet the Paris target of no more than 1.5 degrees Celsius increase in global temperature, but the level of commitment that will be required to meet that target will be, as they say, ginormous.
  • We’re almost certainly going to have to spend money pulling carbon from the atmosphere.  I’ve always been skeptical of carbon removal technologies, other than land management, but going there is probably unavoidable at this point.
  • For the first time, the IPCC discusses climate litigation as a mitigation tool.  My friend @MichaelGerrard describes this as the IPCC “saying that we need to deploy all the tools in the toolbox, and litigation has definitely become one of them.”  That may be, but I worry that IPCC discussion of litigation will just be used by opponents to delegitimize the IPCC.  I think it might be better for the IPCC to stick to the science and technology of mitigation.

Any way you look at it, the IPCC report makes sobering reading.  The task will be Herculean and time is growing short.

Foley Hoag Attorneys Contribute to French-U.S. Plastic Pollution Pro-Bono Project

In September 2021, Foley Hoag partnered with the Global Council for Science and the Environment (GCSE) and the American College of Environmental Lawyers (ACOEL) on a collaborative research effort designed to compare French and U.S. legal frameworks for regulating plastic pollution. Over the last six months, a team of international environmental lawyers analyzed the existing policies, regulations, and legislation in France and the U.S. that directly and indirectly regulate plastic pollution;… More

PM2.5 Emissions From Wildfires — No Longer So Exceptional!

Last week, the Clean Air Scientific Advisory Committee formally transmitted its recommendations to EPA Administrator Regan regarding the PM2.5 NAAQS.  Consistent with trade press reporting over the past few months, the majority of CASAC members recommended that the PM2.5 NAAQS be set between 8-10 ug/m3.  A minority recommended the range be set between 10-11 ug/m3.  I’d be surprised if the revised NAAQS is set above 10 ug/3

For me, what’s interesting about the letter is the suggestion that:

EPA should consider the implications of the exceptional events approach when applied to wildfires, particularly with respect to the risk assessment.

Apparently, that language was toned from draft language that more strongly suggested that EPA should change its exceptional events policy.  Even so, it’s a pretty important issue.  As the detailed CASAC comments note:

Exceptional events. EPA allows exclusion of wildfire PM events under the exceptional event rule when calculating PM2.5 design values. In some parts of the country wildfires are no longer “exceptional”. The dramatic increase in wildfires over the last decade is not natural; it is a combination of anthropogenic climate change, forest management practices, and power line ignition incidents. These are (in theory) at least partially controllable. Given the potential for significant adverse health events, it may be time to reconsider the current approach to excluding the high PM exposures from wildfire events in design values.

Should we really consider forest fires to be natural events?  After all, Democrats think that the increase in wildfires is tied to human-caused climate change.  Republicans blame Democratic forest management.  Both explanations support the conclusion that many wildfires are not natural events.

At CASAC’s suggestion, I’ve considered the implications of the exceptional events approach and I think it’s time for a change.

Three Takeaways from the SEC’s New Proposed Rules on Climate Disclosures

Today, the Securities & Exchange Commission voted 3 to 1 in favor of adopting a long-awaited set of proposed revisions to SEC regulations concerning the disclosure of climate risks and related financial impacts, as well as data on greenhouse gas emissions in certain SEC filings. The recommendation to adopt the new set of rules was not unanimous, with Commissioner Hester Peirce voting against the measure, arguing that the new set of rules is at best unnecessary,… More

Boston Promulgates BERDO “Phase I” Regulations: Emissions Standards For Buildings Are Coming Soon

The Boston Air Pollution Control Commission has formally adopted its “Building Emissions Reduction and Disclosure Ordinance Phase 1 Regulations.”  The Phase 1 regulations are really all about the “disclosure” side of BERDO.  The “reduction” side will be addressed by the Phase 2 regulations, which at this point are scheduled to be completed by the winter of 2023. 

The final Phase 1 regulations largely track the draft released late last year.  The City rejected requests for extensions of the new reporting deadlines.  As a result, the first reporting under the new regulations will be June 15, 2022.  Owners of buildings subject to BERDO may request a single six-month extension of the deadline.

The rubber will really hit the road in Phase 2.  Based on the City’s handling of the Phase 1 regulations, I’d expect that the City will hold tight to its deadlines.  I do expect that Boston will listen carefully to comments it gets on the regulations.  It has, for example, acknowledged that its draft emission factors contained in Appendix B of the original draft of the Phase 1 regulations were flawed.  The City will apparently move Appendix B from the regulations into guidance, allowing it to correct/adjust the emission factors more easily.

However, I do not expect the City to show significant flexibility as it rolls out the Phase 2 regulations.  Without being pejorative, and with full acknowledgement to the Blues Brothers, the City is definitely on a mission from God; it not going to be swayed from its appointed task of aggressively going after building GHG emissions.

The Social Cost of Carbon Lives! The Red States Have Nothing To Complain About

The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases.  The Court did not leave much doubt that the administration will prevail on the merits. 

Issuance of a stay is based on criteria very similar to those regarding entry of an injunction.  The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted.  The Court found that both factors favor the stay request.  It’s discussion regarding the likelihood of success was particularly telling:

The Government Defendants are likely to succeed on the merits because the Plaintiff States lack standing.

Note that the Court did not say that it appears that the states challenging the Interim Estimates lack standing.  Nope.  They lack standing.  Plain and simple.  And I tend to be skeptical of arguments about standing, because I think that standing is too often used as an excuse by a court that doesn’t want to hear a case.  Here, however, it’s pretty darn clear that the states have failed to establish standing.  As the Court noted:

The Plaintiff States’ claimed injury is “increased regulatory burdens” that may result from the consideration of SC-GHG, and the Interim Estimates specifically. This injury, however, hardly meets the standards for Article III standing because it is, at this point, merely hypothetical.

Moreover,

The Interim Estimates on their own do nothing to the Plaintiff States. So we discern no injury that would satisfy Article III at this stage.

Of course, this is not the end of the battle over the social cost of greenhouse gases.  The Government will promulgate a new estimate sometime in 2022 (it’s already overdue).  And the first time a government agency makes a specific regulatory decision based on that estimate, we’ll be back in court on the merits.  That’s when the real fun will begin.

The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?

Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC.  The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated.

How big a deal is this?  I for one would not be trumpeting this decision as another nail in the coffin of natural gas.  I do think, though, that the decision provides some important practice tips, both for FERC and for citizens’ groups looking to appeal FERC decisions.

Here are my principle takeaways:

  • This is not the end of FERC approvals of natural gas infrastructure.  The Court remanded to FERC without vacating its decision.  The Court found that:

after adequately accounting for foreseeable downstream greenhouse-gas emissions, the Commission could arrive at the same finding of no significant impact.

  • The Court may not be happy with FERC, but it is still strictly enforcing standing requirements.  Importantly, the Court made clear that one citizen plaintiff should not rely on arguments made by another citizen plaintiff – because if that other plaintiff is found not to have standing, those arguments basically just go away.
  • The Court rejected the petitioners’ arguments regarding FERC’s failure to consider the upstream impacts of the project.  The Court did indicate a willingness to consider those issues in the right case.  However, in another practice tip, the Court declined to consider petitioners’ argument regarding upstream impacts, because they had “failed to identify any particular flaws in the Commission’s approach to upstream impacts.”  Citizens groups – remember to plead your claims with specificity.

The bottom line?  In the right case, if pled properly, the Court is going to ensure that FERC adequately assess the climate impacts of gas pipelines.  Nonetheless, FERC can assess those impacts in ways that will satisfy the Court and still issue licenses for such pipelines.