Regulating Guidance As Though It Were Regulation

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like.  Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations.  One guidance document may yield another and then another and so on.  Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities.  Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.  An agency operating in this way gains a large advantage.  “It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.”  The agency may also think there is another advantage-immunizing its lawmaking from judicial review.

Furthermore, much guidance is like that reviewed in Appalachian Power.  “The entire Guidance, from beginning to end-except the last paragraph-reads like a ukase.   It commands, it requires, it orders, it dictates.”

I defy anyone who has dealt with government regulations on a daily basis to say that, in their heart of hearts, they don’t know this to be an accurate description of how guidance comes to be created and used.  Because it is accurate – and as much as it pains me to say so – I support the rule issued by EPA on Monday that regulates EPA’s issuance of guidance documents.

To my friends who are either regulators or in the environmental community, let me suggest that reining in guidance is a good thing for those who believe in government regulation.  While I acknowledge that I am sometimes prone to rhetorical excess, l think it fair to say that the overuse of guidance – and the bureaucratic tendency to implement guidance as though it were a “ukase” – is one reason why government has increasingly been seen as illegitimate.  When those who are regulated see government bureaucrats as modern day Judge Roy Beans – the law north, south, east, and west of the Pecos – then many of us develop deep skepticism about government.

I believe in government.  I want others to do so as well.  That’s why I support regulating guidance as though it were regulation – because it functionally is regulation.

The New NEPA Regulations Were a “Political Act.” Is That Enough to Invalidate Them?

Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions.  Judge Jones’s explanation was fairly sparse.  He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.

I can’t say I’m shocked, though I also wouldn’t be shocked if one of the other pending challenges went the other way.  There are three issues that are going to determine the ultimate merits decision.

First, the Administration is leaning hard on Chevron deference.  (I’m now officially getting bored noting the repeated ironies in the Administration’s position on its environmental roll-backs.)  Regardless, the Chevron argument has merit here.  I may disagree with the new rule, but most of changes seem to me to be reasonable interpretations of the statute and the Administration has enunciated a plausible – will wonders never cease! – explanation for the changes.

Which brings me to the second issue.  If I were the plaintiffs, I’d be focusing on the cumulative impacts issue.  This is one place where it’s not obvious to me that the Administration’s position will carry the day, even given Chevron.

Which brings me to the third issue, the real crux of this case.  As I noted when the regulations were finalized, this case is not so much about the changes; it’s about how they will be implemented.  Under the Obama administration, or a hypothetical Biden administration, these rules could be implemented in a spirit that would be completely consistent with the intent of NEPA.  The problem is the “wink, wink, nudge, nudge,” approach the administration is taking with respect to how it will handle issues such as climate change in implementing the new regulations.

According to Bloomberg (subscription required), Judge Jones apparently made the same point, though with perhaps more judicial restraint, during oral argument.  Judge Jones “described the NEPA regulation as a ‘political act,’ but questioned whether the judiciary should step in to halt it.”

That’s the ultimate question for the courts deciding these cases.  If it’s clear that the intent of the NEPA changes is to facilitate NEPA implementation that would indeed be inconsistent with the statute, but the regulations need not be interpreted that way, how certain must the court be of its prediction in order to enjoin the regulations?  Even if the court is certain, it wouldn’t be crazy for a judge to conclude that he or she can’t enjoin the regulation unless and until such an illegal interpretation has occurred in a specific case.

Law and politics are an awkward mix.  Elections have consequences.

Not Quite the Same as Making Mexico Pay For the Wall

As the New York Times has documented, President Trump stated numerous times that Mexico would pay for the border wall. With this context, it was hard not to appreciate the delicious irony when EPA announced earlier this week that it would be financing two separate measures to reduce pollution migrating from Mexico to Southern California.

In other words, not only is Mexico not paying for the wall (and neither is Steve Bannon), but the United States is paying for pollution controls in Mexico! I actually happen to think that this is good news, but I doubt that President Trump is going to be trumpeting this accomplishment to his base. There’s a pretty persuasive argument to be made that avoiding pollution controls is one way that Mexico is able to produce goods more cheaply than the United States. And we’re now financing Mexico’s ability to undercut the price of US manufactured goods?

Instead of requiring Mexico to internalize the externality caused by loose environmental controls in Mexico, we’re subsidizing the externality.

Will wonders never cease?

EPA Must Have A Rationale to Survive Arbitrary and Capricious Review

Last week, the 3rd Circuit Court of Appeals vacated EPA’s approval of Pennsylvania’s SIP for attaining the 2008 NAAQS for NOx.  Specifically, the Court found that EPA’s approval was arbitrary and capricious with respect to three separate, but related, provisions of the SIP.  The flawed provisions were:

  • The NOx standard for power plants utilizing selective catalytic reduction was set at 0.12 pounds/MMBtu.
  • This standard only applied at operating temperatures above 600 degrees F.
  • The SIP did not require that power plants maintain records demonstrating the operating temperature.

Sierra Club identified a number of flaws with these provisions.  However, they really all boiled down to the fact that judicial deference to agency expertise does not permit the agency to operate on the principle of ipse dixit.  Simply put, there’s a difference between a court’s review of an agency’s exercise of its expert scientific and technical judgment as documented in the administrative record and a court’s review of an agency’s statement that it made an expert scientific and technical judgment, when the administrative record is bare of any discussion by the agency regarding how it applied its expert judgment to facts in the record.

In fairness, I have to acknowledge that the use of ipse dixit isn’t new to this administration; I think it’s endemic to bureaucracies.  On the other hand, it’s pretty clear that use of ipse dixit has increased geometrically in this administration.

EPA Rolls Back Obama Methane Rules; I Coin a Phrase: “Regulatory Whiplash”

Last week, EPA finalized its rollback of Obama administration regulations governing methane emissions from the oil and gas industry.  The move is not exactly a surprise.  Regarding the purpose of the rollback, I stand by my take on the proposed regulations.  This regulation was promulgated for two purposes.  First, it provides generic red meat to those who think government regulation is inherently a bad thing.  Second, it benefits small producers much more than large producers – and small producers are much more part of Trump’s audience.

The interesting part of the coverage was the extent to which the regulated community is getting tired of ever-changing regulatory interpretations, particularly in light of how a Biden administration would be likely to deal with the various Trump rollbacks.  One particular facet of issue caught my eye.  Law 360 (subscription required) quotes Corinne Snow of Vinson & Elkins as saying that:

We know from the beginning of this administration that it takes time and agency resources if you want to change a rule that hasn’t been blocked by a court,” she said. “A new administration can’t come in on day one, and EPA can’t on its own, just decide to get rid of this final rule or go back to the Obama-era rule. It takes the same process to change a regulation as to make a regulation in the first place.

Of course, she’s right as a general matter.  But I do wonder whether this general proposition holds true when the regulations that the new administration wants to promulgate have already been promulgated once.  I’m sure that the Biden administration will be more careful than the Trump administration in its regulatory pronouncements, but it’s not as though they’ll be writing on a clean slate.  Putting aside regulations to be written to implement a Biden administration’s expected legislative agenda, how hard would it really for a Biden EPA to say that it likes the Obama regulations more than the Trump regulations, particularly when they have all the science on their side?

I think that companies worried about regulatory uncertainty should stock up on ibuprofen now.  If Biden wins, there are going to be some serious cases of regulatory whiplash.

Alaska Oil Drilling Climate Irony Revisited

In 2015, I noted that the then-Governor of Alaska had decided that it was necessary to increase drilling for oil in Alaska to raise the money necessary to cope with the impact of climate change.  I suggested that Governor Walker’s solution to the problem of funding climate adaption might be considered ironic. 

Welcome to the Department of Irony Department, also known as Alaska Climate Adaptation Rev 2.0.

The Bureau of Land Management has released the Willow Master Development Plan Final Environmental Impact Statement (EIS) for drilling in the northeastern area of the National Petroleum Reserve.  The EIS notes that drillers in Alaska’s North Slope are now preparing to chill the ground underneath certain areas of their project.  Why?  Because melting permafrost – a result of climate change – would otherwise render the drilling infrastructure unstable.

Let’s get this straight.  Climate change is melting the permafrost (which itself is a negative climate feedback loop, since melting permafrost releases methane, a powerful GHG).  The melting permafrost requires that the ground – in Alaska, which used to be known as a cold place – be chilled in order to maintain drilling infrastructure.

I’m only a poor country environmental lawyer, but I do know enough to say that the laws of thermodynamics make this a losing game.

Irony, thy name is Climate Change.

Massachusetts Implements a Clean Peak Standard

On July 23, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed final regulations implementing a “Clean Peak Energy Standard,” which formally went into effect on August 7, 2020.  The final regulations are the latest step towards making reality out of an idea enacted through the 2018 Act to Advance Clean Energy and make Massachusetts the first state to adopt such a program.… More

Dakota Access Lives to Pump Another Day

On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline.  It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day.  From a legal point of view, however, I wouldn’t take that much comfort from the decision.

The basis for the stay was that the District Court did not make explicit findings on the need for an injunction.  I suspect that, if one were to catch Judge Boasberg in a candid moment, he might suggest to the Court of Appeals judges that they might have reasonably inferred from his opinion that he’d made the requisite findings.  On remand, I don’t think it will be that difficult for the judge to justify issuing an injunction.  It is true that there is language in the Circuit Court order indicating that the Corps should consider whether to allow the pipeline to operate, but there is nothing in the order that precludes the District Court from making the necessary findings and issuing an injunction.

On that score, it’s worth noting that the Circuit Court refused to stay the vacatur, noting that:

At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement,… or that the district court abused its discretion in refusing to remand without vacatur.

I still think that there’s a significant possibility that the pipeline will have to shut down, though, if I were a betting man, I probably still wouldn’t bet either way on this one.

Did the 5th Circuit Just Make Standing Much More Difficult?

Last week, the 5th Circuit Court of Appeals vacated a $20M penalty imposed on ExxonMobil for Clean Air Act violations at its Baytown facility, remanding the case for a more particularized review by the District Court regarding whether the plaintiffs have demonstrated that they have standing with respect to all of the violations committed by ExxonMobil.  The Court held that it is not enough to show that each of the claims in the complaint are traceable to ExxonMobil’s conduct.  Instead, the plaintiffs must demonstrate that they have suffered harm traceable to the violations committed by ExxonMobil.

As an initial matter, I think that the Court erred when it rejected the plaintiffs argument that the law of the case precluded the court from reexamining standing.  In the first go-round, the District Court declined to impose a penalty and 5th Circuit reversed.  This time around, the plaintiffs pointed out that, since standing is jurisdictional, the prior 5th Circuit panel must have made a finding that plaintiffs have standing.  The current panel concluded that this was too thin a read on which to make a law of the case finding.  To me, given the black letter nature of the rule that a Court must always determine that whether it has jurisdiction, even if not raised by the parties, the only way that the recent panel could rule against the plaintiffs was by concluding that the original panel had essentially committed judicial malpractice.  I would be loath to do so were I an appellate judge.

In any case, Inside EPA (subscription required) is now speculating as to how high the Court has “raised the bar” for standing.  The jury, as they say, is still out on that one.  The Court took great pains to emphasize that it was not requiring an individualized finding for every single violation.  For example, it noted that any violation resulting from flaring would support standing, because flaring is visible from outside the facility; plaintiffs need not provide that they actually witnessed any particular flaring event.

Overall, I think that the Court struck a reasonable balance.  It may be difficult to establish standing for some truly trivial violations, but plaintiffs here – and, more importantly, future plaintiffs – should be able to establish standing for any significant CAA violations.  Plaintiffs’ bigger concern has to be whether a 5th Circuit now heavily salted with Trump appointees might at some point take up the suggestion of the concurrence that the court in the right case should meet en banc and clean up the “mess” that is the 5th Circuit’s standing jurisprudence.

Until then, I think that environmental plaintiffs should treat this case as sui generis.  As I previously asserted, Baytown is just “too big to comply.”

It’s Not Impossible for EPA to Comply with the Good Neighbor Provisions of the Clean Air Act

On Tuesday, Judge John Koeltl ordered EPA to issue a final rule addressing its obligations under the Good Neighbor provisions of the Clean Air Act by no later than March 15, 2021. Two aspects of the decision are worth note.

The big issue in the case, once the Judge disposed of EPA’s jurisdictional arguments, was whether it is impossible for EPA to issue a final rule by the plaintiffs’ suggested date.  EPA argued that compliance by March 15, 2021 was legally “impossible.”  Judge Koeltl first noted that heavy burden on an agency in making an impossibility argument.  He then provided the coup de grace:

That burden is especially heavy where ‘the agency has failed to demonstrate any diligence whatever in discharging its statutory duty to promulgate regulations and has in fact ignored that duty for several years.

In other words, an agency cannot ignore its statutory obligations for years and thus create a condition of impossibility through its dereliction of its statutory duties.  Indeed, EPA’s conduct comes very near to Leo Rosten’s classic definition of chutzpah in “The Joys of Yiddish”:

that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.

The second important aspect of the case is EPA’s effort, chutzpah aside, to argue that uncertainty regarding emissions from sources other than electric generating units justifies EPA’s insistence that it needs more time before it can regulate.  As I noted in connection with a previous iteration of this dispute, it is EPA’s job – its statutory obligation – to regulate under uncertainty.  If it waited until it could eliminate uncertainty before regulating, it would never do anything – which may in fact be this administration’s ultimate objective, of course.

Governor Jim Justice and the Progress of Man

On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine.  All of the violations related to excessive discharges of selenium.  Bluestone’s defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit.  However, the permit and its specific discharge limit for selenium only came into effect after the entry of the consent decree.

Aside from the legal niceties of the law of diligent prosecution, to accumulate 1,904 days of violation after having entered into a consent decree certainly suggests a less than vigorous effort by Bluestone Coal to come into compliance with the CWA.  What really made this decision newsworthy, however, was that Bluestone Coal’s President is none other than Jim Justice, the Governor of West Virginia.  (And don’t ask me how it is that Governor Justice remains President of Bluestone Coal; all I know is that both the Governor’s web site and Dun & Bradstreet both seem to think that such is the case.)

For some strange reason, while the Governor’s web page highlights all the great things he’s done for his state, it does not mention poisoning the state’s waters through the discharge of excess selenium.

I’m not sure that this decision would have prompted a post from me, had it not been for the recent death of the great John Prine, who wrote these immortal words:

Then the coal company came with the world’s largest shovel
And they tortured the timber and stripped all the land
Well, they dug for their coal till the land was forsaken
Then they wrote it all down as the progress of man.

Massachusetts Attorney General Strikes Down First Municipal Fossil Fuel Ban

Just over a year ago, the city of Berkeley, California, became the first City in the United States to ban natural gas hookups in new buildings.  The trend of municipalities enacting fossil fuel bans, driven by a desire to reduce greenhouse gas emissions and combat climate change, has spread across California and a few other states and has now reached the east coast.  Yesterday, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such municipal fossil fuel ban to come across its desk as inconsistent with the general laws of the Commonwealth.

In November 2019, Brookline, Massachusetts, approved a by-law that would prohibit the installation of oil and gas heating systems in new construction starting in 2021.  The bylaw would require heat, hot water, and appliances installed during new construction and major renovation to be all-electric, with certain exemptions.

The Attorney General found the bylaw to be in direct conflict with three uniform statewide regulatory schemes; the State Building Code; the Gas Code; and the Department of Public Utilities’ powers to comprehensively regulate the sale and distribution of natural gas in the Commonwealth.  (Full disclosure: my colleagues at Foley Hoag prepared a legal memo for submission to the Attorney General’s Office in support of preemption.)  The Attorney General found that both the Building Code and the Gas Code had express statutory goals of uniformity, while there was a fundamental state policy of ensuring uniform utility services to the public under G.L. c.164.  The Attorney General pointed to the example of identical projects proposed in Brookline and a neighboring municipality, each otherwise compliant with zoning and each proposing on-site fossil fuel infrastructure.  The project in the neighboring municipality would be entitled to a building permit, while the project in Brookline would not.

The Attorney General took care to distinguish the legal validity of the by-law from the laudable policy goals it sought to further.

If we were permitted to base our determination on policy considerations, we would approve the by-law. Much of the work of this Office reflects the Attorney General’s commitment to reducing greenhouse gas emissions and other dangerous pollution from fossil fuels, in the Commonwealth and beyond.

So, will this California trend fizzle and fade (like the pet rock) or be with us for the long haul (like blue jeans)?  Other municipalities in Massachusetts, including Cambridge and Newton, have been considering similar actions.  While the Attorney General’s Municipal Law Unit review is applicable only to by-laws enacted by towns (and not ordinances enacted by cities), the Attorney General’s decision would certainly make it harder for cities to defend such ordinances in court.  In Massachusetts, the answer for now seems to be that the legislature must move first.  Don’t be surprised if the next big piece of climate legislation to come out of the Massachusetts State House addresses the issue of municipal authority in this area – if it doesn’t directly impose statewide restrictions.

BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications

Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct, but I don’t think it’s necessarily even a Chevron issue.

After Justice Gorsuch shocked many readers by holding that the plain language of the Civil Rights Act required protection of transgender people, environmental lawyers speculated whether Justice Gorsuch’s passion for plain language readings might benefit the environmental side in any pending environmental disputes.  I have questioned such hopes, but I think that the Waste Prevention Rule case may not be a bad candidate.  “Waste” may not be defined in the statute and there may be uncertainty in precisely what it does mean, but I don’t that there is any plausible understanding of the word that limits its meaning to “economic waste.”  Venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.

Justice Gorsuch, are you listening?

The second important issue is the Court’s rejection of BLM’s redefinition of the “social cost of methane.”  This is just one of many occasions in which the Trump administration has attempted to change Obama administration positions.  To date – and including this case – the Trump administration has had a difficult time enacting its policy preferences when those policies are interwoven with scientific questions.  Here, President Trump issued Executive Order 13783, which disbanded the Interagency Working Group and withdrew all of the documents created by the IWG, including its social cost of methane metric, which included global costs.  That metric had been intensively vetted and was subject to peer review.  In response to EO 13783, BLM withdrew the global social cost of carbon approach and replaced it within one that looked only at the domestic cost, an approach that was not subject to peer review and has been roundly criticized by economists.

Judge Rogers was not amused.

While Executive Order 13783 may have withdrawn the relevant technical support documents for political reasons, it did not and could not erase the scientific and economic facts that formed the foundation for that estimate—facts that BLM now ignores.  [T]he President did not alter by fiat what constitutes the best available science.  (My emphasis, because this may be the single best sentence written to date summarizing this administration’s approach to environmental regulation.)

Notwithstanding my views of this administration, I’m not so confident about this part of the opinion.  I can certainly imagine conservative judges concluding that whether the U.S. government should care about the global, as opposed to domestic, cost of methane is more of a policy choice than a scientific question.

There’s little doubt though, that this is not the last case in which courts are going to have to wrestle with this thorny problem.

California’s Agreement With Quebec Is Not Preempted — At Least For Now

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Foreign Affairs Doctrine.  Judge Shubb had previously ruled that the Agreement did not violate either the Treaty Clause or the Compact Clause.

As before, I think Judge Shubb got it right, but I wouldn’t bet that the Supreme Court will agree, if it gets that far.  This one does seem to be on firmer ground, though.

The most interesting part of the decision was the Court’s discussion of field preemption.  In order to establish field preemption, case law requires that the United States demonstrate that California:

(1) has no serious claim to be addressing a traditional state responsibility and (2) intrudes on the federal government’s foreign affairs power.

The Court actually sided with the Trump Administration on the first part of the test, concluding that the Agreement with Quebec “extends beyond the area of traditional state responsibility.”  The Administration lost because it failed to demonstrate that the Agreement “intrudes on the foreign affairs power.”  It had argued that the Agreement diminishes the President’s power to “engage in international deal making on behalf of the United States,” claiming that the Agreement would make it difficult for the President to negotiate a “better deal” than the Paris Accord.  The Court pointed to case law supporting its conclusion that “hypothetical or speculative fears cannot support a finding that this state program has more than an incidental effect on foreign affairs.” 

One almost has to admire this administration.  It takes a certain amount of chutzpah to challenge the Agreement between California and Quebec on the ground that it interferes with the Administration’s ability to get a better deal than Paris, when there’s not even a hint of a scintilla of evidence that the Administration has any interest in doing so.

And for a pretty good non sequitur, check out this Atlantic article that’s the source of the accompanying graph.