EPA’s Limits on Advisory Committee Participation Are Subject to Judicial Review

On Monday, the 1st Circuit Court of Appeals held that EPA’s directive forbidding those who receive EPA grants from serving on EPA advisory committees is subject to judicial review.  It’s an important issue, because the advisory boards are one of the few checks on EPA’s efforts to undermine of the use of science in its rulemaking.

EPA argued that it retains discretion over the composition of its advisory committees and that plaintiffs’ claims were not justiciable.  The Court disagreed.

First, the Court noted that the Federal Advisory Committee Act was enacted in order to avoid undue influence by the regulated community on federal advisory committees, which is precisely the concern expressed by the plaintiffs here.  The statute provides guidelines “to assure that the [committee’s] advice and recommendations . . . will not be inappropriately influenced by the appointing authority or by any special interest,” and states that agencies “shall” follow the guidelines.

EPA nonetheless argued that the Administrative Procedure Act exempts from judicial review agency actions “committed to agency discretion by law.”  In rejecting that argument, the 1st Circuit relied heavily on Department of Commerce v. New York (also known as the Census question case), in which the Supreme Court held that this exception to reviewability under the APA is “quite narrow.”

As the 1st Circuit noted, that an agency has broad discretion cannot exempt it from judicial review.  “A court could never determine that an agency abused its discretion if all matters committed to agency discretion were unreviewable.”

Finally, the Court noted that FACA’s use of squishy terms such as fairness and balance do not render judicial review impracticable:

The concepts of fairness, balance, and influence are not foreign to courts, and we are certainly capable of reviewing agency actions with reference to those concepts.

So there, EPA!

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

The End Is Near (And I’m Not Talking About the Coronavirus)

In order to distract your attention from the end of the world as we know it resulting from COVID-19, I thought I would direct your attention to further evidence of the end of the world as we know it resulting from climate change.  In a very interesting article published earlier this month in Nature Communications, the authors examined the pace of “regime shifts” in critical ecosystems, including the relationship between the size of ecosystems and the pace of the shifts.  The results are not comforting.  While shifts do take longer in larger ecosystems, they proceed relatively more quickly.

Here are the major conclusions:

First, we must prepare for regime shifts in any natural system to occur over the ‘human’ timescales of years and decades, rather than multigenerational timescales of centuries and millennia.

Second, the apparent long-term stability of the largest, least disturbed ecosystems is a deceptive guide to the potential speed of their collapse. Therefore, the self-organising mechanisms that help to instill systems with resilience prior to a tipping point may have limited ability to control the rate of collapse once a shift has been triggered.

Third, homogenously connected systems shift relatively less quickly, meaning that ecosystems that are already disturbed but stabilised, or those that are engineered, may be relatively slower to collapse because of the lack of vulnerable modular structures. Thus, although shifts in agroecosystems are expected due to climate change, their relatively slow transitions may offer vital time for adaptation.

Fourth, the ‘window of opportunity’ open to divert unsustainable system trajectories is comparatively short for relatively small systems, meaning contingency plans should be formulated in advance and ready to implement across localised systems recognised to be heading towards the brink.

Of course, given COVID-19, a good many of us may not be around to see this rather bleak future.  Between the two, I am reminded of one of Keynes’s famous quotes:

In the long run, we are all dead.

California’s Agreement With Quebec Is Not a Treaty — 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 Treaty Clause or the Compact Clause.  These are not parts of the Constitution that are normally a focus of environmental law classes, so take what follows with an appropriately sized grain of salt.

That being said, I think that the Judge got it right.

How can that be given that an agreement between California and Quebec – not only part of a foreign state, but one where they speak French! – is not a treaty?  Because the agreement does not control in any way how either jurisdiction actually regulates GHGs.  Instead, it is much more limited.  It merely provides that each sovereign, while separately regulating GHGs, will recognize allowances created by the other.  Moreover, either entity may withdraw, as was demonstrated by the withdrawal of Ontario, which had briefly been a party to the Agreement.  Based on the case law discussed by Judge Shubb, California seems to have much the better of the argument.

But.

In my thoroughly objective view, we have the most outcome-based Supreme Court that I can recall, and I don’t see this court as being sympathetic to California’s position.  Moreover, the conservatives on the Court can rub the language of Massachusetts v. EPA in the face of the climate hawks.  In discussing standing in that case, the Court said:

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

Of course, reliance on this language assumes the conclusion – that the Agreement is, in fact, a treaty – but that will not necessarily slow down those on the Court opposed to GHG regulations.

Which does bring up another point.  Why are this administration and conservatives on the Court, both of whom purport to believe in federalism, so opposed to state efforts to regulate GHGs?

I think I’ll leave that one for another day.

It’s the Energy Markets, Stupid (And Energy Markets Are Complex)

This week, the Massachusetts Attorney General’s office released a white paper documenting the results of a symposium convened last fall to discuss how electric markets should be organized to manage the transition to a “low / no-carbon future.”  Policy wonks, such as myself, will find it fascinating reading, though it is moderately dense stuff.

Seriously, it is important to acknowledge that these issues are as complex as they are important.  Simply establishing a zero carbon goal for 2050 – or earlier – isn’t going to get us there and keep the lights on at the same time.  And the more we commit to electrifying our transportation systems and our buildings, the more important electric market design is going to be.

These issues really are too complicated to summarize in a blog post, so I’ll settle for highlighting what was apparently broad agreement on a number of key points:

  • “A real-time energy market, providing price signals identifying the instantaneous value of energy, should be a cornerstone of any decarbonized end state wholesale market design.”
  • “There was nearly unanimous support for some form of regional carbon pricing that is priced to help create incentives for compliance with the region’s clean energy goals.” (And that’s economy-wide carbon pricing.)
  • The current Forward Capacity Market “is unsuited to the needs of ensuring resource adequacy in the decarbonized end state.”
  • The region, i.e., ISO-NE, should implement more effective scarcity pricing.

There’s much more in here, and a lot more to do before real consensus is reached on specific approaches.  However, if you believe we need to decarbonize our economy, I suggest you get this report and read it.  Why?

Because it’s the energy markets, stupid!

Baltimore’s Climate Case Will Be Heard in State Court

Last week, the 4th Circuit Court of Appeals affirmed the District Court decision remanding Baltimore’s climate change litigation to state court.  I wouldn’t read too much into the decision, which is founded on the niceties of federal law governing removal of cases to federal court. 

Basically, federal law severely limits courts of appeal authority to reverse erroneous remand orders:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

Thus, even if a District Court makes a plainly incorrect decision that federal courts lack subject jurisdiction over the case, the Court of Appeals may not review that incorrect decision.  All of the oil companies’ arguments that these cases are inherently federal and must be decided by a federal court?  Irrelevant to the Court of Appeals.

Thus, the only issue for the Court of Appeals here was whether what is known as the “federal officer” removal provision under section 1442 applied to plaintiff’s claims.  Section 1442 applies to suits against:

any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.

To suggest that the oil companies were acting under the direction of the United States government in committing the acts related to climate change alleged by the plaintiffs is subject to my favorite rule of statutory construction – the “give me a break” rule.  The only way this case gets reversed is if five members of the Supreme Court decide that all the climate cases belong in federal court and, as a result, the Court issues an ipse dixit decision, which SCOTUS certainly can do.

Federalism and the Regulation of PFAS

There has been much angst at the state level that EPA has not moved faster to develop drinking water or cleanup standards for PFAS.  One of the states affected by the pace of EPA’s regulatory efforts is New Hampshire.  Taking up the mantle, New Hampshire enacted legislation requiring the Department of Environmental Services to take a variety of actions with respect to PFAS.  One required action is the development of a plan for the establishment of surface water quality standards for four PFAS compounds.

I’m not going to address in this post the wisdom of the legislation or DES’s response.  (And in the spirit of full disclosure, I am on the Coakley Landfill Superfund Site Executive Committee; PFAS have been detected at the Coakley Site.)

The focus of this post is on the federalism implications of the current EPA approach towards PFAS.  Wisely or not, EPA is proceeding at a much more deliberate pace in addressing PFAS than a number of states think is appropriate.  Wisely or not, a number of state have decided that they now have to tackle PFAS regulation on their own, without waiting for EPA.

What’s been the result?  Well, one result is that state agencies such as NHDES are being asked to do work that they have traditionally not done, with resources that they do not have.  Here are some nuggets from NHDES’s recent report to the legislature concerning its plan for developing surface water quality standards for PFAS:

If NHDES is to fulfill its mission and be able to respond to other emerging contaminants, it is important to consider that capacity building within NHDES and other state agencies. Capacity building requires expansion and staffing of existing programs. This includes having dedicated staff who work on emerging contaminant issues without sacrificing time and effort intended for ongoing issues.

One of the issues that NHDES addressed was whether surface water quality criteria should address risks to aquatic life or just public health.  Here’s what the report says:

It is not recommended that New Hampshire embark on developing its own aquatic life use criteria at this time. The number of aquatic life toxicological data gaps for most of the PFAS compounds is extensive. While New Hampshire should make efforts to contribute to the overall body of scientific literature on the impacts to aquatic life, it is not rational to think that New Hampshire should take on the full burden of those data gaps.  (Emphasis added.)

In other words, federalism doesn’t really work if all it means is that the federal government punts on difficult issues and simply pushes the costs of environmental regulations onto the states.  The states aren’t happy, but neither is the regulated community, which benefits from a least a modicum of consistency that is possible when EPA develops national standards.

In fact, this isn’t federalism; it’s just passing the buck.

The Science Advisory Board Lives!

The attack on science by this administration is not news at this point.  Part of that attack has been to increase the number of industry scientists on EPA’s Science Advisory Board.  I have no objection per se to additional industry representation on the SAB; a lot of good science gets done by industry.  There are dangers, though.  When Tony Cox, who is neither a statistician nor an epidemiologist, is able to drive the SAB to take the position that epidemiological studies should not be the basis for setting National Ambient Air Quality Standards, reasonable people begin to worry.

It’s thus both comforting and important to note that the SAB last week rejected the science behind perhaps the two most significant deregulatory actions that this administration has taken.  On February 27, the SAB criticized the technical justification for the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule,” i.e., the roll-back of the Obama administration’s fuel efficiency standards.  The SAB noted that “there are significant weaknesses in the scientific analysis of the proposed rule,” finding that EPA’s model “generate(s) implausible results.”

The very same day, the SAB went even further with respect to EPA’s revised WOTUS rule.  Although still written in dry scientific jargon, the SAB’s WOTUS letter was positively scathing.  Among the criticisms:

The proposed Rule does not fully incorporate the body of science on connectivity of waters.

There is no scientific justification for excluding connected ground water from WOTUS if spring-fed creeks are considered to be jurisdictional.

The proposed Rule excludes irrigation canals from the definition of WOTUS. Biological and chemical contamination of large-scale irrigation canals presents a documented and serious risk to public health and safety.

I could – and the SAB does – go on.

On the WOTUS rule, the SAB also subtly takes on EPA’s legal defense of the rule.  Without wading into EPA’s analysis of the federalism issues, the SAB notes that the statute’s overall objective is “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”  In other words, if EPA ignores the science, it’s ignoring the statutory objective.

In any case, while we can all fret about the long-term viability of the SAB under the Trump Administration, the SAB deserves plaudits or speaking truth to Power on these two critically important rules.

Whether Power listens in either case is another matter.  I’m not optimistic.

Trees Don’t Have Standing and Lake Erie Does Not Have a Bill of Rights

Almost 50 years ago, Christopher Stone published “Should Trees Have Standing,” suggesting that the natural world should be given legal rights to ensure its protection for future generations.  It is not, I say with my usual gift for understatement, an idea that has taken widespread hold in legal systems in the United States.  It has had broad philosophical influence, however, and attempts are made periodically to implement Stone’s idea.  And so we come to Drewes Farms Partnership v. City of Toledo.

After toxic algae blooms in Lake Erie poisoned Toledo water in 2014, the City residents voted to enact the “Lake Erie Bill of Rights” to the Toledo charter.  It’s difficult to overstate what a piece of work the “LEBOR” really is.  Here are some highlights.

Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.

All rights secured by this law are inherent, fundamental, and unalienable, and shall be self-executing and enforceable against both private and public actors.

It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,

The Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City.

(And perhaps my favorite section):  All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.

Judge Jack Zouhary was not amused.  In a concise opinion, he found LEBOR void for vagueness:

What conduct infringes the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve”? How would a prosecutor, judge, or jury decide? LEBOR offers no guidance.

LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning. Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness.

There are several other gems in this Judge’s short opinion, but I’ll just note that he agrees with me that the City’s effort to override state law was problematic:

LEBOR’s attempt to invalidate Ohio law in the name of environmental protection is a textbook example of what municipal government cannot do.

For my own part, I understand where LEBOR’s backers are coming from, but I can never support giving trees standing.  My objection is pretty simple – who gets to speak for the trees?  It just seems to me the height of self-righteousness for the backers to arrogate that right to themselves.  And however much they deny it, that’s what these efforts always come down to.

Can Market-based Approaches Help to Clean Up the Great Lakes? Why the Heck Not?

Earlier this week, EPA announced grants for the development of market-based programs to address water quality problems in the Great Lakes, as part of the Great Lakes Restoration Initiative.  I’ve spent more than a little time criticizing EPA’s actions under this Administration.  Having spent the better part of 30 years pushing for market-based approaches to environmental regulation, it has been more than a little distressing to have this president give regulatory reform such a bad name.

There’s no question that market-based approaches work.  This has been demonstrated repeatedly with respect to air emissions, from the Acid Rain program to RGGI.  Nutrient trading is another great opportunity to use markets to reduce pollution.  Let’s hope that these grants lead to some creative programs to reduce nutrient loading to the Great Lakes.  As the accompanying picture shows, addressing nutrient pollution in the Great Lakes will be no small task.

And just so my friends don’t think I’ve gone over to the dark side in encouraging these market-based approaches, I will note that the $1.8 million in grants feels like a drop in the proverbial bucket given the scope of the problem – and it’s hard to imagine EPA doing much more to restore the Great Lakes, given that the President’s requested budget would decrease overall EPA funding by more than 25%.  Moreover, in another great Trump irony, at almost the same time EPA announced the $1.8 million in grants under the Great Lakes Restoration Initiative, his budget proposes to slash funding for Chesapeake Bay restoration efforts by 91%, from $85 million to $7.3 million!

Why am I not surprised?

Evidence That Low Exposures to Particulate Matter Pose Health Risks Continues to Accumulate — Will Administrator Wheeler Listen?

EPA’s Office of Air Quality Planning and Standards has issued its final “Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter.”  The Policy Assessment comes with the standard disclaimer that its “findings and conclusions are those of the authors and do not necessarily reflect the views of EPA.”  Sadly, truer words were never spoken.

Those following this issue know that, in response to the draft PA, a majority of EPA’s Clean Air Science Advisory Committee concluded that available evidence does not warrant tightening the primary PM2.5 standard.  Since this is a blog post, I’ll give the short version – Tony Cox, the CASAC chair, doesn’t appear to believe that epidemiology provides a basis for setting NAAQS.

The staff of the EPA Office of Air Quality Planning and Standards was not impressed.  Although written in dry academic prose, the final PA’s response to CASAC can be boiled down to “You have got to be effing kidding me.”  The purpose of the NAAQS is of course to set a standard that is “requisite to protect the public health” “with an adequate margin of safety.”  On that score, the PA states that:

when air quality in the 47 study areas is adjusted to simulate just meeting the current standards, the risk assessment estimates from about 16,000 to 17,000 PM2.5-related deaths from ischemic heart disease in a single year.

Does that sound like an “adequate margin of safety” to you?  Oh, and by the way, the current roster of CASAC members contains no statisticians or epidemiologists and EPA disbanded the panel with special expertise in PM that used to advise CASAC on the PM NAAQS.

Since the courts have traditionally looked to CASAC for evidence that EPA has acted reasonably in setting NAAQS, judicial review is going to be interesting if EPA decides not to tighten the PM2.5 standard and relies on CASAC’s views to do so, but states and NGOs challenge EPA’s failure to tighten the standard and provide a mountain of evidence that CASAC has lost its collective mind.

Being Endangered Is Not the Same as Being Threatened

Late last month, Judge Emmet Sullivan of the Federal District Court for the District of Columbia, remanded to the Fish and Wildlife Service its decision to list the northern long-eared bat as threatened. The decision is lengthy and complicated, but its crux is not.

As Judge Sullivan noted, under the ESA, a species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.”  A species is “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.  The protection due to endangered species is significantly more stringent.  For endangered species, takings are prohibited.  For threatened species, the Secretary of the Interior is merely required to “issue such regulation as he deems necessary and advisable….”

Last bit of preface – the phrase “significant portion of its range” matters, because the Secretary can make a finding that a species is endangered or threatened throughout just a portion of its range and take steps to conserve a species in that portion of its range.

With respect to the long-eared bat, the Fish and Wildlife Service found that the bat was threatened throughout its range.  As a result, it determined that it did not need to assess if the bat was endangered throughout some portion of its range.

Can I just stop here?  The logical flaw in the FWS argument is big enough to drive an endangered whale through – or something like that.  If a species is endangered in a portion of its range (and there is certainly evidence to that effect for the long-eared bat), then it may need the protections given to endangered species in that portion of its range, even if it is also given the lesser protections due to threatened species throughout its range.

I would not have needed 65 pages to make that point, but that’s probably one good reason why I’m not a federal judge.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

This post was previously published on ACOEL.org.

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud,… More

The “Navigable Waters Protection Rule” — Candidate For Misnomer of the Year

Yesterday, EPA and the Army Corps of Engineers finalized their revisions to the definition of Waters of the United States.  There’s nothing in here that everyone didn’t already know.  The agencies largely sidestepped the science and issued a rule based on a narrow reading of the permissible scope of the term “navigable waters” under the Clean Water Act.  Time will tell whether the courts buy it, though I assume that the Vegas oddsmakers are giving the Administration a pretty good shot at prevailing.

To me, the most noticeable aspect of the final rule is that it now has a name: “The Navigable Waters Protection Rule.”  Since even the rule’s staunchest defenders couldn’t claim that the new rule is as protective as the Obama-era rule, there’s a certain amount of gall to this name.  Indeed, I think one could say that the gall here is completely unmitigated.

The use of Newspeak in the naming of statutes and regulations has a long history and probably predates George Orwell.  This is a pretty good example, though.  How about “The kinda, sorta, protective, as long as doesn’t offend any of our supporters, rule”?

If any readers want to suggest better names, please go right ahead.

The Wehrum Memo Still Isn’t Final Agency Action

The D.C. Circuit Court of Appeals has denied the petition for rehearing in the “once in, always in” case.  It was a one sentence order.  Judge Rogers, who dissented from the original panel opinion, dissented from the denial.  Judge Rogers is still right.

The Wehrum Memo has – by intent – caused a 180o turn in how EPA handles MACT jurisdictional decisions.  I remain of the view that the panel decision is inconsistent with the D.C. Circuit’s prior opinion in Appalachian Power Company v. EPA.  I also think that those in the regulated community who like the substance of the Wehrum Memo should be careful what they wish for.  This decision is going to come back to haunt them.  The regulated community has always been rightly concerned about agencies’ ability effectively to regulate through guidance.  Now, agencies may do so with much less concern about being subject to judicial review.

It’s more than a little ironic that the administration that has raged against agency use of guidance did not hesitate to make a major policy change through guidance.  I think it was Emerson who said that a foolish consistency is the hobgoblin of people who are not very stable geniuses.

Finally, I’ll also note briefly that, while people may disagree about the merits of the policy, it’s not obvious to me that the Wehrum Memo is wrong as a matter of law.  From a common sense perspective, I think it would seem odd to most people, including judges who are not steeped in the Clean Air Act, that a jurisdictional determination remains in place forever, even if the underlying facts supporting that determination change.

However, as Judge Rogers noted, we now won’t know the answer to that question unless/until an individual Title V permit that raises this issue gets challenged.