Discretion is the Better Part of Valor; Court Dismisses Clean Water Act Citizen Suit Challenging POTW’s Enforcement Discretion

The scope of suits available to private citizens under the Clean Water Act is not unlimited.  A Federal District Court in Massachusetts recently made that clear in dismissing a citizen suit filed by the Conservation Law Foundation against the Massachusetts Water Resources Authority, which operates Boston’s Deer Island Sewage Treatment Plant, the second largest treatment plant in the country.  (Full disclosure: I represented the MWRA in that suit.) The Court rejected CLF’s claims that the MWRA was required to take enforcement action against every industrial user that discharged to the MWRA’s sewer system in violation of pretreatment regulations.… More

Massachusetts Codifies “No Net Loss” Conservation Policy Under Article 97

On February 10, 2023, the Public Land Preservation Act (PLPA), Chapter 274 of the Acts of 2022, (M.G.L. Ch. 3 §5A), went into effect.  It both codifies existing practices and creates new obligations that public entities in the Commonwealth must follow to dispose or change the use of interests in land protected by Article 97 of the Massachusetts Constitution.

Article 97 provides:

The people shall have the right to clean air and water,… More

EPA Proposes Safe Drinking Water Act Standards for PFAS: Forever Chemicals Will Lead to Forever Superfund Sites

Yesterday, EPA proposed to regulate certain PFAS under the Safe Drinking Water Act.  EPA proposed Maximum Contaminant Level Goals for PFOA and PFOS of zero.  It proposed Maximum Contaminant Levels for PFOA and PFOS of 4.0 parts per trillion. 

EPA also proposed MCLGs and MCLs for PFNA, PFHxS, PFBS, and HFPO-DA (“GenX Chemicals”) based on a novel hazard index approach to these compounds as a group.  Determining a violation will require use of a calculator that EPA will provide that will calculate the HI for each of of these PFAS compounds.  The HI for each compound will be summed and the HI of all of them as a group will comply with the SDWA if the total HI does not exceed 1.0.

I’m not going to get into arguments concerning whether these limits are too stringent or not stringent enough.  I will note, though, that anyone breathing a sigh of relief that EPA did not propose MCLs for PFOA and PFOS closer to the recently revised Health Advisories, which were in the low parts per quadrillion range, should read EPA’s explanation for the selection of the MCLs.  EPA first notes that the SDWA calls for MCLs to be set as close to MCLGs as possible.  EPA then states that:

Considering feasibility, including currently available analytical methods to measure and treat these chemicals in drinking water, EPA is proposing individual MCLs of 4.0 nanograms per liter (ng/L) or parts per trillion (ppt) for PFOA and PFOS.  (Emphasis added.)

The proposal also notes that, in prior rules, establishment of limits at or near the practical quantitation limit drove laboratories to improve their technology.  What happens when the PQL for PFOA and PFOS drops to 400 ppq or 40 ppq or 4 ppq?  Will EPA revise the MCLs in order to approach the MCLG of zero?

I’ll also note that this proposal is limited to the SDWA.  However, as practitioners know, MCLs are used at CERCLA sites to determine applicable or relevant and appropriate requirements.  Once PFOA and PFOS are formally listed as hazardous substances and once this SDWA rule is finalized, CERCLA sites across the country are going to face pressure to attain 4.0 ppt in groundwater for PFOA and PFOS.

And given the ubiquity of PFAS generally and EPA’s proclivity towards reaching for the nearest deep pocket in cleanup situations, it’s not going to be long before EPA is asking PRPs at CERCLA sites to embark on expensive cleanups for PFAS contamination even in cases where there’s pretty solid evidence that the PFAS are not site-related.

Maybe that fine mess will be the straw that breaks the back of Congress’s inability or unwillingness to reform the worst-written statute in US legislative history – CERCLA.  Don’t hold your breath.

New England states unite to build new offshore wind HVDC transmission, seek DOE funding

Four New England States – Connecticut, Massachusetts, Maine, and Rhode Island – recently submitted a concept paper to the U.S. Department of Energy (DOE) proposing to build up to three new high voltage direct current (HVDC) transmission lines and related onshore system upgrades to support the injection of new offshore wind resources in New England.

Onshore and offshore transmission constraints are a major barrier to the successful deployment of large-scale offshore wind along the Atlantic coast.… More

It’s More Important for EPA to Ensure that States Are Good Neighbors Than That They are Perfect Neighbors

Last week, D.C. Circuit Court of Appeals rejected challenges to EPA’s “Revised Cross-State Air Pollution Update Rule”.  The Court found that the Rule was “an appropriate exercise of EPA’s statutory authority”. 

I find the decision noteworthy for two reasons.  First, the decision is a full-throated endorsement of judicial deference to agency decision-making.  Of course, this isn’t a Chevron case; it’s not about deference to agency interpretation of its statutory authority.  It’s about good, old-fashioned, arbitrary and capricious review.  Still, the Court’s language was pretty eye-catching.  I’ll just note a few of the court’s statements:

[a]gency determinations based upon highly complex and technical matters are entitled to great deference.

[W]e will give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.

Statistical analysis has been described as perhaps the prime example of an area of technical wilderness into which judicial expeditions are best limited to ascertaining the lay of the land.

The reviewing court also will not take it upon [itself], as nonstatisticians, to perform [its] own statistical analysis—a job more properly left to the agency to which it was delegated.  [I]t is only when the model bears no rational relationship to the characteristics of the data to which it is applied that [the reviewing court] will hold that the use of the model was arbitrary and capricious.

You get the idea.  I also point out that Judge Neomi Rao, every conservative’s favorite anti-regulation judge, joined the opinion.  Of course, she could well be thinking about what may be sauce for the gander in a few years, when the Court might be reviewing another Republican administration’s proposal to make NAAQS less stringent.

The other important aspect of the decision was its support for EPA’s use of a modeling approach based in part on its need to get the Revised Rule in place quickly.  The Court found that the urgency to act, emphasized by prior court decisions giving short shrift to requests by EPA to delay issuing rules under the Good Neighbor provisions of the CAA, helped justify EPA’s approach.

Given the limited amount of time EPA had to complete the rulemaking for the Revised Rule, we discern that EPA reasonably chose to use existing air quality modeling and contribution information to derive an appropriately reliable projection of air quality conditions and contributions in 2021.

In short, EPA still gets substantial deference in its technical judgments, and sometimes it’s more important to get those judgments into law than it is to refine them until they are perfect.

May A Court Take Judicial Notice of Gravity?

Earlier this month, United States District Court Judge Stephen Wilson held that NL Industries was not liable under CERCLA for air emissions of lead because such emissions did not constitute “disposal” within the meaning of CERCLA.  I’m going to give Judge Wilson a pass, both because there was an arguably binding 9th Circuit precedent and because of CERCLA’s general incomprehensibility. 

However, whether one blames Judge Wilson or the 9th Circuit panel in Pakootas v. Teck Cominco Metals, something appears to have gone seriously awry.  It’s not totally clear why Judge Wilson (or the 9th Circuit) concluded that “disposal” does not include air emissions.  Although not a great fit, air emissions through a stack would seem to constitute a “discharge”.

It may be that the definition, which was – foolishly, I might note – borrowed from the Solid Waste Disposal Act, refers to the “discharge … of any solid or hazardous waste into or on any land or water….”  Judge Wilson does not specifically state that a discharge into air therefore does not fall within the statutory definition, but he does note that the definition does not include “passive migration”.

However, when lead particles are discharged through a stack, should we think of it as “passive migration” when those particles ultimately settle into land or water or should we think of it as the inevitable consequence of the gravitational interaction of the lead particles and the earth’s surface.  For a court that cited the old shibboleth that CERCLA “generally must be construed liberally to accomplish its … goals”, it wouldn’t be much of a stretch to conclude that air emissions of lead particles necessarily constitute “disposal … into or on any land or water”.

I haven’t gone back and looked at how Pakootas has fared in other circuits, but I can certainly imagine other circuits reaching a different conclusion.  And it’s not just a moot question.  Given the ubiquity of PFAS and the number of cases we’re now seeing where PFAS contamination is alleged to have resulted from air emissions, the issue is likely to arise in other cases.

It will be interesting to see how courts outside the 9th Circuit Court resolve this issue.   In the meantime, I can’t help but think of the wise words of famous baseball umpire Bill Klem.  I like to think of this of this as the first example of a fact-finder taking judicial notice of the existence of gravity.

Another NEPA Obstacle To Coal Mining

Last week, Judge Donald Malloy vacated the Environmental Assessment for the Bull Mountains Mine No. 1 in central Montana.  Judge Malloy had already vacated the EA once; when the 9th Circuit affirmed Judge Malloy’s decision that the EA violated NEPA, it remanded the case for new findings as to whether vacatur would be appropriate. 

The default rule is that when agency action has been struck down, vacatur follows.  However, the court may choose not to vacate, particularly if the agency’s errors seem curable and if the consequences of vacatur would be substantial.

There are two important issues in the decision.  The first is that, while the government opposed vacatur, it had already decided that the proposed project now warrants preparation of an environmental impact statement.  To Judge Malloy, this decision by the Office of Surface Mining Reclamation and Enforcement was tantamount to an admission that the errors in the EA could not be cured.  I get that, but it seems to lead to the wrong incentives, because it discourages agencies from undertaking corrective actions in these contexts.

The second aspect of the vacatur decision is the degree of disruption that vacatur would cause.  The mine operator, Signal Peak, uses what is known as “longwall mining” at Bull Mountains No. 1.  Signal Peak argued that vacatur would require that the longwall be disassembled and moved.  Signal Peak also argued that moving the longwall would not just cost millions of dollars; it would also cause greenhouse gas emissions (moving the longwall requires substantial amounts of cement and steel).

Judge Malloy was not persuaded.

The disruptive consequences Signal Peak alleges are a product of its reliance on Mine Expansion approvals pursuant to invalid EAs.…  Leaving the Mine Expansion approval in place, based on a deficient EA, risks more potentially disruptive impacts than keeping it in place.  A properly conducted EIS does not necessarily mean federal mining in the Expansion Area will proceed.

NEPA remains a potent weapon.

Does Environmental Review of Projects Needed for a Net-Zero Economy Lead to a Death By a Thousand Cuts?

Earlier this week, the decision in Bartell Ranch v. McCullough generally supported the Bureau of Land Management’s review under NEPA and related statutes of a lithium mine near Thacker Pass, Nevada.  If approved, Thacker Pass would be the largest lithium mine in the United States.  The decision and the entire review of the mine are important, given how controversial large mining projects can be and how important lithium and other minerals are to building a zero-emission economy.

Here are the significant takeaways:

  • Acknowledging the size and scope of the Thacker Pass mine, it’s clear that this was basically a plain vanilla review, that BLM did a perfectly adequate job assessing its potential impacts, and that the BLM analysis rightly survived judicial scrutiny. Nonetheless, while the NEPA process took less than a year from BLM’s notice that it would prepare a Draft Environmental Impact Statement to the completion of the Final EIS, it took another 2+ years to get to a District Court decision.  We’re running out of time folks.  We’re going to have to accept some compromises – including some environmental costs – if we’re going to build a zero emissions economy.  And if we don’t start making progress on speeding environmental reviews, we’re going to regret it later.
  • The Court did reject one significant part of BLM’s record of decision: the determination that BLM could approve land for waste dumps and tailings without first making a finding that there are valuable minerals on the land to be used for waste disposal.  This may be a correct interpretation of the Mining Law of 1872, but it makes no sense and only demonstrates that we have to update the Mining Law to meet 21st Century requirements.  Why should BLM have to make any such demonstration?  Don’t we want waste disposal to occur on land that does not have valuable minerals?
  • Based on the conclusion that BLM violated the mining law, the Court remanded the ROD for Thacker Pass, but did not vacate it, finding that it was likely that BLM could cure the error. It’s noteworthy that Lithium Nevada, the project proponent, argued that vacatur would also be improper because lithium mining is

required to keep pace with transportation electrification and carbon reduction, in addition to providing lithium products needed for national security.

The Court concluded that it did not need to decide on the basis of what would be a somewhat novel argument, but I find that unfortunate.  We are going to have to start developing doctrines that speed review of these cases.  We’re also going to have to put a thumb on the scales in support of projects that are necessary to build the economy that can thrive without GHG emissions.

All in all, a reasoned decision that will probably allow Thacker Pass to proceed at some point, but one which nonetheless adopted a judicial business as usual approach that may not be up to the challenges we face.

Accelerating Electric Vehicle Adoption in 2022

This past year represents a real turning point in the transition to electric vehicles, demonstrated by new major incentives and regulatory activities at both federal and state government levels and several notable accomplishments in the private sector. First, the U.S. government approved EV Infrastructure Deployment Plans for all 50 states, the District of Columbia and Puerto Rico with an estimated $4.155 billion in funding going to states in the next five years to build out EV infrastructure.… More

CEQ Issues NEPA Climate Guidance

The new year brings new NEPA (interim) guidance on climate change.  It recommends several ways that federal agencies should consider climate change impacts for projects subject to NEPA review.  The guidance is effective immediately but is subject to a 60-day comment period that could lead to revisions.  Comments on the guidance are due to CEQ on March 10, 2023.

All projects that are federally funded or need federal permits,… More

Monitoring, Reporting, and Verification: Why the Carbon Dioxide Removal Industry Can Expect—and Could Benefit from—Increased Oversight

Carbon dioxide removal (CDR), or the range of technologies and processes for removing carbon dioxide from the atmosphere and oceans, promises to be a major part of US and global climate strategy in the coming decades.  Recent governmental actions have created significant financial incentives for the rapidly growing CDR sector.

Given the heightened importance of CDR technologies, some regulators and members of the public are calling for a broader range of measures to ensure that CDR projects are accurately monitored,… More

News Flash! International Cooperation on the Environment Remains Possible

In these times of much woe, it’s always noteworthy when the mainstream media reports good news.  Especially when it’s good news about effective international cooperation on environmental protection issues. 

Today, the New York Times reported that a recent assessment shows that the world is on track to reach pre-1980 levels of upper atmosphere ozone by roughly 2040.  That is in spite of the discovery in 2018 of “rogue” use of chlorofluorocarbons, probably from factories in China.

And so, this is not just evidence of progress resulting from the original cooperation that led to the Montreal Protocol in the first place.  Even in this day and age, release of the 2018 report and the resulting attention brought to the issue was apparently sufficiently embarrassing to the Chinese government to cause it to crack down on the use of CFCs.

It’s also noteworthy that the crackdown occurred without use of any enforcement mechanism.  There was no punishment.  There wasn’t even any acknowledgement of the issue by the Chinese.  Nonetheless, the offending emissions ceased.  I wouldn’t say that everything is always for the best in this best of all possible worlds, but it’s important to recognize that cooperation on international environmental issues remains possible.

We sure could use some more of it.

EPA Proposes to Lower the PM2.5 NAAQS — Searching For the Goldilocks Level

EPA has finally proposed revisions to the national ambient air quality standard for PM2.5.  The Administrator is proposing to lower the standard from 12.0 ug/m3 to a range of 9.0 to 10.0 ug/m3

Readers of this space will recall that the Clean Air Science Advisory Committee recommended that EPA lower the PM2.5 NAAQS to between 8.0 and 10.0 ug/m3.  Environmentalists aren’t going to be happy with any standard above 8.0 ug/m3 and it’s likely that conservatives aren’t going to be happy with any decrease from the current standard.

In any case, it appears that EPA is not worrying about any stakeholders other than the nine members of the Supreme Court.  Administrator Regan is clearly looking for the Goldilocks NAAQS; neither too lax nor too stringent.  The following or similar language appears repeatedly throughout the proposed reconsideration:

The Administrator recognizes that the final suite of standards will reflect the Administrator’s ultimate judgments in the final rulemaking as to the suite of primary PM2.5 standards that are requisite to protect the public health with an adequate margin of safety from effects associated with PM2.5 exposures. The final judgments to be made by the Administrator will appropriately consider the requirement for standards that are neither more nor less stringent than necessary and will recognize that the CAA does not require that primary standards be set at a zero-risk level, but rather at a level that reduces risk sufficiently so as to protect public health with an adequate margin of safety.

It’s hard to argue with this approach and I expect both that EPA will stick with it in the final decision.  I also expect that the courts will agree that EPA’s decision, whether at 9.0 ug/m3 or 10.0 ug/m3, is neither too hot nor too cold, but is instead just right.

I’d also speculate that the next time EPA reviews the PM NAAQS, the only question will be whether EPA has reduced it enough; it’s not going to be considering whether the then-current NAAQS is too stringent.

U.S. DOE Announces $3.5 Billion to Accelerate Direct Air Capture Commercialization

The U.S. Department of Energy (DOE) recently announced a $3.5 billion funding opportunity to create regional Direct Air Capture (DAC) Hubs. The DAC Hubs program is one of four new programs announced by the Biden-Harris administration aimed at building “a commercially viable, just, and responsible carbon dioxide removal industry,” in the U.S. with funds from the Bipartisan Infrastructure Law (BIL).

Under the DAC Hubs program,… More

MassDEP Proposes Cumulative Impact Analysis Regulations — It’s About to Get Interesting.

After more than a year of work, MassDEP has proposed regulations that would require applicants to perform cumulative impact analysis prior to issuance of certain air emissions permits.  The regulations were required by the environmental justice provisions of the 2021 Climate Roadmap Act.

The requirement to perform a CIA will apply to any person seeking a comprehensive plan approval in or within one mile of any environmental justice community as well as to any project requiring a comprehensive plan approval that is within five miles of an EJ community, if the project will be a major source under MassDEP rules.

Key requirements include:

  • Enhanced public notice and involvement requirements
  • A thorough assessment of existing community conditions
  • Air quality dispersion modeling
  • Risk characterization for air toxics
  • Overall evaluation of a project’s cumulative impacts, including “any mitigation measures that [the proponent] will implement to reduce or minimize the cumulative impacts of the proposed project.”

There are lot of important issues here, but I’ll note two for those potentially subject to these regulations.  First, the proposed regulations state that MassDEP “shall not propose to approve” any application unless the cumulative cancer and non-cancer risks are less than the regulatory limits.  However, what if the risk exceeded the threshold even absent the new project and the new project proposes to reduce the cumulative risk?

This first question pretty much frames the second – how will MassDEP review proponents’ analysis of potential mitigation measures?  Will it essentially create a virtual allowance system, in which proponents must buy emissions reductions that will be greater than the emissions of the project itself as a prerequisite to approval?

At a broader level, it’s reasonable to ask whether the cost of mitigating cumulative impacts should be borne entirely by the new project.  What if it’s a mostly clean project that provides a lot of benefits, including to the EJ community that the regulations are intended to protect?  This isn’t an easy problem to solve, given that air plan approvals are good for the life of a project; there is no requirement to renew the approval at any time.

There are a lot of other issues that those potentially subject to the CIA regulations should review, including the requirements for doing air dispersion modeling and how the air toxics risk characterizations must be conducted.  For those interested in commenting on the proposal, MassDEP will hold virtual public hearings on March 7 and 9.  The public comment period ends April 7, 2023.