Maine, Massachusetts, and Maryland Expand Utility Regulators’ Mandate to Include Climate Considerations, Marking an Emerging Trend by State Legislatures

Maine, Massachusetts, and Maryland all passed legislation this summer that expands the raison d’etre of state utility regulatory bodies to include addressing the impacts of climate change. These efforts mark an emerging trend of legislative bodies directing utility regulators to help advance climate policies. This enhanced vision of utility regulation gives me hope in the fight against climate change.

Despite the fact that utility regulators play a huge role in our energy sector–the sector primarily responsible for historical U.S.… More

Maui Needs a NPDES Permit; What’s Next for WOTUS?

Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility.  It is the first trial court decision applying the factors identified by Justice Breyer in the SCOTUS Maui decision. 

Judge Mollway found the most important factors to be what she considered to be the relative short distance from the discharge to the surface water (½ mile) and the relatively short time between the groundwater discharge and the surface water discharge (as little as 84 days and, overall, roughly a year).  Judge Mollway also thought that the sheer volume of the discharge ultimately reaching the surface water is important.

Obviously, ½ mile and one year are still significantly different than the time or distance involved in a discharge direct to surface water.  However, Judge Mollway, effectively put these numbers in context:

Because the Supreme Court knew it was dealing with movement through groundwater, it makes sense to assume that the Court expected the parties to be dealing with transport time measured in months. Notably, the Supreme Court set its extreme at “many years,” not at “many months,” and not even at one year or two years.

I’m confident that Judge Mollway’s analysis comports with the expectation of the SCOTUS majority.  The discharge from the POTW, even though not immediately abutting the shore, was the type of discharge that SCOTUS believed is intended to be encompassed by the NPDES program.

The real question is where do we go from here?  It at least sets a benchmark for other courts to utilize if they so choose.  If you’re less than ½ mile or so from surface water, and it takes less than a year or so for the discharge to reach the surface water – at least if the volume is significant – then it’s plausible to think an NPDES permit may be required.  However, the decision still largely leaves the jurisdictional determination on a case-by-case basis.

More importantly, the decision provides no guidance on the remedy.  What standards should apply?  What effluent limits should be imposed?  I can imagine a facility owner persuasively arguing that its discharge does not cause the exceedance of any water quality criteria, and thus that no effluent limits need be imposed.

In the meantime, what does this mean for legislative efforts to reform the Clean Water Act and efforts by EPA and the Army Corps to develop a workable regulatory definition of WOTUS?

My quick answer is that it will probably have no effect.  I know that experts from both sides of the aisle love to hate Breyer’s opinion.  I may be the only environmental lawyer around who thinks that it was a creative and appropriate effort to solve what has been an insoluble problem.  And I still think that judicial implementation of the SCOTUS opinion may be our best practical hope to get to a workable definition – even if no one’s happy in the meantime.  It’s not as though anyone was happy before the SCOTUS decision.

Three cheers for Judge Mollway.  Let’s see how this plays out.

Will Increased Enforcement Speed Cleanup of Superfund Sites in EJ Communities?

Earlier this month, EPA circulated a memorandum on “Strengthening Environmental Justice Through Cleanup Enforcement Actions.”  It could significantly increase the volume of CERCLA enforcement actions.  More importantly, if implemented appropriately, it could help reduce the risks posed by Superfund sites in overburdened EJ communities. 

The trick of course will indeed be how it’s implemented.  If this becomes just another in a long line of screeds on the subject that all Superfund cleanups take too long, it will accomplish nothing for cleanups in general or EJ communities in particular.  That why, to me, two sentences in the memo are key:

EPA uses mapping and screening tools, including EJSCREEN, in combination with local knowledge to help identify overburdened communities that may be disproportionally impacted by adverse health and environmental effects.

[EPA will] review PRP-lead sites designated as “human exposure not under control” (HENUC) to determine if enforcement actions can effectively reduce human exposure.

In other words, the key to the success of this initiative is EPA’s wise use of data.  Historically, there has been almost no connection (very minor rhetorical exaggeration) between the risk posed by a superfund site and the amount of time and money spent to remediate it.  EPA should be using data to identify the sites that really pose immediate – not just “imminent” – hazards to human health, particularly in overburdened EJ communities.  When it does so, it can focus time and resources on the sites that meet those two criteria and, where necessary, take enforcement action against PRPs who are slow in addressing such significant risks to EJ communities.

If that happens, then EPA can take a bow and I’ll applaud.  However, if in the next six months I hear from an EPA attorney that the Assistant Administrator has told staff that cleanups are just taking too long, then I’ll know that it’s just Superfund business as usual – and that would not be a good result.

NESCOE Report Advances Governors’ Demands for Climate Leadership at ISO-NE

The managers of the New England States Committee on Electricity (“NESCOE”) recently released a report (“Report”) to New England’s governors to advance its shared vision for a clean, affordable, and reliable 21st-century electric grid. The Report is the latest development that highlights the growing tension between the states’ decarbonization policies on the one hand, and ISO-NE’s wholesale market rules, on the other. The Report calls for critical changes to three elements of New England’s regional energy system: wholesale market design,… More

At What Level of Government Are We Going to Regulate Climate Change? (Hint — It Is a Global Problem.)

Last week, Judge Yvonne Gonzalez Rogers ruled that the Berkeley ordinance essentially banning use of natural gas in new construction was not preempted by the Energy Policy and Conservation Act.  I’m not here to opine on the legal merits of the decision.  I will note note that the Judge’s reliance on textual analysis and the asserted federalist bent of SCOTUS’s conservative wing might give this opinion more life than one would otherwise expect – though I’ll also note that the conservative wing’s federalist proclivities often seem to turn on whether they agree with the underlying policy at issue. 

My concern here is the extent to which we in the United States are making policy intended to address climate change – which is not even a national problem, but a global problem – at a broad range of levels of government.  Berkeley, with a population of barely 100,000 people, is trying move public policy towards an end of new natural uses of natural gas.  South Portland Maine, with a population of around 25,000, is trying prevent shipments of tar sands oil from South Portland.  (Full disclosure – Foley Hoag represents South Portland in litigation over its ordinance)  Washington State, with a population of somewhat more than 7 million, is trying to avoid facilitation of coal exports.

I’m sympathetic to all of these policy innovations, or at least the motives behind them.  I still think that natural gas is an important bridge fuel, but I also recognize that we have to get to the end of that bridge as quickly as possible.  Limiting markets for tar sands oil and coal exports?  Check and check.

Moreover, all of these moves were based on the exercise of traditional police powers by local governments.  The courts reviewing the Berkeley ordinance and the South Portland ordinance both rightly cited to local police powers in ruling that those ordinances are not preempted.

Finally, I also have sympathy for the argument that, in Judaism, as expressed as:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

In other worlds, local action may not solve the problem of climate change, but it represents – one hopes – the collective will of local governments to do what they can, rather than just throwing up their hands in despair.

And yet, we still have to recognize that it’s going to be difficult, if not impossible, to cobble together an effective policy to mitigate climate change by the accumulation of a bunch of local policies.  My real hope here is that the combination of the right local policies somehow, and sometime soon, helps break the logjam preventing the development of comprehensive federal policy.

Can you say “carbon pricing”?

Local Communities and Environmental Groups Bring Challenge to the New York State Office of Renewable Energy Siting’s Regulations for Siting and Permitting Major Renewable Energy Facilities

On June 29, 2021, a cohort of New York local governments (including many where large-scale solar projects are currently proposed), community organizations, and avian interest groups filed a lawsuit in the New York State Supreme Court (the State’s trial-level court) against the Office of Renewable Energy Siting (“ORES”).  ORES is required to respond to the allegations no later than 30 days from receipt.

The ORES was created under the Accelerated Renewable Energy Growth and Community Benefit Act,… More

Congress A Step Closer to Making Corporate ESG Disclosure Mandatory

On June 16, 2021, the U.S. House of Representatives passed legislation that would impose new ESG due diligence and disclosure requirements on publicly traded companies.  H.R. 1187 – the ESG Disclosure Simplification Act of 2021 – would require publicly traded companies to disclose their commitments to ensuring that environmental, social (human rights), and good governance standards (ESG) are reflected in their operations, activities, and supply chains.

The Legislation’s Impact on ESG Due Diligence and Disclosure

Specifically,… More

EPA Withdrawal of Its Proposed Veto of a 404 Permit Is Reviewable — This Should Not Be Earth-shattering News

Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject to judicial review.  Although there was a dissent and the majority opinion was 39 pages, I don’t think that the case should have been so hard.

The Court noted the “strong presumption” that final agency action is subject to judicial review.  It noted that the relevant exception here is whether “agency action is committed to agency discretion by law.”  There’s nothing in the Clean Water Act that commits EPA decisions under 404 to its discretion.  For reasons that remain a mystery to me, the question whether an issue has been committed to agency discretion has morphed into a rule that agency action is unreviewable only:

if no judicially manageable standards are available for judging how and when an agency should exercise its discretion.

Silly me, but I thought that that’s what courts do – they determine the standards to apply in judging whether a challenged agency action was lawful.

I recognize that federal courts are of limited jurisdiction, but the “strong presumption” of the reviewability of agency action is not supposed to be mere words, subject to the almost unlimited creativity of judges who would rather not hear a case.  Agency action should pretty much always be reviewable, if it’s final and if it has legal consequences.

And I’ll note that this is not a left/right ideological issue.  In another recent case, Judge Terry Doughty enjoined the Biden Administration’s pause on the issuance of new fossil fuel leases on public lands and in offshore waters.  I may disagree with Judge Doughty on the merits, but I absolutely agree with his conclusion that the pause was not committed to agency discretion by law.  Liberals and conservatives alike can challenge agency action with which they disagree.

Agencies don’t always get it right.  To me, judicial review of final agency action is a cornerstone of public faith in the administrative state.  If we want people to trust government, then they have to believe that there is a meaningful check on agency action that is arbitrary and capricious.

Massachusetts Claims Against ExxonMobil Survive — Wave of the Future or Litigation Sideshow?

This week, Judge Karen Green denied Exxon Mobil’s motion to dismiss claims brought by Massachusetts under its Consumer Protection Act. The complaint alleges that Exxon Mobil both mislead Massachusetts investors in its marketing to them of Exxon Mobil securities and mislead Massachusetts consumers in its marketing of its products to those consumers.  Judge Green rejected Exxon Mobil’s arguments that it was not subject to jurisdiction in Massachusetts with respect to these claims.  She also rejected Exxon Mobil’s arguments that the complaint failed to state a claim.

On a motion to dismiss, Judge Green’s careful opinion is almost certainly right.  However, that doesn’t really answer the question whether this case – and the type of claims asserted by Massachusetts – are a significant new front in the climate litigation wars or whether they will ultimately be a sideshow.

On the plus side for Massachusetts, cases focused on state consumer protection law avoid most of the risks faced by litigation going to the heart of individual defendants’ responsibility for causing climate change – and they are clearly creatures of state law that belong in state court.

I won’t go into the details here, but the Commonwealth’s allegations supporting its count alleging that Exxon Mobil misled Massachusetts investors has some moderately juicy stuff regarding what Exxon Mobil representatives said in meetings with specific institutional investors in Massachusetts.  Those allegations, if proven, could certainly support a jury finding of an intent to mislead investors.  I will note that, if I were Exxon Mobil’s counsel, I’d focus on the argument that, whether it was misleading investors regarding whether its fossil assets will ultimately be “stranded,” depend, not on whether climate change is real, but on whether governments are going to stringently regulate fossil fuels.  Based on evidence to date, Exxon Mobil – unfortunately – can make a reasonable argument that the evidence still supports a conclusion that they will not.

Moreover, the question remains whether such statements involved “trade or commerce,” which includes “the advertising, the offering for sale, … the sale, … or distribution of … any security.”  That doesn’t seem like a slam dunk to me.

The allegations concerning misleading statements to consumers raises a different set of issues, including whether Exxon Mobil’s statements were mere “puffery” (with the Court persuasively noting that this determination can almost never be made on a motion to dismiss), and whether there’s any reason to believe that any of the statements “directly influence[d] a consumer’s decision to purchase Exxon products.”

Is this the next wave of climate litigation?  Will it move the needle?  At this point, I’m firmly in the “don’t know” camp.  The costs of litigation aren’t going to be big enough to affect Exxon Mobil, even if replicated in every blue state in the country.  Someone’s going to have to win one of these cases and obtain a significant award to make a difference.  That’s where I return to my prior discussion concerning whether tobacco litigation is a relevant analogy for these cases.  As I noted, those cases seemed completely unwinnable – until they weren’t.  And then, before we knew it, they were a tsunami.

I still think that these cases are an uphill battle – but they could also be that tsunami.

The Electric Vehicle Future: Major Climate Opportunity Faces Three Critical Challenges

Amid renewed national ambitions to tackle climate change, electric vehicles (EVs) have emerged as a promising way to reduce emissions in the transportation sector, which accounts for nearly a third of greenhouse gas emissions. This approach has garnered support even from private industry, as evidenced by the flurry of car manufacturers who recently committed to all-EV fleets in the coming decades.… More

TCI Update: Final Model Rule Addresses EJ, but Political Will May Be Lacking

On June 10, 2021, the Transportation Climate Initiative Program (TCI-P) states released a final model rule creating a regional cap-and-trade-program to reduce carbon emissions from the transportation sector. We wrote about the draft model rule and its implementation challenges when it was released at the beginning of March. Now, after a two-month stakeholder engagement process, the jurisdictions working to implement the program ask stakeholders to weigh in on the guidance documents,… More

New York State Office of Renewable Energy Siting Sets Precedent in Section 94-c Permit Proceedings: When Major Renewable Energy Projects Need Not Comply with Local Laws

In its first such determination, on June 4, 2021, the newly formed New York State Office of Renewable Energy Siting (“ORES”) determined that several provisions of the Town of Barre’s (Orleans County) local law are “unreasonably burdensome” in light of the State’s Climate Leadership and Community Protection Act (CLCPA) goals and the environmental benefits of the proposed 185 megawatt Heritage Wind Project, and therefore declined to apply them. This determination sets a precedent under the State’s Executive Law Section 94-c permitting regime for major renewable energy facilities,… More

EPA Is Reconsidering the PM2.5 NAAQS. The Sooner, the Better.

EPA announced yesterday that it will “reconsider” the Trump EPA’s decision not to change the PM2.5 National Ambient Air Quality Standard.  I’ve blogged numerous times about the growing body of evidence that exposure to concentrations of PM2.5 below the current NAAQS causes significant additional mortality and morbidity.  The evidence is clear.

I certainly agree that climate change is an existential threat and that’s where our emphasis needs to be.  At the same time, it’s human nature to focus on the here and now.  Here and now, people are dying or becoming ill because of exposure to PM2.5.  Many of them of children or elderly.  Many of them are in environmental justice communities.  Tightening the PM2.5 should be a priority for EPA.

Fortunately, many of the measures that should be implemented to address climate change would also reduce PM2.5 exposures.  Let’s hear it for co-benefits.  And I don’t care which way the co-benefits run.  We can reduce PM2.5 exposure through our climate change regulation.  Or, if there is concern about existing legal authority to reduce GHG emissions, we can reduce emissions to reduce PM2.5 concentrations – and address climate at the same time.

Either way, the requirement to set NAAQS remains at the core of the Clean Air Act.  If EPA is to protect public health with “an adequate margin of safety”, it should be undeniable that the PM2.5 NAAQS needs to be more stringent.

I will agree with the Trump administration on one point – the NAAQS development process takes way too long.  EPA’s timeline for reconsidering the Trump decision provides that a proposed rule will be issued in the summer of 2022 and a final rule will be issued in the Spring of 2023.  By the time state implementation plans are revised to include measures to attain the new NAAQS, it will be sometime in 2025 or 2026.

There really should be a better way.  I know that EPA wants to bulletproof the new NAAQS, but it should not take this long.

Criticizing WOTUS Is Like Shooting Fish in a Barrel

On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”.  Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge to the Trump-era rule brought by the Conservation Law Foundation.  Can you say “déjà vu all over again”?

This is such a target-rich environment that I almost don’t know where to begin – but I’ll try.

First, EPA Administrator Regan stated that EPA and the Corps:

are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.

Whatever one’s political persuasions, it would be fair to say that that was precisely the objective of the Obama administration in 2015 and the Trump administration in 2019.  What makes the current administration think that what they promulgate will be any more “durable” than those prior efforts?

One has to assume that the new rule will be similar in substance to the 2015 rule, given that the Biden administration presumably trusts the science behind that rule, while having more bright line exemptions to satisfy those on the right.  Good luck threading that needle.

Next, it’s notable that the DOJ motion in the CLF litigation did not seek vacatur of the NWPR, arguing that there was no need for vacatur, because EPA and the Corps will be reviewing the very legal questions raised by the challenge to the NWPR.  Yet, while arguing that vacatur is not necessary, EPA and the Corps assert that the NWPR “is significantly reducing clean water protections.”  If that’s the case, and particularly where there is no timeline for promulgation of a new rule, one would have thought that EPA and the Corps would want to put a halt to such environmental degradation.

Oh, what a tangled web we weave when  we keep trying to define Waters of the United States.

President Biden’s “Climate-Related Financial Risk” Executive Order Pushes Forward on the Administration’s ESG Commitments

On May 20, 2021, President Biden signed an Executive Order to address predicted financial instability in the federal government as a result of climate change. This Executive Order showcases a dramatic change in how the Biden Administration’s stance towards climate-finance and environmental, social, and governance (ESG)-based investments will differ from the previous administration.

The Executive Order, titled “Climate-Related Financial Risk” seeks to “bolster the resilience of our rural and urban communities,… More