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

The Test For Injunctive Relief Was Not Developed By a Risk Assessor

Earlier this Month, Judge James Boasberg, who had previously ruled that the easement allowing construction of the Dakota Access Pipeline must be vacated due to a failure to comply with NEPA, nonetheless declined to issue an injunction requiring that the pipeline cease operations.  The Court’s rationale was clear and straightforward.  The Court of Appeals ruled that Judge Boasberg could not enjoin use of the pipeline without finding that all elements of the four-factor test for an injunction had been met.  Since the first element is a demonstration that, absent an injunction, the plaintiffs are at least “likely” to suffer irreparable harm, and since the record demonstrated that an oil spill would be far from “likely”, the Court concluded that the irreparable harm factor had not been satisfied.

Sorry, but the law is an ass.

Anyone with any experience in risk assessment knows that risk is the product of the likelihood of an event times the consequences if that event happens.  There might be events that would be far from likely, but whose consequences are sufficiently severe that, should a project proponent violate a law intended to mitigate such risks, we would want to enjoin that project until the risks have been addressed.

This is not rocket science.  An injunction should be based on an assessment of the expected costs and benefits associated with a decision to enjoin or not enjoin the behavior or action at issue in the case.  And that assessment should reflect the entire probability distribution, not just the part where the adverse outcome is likely to occur.  Can our injunction jurisprudence be updated to reflect basic arithmetic, which is pretty much what this is about?

There must be scholarly commentary on this issue.  And plaintiffs in this case made the argument.  However, Judge Boasberg reasonably felt that the applicable precedent tied his hands.  (It’s also worth noting that plaintiffs would probably have failed to obtain an injunction even under the test I advocate, because the record also indicates that, even if there were a leak from the pipeline, the likelihood of significant harm would be remote.)

On the merits, this leaves the pipeline in operation, while the Army Corps figures out how to respond to the vacatur – and the opinion is worth reading for Judge Boasberg’s trenchant remarks about the Corps’ failure to act.  But that’s a blog for another day.

I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is

Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court’s tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be.  The Court’s approach to section 113 in yesterday’s decision followed this now well-worn path.  In a short, sweet, and unanimous decision, the Court found that:

The most natural reading of§113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability, as opposed to resolving environmental liability under some other law.

After cogitating yet again on the Court’s ability to find clarity where none exists, I realized that the Court’s approach is really just the adoption of a legal fiction.  After all, one judge has noted that:

those courts which have attempted to unravel CERCLA’s definitions have found no solace in either the “plain meaning” of the statute or the reams of legislative history. Instead, in an attempt to glean legislative intent, courts seem to resort to a sort of “Purkinje phenomenon”, hoping that if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain.

Or, there’s this, from William Rogers:

Vagueness, contradiction, and dissembling are familiar features of environmental statutes, but CERCLA is secure in its reputation as the worst drafted of the lot.

And yet, none of this troubles SCOTUS, which floats above the mess that is CERCLA.  I don’t think that this is blissful ignorance of the chaos below.  Instead, I think that the Court has simply chosen to ignore that chaos.  After all, if any court is entitled to ipse dixit, it would be SCOTUS.

And the more I think about it, the more I am sympathetic to the Court’s approach.  After all, it is the Court’s responsibility to say what the law is.  It cannot simply throw up its hands in the face of CERCLA’s incomprehensibility.  Better to take the Gordian Knot approach.  Slice through the mess and just declare CERCLA to be clear and unambiguous.

The merits of the Court’s approach is evident in yesterday’s decision.  The Court at least has provided a bright-line rule.  Going forward, it’s going to be much clearer when CERCLA contribution rights are triggered and when they are not.

It remains good to be king.

I May Agree With This EPA On Most Issues, But I Still Don’t Like Guidance

One of the results of the November election that makes me happiest is that I can now go back to being part of the loyal opposition.  In other words, I know that the Administration and I share a common mission and common goals.  We also often share common approaches to achieving those goals, but not always.  And now, in the spirit of friendly cooperation, I know that I can sometimes disagree with the Biden administration on implementation of those goals without undermining my confidence that we are generally on the same page.

And so we come to EPA’s announcement yesterday that it was rescinding the Trump EPA rule on promulgation of guidance.  I bit my cheek hard when that rule was promulgated, stuck to my principles, and supported it – and I still do.

One line in EPA’s promulgation particularly caught my eye, because it represents everything that I object to about the way large bureaucracies handle guidance:

EPA has concluded that the internal rule on guidance unduly restricts the EPA’s ability to provide timely guidance on which the public can confidently rely.

The problem with this sentence is that the regulated community knows that it cannot ever confidently rely on EPA guidance.  Guidance is the dictionary definition of a “heads I win, tails you lose” game.  If the guidance would lead to a result that the agency likes, then it treats the guidance as regulation and requires the regulated community to comply.  If not, then the guidance gets thrown out the window and EPA does what it damn well pleases.

I still think that my analogy of the bureaucratic use of guidance to Judge Roy Bean remains apt, and the discussion of guidance in Appalachian Power v. EPA remains the most cogent explanation of the problem with guidance.

I’m loyal to the current EPA, but I’m in the opposition on this one.

Incidental Take Permits Under the Migratory Bird Treat Act — Why Is This So Difficult?

Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act.  I’m not taking a position on the proposal.  I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe.  To me, it’s not crazy to conclude that the MBTA was intended to apply only to intentional takes, rather than including incidental takes.

I do agree that a migratory bird is equally dead, whether as the result of intentional or inadvertent action.  From an environmental perspective, all bird deaths are equally important.  And what’s inadvertent today may be subject to control in the long run with the right incentives in place.

And so we come to the not-so-revolutionary idea of an incidental take permitting program.  When word broke in March that the Biden Administration was planning to revoke the Trump rule, Law 360 noted (subscription required) that this would set “the stage for a potential regulatory overhaul that could reduce bird deaths.”  The Law 360 story noted support for an incidental take permitting program both from the environmental community and from industry representatives.  I agree with almost everything in the story, other than the idea that development of a permit program necessarily must be so difficult to accomplish.

It is a measure of the dysfunctionality of our politics that practical solutions supported by representatives of a range of interests still are somewhere between very difficult and impossible to implement.

How Are We Really Going to Get to Net Zero?

Late last month, the Washington Legislature passed the “Climate Commitment Act”, a piece of sweeping climate legislation that includes, among other provisions, an economy-wide cap-and-trade system.  Washington was not far behind Massachusetts, which enacted its “next generation roadmap” bill in late March.  This friendly competition among states to move towards net zero economies as aggressively as possible is certainly a good thing.

It does make me wonder, though.  What is the world of climate regulation going to look like when the states and the federal government have all the key policies in place?  It’s one thing for states to be laboratories of democracyIt’s quite another to try to address climate change with a patchwork of different approaches.  Some state; some federal.  Some market-based; some not.  Some states collaborating; some not.

Personally, I don’t pretend to know what our regulatory framework is going to look like in 2030, let along 2050.  I also don’t pretend to know whether a comprehensive system would be superior to the patchwork (though I will confess to a lingering preference for the elegance of federal tax-and-dividend or tax-and-invest legislation).

I do think it would be a good idea if those with authority would address this issue with forethought and intentionality, rather than simply taking each policy opportunity as it arises.

Democracy is the worst form of Government except for all those other forms that have been tried from time to time.

PM2.5 and Environmental Justice — and Electric Vehicles– and Tires

I’ve frequently discussed in recent years the mounting evidence for the need to lower the National Ambient Air Quality Standard for PM2.5.  There is also substantial evidence that PM exposure is an environmental justice issue.  In this context, electrification of our transportation system is seen as having a substantial co-benefit in the reduction of vehicle-related PM emissions, particularly in EJ communities. 

Two recent stories both confirmed the validity of these issues and made manifest the complexity of the problems we are trying to solve.  First up – “PM2.5 polluters disproportionately and systemically affect people of color in the United States,” published this week in Science Advances.  The authors looked at exposures to PM2.5 from 14 different sources.  The short version that, pretty much across the board, POC are disproportionally exposed to PM2.5.  For Blacks, it was literally true across the board:

Blacks are exposed to higher-than-average concentrations from all sectors.

OK, so we need to reduce PM2.5 emissions, particularly in EJ communities.  We also need to decarbonize our transportation system.  The obvious solution is EVs – no carbon emissions and no PM2.5 emissions.  Right?

Not so fast.  It turns out that the biggest source of PM2.5 emissions from vehicles is apparently from tire wear, not vehicle exhaust.

And thus we arrive at the second recent story.  As noted this week in ClimateWire (subscription required), EVs tend to be heavier that internal combustion vehicles, and to accelerate faster, both of which tend to increase particulate emissions.

I’m not suggesting that we shouldn’t be transitioning to EVs as quickly as possible.  I’m just providing a gentle reminder that these issues are really complex and that policy makers have to be vigilant about unintended consequences.

The Other Shoe Drops — EPA Formally Announces Its Reconsideration of the Withdrawal of the California Preemption Waiver

I noted in yesterday’s post about the NHTSA proposal to withdraw the SAFE I Rule that EPA was expected to follow the NHTSA action by restoring the Clean Air Act Section 209 waiver for California’s Advanced Clean Car program. The ink was barely dry on the post when EPA released a Notice that was considering doing just that.

I have always thought that EPA’s waiver withdrawal stood on very shaky ground – shakier even than the NHTSA preemption argument made in the SAFE I rule.  I don’t think it’s going to be difficult for EPA formally to restore the California waiver.

I do still think that it would be an example of my typical dry understatement to say that this isn’t the most elegant way to regulate motor vehicle emissions.  Conservatives are right that it’s not ideal for one state to be driving – pardon the pun – the entire national regulatory system.

Here’s hoping that the leverage provided by the waiver restoration provides the basis for the Biden administration and the auto industry to reach an agreement on an aggressive set of limits that will move us towards the EV future we need – thus making the California waiver moot.

As sung in South Pacific, if you don’t have a dream, how are you going to have a dream come true?

The SAFE Rule Is On the Way Out — I Don’t Feel Any Less Safe

Last week, the National Highway Traffic Safety Administration proposed to withdraw Part I of the Trump Administration’s SAFE Rule, in which EPA had concluded that California’s regulation of motor vehicle GHG emissions was preempted by the Energy Policy and Conservation Act.  It’s not a surprise, given that Executive Order 13990 specifically directed NHTSA to revisit the SAFE I Rule. 

It is interesting, if not ironic, that the proposed rule takes a page from the conservative anti-Chevron playbook.  It does not propose to revise the rule to provide that state rules are not preempted.  Instead, NHTSA proposes simply to withdraw the Trump Safe I rule, in order to “restore a clean slate for the Agency’s position on EPCA preemption.”  In short:

NHTSA now has substantial doubts about whether the SAFE I Rule was a proper exercise of the Agency’s statutory authority with respect to CAFE preemption, particularly as to whether NHTSA had authority to define the scope of EPCA preemption through legislative rules, carrying the force and effect of law.

Lest California be concerned about the ultimate outcome, NHTSA also expressed “substantial doubts” about the Trump administration’s position on the merits.  Overall, NHTSA expressed either “substantial doubts” or “significant doubts” about aspects of the SAFE I rule 15 times in last week’s proposal.  Moreover, E&E News reports (subscription required) that EPA is expected to follow the NHTSA proposal by proposing to restore California’s Clean Air Act waiver before the end of the month.

I don’t know if we’ll succeed in completely electrifying all new cars by 2035, but it’s pretty clear where we’re headed at this point.

50% By 2030 — The Administration Is Figuring Out How to Actually Get There

The President today formally announced that the United States was pledging to reduce its emissions by 50% from 2005 levels by 2030.  The announcement isn’t a surprise, but that doesn’t lessen its importance.  So large a reduction will be a heavy lift, particularly in a federal system where many states are still not exactly with the program.

So how will this Administration get us on a path to 50%?

One way will be to speed up permitting of significant new renewable energy generation.  In this context, it’s appropriate to read the story of Biden’s 50% pledge together with yesterday’s Bloomberg story (subscription required) that Brenda Mallory, CEQ chair, said in an interview that the White House intends to reshape NEPA reviews “in a way that enables ‘aggressive and high-charging deployment of renewable energies and other things.’”  I particularly like this quote from the Bloomberg story:

She’s also thinking about ways to balance in-depth analyses of a project’s environmental impacts with input from concerned members of the community.

“I feel like that’s the charge,” she said. “It’s not even, ‘Can it be done?’ We’re being told to do it,” she said.

Both the Trump Administration and the Biden Administration made clear that they wanted to reform NEPA reviews of large-scale development projects.  The only difference is that the Trump Administration wanted to facilitate siting of projects that have significant adverse environmental impacts.  The Biden Administration wants to facilitate siting of projects necessary to address a global environmental crisis.

In any case, it’s clear that the Biden Administration sees the challenge, is determined to address it, and is thinking comprehensively about all the different pieces that have to fit together to get from here to there.  It’s Earth Day.  President Biden has been in office for a mere three months, but he has already accomplished more than probably almost anyone expected.

It’s a day to be optimistic.

The Biden Administration’s Undoing Project Continues — A Flawed Interior Interpretation is Jettisoned

On Friday, the Principal Deputy Solicitor at the Department of Interior issued a memorandum on how DOI should balance the criteria in the Outer Continental Shelf Lands Act in issuing leases for offshore wind.  The new memorandum replaces one issued by the Trump Administration following the November election.

The Trump Administration memorandum, which could have simply been titled the “We Hate Offshore Wind Memorandum,” basically treated each of the criteria in the statute as vetoes, requiring the DOE Secretary not to grant leases if any one of the criteria in isolation was not met.  The new memorandum rightly makes clear that it is the Secretary’s right and obligation to balance the various statutory criteria.

This is not a bold new interpretation.  Indeed, I would venture to say that any 2nd-year law student who has taken administrative law would have understood that the Trump Administration interpretation was plainly wrong.  Going farther, I would say that this story is most notable only as yet one more piece of evidence that Trump Administration regulatory moves were – I think literally – never driven by honest legal interpretation, but were instead purely outcome-dependent.  I don’t even think it can be explained by Trump’s desire to support the fossil fuel industry; instead, it feels to me more like the Trump Administration just liked to stick needles in the eyes of its opponents.  Democrats liked offshore wind – reason enough to oppose it.

This isn’t to say that the new interpretation isn’t meaningful.  It was arguably necessary to withdraw the Trump Administration memorandum before the DOI Secretary could issue the approvals needed for new offshore wind projects.  With that obstacle removed, I think that the floodgates may finally be opening for the massive scale of offshore wind development that we need to meet our goals for decarbonizing the electric grid.