It’s Not Going to Be Easy to Be Green

The New York Citizens Budget Commission has released a report regarding the state’s ability to meet its ambitious GHG reduction targets.  It’s sobering reading.  The CBC states that it is “uncertain” whether New York can meet those goals.  It identifies four reasons:

Immense scaling up of renewable generation capacity is necessary and is likely infeasible by 2030.

The focus on building renewable resources, particularly offshore wind, and entering into long-term power contracts limits flexibility and diminishes consideration of other cost-effective approaches.

State policies on nuclear, natural gas, and hydropower are counterproductive.

The focus on other sectors—particularly transportation—is insufficient.

I understand that some people think that natural gas’s time has passed.  I understand that some people don’t like nuclear power.  I understand that some people don’t like hydropower.

However, I also understand, as the report points out, that some people also don’t like the transmission lines necessary to bring large-scale wind to consumers.  And, indeed, some people don’t even like wind power.  At the same time, people do like their iPhones and their cars, and fresh fruit from foreign places.  In short, even if you don’t like some of the conclusions of this report, it’s a valuable reminder of just how difficult this is going to be.

It’s not easy being green.

EPA Revises Its Policy on “Ambient Air” — Is It Nefarious or Common Sense?

EPA Administrator Wheeler has distributed a “Revised Policy on Exclusions from ‘Ambient Air’”.  Here’s the short version.  EPA has long defined “ambient air” as outside air “to which the general public has access.”

EPA’s policy has been to require the regulated community to satisfy two criteria to invoke an exclusion.  First, the regulated entity must have legal control over the land.  Second, there must be a “fence or other physical barriers”.  The new interpretation eliminates the per se requirement of a physical barrier and substitutes a broader test that allows other measures:

that are effective in precluding access to the land by the general public.

It’s not obvious to me that this is the end of the world as we know it.  I could imagine a Democratic EPA making the same change.  After all, the key is that the public be excluded, not the manner in which they are excluded.  Once EPA has taken the initial step of defining “ambient air” to exclude some air that’s outside of buildings – which has always been the case – then why wouldn’t we allow any and all means that are in fact effective at excluding the public?

Nonetheless, I do find Wheeler’s memorandum to be more than a little disingenuous.  Taking up one of my favorite issues, Wheeler states that the:

revised policy … is neither a regulation subject to notice-and-comment rulemaking requirements nor a final agency action.

This administration’s approach to the guidance/regulation divide continues to be that it will be called regulation if it makes life more difficult for regulated entities and it will be called guidance if it makes life easier for them.  That’s helpful to my clients and consistent with the interpretation of the “Wehrum Memo” recently stated by the D.C. Court of Appeals, but I still find it legally suspect.

A Court Enjoins Implementation of NH DES PFAS Regulations — Almost!

Last week, Judge Richard McNamara ruled that the plaintiffs were likely to succeed in their challenge to the very stringent standards for PFAS in drinking water promulgated by the New Hampshire Department of Environmental Services.  However, given the importance of the issues, the Court stayed its injunction until December 31, to give the parties time to appeal to the NH Supreme Court.

The Court ruled against the plaintiffs’ claims that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the regulations (DES’s final regulations were substantially more stringent than its proposed regulations).  So what was the basis for the injunction?  The Court concluded that DES had failed to comply with the legislature’s statutory requirement that DES give “consideration” to the “costs and benefits to affected parties that will result from establishing the standard” for PFAS.

Plaintiffs asserted that the compliance costs increased by a factor of 30 to 60 times the costs attributed to the original proposed rule and that DES provided essentially no estimate of the benefits of the rule.  DES basically acknowledged that it did not assess the benefits, but argued that not enough was known about the benefits to allow DES to quantify them.  The Court agreed with the plaintiffs that this was insufficient.

The Court finds the implicit suggestion from DES that it need do no more than give the cost benefit analysis of RSA 485:3, I(b) such cursory consideration as it, in its sole discretion, thinks it deserves, unpersuasive.  Where, as here, there is no quantification of the level of harm caused by PFAS at different levels of exposure, at the very least some explanation for benefits expected from imposing different levels of concentration and correlative levels of cost must be made.

DES is under a lot of pressure here.  There are numerous groups looking for DES to impose very stringent standards.  The legislature, in response to those same pressures, mandated that DES act.  At the same time, the legislature also mandated that the regulations reflect consideration of the costs and benefits for the rule.  It doesn’t seem unreasonable to me that DES be required to comply with the legislative mandate.

More Evidence that Chevron Is Not a Liberal Plot

Yesterday, Judge William Young ruled that discharges to groundwater are not subject to Clean Water Act jurisdiction, even if they ultimately reach surface waters that are unambiguously waters of the United States.  He did not wade into the murky waters, as it were, of the Maui case or any of the various judicial theories for or against jurisdiction.  Instead, he took a simpler path.

As Judge Young noted, all of the various Circuit Court decisions on this issue were rendered before EPA issued its Interpretive Statement concluding that the CWA does not regulate discharges to groundwater.  He then upheld the Interpretive Statement on the basis of Chevron deference.

I think that Judge Young got it right.  It’s difficult for anyone to argue with a straight face that the CWA is unambiguous.  Thus, the only question is whether EPA’s interpretation is reasonable under the statute.  It’s important to remember that the question is not whether EPA is right; the question is whether its interpretation of the statute is reasonable.  From my viewpoint, EPA’s position is bad policy, but it’s not an unreasonable interpretation of the statute.

Is It a Sin to Cause Environmental Degradation? Will Calling It a Sin Be Helpful?

Last week, Pope Francis announced that the Catholic Church was considering introducing into the Catechism “the sin against ecology, the ecological sin against the common home.”

My immediate question on seeing this statement was whether it would have any impact on the fight against climate change or other environmental degradation.  After all, the Vatican estimates that there are more than 1.2 billion Catholics world-wide.  If any significant percentage of them are moved by the Church’s pronouncements on this subject to work towards greater environmental protection, that would certainly be a good thing.

Here’s my concern.  I am not Catholic and I don’t know anything about the Catechism.  I do admire Pope Francis, particularly for his evident humility.  Unfortunately, not everyone is as humble as he.  I noted as far back as 2010 (and again in 2015) that the great sin of the environmental movement is self-righteousness.  I don’t know if that self-righteousness is as great a sin as ecocide, but I know that widespread self-righteousness among environmentalists is part of why there has been a backlash against environmental regulation.  For some reason, people don’t like to be called sinners if they express skepticism about environmental regulations.

As I said in 2010, many environmentalists are often their own worst enemies.  Don’t crucify me for saying it and I’m genuinely curious what the impact of the Pope’s statements will be.  Overall, I am still hopeful that it will be a good thing – but that’s much more likely to be the case if those who agree with the Pope receive the message with the same kind of humility that the Pope shows on a daily basis.

In Case You Missed It, We’re in a Climate Emergency

Last week, BioScience published the “World Scientists’ Warning of a Climate Emergency.”  It’s actually a nice piece of work – short, readable, to the point.  In barely 4 pages, it concisely summarizes the fine mess we’ve gotten ourselves into.  It also provides suggestions for actions to take to “lessen the worst effects.”  The suggestions also pull no punches:

  • quickly implement massive energy efficiency and conservation practices and replace fossil fuels with low-carbon renewables and other cleaner sources of energy….…
  • More

Will The PM NAAQS Be the Real End of Agency Deference?

According to Bloomberg Environment (subscription required), EPA’s Clean Air Science Advisory Committee cannot reach agreement whether to recommend that the NAAQS for PM2.5 be lowered.  Even after two years, I guess I had not realized the extent to which the scientists relied on by this administration are willing to ignore what used to be generally known as the “scientific consensus.”

As I reported last month, EPA’s Office of Air Quality and Standards released a draft reassessment of the adequacy of the PM2.5 NAAQS.  The draft states that:

The risk assessment estimates that the current primary PM2.5 standards could allow a substantial number of PM2.5-associated deaths in the U.S.

When taken together, we reach the preliminary conclusion that the available scientific evidence, air quality analyses, and the risk assessment, as summarized above, can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.

Based on the analysis in the draft, it seemed obvious to me that EPA would have to lower the NAAQS to somewhere between 8.0 ug/m3 and 10.0 ug/m3.  I assumed and predicted that EPA would propose to lower the standard as little as possible, to 10.0 ug/m3. 

It turns out that four out of six members of EPA’s significant reconstituted Clean Air Science Advisory Committee think that the current standard should be retained.  I doubt that the American Lung Association will agree.

I have previously speculated, in connection with matters ranging from BLM standards for methane emissions on federal lands to the EPA/DOT decision on CAFE standards, that, if this administration consistently flouts the scientific consensus on appropriate regulatory standards, then, at some point, courts will stop deferring to agency “scientific” conclusions.  I now wonder whether the PM2.5 rule will be the breaking point.

It’s still more likely that a court would simply rule within the confines of existing jurisprudence that a decision by EPA to retain the current PM2.5 standard would be arbitrary and capricious, even given traditional deference.  However, I wouldn’t rule out the possibility that a court will at some point conclude that the administration has forfeited the deference it would otherwise have gotten.

When agencies just make up the science, Chevron seems almost beside the point.

Sage Grouse Protections Restored; Another Hasty Regulatory Rollback Is Rolled Back.

Last week, Federal District Court Judge B. Lynn Winmill granted a preliminary injunction to various NGOs, barring the Bureau of Land Management from implementing amendments BLM had made in 2019 to protection plans for the sage grouse promulgated by BLM in 2015.  It makes compelling reading.  In 29 pages, it pretty much summarizes everything the Trump administration has done in the environmental arena, and how courts have reacted.

First, there was regulatory action by the prior administration.  (And it’s worth an aside to note that the 2015 sage grouse plans were intended to protect the sage grouse without the burden of listing it as endangered under the ESA.)

Then, beginning early in the Trump administration, Secretary Zinke made clear he wanted to relax sage grouse protections.  BLM prepared and released six state-specific draft environmental impact reports, proposing to do so.  Even Scott Pruitt’s EPA commented that the draft EISs were inadequate and requested a cumulative analysis that crossed state boundaries.  BLM ignored EPA’s comments and finalized the EISs.  The Court rejected BLM’s NEPA analyses, found the plaintiffs likely to succeed on each of their claims, and enjoined implementation of the 2019 amendments.

Here are a few nuggets from the opinion:

Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification – a hard look – in the NEPA documents.

The Final EISs were the first time the BLM announced it was removing the mandatory compensatory mitigation, and the public was never given notice or an opportunity to comment on those actions before they were taken.

And here’s my favorite:

The BLM had a duty to explain any “departure from prior norms.”  “[A]n administrative agency is not allowed to change direction without some explanation of what it is doing and why.”

That could serve as an epitaph to the Administration’s entire approach to all the regulations in existence when it took office.

DOE Must Promulgate Energy Efficiency Standards Finalized By the Obama Administration

Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously published.

Energy Efficiency with man holding a tablet computer

The Trump administration DOE tried to take advantage of DOE’s “error-correction rule”, which gives DOE time to fix mistakes in its rules before they are published in the Federal Register.

The problem with DOE’s argument is that the error-correction rule is clear that error correction is a ministerial task.  The rule explicitly states that, whether:  (1) no corrections are suggested; (2) corrections are suggested but rejected; or (3) corrections are suggested and accepted, DOE “will” publish the rule in the Federal Register.  The Court of Appeals, like the District Court, found the use of “will” to be mandatory.

The case is pretty much just another judicial back of the hand to this Administration’s feckless efforts to roll back regulations just for the fun of it.  I note it here in part because the Court specifically stated that “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary interpretation,” citing to the Supreme Court’s recent decision in Kisor v. Wilkie, in which SCOTUS upheld, but narrowed, Auer deference.

I’ve often argued that conservative skepticism about Chevron and Auer stemmed more from a view that regulatory agencies tend to be expansive than from any principled approach to separation of powers issues.  One thinks that they might have wished that the Court had granted DOE a little more deference here.  Can you say “hoist on one’s own petard?”

Boston’s Climate Action Plan Update: The Time Has Come For Buildings!

Last week, Boston released its Climate Action Plan 2019 UpdateThe Update identifies “priority actions” for the next five years necessary to put Boston on a trajectory towards carbon neutrality by 2050.  There’s a lot in the Update, but because it states that 71% of Boston carbon emissions come from buildings and it thus leads with its discussion of buildings, I’m going to focus there.

Here are among the initiatives that Boston wants to get in place in the next five years:

  • Construct new municipal buildings to a zero net carbon standard
  • Adopt a zero net carbon standard for city-funded affordable housing in Boston
  • Strengthen green building zoning requirements to a zero net carbon standard
  • Invest in energy efficiency and renewable energy generation in municipal buildings
  • Develop a carbon emissions performance standard to decarbonize existing large buildings

It’s a fairly ambitious agenda, I say with my usual gift for understatement.  And lest you think it’s all pie in the sky, these goals arrive together with some specific detailed steps for attaining them, and a schedule that includes dates for each step.

I don’t think that these dates will be met.  I do think that the City is going to give a truly massive shove to the real estate industry in the direction of zero net carbon and it does seem likely that our built environment is going to be very different in 2030 than it is today.

Particulate Matter Has Not Clouded My Crystal Ball

Last month, I noted that EPA’s Office of Air Quality Planning and Standards had released a draft reassessment of the particulate matter NAAQS.  In a bold moment of speculation, I indicated that it would be difficult for EPA to avoid lowering the PM2.5 NAAQS to between 8.0 and 10.0 micrograms/cubic meter.  Following issuance of the draft, and in order to ensure that EPA does not ignore the emerging scientific consensus, the Union of Concerned Scientists helped to convene the Independent Particulate Matter Review Panel to review the draft. 

And what is the mellifluously named IPMRP?  It’s basically the same group of scientists that used to advise EPA on these issues – also known as the same group that Andrew Wheeler determined to be surplus to requirements as far as EPA was concerned.

And what did the IPMRP decide?  According to Greenwire (subscription required), the IPMRV:

will likely recommend that the primary annual standard for exposure to fine particulates be cut from 12 micrograms per cubic meter of air to somewhere between 8 and 10 micrograms per cubic meter.

I calls ‘em like I sees ‘em.

One final note.  The scientists certainly seem to know who their real audience is.  Greenwire also reported that:

Though agency leaders may not pay heed to their findings, the panel members are optimistic that federal judges will listen.

The Other Shoe Drops on Upwind Ozone States

On Tuesday, the District of Columbia Court of Appeals vacated EPA’s “Close-Out Rule,” which basically concluded that upwind states contributing to exceedances of the National Ambient Air Quality Standard for ozone in downwind states did not have to undertake any additional actions to reduce their contribution to downwind state ozone concentrations.  The decision was inevitable following last month’s decision in Wisconsin v. EPA, in which the D.C. Circuit ruled that upwind states must eliminate any substantial contribution to downwind NAAQS exceedances by the same deadline faced by those downwind states to meet the ozone NAAQS.

As the Court noted in yesterday’s decision:

EPA acknowledges [that] the Close-Out Rule “relied upon the same statutory interpretation of the Good Neighbor Provision” that we rejected in Wisconsin. Thus, the agency’s defense of the Close-Out Rule in these cases is foreclosed.

While EPA has informed the Court that it might seek rehearing or rehearing en banc in Wisconsin v. EPA, for now EPA is in the position of figuring out how to require upwind states to eliminate significant contributions to downwind ozone NAAQS exceedances by 2021.  I think that the decisions in both Wisconsin v. EPA and New York v. EPA are correct, but they certainly highlight significant flaws with the Clean Air Act’s NAAQS provisions.  Does anyone think that such reductions will happen by 2021?  Let’s remember that we’re still talking about how to attain an ozone standard, 0.075 ppm, that was lowered in 2015 to 0.070 ppm.

As I have said in other contexts, if we had a working legislative body, the dysfunctional NAAQS process would have been fixed by now.

Injunctive Relief Is Available Outside the Fenceline

On Monday, District Judge Rodney Sippel ordered sweeping injunctive relief against Ameren Missouri, intended to remedy violations of PSD requirements he had previously identified resulting from upgrades to the Ameren Missouri Rush Island generating plant. 

Notwithstanding the lengthy opinion, most of the Court’s findings are fairly plain vanilla.  Basically, Judge Sippel ordered Ameren Missouri to submit a PSD permit application and he ruled that BACT for control of SO2 emissions at Rush Island required installation of wet flue gas desulfurization equipment.

The notable part of the opinion was Judge Sippel’s handling of what to do about the 162,000 tons of excess emissions he found resulted from Ameren Missouri’s failure to get the required PSD permit. First, he concluded that the emissions increased the risk of mortality among those impacted by the excess emissions.  He also concluded that the only way really to remediate those excess emissions was to require emissions reductions at another Ameren Missouri generating plant, the Labadie Energy Center.  The Judge thus ordered Ameren Missouri to install dry sorbent injection equipment at Labadie and to run it until the amount of SO2 emitted at Labadie had been reduced by an amount equal to the excess emissions at Rush Island (which are expected to reach almost 275,000 tons by the time the wet scrubbers are operational at Rush Island).

This requirement brought to mind arguments in the GHG context about EPA’s authority to regulate “outside the fenceline.”  After all, in order to address emissions at one facility, Judge Sippel is requiring emissions reductions at a different facility.  However, Judge Sippel’s careful opinion justifies the requirement to reduce emissions at Labadie.  The opinion demonstrates that:

  • The damages caused by the excess emissions at Rush Island are irreparable,
  • Reductions at Labadie will benefit the same population impacted by the Rush Island emissions,
  • The balance of hardships favors the plaintiffs,
  • Injunctive relief at Labadie does not constitute a penalty, and
  • Injunctive relief is narrowly tailored to address the harm resulting from the violations at Rush Island.

I think that the opinion – all 157 pages of it – is careful and thorough and likely to survive any appeal.  Equitable relief is a powerful tool.

The Trump Administration Couldn’t Spell Irony If You Spotted It the I, R, O, and N.

Yesterday, EPA and the National Highway Traffic Safety Administration released the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” more succinctly known as the withdrawal of the California’s § 209 waiver under the Clean Air Act.  As part of that announcement, EPA Administrator Andrew Wheeler was quoted as saying that “California has the worst air quality in the United States.”

And why is this ironic?  Because one of the criteria used in determining whether to grant a waiver to California under § 209 of the Clean Air Act is whether “such State does not need such State standards to meet compelling and extraordinary conditions.”  In the unlikely hypothetical where I was advising this administration, I would have suggested that all of the progress in controlling emissions over the past 50 years means that there are no longer compelling and extraordinary conditions in California that warrant a waiver at this point.  I think EPA has now waived that anti-waiver argument!

I just don’t see a basis for withdrawal of the waiver (and this is not the only reason for that conclusion).  As to the Administration’s position that the standards are preempted by the Energy Policy and Conservation Act, the Supreme Court has already ruled that EPCA does not preclude EPA regulation of tailpipe emissions, and lower courts since have concluded that EPCA also does not preempt state regulation under a § 209 waiver.  I don’t see any court other than the Supreme Court ruling in the Administration’s favor on this one.

And, yes, I do realize that the Supreme Court gets the final word.

Good Neighbors Delayed Are Good Neighbors Denied

Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions.  The Court concluded that, where downwind states face significant consequences in not meeting statutory deadlines to attain National Ambient Air Quality Standards, but don’t control their own fate because upwind states are contributing significantly to the downwind states’ nonattainment, the statute requires that upwind states must comply with their Good Neighbor obligations on the same schedule.

First, the Court summarized its prior decision on this subject, in North Carolina v. EPA, which addressed EPA’s prior interstate rule:

EPA ignored its statutory mandate to promulgate CAIR consistent with the provisions in Title I mandating compliance deadlines for downwind states in 2010. … We explained that EPA needed to “harmonize” the “Phase Two deadline for upwind contributors to eliminate their significant contribution with the attainment deadlines for downwind areas.” Otherwise, downwind areas would need to attain the NAAQS “without the elimination of upwind states’ significant contribution.

The Court also concluded that EPA’s interpretation exceeded its discretion under Chevron:

The Rule’s open-ended compliance timeframe exceeds the bounds of EPA’s statutory authority by allowing upwind States to continue their significant contributions to downwind nonattainment well past the deadline for downwind areas to comply with the NAAQS.

The only other aspect of the decision worth note is its discussion of scientific uncertainty.  The agency justified not imposing a deadline on the uncertainty surrounding sources outside the electric generation sector.  Ever since Ethyl Corp. v. EPA, courts have concluded that EPA has authority to regulate, even where the science underlying its regulations is uncertain.  Here, EPA took the position that the uncertainty justified not imposing a deadline.

The Court wasn’t having it.  Uncertainty can justify regulation, but it can’t justify not regulating.

The statutes and common sense demand regulatory action to prevent harm, even if the regulator is less than certain.  …  It is only when “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment” that it can excuse compliance with a statutory mandate.

Makes sense to me.