Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing.  Given where we are, this is about as momentous a decision as I can imagine.  I get the majority opinion.  Under traditional standing doctrine, it may even be right, though I think it’s a close call.

However, this is not a time for timidly falling back on the easy jurisprudential path.  Extraordinary times demand something extraordinary, from our judges as well as our elected leaders.  If our government is even around in a hundred years, I think that this decision will likely be seen as of a piece with Dred ScottPlessy v. Ferguson, and Korematsu

The cruel irony underlying the opinion is that it is the very scope of the climate problem and the comprehensive government response that it demands that is the basis of the court’s decision that courts are not in a position to oversee the response.  Is this the first case ever brought before our nation’s courts in which the court ruled that it could not grant relief, precisely because relief is so necessary?

I’ll note one other issue.  The majority opinion was clearly sympathetic to the plaintiffs, but ultimately concluded that:

the plaintiffs’ case must be made to the political branches or to the electorate at large.

What if, however, our legislative and executive branches are literally incapable of addressing climate change?  That’s pretty much the view of my intellectual hero, Daniel Kahneman.  If we are truly on the eve of destruction and Congress can’t do anything about it, must the courts remain powerless to step in?  And so I’ll leave you with the conclusion of the dissent:

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

Massachusetts Attorney General Files Long-Awaited Climate Change Lawsuit Against Exxon

On October 24, 2019, Massachusetts Attorney General Maura Healey filed a 200-page complaint against Exxon in Suffolk Superior Court, alleging violations of G.L. c. 93A, the Massachusetts Consumer Protection Act.  The lawsuit is the culmination of a three-year long investigation that has been contested in state and federal courts in both Texas and Massachusetts.

The core legal theories espoused in the complaint resemble and also build upon allegations made by the New York Attorney General, which focused on statements Exxon historically made to investors.  The trial in that case began on October 22, 2019.

The Massachusetts Attorney General argues that Exxon deceived both investors and consumers.  As to investors, the complaint focuses on “systemic risk representations and omissions,” arguing that Exxon knew more about the risk to the environment and economy posed by fossil fuels than it shared with investors.  Similarly, the complaint argues that Exxon was deceptive regarding “proxy cost misrepresentations,” which were Exxon’s communications to investors regarding how Exxon priced the cost of fossil fuel-related climate change into its own business decisions.

As to consumers, the complaint accuses Exxon of greenwashing by advertising the emissions benefits of certain fossil fuel products and exaggerating Exxon’s dedication to fossil fuel alternatives.  These representations, the complaint argues, were “compounded by [Exxon’s] long history of intentionally sowing doubt and confusion in the minds of consumers about the link between fossil fuel and climate change.”

As to both the consumer and investor claims, the complaint seeks injunctive relief as well as civil penalties, the costs of investigation, and attorney’s fees.  G.L. c. 93A, § 4 permits the imposition of a $5,000 civil penalty for each violation.  This means that the potential penalty in the case is very high but also very difficult to calculate, as the Attorney General alleges that a violation occurred essentially every time Exxon communicated with a consumer or investor.  In practice, where a very high number of violations is alleged, judges will tend to look to some other metric to determine an appropriate penalty amount, such as profits over a particular period of time or profits attributable to a certain course of wrongful conduct.  As is often the case in climate change litigation, though, it is difficult to predict what a judge may do because there are few precedents to guide the shaping of a remedy. (This is not for lack of trying; the Attorney General conspicuously refers to Exxon’s historical advertising as “a tobacco industry-style campaign” and references the historical advertising practices of the tobacco industry roughly twenty times in the complaint.)  Any damages or penalties to be paid by Exxon will be ultimately determined by a judge, although in G.L. c. 93A cases a judge may choose to empanel a jury for the purpose of fact finding.

The factual allegations of the complaint – across roughly 800 paragraphs – speak to the depth and breadth of the Attorney General’s investigation, and reference internal Exxon documents as far back as 1978.  Exxon’s trial victory in New York in December 2019, however – where the Attorney General sought to show that Exxon had violated a state securities statute by misleading investors about its knowledge of climate change – is a potentially ominous sign for the Massachusetts Attorney General as the case proceeds.

Massachusetts and Other States Challenge Trump’s Move to Bar State Vehicle Emissions Regulations

Led by California, 23 states, including Massachusetts, have sued the Trump administration challenging new federal regulations that strip the states’ authority to set their own vehicle emissions standards.  On December 3, 2019, the administration moved to dismiss on procedural grounds, arguing that the D.C. District Court was the wrong venue, and that the case should have been brought before the D.C. Circuit for its direct review.

The new regulations have been criticized as yet another attempt by the Trump administration to roll back Obama-era environmental protections.  The Obama administration had granted a waiver specifically to California so that it could pursue its own aggressive vehicle emissions reduction program.  The waiver, which is one of many similar waivers California has received for decades, protects California’s program from preemption by federal law.

The new regulations, known as the “One National Program” rule, were a joint effort by the U.S. Environmental Protection Agency (“EPA”) and the National Highway Safety Traffic Administration (“NHSTA”).  EPA revoked California’s waiver under the Clean Air Act, and NHSTA declared that another federal environmental law governing vehicle fuel economy—the Energy Policy and Conservation Act (“EPCA”)—preempts state programs that regulate vehicle emissions.  The states are attacking EPA’s waiver revocation in a separate proceeding before the D.C. Circuit.

Why have the other states joined the lawsuit?  Many environmentally conscious states, like Massachusetts, have adopted California’s standards.  The Massachusetts AG’s office has called the standards “a key part of the state’s effort to reduce pollution, protect public health, and fight climate change.”  That includes meeting the aggressive greenhouse gas emissions reductions targets Massachusetts has set for itself in the Global Warming Solutions Act—reducing emissions to 80 percent below 1990 levels by 2050.

The lawsuit challenges the NHTSA’s authority under the EPCA to declare that the law now preempts California’s program.  It asserts that the rule “conflicts with Congressional intent, as recognized by the Supreme Court, to establish two distinct statutory schemes for the separate regulation of vehicle emissions and fuel economy.”  And it asserts that the rule is “contrary to Congress’s direction in [the] EPCA that NHTSA consider and give effect to California’s emissions standards.”

There will not be a resolution on the merits for now, as the administration’s motion is purely procedural.  It asserts that the states’ challenge belongs before the D.C. Circuit.  The states reply that the law does not allow for the D.C. Circuit’s direct review.

The lawsuit is one more example of AGs from certain states banding together to take on the Trump administration on environmental policy.  It is consistent with recent efforts by some of the same states to block the administration’s plans to freeze federal Corporate Average Fuel Economy (“CAFE”) standards.  The previous standards envisioned a fuel-economy average of 46.7 mpg for vehicle model years 2021-2026.  The administration’s freeze would keep the average at only 37 mpg.

President Trump’s NEPA Reform Is the Opposite of Nixon in China

Ever since President Nixon visited China, significantly contributing to a thawing of the Cold War, the phrase “Nixon in China” has referred to any situation where a leader makes a policy move that would have been more expected by a leader of the opposition party.  The notion is that such surprising acts of statesmanship can unlock political gridlock.

Unfortunately, Nixon in China moments are notable precisely because they are so rare.  And so we turn to President Trump’s proposed revisions to NEPA.

Although some of my environmentalist friends may disagree with me, anyone who’s ever built anything complicated knows that NEPA needs reform.  Environmental opposition to reforming NEPA is particularly ironic given the number of large infrastructure projects we’re going to need to site in order to address climate change.  Electrifying the grid is going to require not just numerous offshore wind projects, but significant new transmission, both on- and offshore.  Those projects require rigorous environmental review.  They also require rigorous environmental review that is coordinated, efficient, and non-duplicative.

Thus, changes designed to get reviews done faster?  Count me supportive.  Changes requiring that there be a lead agency?  Who can really object to that?  Allowing the private project proponent rather than the licensing agency to conduct the environmental review?  That’s the way it’s done in many states, including my very blue Commonwealth of Massachusetts.  No one who’s ever built a project in Massachusetts would ever argue that that allows developers to get away with anything.

And yet, this is Trump.  And Trump did not stop with common sense procedural changes.  Instead, we get a smorgasbord of miscellaneous changes favored by various Trump supporters.  Two prominent ones are elimination of any requirement to assess cumulative impacts and elimination of any requirement to assess indirect impacts.  And the Administration doesn’t even have the grace to admit that it is trying to leave climate change out of NEPA.

Maybe the next Democratic President will give us a real Nixon in China moment and support changes to NEPA that make it work better without weakening it.

The Science Advisory Board Agrees With Me!

At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule.  The SAB’s conclusions were not ambiguous.

The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining “the chemical, physical and biological integrity” of these waters.

The SAB acknowledged that EPA has taken the legal position that the text of the statute does not support the broader definition of WOTUS taken in the 2015 WOTUS rule.  The SAB’s reply to EPA’s legal view?

The SAB acts under no such constraint to give deference to shifting legal opinions in its advisory capacity and is in fact obligated by statute to communicate the best scientific consensus on this topic.

It is readily apparent that a conflict exists between current, recognized hydrological science versus the CWA and its subsequent case law. This suggests that new legislation is needed to update the CWA to reflect scientific discoveries since 1972.

I feel vindicated by the SAB letter, which pretty much echoes my take on the proposed revision to WOTUS.  The Administration’s position rests solely on its interpretation of the permissible scope of WOTUS under the Clean Water Act.  As I noted then, and as the SAB noted in its letter, the Administration’s interpretation ignores the very first sentence of the statute:

The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.

If EPA thinks that the current statutory language does not support the 2015 WOTUS rule, then EPA should be telling President Trump that it needs to propose amendments to the CWA that would broaden the definition, because the science is clear – anything short of the 2015 Rule does not comport with the statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

I’m not holding my breath.

Cooperative Federalism Still Requires Two To Tango

Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.

The logic of the decision is straightforward.  The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.”  In turn, EPA then has a non-discretionary duty to review and approve – or not – the TMDL within 30 days.  If it does not approve the state’s TMDL, EPA must issue its own TMDL within 30 days.  In this case, Washington and Oregon had failed for more than 20 years to submit temperature TMDLs intended to protect salmon and steelhead trout. 

Logically, it doesn’t make a lot of sense to require submittal of a TMDL, and require EPA to promulgate its own TMDL if the state’s TMDL is inadequate, while at the same time allowing states to perform an end-run around the entire process by deliberately refusing to submit any TMDL.

That’s what, in the legal biz, we call a “loophole.”

Although the opinion is not momentous on its own, it does highlight an ongoing issue – the meaning of cooperative federalism in the age of Trump.  A lot of attention has been paid to problems that arise when states and EPA cannot agree, but what happens when states and EPA do agree – but their agreement is to jointly avoid statutory obligations?

As I noted in cases involving Lake Erie algae blooms and regional haze plans in Texas, it takes two to do the federalism tango.  And I, for one, was not previously aware that the two greatest singers in rock and roll history had combined to sing a song titled It Takes Two To Tango!

A Carbon Fee on Transportation Fuels Is Not Coming Your Way Any Time Soon If You Live In New Hampshire

Yesterday, I noted with enthusiasm the announcement that the states participating in the Transportation and Climate Initiative had released a new draft Memorandum of Understanding outlining the framework of what “RGGI for cars” might look like.  I also provided a cautionary note that the politics of TCI would be tricky and that imposing a carbon fee sufficient to attain the goal of funding an effective, low-carbon, transportation system for New England in the 21st Century might prove difficult. 

I’m sorry to say that it only took one day for me to be proved correct.  In an statement something short of being a profile in courage, New Hampshire Governor Chris Sununu tweeted last night that New Hampshire would not participate in TCI.  Is it any wonder that children, who will be most affected by climate change, have so little faith in our political leadership?

Coming Your Way (Relatively) Soon: A Carbon Fee on Transportation Fuels

The 12 states and the District of Columbia participating in the Transportation and Climate Initiative announced today the release of a new draft Memorandum of Understanding that outlines the framework of what they are calling a cap and invest program for cars and trucks.  In short, it will require persons selling gasoline and on-road diesel at the wholesale level to hold allowances – which will be auctioned – in order to continue to sell such on-road fuels.  Think of it as RGGI for cars.

Given continued progress at decarbonizing our electricity supply, transportation is the next big hurdle.  A lot remains to be done before a program is in place (the MOU states that the first compliance period will “commence as early as January 1, 2022″).  Nonetheless, this is a significant accomplishment.  Getting a regional transportation climate program off the ground will be a major success.

Like the early Wright Brothers’ efforts, keeping it off the ground will be the next major success.  And that’s the big dilemma faced by those charged with making TCI work.  Just last week, MA Transportation Secretary Stephanie Pollack stated that the administration does not expect the major reductions in transportation-related GHG emissions to come from the carbon fee.  Instead, the bulk of those reductions will come from the investments in a clean 21st Century transportation system made possible by the revenue from the fees.  However, that’s a long-term project and we’re not going to see the return on those investments for a number of years.

In addition – and here’s the real dilemma – if the fee is small, then the program won’t generate enough revenue to make the necessary investments.  On the other hand, if the fee is commensurate with the size of the problem, then the public might revolt, particularly given that the positive results won’t be seen for some years.

Getting that juggling act right is the big task before the TCI states (and DC).  It won’t be easy and I wish them well.  Of course, the next job will be to tackle building GHG emissions.  That might just make TCI seem like a piece of cake!

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.