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.

Carbon Pricing — Is It the Zombie Climate Policy?

At a press briefing in India yesterday, John Kerry, President Biden’s Special Presidential Envoy for Climate was asked by an Indian journalist about carbon pricing.  Here’s part of his response:

President Biden believes that at some point in time we need to find out a way to have a price on carbon that’s effective.  He hasn’t decided or made an announcement about it, but we all know that one of the most effective ways to reduce emissions is putting a price on carbon.

And the trade press latched onto the story, with Bloomberg (subscription required) noting, in part, that “Kerry’s remarks come amid a surge in interest in carbon pricing from business groups.”  And soon, I expect my friends at the Climate Leadership Council will remind us that their “Climate Dividends Plan” is the most costs-effective approach to reducing GHG emissions and has the most public support.

And then?

Well, to date, the answer has been … nothing.  And today I had the depressing thought that carbon pricing may be our national zombie climate policy.  It’s never quite dead, but then again, it’s not exactly alive, either.

I sure hope that this rather strained metaphor is wrong-headed, but I truly don’t know.  Given the skepticism of many in the environmental justice community about carbon prices, even the huge climate moves that this administration has already made aren’t enough to convince me of the political viability of a carbon tax.

And yet, and yet, it’s so obviously an important part of the solution.  Someone tell me whether we’re ready for a breakthrough and a full-court press will get carbon pricing in place or whether it’s just another great idea whose time has come – and gone.

Federal Offshore Wind Plan Boosts State Efforts in Massachusetts

As President Biden announces his blueprint for expanding the use of offshore wind (OSW) power, Massachusetts hopes to become an industry hub. Those plans will certainly be facilitated by the new federal OSW policies.

On March 29, the Biden administration published a major plan to mobilize offshore wind development, particularly along the East Coast. The plan aims to construct 30,000 megawatts of OSW generation by 2030,… More

Is a New Electricity Grid in Our Future? President Biden Thinks So.

The White House this morning released a fact sheet on “The American Jobs Plan,” also known as President Biden’s infrastructure plan.  There’s a lot in here (as there should be for a couple of trillion dollars!), so today I’ll focus on energy infrastructure.  Here are the highlights: 

  • $100B to “build a more resilient electric transmission system.”  This includes “the creation of a targeted investment tax credit that incentivizes the buildout of at least 200 gigawatts of high-voltage capacity power lines.”
  • Creation of a “Grid Deployment Authority” within DOE to facilitate transmission line siting.
  • A “ten-year extension and phase down of an expanded direct-pay investment tax credit and production tax credit for clean energy generation and storage.”
  • Implementation of an “Energy Efficiency and Clean Electricity Standard.”  (If I knew what this really meant, I would tell you, but the fact sheet contains no details.  Presumably it is a version of a federal renewable portfolio standard.)
  • An unspecified amount of money for “15 decarbonized hydrogen demonstration projects in distressed communities.”
  • $10B for a “Civilian Climate Corps.”

There’s much more to come.  Even aside from more details on the energy infrastructure piece, there are important other sections of the Plan, including those on transportation infrastructure and drinking water infrastructure.

Stay tuned.  We’ll see how much this administration can get done before the next election cycle begins, but there’s no doubt that President Biden has ambitious plans.

States Really, Really, Must Act on Water Quality Certification Applications Within One Year

The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion.

First, in Hoopa Valley Tribe v. FERC, the D.C. Circuit held that an agreement between the applicant and the state pursuant to which the applicant repeatedly withdrew and resubmitted its 401 application could not escape the statutory time limit on state review. Then, in NYDEC v. FERC, the 2nd Circuit held that DEC could not escape the one-year limit by asking the applicant to supplement the application, arguing that the one-year period was not triggered until DEC determined that the application was complete.  Now, in a case involving the same parties as NYDEC v. FERC, the 2nd Circuit held last week that DEC could not escape the one-year limit by reaching an agreement with the applicant to redefine the date on which DEC had received the application.

Notably, DEC argued that the time limit was intended to protect the applicant’s right to a prompt review and that the applicant should thus be able “to waive or modify this right by agreeing to a different receipt date.”  Not so, said the Court.

The legislative history shows that Congress was not primarily concerned with protecting the rights of individual applicants. Rather, it shows that Section 401’s time limit was meant to protect the regulatory structure, particularly in situations involving multiple states: in other words, to “guard[] against” one state “sit[ting] on its hands and do[ing] nothing” at the expense of other states that are also involved in a multi-state project.  Thus, consistent with our approach in New York I, the legislative background of Section 401 confirms that Congress could not have intended to permit the arrangement advocated by the DEC and Sierra Club, which introduces the uncertainty the one-year limitation period was intended to eliminate.

I’m pretty sure that this does not mark the end of litigation over the one-year limit.  There are still going to be situations when states believe that they have legitimate reasons for taking more than one year to review an application for a 401 certification.  In some of those cases, the applicant may not object.  Human ingenuity being what it is, states are going to continue to look for ways around the one-year limit.  I do think, though, that the cumulative impact of these cases is that the states are going to have to be fairly ingenious if they are going to make their next end-run stick.

Massachusetts Climate Legislation Becomes Law — The Future of Everything

It’s not always the case, but my speculation about the Massachusetts climate bill was correct.  On Friday, Governor Baker signed it into law.  If I haven’t succeeded in making this clear previously, I want to emphasize that this is a really far-reaching piece of legislation.  It commits Massachusetts to a very aggressive timetable for reducing GHG emissions.  It species a number of specific policies, including a massive increase in the procurement of offshore wind (just to highlight one example) to get there, and it truly integrates environmental justice into the fabric of the Commonwealth’s climate efforts – and its environmental protection programs more generally.

If you did not think that it was possible to combine the mundane and the inspirational in the same event, you can watch the signing ceremony here.  I really recommend it only for true climate policy wonks and those with serious insomnia.