EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act? 

The agencies’ dream scenario is that SCOTUS ducks the issue in its Sackett decision, concluding that it doesn’t need to review the scope of CWA jurisdiction in order to determine the merits of the Sacketts’ position.  Then, the agencies manage to persuade SCOTUS in review of the rule itself that the rule is largely consistent with how WOTUS has been interpreted for more than 40 years, with some minor tweaks to address additional scientific understanding and to provide additional certainty to the regulated community.

The agencies do a pretty good job making the argument; if you don’t want to read the entire 514 pages, the 11-page Executive Summary explains fairly clearly why the rule is consistent with the statutory language and the science in this area.

Without taking a position on the pros and cons of the specifics of the rule, I’ll only note that what’s funny, in a not very funny sort of way, is that the agencies are almost certainly right that protecting the marginal resources the rule is intended to protect is exactly what the statute says they should be doing – even though it remains unlikely at best that SCOTUS will care at all.

Still, all the agencies can do is implement the law as they understand it in order to attain the statutory goals.  They’ve given SCOTUS a basis on which to uphold the WOTUS definition.  Now, or soon, it will be up to SCOTUS.

FERC Proposes to Implement Expanded Transmission Siting Authority

On December 15, 2022, the Federal Energy Regulatory Commission (“FERC”) issued a notice of proposed rulemaking in which the Commission proposes to implement its newly clarified authority under the 2021 Infrastructure Investment and Jobs Act (“IIJA”) to issue permits if a state denies an applicant’s request to site transmission facilities in a designated National Interest Electric Transmission Corridor (“National Corridor”).

Such change has potential—in certain cases—to tilt the balance of transmission permitting authority toward FERC and away from the states (where such authority traditionally has been held),… More

Another Day Older and Deeper in (Carbon) Debt

The International Energy Agency has released its 2022 Coal analysis and forecast.  It is sobering. By the time 2022 is over, world-wide coal consumption will have exceeded 8 billons tonnes for the first time.  In other words, 2022 was a record year for coal.  It is true that demand was largely flat compared to 2021 and there were some extraordinary reasons – such as a war in Ukraine – for even the moderate increase.

However, we don’t need flat coal demand; we need to start seeing significant decreases.  And the IEA report isn’t predicting those any time soon.  Instead, the IEA is predicting a plateau at around 8 billion tonnes lasting through 2025.

Once one gets over the depressing nature of this forecast, a few issues emerge from the IEA forecast.  First, while the war in Ukraine has affected European coal consumption, this remains largely about China, India, and other developing countries.  Since developing countries are not really interested in being told to curtail development to minimize GHG emissions, the developed world has to focus on what they can do to help moderate GHG emissions from China and India as much as on its own emissions.

Relatedly, this issue reminds me that, in all of our recent debate about how to achieve the GHG emissions reductions that are necessary, I’ve seen little or no discussion about the cost-effectiveness of different ways to reduce GHG emissions.  And I get that, because we need to reduce all sources.  Still, cost-effectiveness considerations should tell us not to focus solely on reducing our own emissions.  And we need to remember that providing technology to developing countries to reduce carbon emissions can provide significant economic benefit to the United States and Europe.

In any case, we are a long way from Tennessee Ernie Ford’s 16 Tons.  And our carbon debt is growing bigger every day.

Next Up for Massachusetts Building Emissions Reductions: Tackling the Clean Heat Challenge

This week, the Massachusetts Commission on Clean Heat released its final report.  The report seeks to establish a framework for a long-term reduction in emissions from heating fuels, to align with the Commonwealth’s emissions reduction target of net zero by 2050 and the 2050 Decarbonization Roadmap.

According to the 2050 Roadmap, on-site combustion of fossil fuels in the residential and commercial building sectors presently accounts for about 27% of statewide greenhouse gas emissions, and the use of these fuels for building heat is the largest end-use contributor to emissions in the building sector.  But the barriers to converting to clean heat are significant, including capital investment and operating costs, public awareness, and availability of equipment and trained installers.   The Commission’s report includes a host of recommendations for the Commonwealth and underscores the urgency for action – without immediate action in the next year or two, we are unlikely to be able to achieve the pace and scale of change needed to meet the 2050 goals.

To achieve these goals, the Commission recommends the Commonwealth transition away from investing in new or increased natural gas infrastructure or capacity and instead deploy funds to support a net zero future.  Some of the key recommendations include:

  • implementing a Clean Heat Standard by 2024;
  • conducting joint energy system planning with the Department of Public Utilities, the Department of Energy Resources and the gas and electric utilities;
  • identifying ways to reduce electric operating costs for those who convert to clean heat

On the issue of whether to phase out new fossil fuel heating systems by law, the Commission was split, but recommended the issue be further analyzed.

Another key theme of the report is that the present rate-payer funded Mass Save program that provides incentives for building decarbonization is neither designed for nor capable of achieving the type, pace, and scale of change that are needed.  As the report notes,

there is an inherent conflict of interest within the program — which is likely to become more challenging moving forward — whereby investor-owned gas utilities are being asked to implement decarbonization measures that are designed to reduce their revenue base by switching customers to efficient electric appliances.

The Commission recommends a wholesale reform of the program and the establishment of a new Building Decarbonization Clearinghouse that would advance equitable decarbonization efforts, be accessible to all, and serve as a “one stop shop” for building owners, residents and businesses.

Although outside the scope of the Commission’s work, the Commission emphasized that the Commonwealth must work in parallel to expand the supply of clean energy and the capability of the grid over the long term so that the system can handle the resulting load growth.

The Commission was established by Governor Baker in 2021 and delivered its report to his Administration on the eve of their departure.  Governor-elect Healey has her work cut out for her!


BOEM Slated to Act on Two Gulf of Maine Offshore Wind Activities in 2023

The Bureau of Ocean Energy Management (BOEM) of the U.S. Department of the Interior (DOI) is responsible for the development of offshore renewable energy in federal waters. While the first Gulf of Maine offshore wind lease sale is not expected until 2024, this post explores recent actions BOEM has taken to advance offshore wind in the Gulf of Maine and the agency activity we’re likely to see in the year ahead.… More

Our Environmental Statutes Are Broken

Last week, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide cyantraniliprole. This effects determination was supposed to be issued before EPA registered the pesticide.  Unfortunately, EPA did not do so.  Moreover, EPA acknowledged that it routinely registered pesticides without performing the required effects determination.

In fact, EPA did not only ignore the clear statutory requirement.  It also ignored a court order from 2017 requiring EPA to prepare the required determination and redo cyantraniliprole’s registration.

Didn’t happen.

Why not?  Basically, EPA’s position is that it just cannot do what the statute requires.  Indeed, EPA has stated publicly that, at least through 2030, it will perform effects determinations only when ordered to do so by a court.

More to the point, why am I blogging about a cut and dried case such as this?  Because it’s just another example of the way in which our patchwork quilt of environmental statutes is fraying at the seams.  (How’s that for an extended metaphor?)

  • FIFRA – requires assessments prior to registration that EPA cannot begin to accomplish.
  • ESA – Basically the same. The listing process is pretty much on a schedule determined by citizen suits and court orders.
  • The Clean Water Act – It’s routine for EPA to take more than 10 years to act on NPDES permit renewals.
  • The Clean Air Act – The Supreme Court has ruled that it does not provide authority for EPA to address the defining issue of our time. Many people, including me, think that SCOTUS got it wrong, but I don’t think that the decision was crazy.  More to the point, if West Virginia v. EPA had occurred in the 1970s, Congress might actually have gone to work and fixed it.  There’s little chance of that happening now.
  • CERCLA – We’ve clear-cut numerous forests to supply the paper needed for all of the cases criticizing CERCLA’s drafting. Now, EPA is proposing to list certain PFAS as hazardous substances.  The listing itself is defensible, but anyone with eyes open knows that the resulting litigation nightmare will be truly … nightmarish.

I could go on.  Is there any likelihood that Congress will act to fix any of these problems?  I didn’t think so.

The various statutes passed in the 1970s into the early 1980s have resulted in many benefits.  They created a pathway towards cleaning our air, water, and land.  Since then, we have the shining success of the Clean Air Act amendments of 1990, but pretty much nothing else.  Those early statutes, however much they accomplished, were flawed when they were written, and are clearly not up to today’s challenges.

I know I’m not the first to raise these issues.  Plenty of smart people have proposed creative ways to solve the problems I’ve described.  My friend Dan Esty has suggested what is essentially a market-based approach to environmental regulation.  One of my law professors, Guido Calabresi, recognized the broader problem of the ossification of statutes almost forty years ago, making the novel suggestion that we might treat statutes the way we treat the common law, allowing judges to adapt statutes to changing circumstances.  This would hardly be in tune with the current vogue for originalist modes of interpretation, but it is at least an approach that recognizes the problem.

The key issue, however, is that it’s difficult to see any of these creative solutions actually being implemented.  And so we just leave it to EPA to muddle through.

The Social Cost of Greenhouse Gas Emissions is About to Get Much More Expensive

Following an announcement at COP27 by President Biden, the EPA issued a supplemental proposal to reduce methane and other harmful emissions from new and existing sources in the oil and gas industry. In its regulatory impact analysis for the supplemental proposal, EPA included a sensitivity analysis detailing a revised methodology and new estimates for social cost of greenhouse gases (SC-GHGs), including carbon, methane,… More

Maine Offshore Wind Roadmap Expected in Early 2023; Here’s Why the OSW Industry Should Take Note

The State of Maine is expected to release the Maine Offshore Wind Roadmap in early 2023, and the global offshore wind industry should be watching. Preliminary details from the state’s roadmap—the focus of this post—clearly indicate that Maine is preparing to seize the significant opportunity presented by the Gulf of Maine offshore wind resource.

Maine’s offshore wind energy potential is ranked seventh in the nation, with more than 411 TWh/yr of offshore resource-generating potential.… More

CERCLA Has Never Been a “Polluter Pays” Statute

Environment and Energy Report (subscription required) had a story today about growing opposition to EPA’s proposal to list two PFAS compounds, PFOA and PFOS, as hazardous substances under CERCLA.  Here’s what really caught my eye about the opposition.  The National Association of Clean Water Agencies opposes the proposal.  They think it inconsistent with EPA’s historical implementation of CERCLA:

EPA’s proposed designations, however, fall short of the Agency’s aims by failing to advance the “polluter pays” approach the Agency has repeatedly espoused. The proposal instead threatens to push significant costs and liabilities onto local communities; increase affordability concerns, particularly for disadvantaged communities; and untenably put cleanup actions ahead of critical source control and risk assessment processes.

I’m very sympathetic to the concerns expressed by the NACWA, but I don’t agree with their history.  CERCLA has never been about making the polluter pay.  It has always been about avoiding having the government pay.  My favorite example remains the Cannons Engineering Corporation sites.  In the 1970s, as concerns about hazardous waste management were growing, several responsible companies asked what is now the Massachusetts Department of Environmental Protection what they should do with their waste.  MassDEP informed the companies of a state-of-the art incineration facility – then, the latest technology – in Bridgewater, MA, operated by Cannons Engineering.  The companies did their due diligence and began contracting with Cannons.  They even continued their due diligence, often following trucks to make certain that their waste was really going to Cannons.  They also got “certificates of thermal destruction” from Cannons, confirming that their wastes had been incinerated.

Imagine their surprise when it turned out that Cannons, instead of incinerating much of the waste, was having it hauled away, including to sites in New Hampshire, where it was dumped down various drains.  Cannons ended up resulting in four separate Superfund NPL sites.  Moreover, notwithstanding that the generator companies never arranged for disposal of their waste at the other sites, the companies were named as PRPs at the other sites.

Can any fair-minded person argue that the companies “polluted” the other sites?  I think not.  They were held liable because, at the time, people thought that, as between an innocent corporation and an innocent government, it was better that the innocent corporation pay for the cleanup than the innocent government.

One can understand why government took the position it did.  One can also disagree.  I happen to think that it makes more sense for government to pay (perhaps with funds from a Superfund tax!).  Because society as a whole benefitted from the economic activity that led to the pollution, and because the companies did not in any reasonable understanding “cause” the contamination, society as a whole should pay the cleanup costs.

And so we come to PFAS.  At sites where the manufacturers and distributors of PFAS cannot be held liable, should municipalities, water treatment facilities, recyclers, and other entities far removed from decisions about PFAS, and often having no idea that they were even handling PFAS, be liable for the cleanup costs?

CERCLA case law says yes.  I think a reasonable sense of fairness says no.  As EPA moves forward with its listing proposal, we’ll see whether the public believes in 2022 that “innocent” companies should pay for PFAS remediation, rather than “innocent” governments.

The fate of PFAS regulation may tell us a lot about who the public thinks should be responsible for such contamination.  Or it may just tell us about the state of inertia and gridlock in the United States today.

Some “Big Lifts” For Boston to Achieve Its Climate Goals

Earlier this Month, The Boston Foundation released its “Inaugural Boston Climate Progress Report.”  Suffice it to say, there’s a lot to do.  The Report identifies four “Big Lifts” necessary to attaining our climate goals.  It defines a Big Lift as:

a multidecade mega-project that seeks to improve the city to align with its climate and equity goals.

The four Big Lifts are:

  • Retrofitting the small building stock
  • Local energy planning for an electrified city
  • Building a resilient coastline through improved governance
  • Prioritizing reparative planning for Boston’s frontline neighborhoods

All of these are important and each is worth its own post.  Perhaps because it gets less attention than the others, I’m going to look at the governance issue briefly here.  The Report identifies three “options” and “challenges” associated with governance.  The following list is my shorthand summary of the issues identified in the Report.

  • The lack of a coordinating agency to resolve conflicts among competing interests
  • Existing regulations that are not hospitable to resiliency projects
  • Money, money, money
  • A lack of transparency in City government, which leads to confusion about who is doing what and what we are trying to accomplish

I don’t disagree with any of this.  I will say that, though this report is focused on Boston, Governor-elect Healey has proposed a cabinet-level climate position.  Since many of the governance issues derive from current state statutes and regulations, having a climate secretary may help address the coordination issue, assuming municipalities and the state government are generally on the same page.

I think that the biggest issue is the problem with our existing regulatory structure.  Based on a paradigm that developed prior to climate change, in-water resiliency solutions are at best difficult to permit and, at worst, simply impossible.  That makes sense if the “fill” is for some purpose unrelated to the environment and comes with associated environmental costs.  If the very purpose of the project is to address the most pressing environmental issue of our time, a different paradigm is warranted.

The biggest problem here is that this issue isn’t just bigger than Boston; it’s bigger than Massachusetts.  Even if we have all the coordination in the world and Governor Healey’s climate czar succeeds in reforming our state regulations to facilitate beneficial resiliency projects, the federal permitting regime will remain a significant problem, one that cannot be solved in Massachusetts.

I guess that’s why they are called Big Lifts.

(And if you need a reminder why this matters, watch this, which includes video of the street where I live!)

The Broken Record Department: PM2.5 Is Bad For Your Health (and EVs can help)

I’ve written before about the developing science regarding the impacts of PM2.5 emissions.  Short version – they’re bad for you.  They’re even worse than we thought, and there’s increasing evidence that they cause a lot of harm at concentrations below the National Ambient Air Quality Standard of 12 ug/m3

The most recent report comes from Canada, which is particularly useful in measuring the impact of low concentrations of PM2.5 precisely because PM2.5 concentrations are relatively low there.  Tracking a large cohort, the authors developed a concentration-response relationship, then applied that relationship globally.  They found that the World Health Organization undercounts annual PM2.5 mortality by 1.5 million.  More than 400,000 of those deaths are in areas with PM2.5 concentrations below the NAAQS.

EPA is currently deciding what to do with a recommendation to lower the NAAQS to somewhere between 8 ug/m3 and 10 ug/m3.  I’m confident that EPA will accept that recommendation, but whether the NAAQS lands at 8 ug/m3, 10 ug/m3, or somewhere in between is beyond my powers of prognostication.  I am confident, however, that in the long run, the science is only going to drive the recommended number lower.

And so we come to the topic of electric vehicles and electrification more generally.  Even aside from the climate benefits of moving to EVs, the immediate public health benefits – largely in areas of environmental justice concern – will be substantial.  We have to make clear that moving to EVs is not just to make wealthy elites feel as though they are helping address climate change.  Would it help to sell the EV revolution to focus on the public health benefits from electrifying vehicles (and the economy more broadly)?

Biden Announces New Initiative on “Game-Changing” Technologies for Achieving Net-Zero Emissions

On November 4, 2022, the White House announced a new initiative to support research and development projects on 37 “game-changing” technologies to advance the Biden Administration’s goal of net-zero emissions by 2050.

Led by an interagency working group, the “Net-Zero Game Changers Initiative” will direct billions of dollars under the bipartisan infrastructure law, the CHIPS and Science Act, and the Inflation Reduction Act toward five initial priorities:

  • Efficient Building Heating and Cooling,…
  • More

Amendments to Massachusetts’ Clean Energy Standard Finalized, Accelerating Progress Towards Decarbonization of the State’s Electricity Sector

The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) and Department of Environmental Protection (MassDEP) announced that proposed amendments to the state’s Clean Energy Standard (CES) were finalized earlier this month without substantive changes from draft language initially proposed by the agencies in April 2022.

The amendments are intended to accelerate progress towards decarbonization of the electricity sector and further ensure the state meets its goal of net zero emissions by 2050.… More

DOER Issues an Updated Stretch Code – Are Net-Zero Energy Buildings Really Coming Soon?

Massachusetts will soon see significant updates to the energy codes that govern the construction and alteration of buildings throughout the Commonwealth.   As required by the 2021 climate bill,

the Massachusetts Department of Energy Resources (DOER) has recently finalized regulations updating the current Stretch Energy Code, previously promulgated by the state’s Board of Building Regulations and Standards (BBRS), and establishing a new Specialized Code geared toward achieving net-zero building energy performance.… More

Can Cumulative Impact Analysis Improve Cost-Benefit Analysis?

As frequent readers know, I am a big fan of cost-benefit analysis.  The basic idea is that, when we make a decision to regulate at a certain level, we are by definition deciding that regulating to that level is “worth” the costs that the regulation will impose.  We might as well make such calculations explicitly. 

However, that doesn’t mean that CBA cannot consider the distributional impacts of federal regulations.  Indeed, OMB Circular A-94, which largely governs how federal agencies conduct CBA, has a section on distributional effects.  While I’ve long been aware of the issue, several recent events have driven home its import – and also suggested both how CBA can be improved and how it can strengthen, rather than weaken, the case for regulations.

The first was an article by Kelly McGee on how the flawed way we conduct CBA to determine how FEMA distributes funds for flood mitigation projects biases FEMA decision-making to short-change those who most need FEMA’s help.  In short, the “benefits” of these projects are calculated based on the property value saved by the mitigation.  Of course, by definition, projects in wealthier areas are going to have a higher value under that calculation than those in poorer areas.

Oops! Can you say “environmental injustice”?

Second, Inside EPA (subscription required) reported earlier this month that Jim Tozzi, OIRA director under Ronald Reagan (!) has apparently written to the Council of Economic Advisors, suggesting that the CEA “become involved in establishing the principles and methodologies to address equity considerations in the rulemaking process.”

Hear, hear! Who could be against it?

Finally, an EPA workgroup recently posted a report titled “Cumulative Impacts Research:  Recommendations for EPA’s Office of Research and Development.”  Figuring out how to conduct robust cumulative impact analyses is a primary focus of current EJ efforts.  However, while the report talks a lot about quantifying cumulative costs and benefits associated with different environmental issues, the report doesn’t say a single word about research into how developments in cumulative impacts research can feed directly into the the way cost-benefit analyses are conducted.

Opportunity missed!

Figuring out how to incorporate cumulative impact analysis into cost-benefit analysis has to be the holy grail.  If we can do that, we might be able to persuade open-minded environmentalists and EJ advocates that cost-benefit analysis is a good thing.  If we can do that, we might be able to persuade open-minded market enthusiasts that environmental regulation is a good thing.

And that would be a good thing.