EPA’s Ozone NAAQS Largely Survives: CASAC Still Rules

The D.C. Circuit today largely upheld EPA’s 2015 revisions to the National Ambient Air Quality Standard for ozone.  I’m not much of a prognosticator, but I pretty much called this one years ago.  The Court was never going to require EPA to consider costs in setting the NAAQS – not a surprise, given that the Supreme Court concluded in Whitman v. American Trucking Association that the CAA:

unambiguously bars cost considerations from the NAAQS-setting process.

Nor was it going to rule that EPA should have taken background ozone concentrations into account in setting the NAAQS.  As the Court recognized, the statute allows EPA to address background issues in implementing the NAAQS, but implementation issues are irrelevant to setting the NAAQS at the level, “allowing an adequate margin of safety, [that] are requisite to protect the public health.”

On the merits of EPA’s decision to lower the primary ozone NAAQS from 0.075 ppm to 0.070 PPM, the petitioners came squarely up against the recommendation of the Clean Air Science Advisory Committee that EPA set the NAAQS at somewhere in the range of 0.060-0.070 ppm.  The Court was never going to require EPA to pick a level outside CASAC’s recommended range.  Indeed, had EPA done so, the Court very likely would have vacated such a decision.

The more interesting aspect of the case was the Court’s decision to affirm the standard against environmentalists’ challenge arguing 0.070 ppm was not sufficiently stringent.  CASAC had recommended that EPA adopt a standard of 0.060 ppm.  However, as I predicted, EPA adequately protected its left flank.  As the Court noted, CASAC’s scientific recommendation was that the standard be in the 0.060-0.070 ppm range.  EPA selected a standard from within that range.  CASAC’s recommendation that EPA select 0.060 ppm was a policy judgment, not a scientific judgment – and EPA gets to make the policy judgments.

I have in the past noted that CASAC’s scientific recommendations are borderline sacrosanct and this case does nothing to change that view.  Thus, If this case highlights anything, it is that this Administration’s efforts to reshape EPA’s advisory committees are going to be really important.  What happens if a radically reshaped CASAC concludes that 0.075 ppm is “requisite to protect the public health”?  We may get an answer to that question sooner than we ever thought.

If It Walks Like a Duck and Talks Like a Duck, It May Still Not Be Sauce for the Gander

Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review.  Like Judge Rogers, I dissent. 

The majority makes much of its effort to clarify this “byzantine” area of the law.  My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule:  If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged.  If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process.  The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”  The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are….  The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future.  However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

TMDL — It Means Total Maximum Daily Load. Literally.

Earlier this week, Judge Christopher Cooper of the District Court for the District of the Columbia, struck down EPA’s approval of Total Maximum Daily Loads established by the District of Columbia for the Anacostia and Potomac Rivers.  Why?

Because the District’s TMDLs did not conform to the plain meaning of the words “Maximum” or “Daily.”  The decision is lengthy and complicated, because the statutory framework is complicated.  What it boils down to is this:  TMDLs are not directly utilized in setting permit limits and longer term maxima might be better suited to guiding permit decisions.  Nonetheless, the statute requires that states and the District of Columbia must establish total maximum daily loads.

Here’s the Judge’s nice Article III take on the issue:

Readers could be forgiven for finding all this all somewhat bizarre. If the maximum load does not have immediate regulatory effect and EPA has put out sensible guidance that ensures that daily figures best assist those efforts that do have regulatory effect, what’s wrong with that? In this context, forcing the District to articulate a daily maximum may be especially odd because the 30-day geometric mean is designed to tolerate high daily spikes. Why, then, force the District to identify what will presumably be an astronomically high figure as the maximum load, when that load can only be reached in the rarest of circumstances? Why not simply allow the District, pursuant to EPA guidance, to establish a lower figure that articulates an upper target—something of a warning guidepost—that can better allow regulators and other stakeholders to monitor progress? The simple answer is that Congress said so.  (Emphasis added.)

In other words, the statute is stupid, but there’s nothing I can do about it.  As Judge Cooper put it, it may be bizarre, but it’s not legally “absurd.”

If Congress were a functioning legislative body, this might get fixed.  Don’t hold your breath.

Changes to ESA Regulations: How Significant Are They?

The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have released final rules amending significant parts of the regulations implementing the Endangered Species Act.

How big an impact will the changes have?  Well, there’s no doubt that the supporters of the regulations hope that they will be substantial and the opponents are worried that they will be substantial, so we should probably assume that they will be substantial.

Commenters have flagged three particularly significant changes:

  • The agencies’ determination to assess the economic impact of listing decisions.

The agencies repeatedly emphasize that they know that listing decisions must be made without reference to the economic impact of the decision and insist that nothing will change on that score.  They claim that this is only an effort to improve transparency and provide information.  Count me with the opponents on this one.  The agencies doth protest too much.  In a world where President Trump issued an executive order that essentially precludes agencies from adopting new regulations that impose new costs, without regard to the benefits that they provide, does anyone really believe that the agencies’ assessments of cost will have any basis in reality?

  • The elimination of the “blanket rule” that basically protects threatened species as though they were endangered.

In a perfect world, I’d have no objection to this change.  There’s a reason why the ESA has different categories and there’s no reason why threatened species should necessarily be treated the same as endangered species.  However, the change means threatened species will in fact only be protected if the FWS issues a special rule under § 4(d).  Given staffing constraints and how FWS has historically struggled to keep up with its ESA workload, does anyone want to guess how many 4(d) rules will actually get issued?  I’m betting on zero until FWS demonstrates otherwise.

  • Changes in the rules on designation of critical habitat, making it more difficult to establish critical habitat in areas not currently occupied by an endangered species.

To me, this is really a scientific question, but I don’t doubt that, in the majority of cases, the new rule will not be sufficiently protective.  Let’s take a simple example.  Assume that there are only 100 individuals left of some endangered species, living in a habitat that can support 250 individuals of that species.  Assume further that scientists have determined that the population will not be sustainable until there are 10,000 individuals.  In this example, which I’d bet is reasonably common, it will be necessary to have available enough critical habitat for 9,750 additional members of that species.  If we don’t protect that habitat now, then we’re never going to get back to a sustainable population.

I give the rules ¼ point out of 3 – and I’m dying to see the first economic analysis of a listing decision that this administration prepares.

More Sauce For the Chevron Goose

Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act.  The regulations are long-overdue and, notwithstanding the source, some of the changes are appropriate.  Nonetheless, the key element of the revisions is the provision that would preclude state and tribal agencies from considering issues other than those related to the water quality impacts of discharge being permitted – and to include that provision, EPA had to get around the clear holding in PUD No. 1 of Jefferson County v. Washington Department of Ecology, in which the Supreme Court unambiguously held that state and tribal agencies do have such authority.

And how did EPA manage to pull this regulatory authority out of a seemingly well-defined jurisprudential hat?

Chevron, of course!  Here’s how an agency avoids a seemingly definitive Supreme Court holding in four easy steps.

  1. Conclude that the holding was permissive under Chevron, rather than being based on the unambiguous language of the statute.
  2. Determine that the new interpretation is a permissible one under the Clean Water Act.
  3. Decide that the new interpretation is the better policy approach.
  4. Cite to cases making clear that interpretations of ambiguous statutory language under Chevron are subject to revision by the agency at a later point in time.


Are conservatives ever going to concede I’m right that Chevron is not a liberal plot?

Climate Change Litigation Strategy: Swing For the Fences or Hit Singles?

Those seeking to address climate change through litigation have taken two different paths.  Some cases, probably best represented by Juliana v. United States, have plaintiffs who are swinging for the fences.  These are stereotypical examples of impact litigation; the plaintiffs are hoping to change the world.  Other cases involve plaintiffs who are just hoping – for now, at least – to hit a few singles.  Representative examples include cases brought by the Conservation Law Foundation against terminals in Massachusetts and Rhode Island, where CLF claims that the defendants are violating various federal laws by their failure to prepare for the impact of climate change.

Two recent stories reaffirmed my believe that, at least for the near term, the singles hitters are likely to do better than the home run hitters.  First, the home run hitters.  Last week, Judge Michael McShane dismissed a case brought by the Animal Legal Defense Fund in which the plaintiffs asked the Court to address the government’s failure to address climate change by creating a “right to wilderness.”  The Court did not hesitate to conclude that the relief sought was beyond the power of a humble District Judge.  Judge McShane found that the plaintiffs did not have standing, there was no justiciable case or controversy, and that the plaintiffs had not stated a claim for relief.  As the Court noted on the standing issue:

Plaintiffs’ allegations are, by their very nature, generalized grievances. They allege harm resulting from the government’s actions and inaction regarding climate change and seek broad declaratory and injunctive relief that would no more directly or tangibly benefit them than the public at large. Even if this Court were to recognize a fundamental “right to wilderness,” it would necessarily be a right held in common by all citizens, and the effects of climate change would be an abstract injury that all citizens share.

Next up, the singles hitters.  In a very helpful summary published yesterday, ClimateWire (subscription required) laid out the types of claims that are being brought now and that could be brought in increasing numbers in the fairly near future, particularly as attribution science becomes more mature.  The types of cases range from claims arising out of western wildfires, to shareholder lawsuits for insufficient disclosure of climate risks, to the types of terminal claims brought by CLF.

I think that there’s a pretty good chance that plaintiffs start prevailing in some of these cases fairly soon.  If that starts happening, we’re going to see a cascade and then a tsunami of such cases.  And if that starts happening, the home run cases may not matter so much.

The question then will be what happens when the targets of such litigation run to Congress and beg for a carbon tax combined with some kind of relief from private litigation.

The Trump Administration Provides Another Lesson in How to Lose An Environmental Case

Last week, the 4th Circuit Court of Appeals vacated the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement for the Atlantic Coast Pipeline.  It’s the second time that the Court has rejected the FWS approval of the project.  I have previously suggested that the Trump administration cares more about providing material for the President’s Twitter feed than advancing its deregulatory or energy dominance agendas.  Last week’s decision provides some compelling evidence in that direction.

Much of the opinion focuses on FWS’s assessment of the impact of the project on the rusty patched bumble bee, which sounds as though it is at extinction’s door.  The Court rejected FWS’s BiOp as arbitrary, “because it [was] not based on the best available information and in fact ignore[d] evidence that the agency itself has developed.”  Moreover, the Court noted, while FWS has guidance regarding how to survey RPBB nests, it conducted no surveys to do so.

In fact, the agency made a point of avoiding surveys in order to “fast-track” pipeline authorization. (“Our internal direction is that we can’t require surveys and will not make further requests for surveys that interfere with applicant’s project schedule since these are priority fast-track projects, and we will not state that we have insufficient information to initiate consultation and will not delay initiation of consultation based on lack of baseline/species survey data.”).

Can you imagine how the plaintiffs’ attorneys’ eyes must have lit up when they found this statement?  FWS admitted that they would not perform surveys on fast-track projects – and would deny that they have insufficient information!

My only question is why the Court of Appeals felt the need to write a 50-page opinion.  I think that this one paragraph was probably enough.

So much for any pretense that this administration cares about the rule of law.

Some Say the World Will End in Fire; Some Say in Floods

I’ve always understood that heat causes more fatalities than other weather-related phenomena.  It’s only going to get worse with climate change.  If you thought that climate change was all about rising sea levels, think again.  Earlier this week, the Union of Concerned Scientists released “Killer Heat in the United States:  Climate Choices and the Future of Dangerously Hot Days.”  I’d like to say it makes chilling reading. 

Here are just two of the predictions for mid-century conditions that caught my eye:

Nearly one-third of the nation’s 481 urban areas with a population of 50,000 people or more will experience an average of 30 or more days per year with a heat index above 105°F, a rise from just three cities historically.

Assuming no changes in population, the number of people experiencing 30 or more days with a heat index above 105°F in an average year will increase from just under 900,000 to more than 90 million—nearly one-third of the US population.

And yet, there are still people who actually maintain that carbon emissions are beneficial.

I thought about accompanying this post with one of the many versions of the song “Heat Wave,” but it’s much too upbeat.  Instead, I found this clip of Robert Frost reading “Fire and Ice in an appropriately apocalyptic voice.

Mitigating GHG Emissions From Buildings. The Drumbeat Is Getting Louder

I’ve posted a number of times about the coming wave of efforts to reduce or eliminate GHG emissions from buildings.  Notwithstanding Washington’s current intransigence, the electric sector is now decarbonizing.  With that under way, attention next focused on the transportation sector.  That’s moving along with efforts in California and the northeast and mid-Atlantic states pursuing the Transportation Climate Initiative.

However, it’s very clear that addressing the electric sector and the transportation sector still isn’t going to be enough.  Buildings are next.  And now the little state that could, the State of Rhode Island and Providence Plantations, is getting into the game.  Governor Gina Raimondo has issued an Executive Order requiring Heating Sector Transformation to Ensure Reliability and Protect Against Climate Change.  Although the Order does not require promulgation of regulations with limits on GHG emissions from the heating sector, it’s difficult to imagine the “transformation” that the Governor seeks without regulatory limits on GHG emissions.

The Department of Public Utilities and the Office of Energy Resources are directed to make recommendations on the transformation by April 22, 2020.  Time will tell.  As transformations go, eliminating GHG emissions from buildings will be fairly major!

Is Putin’s Deep Game to Make Money From Climate Change?

ClimateWire (subscription required) reported today that Russia plans to join the Paris Agreement.  Apparently, Russia is doing so because it sees a global move to a low-carbon economy and it doesn’t want to be left behind.

So, if Putin manipulated the 2016 elections to make Donald Trump president, did he do so to make it easier for Russia to get a leg up on the US in building the low-carbon economy of the future?

Just askin’.

Last of An Endangered Species Spotted on Capitol Hill: A Practical Senator

Bloomberg Environment (subscription required) is reporting this morning that Senator Chris Coons is trying to persuade Democrats that they should agree to limit EPA’s authority to regulate greenhouse gases in return for GOP support for a carbon tax.  As regular readers will know, I’ve supported for years the idea of a grand bargain such as Senator Coons is now proposing.

I have never understood environmentalists’ opposition to such a deal.  I’ve always resisted even describing this kind of deal as a trade-off, because I don’t think that environmentalists are giving up anything meaningful.  The CPP was always at best clunky and inefficient and at worst very clunky and very inefficient.

In any case, why is separate regulation of greenhouse gases necessary with a carbon tax in place?  More importantly, we currently have neither a carbon tax nor meaningful carbon regulation.  If a carbon tax never happens, then such a position just trades hypothetical regulation for a hypothetical tax.  If a miracle occurs and Coons can get GOP support and a carbon tax does eventually get passed, then the deal looks even better.  Then, environmentalists will have traded hypothetical carbon regulation for a real carbon tax.

Seems like a good deal to me.

Affordable Clean Energy — Or, Much Ado About Nothing

Here’s my take on the Affordable Clean Energy Plan.

Who cares?

On the merits, it does almost nothing.  It requires only that states impose heat rate improvement requirements on coal-fired power plants.  It’s not going to meaningfully lower emissions.  Administrator Wheeler has trumpeted that emissions will be 35% lower in 2030 than in 2005, but the ACE rules contribute almost nothing to that result.

While I support the policy measures in the Clean Power Plan, the CPP was always on shaky legal ground and it has been particularly so after Trump’s appointment of two members of the Supreme Court.  Thus, it’s probably not accurate to attribute any backsliding from the CPP to the new ACE rule; that was going to happen regardless.

And while some pundits have suggested that the ACE rule will limit flexibility of a future Democratic administration, I’m skeptical.  If there’s ever going to be a situation where a new administration can easily justify abrupt changes in policy and survive judicial review, it’s going to be the next Democratic administration.

That’s not to say the ACE rule doesn’t matter.  Notwithstanding the views of those such as William Happer, the science is clear that we need big reductions in GHG emissions and we need them soon.  ACE just makes more clear that we’re not going to see meaningful federal action within any reasonable understanding of the word “soon.”  And however much we can applaud aggressive action by some states and cities, it would be just foolish to think that we don’t need the federal government to act.

If we want to move from Much Ado About Nothing to All’s Well That Ends Well, we have to end the Comedy of Errors that is the current Administration’s approach to climate regulation.

Affordable Clean Energy or Carbon Free?

Yesterday, EPA finalized its Affordable Clean Energy rule, which will replace the Obama Clean Power Plan.  More on ACE later.  For now, I just want to use the ACE roll-out to contrast what’s happening at the federal level with what’s happening in the rest of the world – specifically, in this case, in Boston.

While President Trump is throwing coal a “lifeline,” the Carbon Free Boston:  Transportation Technical Report is discussing banning internal combustion automobiles from the City of Boston by 2050.  It’s actually a bit unfair to focus on the possibility of such a ban, because the report has a lot of detail about a range of policies.

However, that is, in part, the point.  When you look at the science, it’s pretty clear we need to decarbonize as quickly and completely as possible.  When you look at the options for decarbonizing, you have to at least start to consider a wide range of options, including those as jaw-droppingly severe as banning internal combustion cars.

Meanwhile, back in Washington, Administrator Wheeler is trumpeting a 14% decline in carbon emissions from the energy industry over 12 years (conveniently picking the most favorable dates and ignoring an increase last year and expected increase this year), and issuing a rule that provides for modest increases in efficiency at coal plants.

Asbestos. Lead Paint. MTBE. PFAS?

Late last month, New Hampshire filed two law suits seeking to recover a variety of costs and damages it alleges have resulted from contamination caused by releases of PFAS.  It’s a wide ranging suit; New Hampshire asserted claims for negligence, defective design, failure to warn, trespass, and damage to public trust assets, among others.

And what relief does the state seek?  Not much.  It merely seeks that the court enter a judgment:

Finding Defendants liable, jointly and severally, for all costs to investigate, clean up, restore, treat, monitor, and otherwise respond to contamination of the State’s property and its groundwater, surface water, fish, wildlife, marine resources, and other natural resources so that such resources are restored to their original condition and are fit for their intended and natural uses, and for all damages to compensate the citizens of New Hampshire for the lost use and value of these resources during all times of injury.

I have no knowledge about the conduct of the companies that manufactured and distributed PFAS.  I also don’t know where the science is going to end up regarding the risks posed by PFAS.  I am pretty confident, though, that this will not be the last of these law suits that we see.  I’m also pretty confident that, regardless of where the science is headed, the public may have already made up its collective mind about the risks of PFAS.  Thus, I’m also pretty confident that a lot of lawyers are going to make a lot of money on PFAS litigation before it’s all over.

Dispatches From Carbon (Fantasy) Land

Greenwire (subscription required) reported today that the White House blocked testimony by Dr. Rod Schoonover of the State Department to the House Intelligence Committee on “The National Security Implications of Climate Change.”  This by itself might be unsurprising, if nonetheless depressing.  What’s truly amazing, however, is that Greenwire contains a link to the draft testimony, together with the NSC comments.

As regular readers of this blog have probably figured out, I at least try to find humor in almost everything.

I found no humor in the NSC comments on this testimony.  They were just plain terrifying.  Greenwire reported that NSC Senior Director William Happer was among those who provided comments.  Greenwire also reported that Mr. Happer is among those who think that carbon emissions are beneficial and that certainly seems to be consistent with the comments, which include the following:

This is not objective testimony at all.  It includes lots of climate-alarm propaganda that is not science at all.  I am embarrassed to have this go out on behalf of the Executive Branch.

For the past 30 years, funding for climate research … has welcomed research findings that support climate alarm….  So the information mentioned here is heavily biased toward alarm…..  A consensus of peer reviewed literature has nothing to do with truth.

Extreme high temperature records are not increasing.

“Tipping points” is a propaganda slogan designed to frighten the scientifically illiterate.

This testimony religiously assumes that any climate change will certainly be bad.  But this assumption is not based on science.

And I could go on.  It is basically a rehashing of every bit of made-up pseudo-science that climate skeptics have been throwing at the kitchen wall for years.  Unfortunately, it has stuck with our current President.  If this White House truly believes any of what is in the comments, then we are really all mad here.