SCOTUS Gets One Right: Discharges To Groundwater Require Permits, But Only If They Are the Functional Equivalent of a Direct Discharge to Surface Water

The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the “discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

I don’t often say this about Supreme Court environmental decisions, but I think that the Court got it exactly right.

The apparent dilemma for the Court was that, on one hand, the CWA pretty clearly focuses on surface water discharges, largely leaving groundwater to the states. On the other hand, excluding all groundwater discharges from the CWA would create a massive loophole that could not have been intended by Congress.  Justice Breyer, the Court’s preeminent administrative law scholar, solved it elegantly and simply.

First, he addressed why the CWA must address at least some discharges to groundwater.  As he noted, the “bright line” rule sought by the respondent (and the Trump administration) would allow a person currently discharging to surface waters to cut the pipe off so that the discharge now occurred 10 feet short of surface water, thus avoiding CWA jurisdiction.  Justice Breyer found this untenable.

We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.

And I love that one of his clerks found a case from 1824

rejecting an interpretation that would facilitate “evasion of the law”.

The other side of the dilemma was how to prevent the loophole without subjecting all or almost all groundwater discharges to CWA coverage.  The 9th Circuit approach was to apply the CWA to any groundwater discharge where the surface water pollution is “fairly traceable” to the groundwater discharge.  This was far too broad for SCOTUS to swallow.  Justice Breyer’s solution?

We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.

Why didn’t I think of that?  And for those of you who think that this formulation is too vague, aside from asking rhetorically what would be a better definition, I’ll note that Justice Breyer included a list of seven factors that courts may use in determining whether a groundwater discharge is the functional equivalent of a direct discharge.

Resolving this issue may not be rocket science, but it’s a difficult legal issue that has evaded resolution for years.  Kudos to Justice Breyer for finding a workable middle ground that avoids eviscerating the statute without subjecting untold number of groundwater discharges to CWA jurisdiction.

Well done!

EPA’s MACT Rule; Some Benefits Are More Equal Than Others

Last week, EPA formally revised the cost-benefit analysis for its rule limiting the emissions of hazardous air pollutants from coal-fired power plants.  The rule jettisons consideration of so-called “co-benefits,” in this case, the benefits from the reduction in emissions of PM2.5 that result from limits on mercury emissions.  The very idea of excluding consideration of co-benefits is just plain incoherent.

I’ve spent my career defending cost-benefit analysis to many of my environmentalist friends.  I have to concede that this rule is Exhibit A for their case. People who die as a result of emissions don’t care whether it’s the mercury or the PM2.5 that kills them.  If the implementation of cost-benefit analysis can be gamed to eliminate consideration of benefits because they are the wrong kind of benefits, then one has to wonder about the entire exercise. 

Here’s the simple version.  EPA has an obligation to assess limits on emissions of HAPs from coal-fired power plants.  It should consider all benefits of a particular rule and all costs.  Seems correct to me.  Why is that so difficult?

And, by the way, the existence of these co-benefits suggests that the current PM2.5 NAAQS may not be sufficiently protective – but I’ve covered that one elsewhere.

It’s Still Good to Be King; SCOTUS Continues to Interpret CERCLA In Ways Unrecognizable to Practitioners

I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions.  The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work.

Exhibit A for this argument is the latest SCOTUS Superfund decision.  The Court today ruled that Superfund does not strip Montana courts of jurisdiction over cases seeking “restoration damages,” – which means here the authority to require additional cleanup, above and beyond what EPA has identified as the necessary and appropriate remedy under CERCLA.  However, the Court also ruled that the landowners who want to impose this additional remedy are PRPs and must get EPA’s approval before they can pursue any specific restoration damages remedy.

I still wish Superfund were as easy as SCOTUS seems to think.  Here are my quick reactions to the decision.

First, property owners who don’t qualify for the “contiguous property owner” defense are PRPs.  That’s going to make PRP Groups much more interesting!

Second, the impact on property owners’ use of their property could be substantial.  The Court deflected those concerns by noting that:

While broad, the Act’s definition of remedial action does not reach so far as to cover planting a garden, installing a lawn sprinkler, or digging a sandbox.

Practitioners know that remedies often preclude residential gardens, precisely because they can cause significant exposures.  What impact will this case have on those types of decisions?

Most importantly, how will EPA handle this case on remand and any other cases that follow this one?  The disputes regarding such “additional” remedies will be fierce.  There are arguments in the Montana case that the landowner remedy truly is inconsistent with EPA’s remedy.  However, there will be some cases where such restoration remedies may not be inconsistent with EPA’s remedy, but instead may be purely additive.

The simple answer is that such remedies must not be cost-effective; otherwise EPA would have selected them in the first instance.  I suspect that that will be this Administration’s default position.  However, the world is rarely so black and white and cost-effectiveness is in the eye of the beholder.  This issue could get really ugly.

It appears that, once again, Superfund is the gift to lawyers that keeps on giving.

New SMART Program Regulations Double Size of SMART Program to 3,200 MW, Impose Storage Requirement and Make Community Solar and Other Changes

by Adam Wade and Ethan Severance

On April 14, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed emergency regulations for the Solar Massachusetts Renewable Target (“SMART”) Program. A redline showing the additions to 225 CMR 20 is available here: MA DOER 225 CMR 20 Emergency Regulations 4.15.20. As emergency regulations, these changes went into effect Wednesday, April 16, 2020. DOER plans to hold a virtual public hearing on the new regulations on May 22,… More

EPA Remains the “Anti-Environmental Protection Agency”; Wheeler Refuses to Tighten the PM 2.5 NAAQS

After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined.  Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3

In the long-gone days prior to January 2017, this would be short and easy.  The Clean Air Science Advisory Committee would have said that the current standard is not protective.  NGOs and states would have sued, the D.C. Circuit would have vacated EPA’s decision, and even a right-leaning Supreme Court probably would not have thought it necessary to hear a further appeal.

Now, however, the Chair of CASAC doesn’t believe that epidemiology provides a basis for setting NAAQS and CASAC recommended keeping the current standard.  What happens when EPA’s owns science advisors don’t believe in science?  And what happens when the most outcome-based Supreme Court in living memory lies in wait?

I truly don’t know.  I suspect that the D.C. Circuit, depending upon the panel, might still find a decision to keep the current standard to be arbitrary and capricious, but I would not count on the Supreme Court affirming that decision.

In the meantime, I am curious about Administrator Wheeler.  Does he really believe what he is saying or does he just not care that this decision will fairly directly lead to thousands of additional deaths?  As EPA’s proposed rule acknowledges, NAAQS are standards,

the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.

Greenwire reports that Administrator Wheeler told reporters that “there’s still a lot of uncertainty” surrounding the research supporting the lower PM2.5 NAAQS.  Of course, since the statutory standard requires “an adequate margin of safety,” one would have thought that the uncertainty supports more stringent standards, rather than less stringent ones. Indeed, ever since Ethyl Corp. v. EPA, courts have been clear that EPA must be prepared to regulate even in the face of uncertainty if it is to fulfill its mission to protect the public.

I may not be able to predict what the courts will do, but I’m confident that history will not treat this Administration kindly.  Over time, there is little doubt that the evidence against PM2.5 is only going to grow stronger.  However, by the time a future administration acts on that accumulated weight of data, thousands of people will have died needlessly.

Well done, Mr. Wheeler.

Lies, Damn Lies, and Statistics: How the COVID-19 Crisis Highlights Our Misuse of Data

As I was reading the latest statistics regarding the spread of COVID-19, I became frustrated.  My frustration stemmed not just from the fact that we are unprepared despite repeated warnings, but also from the way our elected officials and their teams present (and the media reports) the data.  Having practiced environmental law for over thirty years and observed countless instances of data misuse and misinterpretation, I am not surprised, but I am disappointed.… More

Can Cooperation Save the Monarch Butterfly?

In another (shocking) piece of good news from the Trump Administration, the Fish & Wildlife Service last week announced a major agreement for the recovery of the monarch butterfly.  The agreement will be implemented by the University of Illinois – Chicago and will involve the participation of dozens of companies in the energy and transportation sectors.

The key to the agreement is the Candidate Conservation Agreement with Assurance.  In return for the obligations the companies assume to preserve habitat, they get the assurance that, should FWS determine that listing of the monarch butterfly as endangered is necessary, they will not be subject to any additional requirements.

Lest the administration try to argue at some point that this agreement demonstrates that the harsh provisions of the ESA are not necessary and that species recovery can be accomplished by wholly voluntary actions by landowners, it should be obvious that the carrot of the CCAA only works because the alternative that landowners face would be the stick of the take provisions of the ESA should the monarch be listed.  The energy and infrastructure companies participating in this agreement made a simple dollars and cents decision that the costs of compliance with the CCAA are a fair trade-off to avoid the uncertainty and cost associated with compliance with an ESA listing.

Nonetheless, full credit to all the parties who made this happen, including the FWS.  (Now, let’s see if FWS takes the next step and lists the monarch under the ESA!)

EPA Guidance on Remedial Work During the COVID-19 Emergency

I hope that I am not struck down for saying this, but EPA’s guidance on doing remedial work during the COVID-19 emergency is reasonable and appropriate.  At the risk of oversimplifying, it basically has two requirements:

  1. Consider the benefits to be obtained by performing the work, and prioritize work intended to eliminate or abate serious hazards that are imminent, such as immediate risks to indoor air or drinking water supplies; and
  2. Consider the risks to remedial workers and the public from proceeding with on-site work and identify those types of work most likely to create significant risk of exposure to the virus that causes COVID-19.  Examples here would include residential sampling that necessitates going into people’s homes.

The Guidance then basically says to assess such benefits and risks and continue with work that addresses serious and imminent risks to the public without creating unreasonable risks of exposure to COVID-19.

Who can argue with that?

MassDEP Issues Guidance on Performing Response Actions During COVID-19

Just a straightforward informational post.  MassDEP has issued a concise, helpful, guidance on performing response actions during COVID-19.  Here are the highlights:

  • All release notifications are still required within MCP deadlines.
  • MassDEP is still taking oral notice of Immediate Response Actions and issuing oral approvals.  It is still reviewing written IRA plans.  If MassDEP does not respond to a within plan 21 days, then the plan is deemed approved.
  • Other routine submittals should be made to the extent practical.  If they cannot be made, a notice of delay should be filed.  MassDEP will exercise enforcement discretion with regard to delayed routine submittals.
  • Active remedial systems should be operated unless they cannot be monitored to ensure that the discharge from the system would be safe.  If not, the PRP may consided temporary suspension of operations, unless that would in itself present an imminent hazard.
  • Active Exposure Pathway Mitigation Measures addressing vapor intrusion or private drinking water supplies must continue to operate.  If they are addressing IHs, then they must be monitored, consistent with COVID-19 safety precautions.  If there is no IH, then monitoring should be suspended until the emergency is over.
  • Construction sites should be secured.
  • Remedial work is considered essential during the emergency and workers performing remedial functions are not included within the Governor’s order to close non-essential businesses.

All in all, a helpful and appropriate bit of guidance.  I might even say that this is the perfect example of when guidance is appropriate and what it should address.

If You Thought That COVID-19 Was Bad, Try It Mixed With Some PM2.5!

Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating.  While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.

A study released earlier this week by researchers at the Harvard T.H. Chan School of Public Health concludes that an increase in the ambient PM2.5 concentration of just 1 ug/m3 causes an increase of 15% in the death rate from COVID-19.  And lest you think that the results stem from other factors unique to New York City and other places particularly hard-hit by the virus, the authors took into account all of the obvious confounding factors, including:

population density, percent of the population ≥65, percent living in poverty, median household income, percent black, percent Hispanic, percent of the adult population with less than a high school education, median house value, percent of owner-occupied housing, population mean BMI (an indicator of obesity), percent ever-smokers, [and] number of hospital beds.

A 15% increase in the COVID-19 death rate for a 1 ug/m3 increase in PM2.5 is an extraordinary result.  At some level, we knew it already, but let me summarize very simply.  PM2.5 is really, really, bad for you.

And so we come back to this administration.  I’ll pass over the enforcement discretion memorandum and focus instead on EPA’s apparent decision not to change the current national ambient air quality standard for PM2.5.  Of course, the current chair of the SAB doesn’t believe in basing NAAQS on epidemiological studies, but for those of us who still believe in science, this study certainly only strengthens the case for reduction in the PM2.5 NAAQS.

EPA and NHTSA Release the SAFE Rule — Don’t You Feel Safer?

EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule.  Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards.  Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.

I referred to George Orwell on this blog as recently as January, when the Administration promulgated the “Navigable Waters Protection Rule.”  I’m not sure that SAFE is quite as egregious as that, but if it’s not, it’s a close second.

And the references to Orwell are apt in ways that really are scary and raise genuine issues about how this administration functions.  It doesn’t believe in science.  Instead, it believes in some kind of magic, that if it keeps saying things long enough, the truth won’t matter anymore.  For now, the Science Advisory Board seems to be acting as a limited check on EPA’s worse excesses, but it’s not obvious how long that will continue or, even if it does, whether it will matter, as long as five members of the Supreme Court share President Trump’s preference for magical thinking over scientific thinking.

EPA Enforcement (or not) in a COVID-19 Emergency

Last week, Susan Bodine, EPA Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum stating that EPA would exercise its enforcement discretion and not take enforcement action against entities that cannot comply with obligations to EPA due to issues arising from COVID-19.  At a certain level, this is understandable.  The world has been turned upside down and no one quite knows what is feasible in the current circumstances and what it not.

The issue is really just a classic economic problem – we live in a world of imperfect information.  If EPA had perfect information, it would know which are the true force majeure events and which are bogus.  In a normal imperfect world, regulated entities have to demonstrate the existence of a force majeure event – and the standard of proof is rather high.

In the current, abnormal, imperfect world, EPA has apparently changed the default and is now simply assuming that all noncompliance is due to COVID-19.  That may not be explicitly stated in the memorandum.  Nonetheless, while EPA makes clear that intentional violations combined with fraudulent assertions that the noncompliance was due to COVID-19 will be punished appropriately, does anyone really think that EPA is going to go back after the fact and try to police noncompliance during the COVID-19 emergency?

While regulated entities would be wise to follow the procedures in the memorandum and document the basis for their conclusions that any noncompliance was due to COVID-19, if I were a betting man, I’d lay money that the only enforcement we’re going to see from EPA concerning non-compliance during the current emergency will be criminal cases that someone hands to EPA on a plate.

EPA’s Limits on Advisory Committee Participation Are Subject to Judicial Review

On Monday, the 1st Circuit Court of Appeals held that EPA’s directive forbidding those who receive EPA grants from serving on EPA advisory committees is subject to judicial review.  It’s an important issue, because the advisory boards are one of the few checks on EPA’s efforts to undermine of the use of science in its rulemaking.

EPA argued that it retains discretion over the composition of its advisory committees and that plaintiffs’ claims were not justiciable.  The Court disagreed.

First, the Court noted that the Federal Advisory Committee Act was enacted in order to avoid undue influence by the regulated community on federal advisory committees, which is precisely the concern expressed by the plaintiffs here.  The statute provides guidelines “to assure that the [committee’s] advice and recommendations . . . will not be inappropriately influenced by the appointing authority or by any special interest,” and states that agencies “shall” follow the guidelines.

EPA nonetheless argued that the Administrative Procedure Act exempts from judicial review agency actions “committed to agency discretion by law.”  In rejecting that argument, the 1st Circuit relied heavily on Department of Commerce v. New York (also known as the Census question case), in which the Supreme Court held that this exception to reviewability under the APA is “quite narrow.”

As the 1st Circuit noted, that an agency has broad discretion cannot exempt it from judicial review.  “A court could never determine that an agency abused its discretion if all matters committed to agency discretion were unreviewable.”

Finally, the Court noted that FACA’s use of squishy terms such as fairness and balance do not render judicial review impracticable:

The concepts of fairness, balance, and influence are not foreign to courts, and we are certainly capable of reviewing agency actions with reference to those concepts.

So there, EPA!

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

The End Is Near (And I’m Not Talking About the Coronavirus)

In order to distract your attention from the end of the world as we know it resulting from COVID-19, I thought I would direct your attention to further evidence of the end of the world as we know it resulting from climate change.  In a very interesting article published earlier this month in Nature Communications, the authors examined the pace of “regime shifts” in critical ecosystems, including the relationship between the size of ecosystems and the pace of the shifts.  The results are not comforting.  While shifts do take longer in larger ecosystems, they proceed relatively more quickly.

Here are the major conclusions:

First, we must prepare for regime shifts in any natural system to occur over the ‘human’ timescales of years and decades, rather than multigenerational timescales of centuries and millennia.

Second, the apparent long-term stability of the largest, least disturbed ecosystems is a deceptive guide to the potential speed of their collapse. Therefore, the self-organising mechanisms that help to instill systems with resilience prior to a tipping point may have limited ability to control the rate of collapse once a shift has been triggered.

Third, homogenously connected systems shift relatively less quickly, meaning that ecosystems that are already disturbed but stabilised, or those that are engineered, may be relatively slower to collapse because of the lack of vulnerable modular structures. Thus, although shifts in agroecosystems are expected due to climate change, their relatively slow transitions may offer vital time for adaptation.

Fourth, the ‘window of opportunity’ open to divert unsustainable system trajectories is comparatively short for relatively small systems, meaning contingency plans should be formulated in advance and ready to implement across localised systems recognised to be heading towards the brink.

Of course, given COVID-19, a good many of us may not be around to see this rather bleak future.  Between the two, I am reminded of one of Keynes’s famous quotes:

In the long run, we are all dead.