Miami Beach Plans an Underwater Park — I Say, Just Wait a Few Years

According to ClimateWire (subscription required), Miami Beach is planning an underwater park just off the coast.  Not that I would ever be snarky, but given how often parts of Miami Beach are now under water during high tides, even in the absence of extreme weather, I think that they could save some money by just waiting a few years.  At some point in the not too distant future, climate change will put Miami Beach’s existing parks under water.  They won’t have to build an expensive new park in the ocean and the existing parks will be much more convenient for the residents to use.

The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli

Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline.  The Court did so with a two-sentence order stating that an opinion would follow.  The order was issued hours after oral argument.  Why the hurry?

It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”

Ever since Robert Caro’s biography of Robert Moses, the general public has understood the concept of “digging stakes” – the idea that a project may be impossible to stop if the developer gets shovels in the ground before the opposition can obtain a judicial decision on the legality of the project.

My advice to project developers is that the concept of digging stakes doesn’t work as well if the opponents and the courts learn of your strategy before you are actually able to get those stakes in the ground.

COVID-19 and PM2.5 Are Still Not a Healthy Mix

In April, I noted that researchers at the T.H. Chan Harvard School of Public Health had identified a relationship between PM-2.5 exposure and mortality from COVID-19.  That study received some criticism, and it certainly did not move the Clean Air Science Advisory Committee to alter its recommendation to keep the PM2.5 NAAQS unchanged at 12 ug/m3.

Earlier this month, the same researchers updated the study, finding the link between PM2.5 exposure and COVID-19 mortality to be even stronger than they initially thought.

We found that higher historical PM2.5 exposures are positively associated with higher county-level COVID-19 mortality rates after accounting for many area-level confounders. The results were statistically significant and robust to secondary and sensitivity analyses.

I may be a cockeyed optimist, but I continue to believe that, over time, this will become (to the extent it is not already) the scientific consensus, and that the PM2.5 NAAQS will be reduced, as the science so clearly indicates that it should be.

It’s Going to Take a While to Get to Net Zero

Since I noted earlier this week the announcement by ConocoPhillips that its “ambition” is to reach net-zero carbon for its own operations by 2045-2055, it seemed appropriate also to note that BLM has now approved the Willow Master Development Plan, which will authorize ConocoPhillips to produce almost 600 million barrels of oil over 30 years in the National Petroleum Reserve in Alaska. 

I commented on this project a few months ago, when the Environmental Impact Statement was released, because ConocoPhillips has indicated that it plans to utilize thermosyphons to keep the ground around its rigs frozen.  And why is this necessary?  Because climate change is going to increase temperatures in this part of Alaska by about 40 F over the life of the project.  And why is this happening?  I think we know the answer to that question.

More evidence for the second law of thermodynamics.  Entropy is definitely increasing.

ConocoPhillips Has An Ambition Is to Be Net-Zero by 2050-ish — It’s a Start

Last week, ConocoPhillips announced a goal of reducing its emissions to net-zero by 2045-2055.  It’s a significant step and so it is important to note both what is in the plan and what is not.

First, what is in the plan?

  • ConocoPhillips has set a 2030 target of reducing Scope 1 and Scope 2 emissions by 35%-45%
  • It has an “ambition” to be net-zero by 2045-2055
  • It has signed on to a World Bank initiative to eliminate routine flaring by 2030
  • It will implement continuous methane emissions detection
  • It addresses emissions from the use of its products by supporting the Carbon Leadership Council – which presumably means supporting the CLC proposal for a “Carbon Dividends Plan”

All of these are good steps.  What’s missing?  There are two very important qualifications to the ConocoPhillips plan:

  • The plan only covers Scope 1 and Scope 2 emissions. In other words, it does not address emissions from ConocoPhillips customers when they combust ConocoPhillips products
  • Even the net-zero goal for its operational emissions is phrased only as an “ambition” and not as a “commitment”

So how meaningful is this announcement?  I’m firmly in the scientific camp that says we have to be as aggressive as possible.  In that light, this announcement falls short of what is necessary.

At the same time, I’m also firmly in the camp that says we need to encourage corporations with large carbon footprints to start taking steps in advance of federal legislation that would drive us towards net-zero emissions economy-wide.  For that reason, I applaud the ConocoPhillips announcement and wait for the start of a serious game of leapfrog, as each big energy producer makes ever-more aggressive carbon reduction commitments.

Foley Hoag Attorneys Christina Hioureas and Alejandra Torres Camprubi to Participate in Dialogue Focused on Self-Determination and Sea-Level Rise

Foley Hoag LLP counsel and United Nations practice group Chair Christina Hioureas and associate Alejandra Torres Camprubi will serve as panelists for a series titled “Climate, State and Sovereignty: Self-Determination and Sea-Level Rise,” to be held in consecutive months from September – December 2020.  The series, sponsored by the Liechtenstein Mission to the United Nations and the Liechtenstein Institute on Self-Determination (LISD) at Princeton University, will bring together academics and experts representing the States most affected by the rising sea levels to discuss the situation as it stands,… More

Judge Skavdahl Doth Protest Too Much — And Wrongly Vacates BLM’s Methane Rule

Last week, Judge Scott Skavdahl vacated BLM’s 2016 methane Waste Prevention Rule.  The Judge spends 10 pages documenting the “loopty-loops” of the litigation surrounding the 2016 Rule and the Trump administration’s efforts to rescind the rule.  Here, I’m with him.  It’s difficult to review the tangled process of judicial review of this rule without being embarrassed for our judicial system.

Judge Skavdahl then spent 47 pages on the merits.  Here, however, if I may continue Judge Skavdahl’s metaphor, I think that he went seriously off the rails – a dangerous outcome on a roller coaster.  I’ll largely stand by my analysis of this issue in reviewing Judge Yvonne Gonzalez Rogers’s decision vacating the Trump rule rescinding the Waste Prevention Rule.  As I said then, “venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.”

Put simply, Judge Skavdahl’s error is in confusing the definition of what is waste with how the costs associated with that waste are measured.  Just because Congress was not aware of the cost of methane emissions when it wrote the Mineral Leasing Act doesn’t mean that BLM had to ignore the costs of such emissions in 2016 when it assessed the propriety of regulating activity that is clearly “waste”, i.e., the avoidable flaring or venting of methane.

This error brings me back to my speculation in July regarding whether Justice Gorsuch might side with Judge Rogers, because the plain meaning of “waste” so clearly includes avoidable venting and flaring.  In light of her stated judicial philosophy, I’ll now add likely Justice Barrett to my speculation regarding the ultimate fate of BLM methane regulation.

The New Midas Touch — Everything He Touches Turns To Dung

Everyone noticed when President Trump issued an order earlier this month banning offshore oil and gas drilling in certain areas until 2032.  It was obvious to everyone that this was a campaign stunt, intended to improve his changes in Florida and North Carolina.  Of course, pretty much no one wants drilling in these areas and the order wouldn’t have been necessary but for Trump’s prior declaration that he was going to open up those areas to drilling.

Vote for me!  I saved you from myself!

Now, the other shoe has dropped.  As reported by E&E news (subscription required), the ban also precludes offshore wind development in these areas until 2032.  The E&E story includes a quote from a BOEM spokesman confirming that the ban covers offshore wind as well as oil and gas drilling.

Everything he touches turns to s—.

Dog Bites Man, Pebble Mine Edition

As Bloomberg (subscription required) reported this week, executives of Pebble Partnership, which is developing the Pebble Mine project in Bristol Bay, Alaska, were caught on tape bragging about their political influence.  The recordings were made by the Environmental Investigation Agency, which somehow convinced the Pebble executives that the EIA “investigators” were actually investors considering putting money into the project.

For those of you who are shocked, shocked, that political lobbying was part of the strategy of Pebble Partnership, I have a bridge you might want to buy.  Of course, it may not have helped that Pebble apparently ran ads on Fox News “urging President Trump to ‘stand tall, no politics in Pebble mine review process.’”  It’s the old adage, “Do as I say I do, not as I actually do.”

Tom Collier, Pebble Partnership CEO, has resigned over what will surely soon be called Pebblegate.  Presumably, the basis for his resignation was his rank stupidity in failing to do any diligence on the supposed investors before revealing to them the shocking notion that Pebble was using its political influence to advance the Pebble’s prospects.  It surely wasn’t because Pebble believes that political influence should have no role in permitting the Pebble Mine.

Regulating Guidance As Though It Were Regulation

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like.  Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations.  One guidance document may yield another and then another and so on.  Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities.  Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.  An agency operating in this way gains a large advantage.  “It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.”  The agency may also think there is another advantage-immunizing its lawmaking from judicial review.

Furthermore, much guidance is like that reviewed in Appalachian Power.  “The entire Guidance, from beginning to end-except the last paragraph-reads like a ukase.   It commands, it requires, it orders, it dictates.”

I defy anyone who has dealt with government regulations on a daily basis to say that, in their heart of hearts, they don’t know this to be an accurate description of how guidance comes to be created and used.  Because it is accurate – and as much as it pains me to say so – I support the rule issued by EPA on Monday that regulates EPA’s issuance of guidance documents.

To my friends who are either regulators or in the environmental community, let me suggest that reining in guidance is a good thing for those who believe in government regulation.  While I acknowledge that I am sometimes prone to rhetorical excess, l think it fair to say that the overuse of guidance – and the bureaucratic tendency to implement guidance as though it were a “ukase” – is one reason why government has increasingly been seen as illegitimate.  When those who are regulated see government bureaucrats as modern day Judge Roy Beans – the law north, south, east, and west of the Pecos – then many of us develop deep skepticism about government.

I believe in government.  I want others to do so as well.  That’s why I support regulating guidance as though it were regulation – because it functionally is regulation.

The New NEPA Regulations Were a “Political Act.” Is That Enough to Invalidate Them?

Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions.  Judge Jones’s explanation was fairly sparse.  He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.

I can’t say I’m shocked, though I also wouldn’t be shocked if one of the other pending challenges went the other way.  There are three issues that are going to determine the ultimate merits decision.

First, the Administration is leaning hard on Chevron deference.  (I’m now officially getting bored noting the repeated ironies in the Administration’s position on its environmental roll-backs.)  Regardless, the Chevron argument has merit here.  I may disagree with the new rule, but most of changes seem to me to be reasonable interpretations of the statute and the Administration has enunciated a plausible – will wonders never cease! – explanation for the changes.

Which brings me to the second issue.  If I were the plaintiffs, I’d be focusing on the cumulative impacts issue.  This is one place where it’s not obvious to me that the Administration’s position will carry the day, even given Chevron.

Which brings me to the third issue, the real crux of this case.  As I noted when the regulations were finalized, this case is not so much about the changes; it’s about how they will be implemented.  Under the Obama administration, or a hypothetical Biden administration, these rules could be implemented in a spirit that would be completely consistent with the intent of NEPA.  The problem is the “wink, wink, nudge, nudge,” approach the administration is taking with respect to how it will handle issues such as climate change in implementing the new regulations.

According to Bloomberg (subscription required), Judge Jones apparently made the same point, though with perhaps more judicial restraint, during oral argument.  Judge Jones “described the NEPA regulation as a ‘political act,’ but questioned whether the judiciary should step in to halt it.”

That’s the ultimate question for the courts deciding these cases.  If it’s clear that the intent of the NEPA changes is to facilitate NEPA implementation that would indeed be inconsistent with the statute, but the regulations need not be interpreted that way, how certain must the court be of its prediction in order to enjoin the regulations?  Even if the court is certain, it wouldn’t be crazy for a judge to conclude that he or she can’t enjoin the regulation unless and until such an illegal interpretation has occurred in a specific case.

Law and politics are an awkward mix.  Elections have consequences.

Not Quite the Same as Making Mexico Pay For the Wall

As the New York Times has documented, President Trump stated numerous times that Mexico would pay for the border wall. With this context, it was hard not to appreciate the delicious irony when EPA announced earlier this week that it would be financing two separate measures to reduce pollution migrating from Mexico to Southern California.

In other words, not only is Mexico not paying for the wall (and neither is Steve Bannon), but the United States is paying for pollution controls in Mexico! I actually happen to think that this is good news, but I doubt that President Trump is going to be trumpeting this accomplishment to his base. There’s a pretty persuasive argument to be made that avoiding pollution controls is one way that Mexico is able to produce goods more cheaply than the United States. And we’re now financing Mexico’s ability to undercut the price of US manufactured goods?

Instead of requiring Mexico to internalize the externality caused by loose environmental controls in Mexico, we’re subsidizing the externality.

Will wonders never cease?

EPA Must Have A Rationale to Survive Arbitrary and Capricious Review

Last week, the 3rd Circuit Court of Appeals vacated EPA’s approval of Pennsylvania’s SIP for attaining the 2008 NAAQS for NOx.  Specifically, the Court found that EPA’s approval was arbitrary and capricious with respect to three separate, but related, provisions of the SIP.  The flawed provisions were:

  • The NOx standard for power plants utilizing selective catalytic reduction was set at 0.12 pounds/MMBtu.
  • This standard only applied at operating temperatures above 600 degrees F.
  • The SIP did not require that power plants maintain records demonstrating the operating temperature.

Sierra Club identified a number of flaws with these provisions.  However, they really all boiled down to the fact that judicial deference to agency expertise does not permit the agency to operate on the principle of ipse dixit.  Simply put, there’s a difference between a court’s review of an agency’s exercise of its expert scientific and technical judgment as documented in the administrative record and a court’s review of an agency’s statement that it made an expert scientific and technical judgment, when the administrative record is bare of any discussion by the agency regarding how it applied its expert judgment to facts in the record.

In fairness, I have to acknowledge that the use of ipse dixit isn’t new to this administration; I think it’s endemic to bureaucracies.  On the other hand, it’s pretty clear that use of ipse dixit has increased geometrically in this administration.

EPA Rolls Back Obama Methane Rules; I Coin a Phrase: “Regulatory Whiplash”

Last week, EPA finalized its rollback of Obama administration regulations governing methane emissions from the oil and gas industry.  The move is not exactly a surprise.  Regarding the purpose of the rollback, I stand by my take on the proposed regulations.  This regulation was promulgated for two purposes.  First, it provides generic red meat to those who think government regulation is inherently a bad thing.  Second, it benefits small producers much more than large producers – and small producers are much more part of Trump’s audience.

The interesting part of the coverage was the extent to which the regulated community is getting tired of ever-changing regulatory interpretations, particularly in light of how a Biden administration would be likely to deal with the various Trump rollbacks.  One particular facet of issue caught my eye.  Law 360 (subscription required) quotes Corinne Snow of Vinson & Elkins as saying that:

We know from the beginning of this administration that it takes time and agency resources if you want to change a rule that hasn’t been blocked by a court,” she said. “A new administration can’t come in on day one, and EPA can’t on its own, just decide to get rid of this final rule or go back to the Obama-era rule. It takes the same process to change a regulation as to make a regulation in the first place.

Of course, she’s right as a general matter.  But I do wonder whether this general proposition holds true when the regulations that the new administration wants to promulgate have already been promulgated once.  I’m sure that the Biden administration will be more careful than the Trump administration in its regulatory pronouncements, but it’s not as though they’ll be writing on a clean slate.  Putting aside regulations to be written to implement a Biden administration’s expected legislative agenda, how hard would it really for a Biden EPA to say that it likes the Obama regulations more than the Trump regulations, particularly when they have all the science on their side?

I think that companies worried about regulatory uncertainty should stock up on ibuprofen now.  If Biden wins, there are going to be some serious cases of regulatory whiplash.