Northwest Forest Plan
Cross-posted at WLF’s Forbes.com contributor page
Complying with notice-and-comment and other due process requirements is expensive and time-consuming for federal agencies. Those procedural duties also make agencies accountable to the public and regulated entities. So it’s no surprise that regulators avoid formal rulemaking like the plague. As we’ve spotlighted at The Legal Pulse, agencies instead issue “guidance” documents or utilize even more perversely creative tactics, such as setting new standards by replying to a U.S. Senator’s inquiry letter. Another evasive maneuver which has drawn the ire of not only affected businesses, but also state attorneys general and Members of Congress, is “sue-and-settle.”
Please Sue Us. Special interest groups, especially those with environmental-oriented missions, routinely sue federal agencies to compel actions, especially in situations where the regulators have missed deadlines, or, for political or other reasons, have stopped short of the most rigorous approach. The agencies are presented with an offer they can’t (and often don’t want to) resist: settle the citizen’s suit in a way that implements new mandates (and expands agency authority) without public input.
Judicial Rejection: Conservation Northwest v. Sherman. As noted above, elected officials are expressing their concern with this and seeking remedies (a bit on that below). In the meantime, however, an April 25 U.S. Court of Appeals for the Ninth Circuit decision reflects that judges can and should very closely scrutinize any friendly settlements between federal agencies and activists. In 2007, a throng of environmental groups sued the Bureau of Land Management (BLM) for attempting to eliminate a costly and complex surveying mandate from the management of the Northwest Forest Plan (a land use agreement arising from the 1990s’ spotted owl litigation wars). Continue reading
Cross-posted at WLF’s Forbes.com contributor page
With a budget profoundly in the red and an unemployment rate hovering around 10%, one would think that elected officials and citizens’ groups in California would be figuring out how to move forward development of the massive shale “play” shown here to the right — The Monterey Shale. But instead, the same crowd that bestowed such regulatory gems as Proposition 65 on California’s business environment is busily plotting how to kill this golden goose.
Three proposals are currently advancing in the state Assembly to prohibit hydraulic fracturing in California until various studies can be done to definitively establish that the six decade-old gas extraction technique is 100% safe. The proposals eschew the traditional risk-based U.S. regulatory approach and embrace the European style of precaution, which demands ex post proof of safety even where no current evidence reveals environmental or health harms. Not surprisingly, a who’s who of activist groups support the bills, led by the Center for Biological Diversity, which has an ongoing suit against the state regarding hydraulic fracturing regulations. Even California’s state law schools are pitching in, with UC-Berkeley’s Center for Law, Energy and the Environment releasing a well-timed “report” calling for more controls.
“Let’s study the issue” is a non-threatening euphemism activists and government use in place of the scarier actual outcome sought: let’s forestall the activity being studied for as long as possible. New York’s moratorium on natural gas extraction has been dragging on for five years, with no timetable for release of the state health commission’s study of fracking (“I will continue to work on this until I am comfortable” says the Commissioner). While celebrity activists (or fracktivists as California-based think tank The Breakthrough Institute calls them) like Mark Ruffalo applaud the ponderous New York delays, jobs and revenue flow to neighboring states like Pennsylvania. Have any of the California legislators supporting the Assembly bills seen what natural gas development has done to nearby North Dakota’s economy?
The emergence of natural gas as an abundant, more efficient source of domestic energy than coal threatens the environmental activist movement’s utopian vision of alternative fuels. So hydraulic fracturing must be stopped. One supporter of a California moratorium from 350.org was clear on this: “We need a dramatic shift off carbon-based fuel: coal, oil and also gas,” calling natural gas “at best a kind of fad diet.” The three organizations listed as “co-sponsors” of one California fracking bill, AB 1301 – Center for Biological Diversity, Clean Water Action, and Food & Water Watch – each support outright bans on hydraulic fracturing.
The debate is ongoing in California, and as we learned from last year’s battle over mandatory biotech food labeling, when the public is fully educated about the negative ramifications of feel-good proposals, the best outcome for Californians can be reached. Here’s hoping that the facts can battle their way through the hype and emotion, so reasoned decisions can be made.
Featured Expert Column
Allison D. Wood, Hunton & Williams LLP
Guidance documents and letters setting forth so-called “agency-policy” present unique challenges to industry, particularly in the context of permitting. Rather than undergo notice-and-comment rulemaking, which would be subject to judicial review, EPA has instead developed a practice of issuing “guidance”–often in the form of memoranda–that set forth requirements that EPA expects states and EPA regions to follow in issuing permits. The dilemma arises because courts often find that these documents cannot be challenged, and a permit applicant then faces an unpleasant choice: agree to permit conditions that may not be required by law to obtain the permit, or have the permit application denied and head into uncertain and expensive litigation. When the permit is critical for business operations, this really presents a Hobson’s Choice and almost all permit applicants capitulate and accept the terms.
The U.S. Court of Appeals for the Eighth Circuit recently offered some relief to those seeking to challenge guidance documents. In Iowa League of Cities v. EPA, some cities that owned wastewater treatment facilities challenged two EPA letters that responded to inquiries by Senator Charles Grassley about certain Clean Water Act (CWA) requirements for wastewater treatment facilities involving “bacteria mixing zones” and “blending.” The cities contended that EPA’s letters were new rules promulgated without notice-and-comment rulemaking in violation of the Administrative Procedure Act. EPA countered that the letters were merely agency guidance which the court lacked jurisdiction to review.
The court began by examining whether EPA’s act of sending the letters could be considered a “promulgation” of a rule under the CWA. The court adopted the three factor test set forth in Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999), for determining whether an agency action constitutes promulgation of a regulation: “(1) the Agency’s own characterization of the action; (2) whether the action was published in the Federal Register . . . .; and (3) whether the action has binding effects on private parties or the agency.” The court said that the third factor “should be the touchstone of our analysis,” because “plac[ing] any great weight on the first two . . . factors potentially could permit an agency to disguise its promulgations through superficial formality, regardless of the brute force of reality.” Continue reading
Cross-posted at WLF’s Forbes.com contributor site
The U.S. Court of Appeals for the Ninth Circuit has certainly earned its reputation as a circuit willing to push out the boundaries of environmental laws and regulations. Consider its June 1, 2012 en banc ruling in Karuk Tribe of Ca. v. U.S. Forest Service, where seven of the sitting eleven judges held that the Forest Service’s decision not to regulate low-level mining activity on public lands constituted an action under the Endangered Species Act, requiring the Service to consult with the Fish and Wildlife Service. In a dissent joined by three other judges, Judge Milan Smith began his opinion with an image and quote from Gulliver’s Travels, and wrote “decisions such as this one, and some other environmental cases recently handed down by our court undermine the rule of law, and make poor Gulliver’s situation seem fortunate.” On March 19, the Supreme Court regrettably denied review in Karuk Tribe.
We must, however, give the Ninth Circuit credit on its environmental rulings when it is due, and it’s earned some accolades with its April 3 Ecological Rights Foundation v. Pacific Gas & Elec. ruling. And despite the “citizen’s group” plaintiff’s loss, the decision is one that on this Earth Day, environmental advocates should be applauding as well.
The plaintiffs sued under the citizen suit provisions of the Clean Water Act (CWA) and the Resource Conversation and Recovery Act (RCRA), alleging that poles treated with pentachlorophenol (PCP) contributed “solid waste” to waters of the United States through stormwater runoff. In other words, when it rains, PCP washes off of the poles and enters various bodies of water. As the court noted, EPA has not decided whether to regulate utility poles as “point sources” of pollution under the CWA. Reviewing applicable judicial precedents, the 9th Circuit panel concluded that because neither the poles themselves nor their owners channel or collect the runoff, the plaintiffs had no claim under the CWA. Continue reading
As we’ve mentioned before, the EPA has been stepping up its focus on “environmental justice.” Recent evidence of EPA’s methods of EJ advocacy came with the quiet release of a draft policy paper concerning their enforcement of Title VI Civil Rights Act violations, entitled “Adversity and Compliance with Environmental Health-Based Thresholds.” (“Paper”) WLF has serious concerns regarding both the wisdom and propriety of the draft policy paper and has submitted comments urging its withdrawal.
As we outline in our comments, the proposed change in the method by which EPA will measure “adversity” is highly significant, yet the Paper fails to provide any meaningful explanation regarding why the change is being proposed. A persistent criticism among stakeholders regarding EPA enforcement of its Title VI regulations has been the agency’s failure to provide clear guidance regarding how it intends to carry out its enforcement responsibilities. Such guidance is necessary so that state regulators and targeted industries can take steps to ensure that they conform to the regulations.
Here’s a point-by-point summary of WLF’s comments:
The Draft Policy Paper on Adversity Is a Step in the Wrong Direction
- The Paper reduces the level of guidance when what is needed is more predictability
- The Paper does not reduce uncertainty among stakeholders by addressing what constitutes “significant adverse impact” or “significant disparate impact”
- The Paper proposes the elimination of the 2000 Draft Investigation Guidance’s NAAQS rebuttable presumption, the result of which would be increases in uncertainty by depriving stakeholders of the ability to predict in advance when environmental effects will be deemed “adverse”
- Proposed changes would only serve to put a thumb on the scale in favor of those raising Title VI challenges
The Draft Policy Paper Is Inconsistent with the Title VI Regulations
- The Paper focuses solely on recipients’ actual decisions to issue permits, rather than the “criteria or methods” associated with such decisions as is outlined by Title VI
- If EPA’s Office of Civil Rights is to be given authority to review permit decisions for disparate impact, then it must be done through changes to Title VI or EPA’s implementation of regulations
EPA Has Not Adhered to the APA’s Notice-and-Comment Requirements
- All proposed rules must be published in the Federal Registrar in accordance with APA standards
- The Paper is a proposed “rule” and not an “interpretive rule” because it seeks to eliminate an existing rule as well as expand the agency’s regulatory footprint
The Invalidity of Disparate Impact Regulations
- The Paper does not appreciate the substantial changes in judicial understanding of Title VI since EPA’s 2000 draft proposal
- Alexander v Sandoval and other decisions have held that Title VI regulations concerning disparate impacts are forbidden
- EPA should narrow, not broaden as the Paper proposes, the scope of their 2000 Draft Investigation Guidance in light of such developments
Photo from EPA’s “Plan EJ 2014 Progress Report”, page 14
Cross-posted at WLF’s Forbes.com contributor page
The Environmental Protection Agency has not been shy in its embrace and promotion of the “environmental justice” (EJ) movement. “Working for Environmental Justice” was one of seven priorities on EPA’s regulatory agenda last year. And its February “Plan EJ 2014 Progress Report,” full of loaded terms like “overburdened communities” and interspersed with photos like this one, reflects an “us vs. them” view of policy making and law enforcement, one that favors confrontation over seeking collaborative solutions. But EPA knows that reports and rhetoric alone won’t achieve “justice.” The Progress Report noted two proposed policy changes at EPA’s Office of Civil Rights, one of which could empower EPA to overturn state-level emissions permits that otherwise fully comply with federal law.
Disparate Impact Theory Background. During the 1990s, EPA adopted a very aggressive interpretation of a provision of the 1964 Civil Rights Act which applied to state use of federal funds, Title VI. State environmental regulators, to whom EPA delegates federal emissions permitting authority, could be accused of discrimination if the permits had a negative, disparate impact on “overburdened communities.” EPA formalized this theory into a “draft guidance” and EJ activists soon began filing Title VI complaints with the agency’s Office of Civil Rights. At the time, WLF, as well as others, argued that EPA lacked such authority and failed to follow administrative procedures.
EPA’s first ruling on a Title VI complaint in 1998 was quite pivotal. The agency presumed that no “adverse effect” (a key element in proving disparate impact) on minority or ethnic populations existed if the permitted entity (there, a steel mill in Michigan) would be in full compliance with the permit’s emissions limit. The EJ activists could not overcome that presumption, and EPA dismissed the complaint. EPA formalized that presumption in 2000 in a new draft guidance on Title VI complaints. Rebuffed by EPA, EJ activists tried to bring disparate impact lawsuits directly against state regulators, but courts ultimately ruled that no private right of action existed in Title VI. Continue reading
As several news reports surrounding the resignation of Environmental Protection Agency Administrator Lisa Jackson noted (such as this Reuters story), the federal agency’s role in regulating hydraulic fracturing is one of many high stakes issues her replacement must address this year.
One fracking item left unaddressed is a petition filed by a coalition of activist groups with EPA last October. The activists want fracking-related emissions reported to the government’s “toxic release inventory” (TRI) under the Emergency Planning and Community Right to Know Act.
Activist groups like the Environmental Integrity Project (EIP), which leads the petitioning coalition, want us to believe that fracking is an unregulated activity desperately in need of federal control. In reality, the states have been actively regulating the industry for decades and continue to modify their rules to reflect recent developments.
In seeking to impose the Right to Know Act, the petitioners faced a major complication: the emissions from many of the fracking facilities would fall well below the Act’s reporting thresholds. The TRI initiative applies to facilities processing more than 25,000 pounds or using more than 10,000 pounds of one of the listed chemicals. Continue reading
Cross-posted at WLF’s Forbes.com contributor page
The Environmental Protection Agency (EPA) has had a pretty rough 2012 in federal court. A number of lower federal courts (we detail here, here, and here) reined in the agency’s efforts to expand its authority, and in March, the Supreme Court in Sackett v. EPA unanimously held that the Clean Water Act doesn’t preclude judicial review of EPA compliance orders.
Contrary to this trend, the U.S. Court of Appeals for the D.C. Circuit gave EPA some holiday cheer on December 20, denying a rehearing en banc request in Coalition for Responsible Regulation v. EPA. In June, a three-judge panel held that EPA could regulate motor vehicle and stationary sources of six “greenhouse gases” (GHGs) under the Clean Air Act (CAA). Last Thursday’s opinions reflected a 5-2 vote against en banc rehearing, with a brief concurring statement by the three judges who issued the June ruling and two lengthy dissents from Judges Brown and Kavanaugh.
The dissents made two points: 1) The Supreme Court’s 2007, 5-4 Massachusetts v. EPA ruling, on which the June opinion relies, was wrongly decided; and 2) Mass. v. EPA doesn’t apply to regulation of GHGs from stationary sources because the definition of “air pollution” the Supreme Court applied is intertwined with the context of the case — motor vehicles or “tailpipe” emission. Continue reading
We’ve commented before on both the ubiquity and increasing comic absurdity of Prop 65 warnings in California. Prop 65—which requires warning labels on products that contain materials the state deems carcinogenic (including chemicals that are solely carcinogenic in animals)—has been a goldmine for plaintiffs’ lawyers. Its private attorney general provisions provide an abundant source of plaintiffs, who don’t have to show harm to enforce the measure in court. And the promise of attorneys’ fees have provided more than an adequate incentive to ensure that strike suits will be brought. The whole endeavor has resulted in companies defensively labeling everything, and a state plastered in Prop 65 signs whose content has been rendered meaningless by its omnipresence.
While a treasure-trove for lawyers, it can hardly be said that Californians have benefitted from these lawsuits. Attorneys walked away with 74% of Prop 65 settlement awards in 2011, and Californians in turn received the benefit of having been conditioned to the pervasive warnings. Like a cliché, the intentions behind the law (if there were ever were good ones) have been lost. Instead of signifying a warning, the signs now signify something else: frivolous litigation. In other words, to many Californians, the law is one brick short of a load.
Fortunately the Court of Appeals for the Third District of Sacramento has refused to take residents one step further down the path laid with good intentions (and that leads you know where) by rejecting the state’s attempt to list two chemicals “possibly” linked to cancer. In Styrene Information and Research Center v. Office of Environmental Health Hazard Assessment, The court found instead that only those chemicals known to cause cancer may be listed, saving Californians’ eyes from a whole new host of warnings on the several products that contain styrene and vinyl acetate—the chemicals at issue.
Based on its prior cases and maxims of statutory interpretation, the court determined that “chemicals may be included on the Proposition 65 list only if there is a sufficient showing that they in fact cause cancer or reproductive toxicity.” That is, the OEHHA can’t list chemicals subject to Prop 65 warning labels willy-nilly.
Not one regulatory body, international or domestic, has deemed styrene a known human carcinogen (though many have raised the issue of it being a “potential” human carcinogen.) That’s not to say that it’s not carcinogenic. Rather, our sore eyes merely ask for prudence before hampering industry and contributing to the lawsuit mill. Currently, one often learns a new cause of action every day, but thankfully the Court of Appeals is attempting to limit those causes of action to where they are truly appropriate.
by Jean-Cyril (JC) Walker and Gregory A. Clark, Keller and Heckman, LLP
Arguably, the October 22, 2012, decision by the U.S. Court of Appeals for the Ninth Circuit in Center for Biological Diversity v. Bureau of Land Management,merely clarifies existing law. On the other hand, the decision, which vacated and remanded a Bureau of Land Management (BLM) decision granting approval for a natural gas pipeline running from Wyoming to Oregon, underscores how approvals granted by Federal land management agencies can be vulnerable to challenges under the Endangered Species Act (ESA) if the Fish and Wildlife Service does not provide a well-grounded Biological Opinion.
The pipeline at issue, the Ruby Pipeline Project, had been approved by the Federal Energy Regulatory Commission (FERC) and the BLM in 2010 and began operating in July 2011. To gain approval for the project, which covered Federal lands, Ruby Pipeline LLC (“Ruby”) sought and received a Certificate of Public Convenience and Necessity from the FERC and rights of way and temporary use permits from the BLM under the Natural Gas Act (NGA) and the Mineral Leasing Act (MLA), respectively. Both approvals were contingent on mitigation measures contained in a separate “conservation action plan” that would be carried out by Ruby. The mitigation measures were developed by Ruby through negotiation with the Fish and Wildlife Service (FWS), the wildlife agency tasked by the Endangered Species Act (ESA) with reviewing the proposed project. Continue reading