Water and Air Toxics- Leaving a trace...

Supreme Court Strikes Down Paralyzed Veterans

Coal gets a reprieve – EPA chooses not to regulate coal ash as a hazardous waste.

To Frack or Frack-Not: In Colorado ,the Public Costs of Fracking and Fracking Bans

Uranium and the Grand Canyon - A Precautionary Tale

What happens when the federal government tries to withdraw land from mineral development?  What if it is a LOT of land?  What about if the land is near a national park?  What about if it is near an iconic park such as the Grand Canyon?

In 2009, the federal government initiated an action to withdraw approximately a million acres of public land from uranium development.  The withdrawal was intended to protect the watershed  immediately adjacent to and encompassing the Grand Canyon.  As part of the withdrawal process, the Department of Interior (DOI) conducted a NEPA review and discerned that surface soils in the area contained high levels of heavy metals, including uranium and arsenic.  It was not clear whether the contamination was naturally occurring, or a result of past mining activity.  However, given the overall size of the withdrawal area, only a relatively small area was sampled.

Regarding possible groundwater contamination, DOI found that while the potential risk of groundwater contamination was low, the result of such contamination could be extremely harmful.

Similarly, DOI found that potential impacts to native american tribal cultural and religious resources could be adversely affected by uranium mining.

DOI decided to proceed with the withdrawal, and, not surprisingly, industry interests sued to block the withdrawal.  In a recent decision, the District Court in Arizona sided with the government.  The decision can be found at Yount v. Salazar,2014 U.S. Dist. LEXIS 138505, and additional information on the case can be found here.  The decision is also notable for its discussion of standing (constitutional vs. zone of interest), and the role of disagreeing agency experts in the agency's decision process.

However, what struck me about this case, and why I wanted to note it on this blog, is the court's reliance on the "precautionary principle."  The court noted that the high level of uncertainty over the impact of mining on the environment warranted a cautious response from the federal government, and the court therefore differed to the government's cautious action - i.e. the withdrawal.

The precautionary principle, which was implicitly relied upon in this case, holds that an action should not occur where there is uncertainty over the result/harm of that action.  In essence, the burden of proof that the action will be safe rests squarely on the actor.  In this case, I wonder if the precautionary principle would have been relied upon (and agency deference preserved) if the land were not adjacent to the Grand Canyon, but perhaps adjacent to a lesser well known park or monument?  Clearly the degree of potential harm is also a factor - but where are the boundaries between where the precautionary principle is appropriate, and where it is deemed to go too far?  Don't get me wrong - I think the precautionary principle is appropriate when addressing the frontier of science or when data is incomplete (such as with many/most environmental matters).  It needs to be applied in a common sense manner (much like the Justice Stewart's famous characterization of pornography - "I know it when I see it"). My question is whether it is possible to better define when the precautionary principle is appropriate, and when it is not.

View this blog at http://peteelaw.blogspot.com/ 
 or http://coloradomediationcenter.com/environment

Colorado Court Voids Municipal Fracking Ban

On July 24, 2014, the Boulder County District Court determined that the City of Longmont, Colorado, ban on hydraulic fracturing (see Article XVI of the city's charter) is preempted by state law because the ban creates an operational conflict with the state regulatory framework.  The decision can be found here.

The decision was made on a motion for summary judgment, which means that neither party was allowed to present witnesses, examine opposing party witnesses, or otherwise delve into their factual allegations.  The court found that there were no material factual disagreements or issues that needed to be resolved.

The ban that Longmont enacted extended to both drilling operations and the storage and disposal of process wastes.  In its decision, the court did not readily distinguish between these activities, but instead used a broad brush to lump together the city's ban on the storage of hydraulic fracturing wastes in open pits, the disposal of hydraulic fracturing wastes, and the prohibition of hydraulic fracturing itself into a single regulatory activity that was inconsistent with regulation.  Therefore, the court failed to analyze how each of these activities on their own might be consistent with state law.

Since an appeal is fairly certain, the effect of the decision is being stayed pending the appeal.  In other words, Longmont's existing ban on hydraulic fracturing, waste storage and disposal remains in effect until a higher court rules on this matter.

View this blog at http://peteelaw.blogspot.com/ 
 or http://coloradomediationcenter.com/environment

If you cannot "love thy neighbor", at least you should be a "good neighbor" - The Supreme Court Gets It Right On Interstate Air Pollution

For well over a century, the courts and this country have been grappling with how to balance state sovereignty and a state's right to regulate industry and air pollution within that state against the health, safety, and property interests of downwind states.   In the early days, common law actions, such as nuisance actions, were used by states to protect a state's property interests against upwind out-of-state polluters.  In the 1960's Congress started to create a regulatory framework to address this issue at a national level.  However, it wasn't until the 1990 amendments to the Clean Air Act that Congress enacted a program that might succeed in controlling upwind out-of-state air pollution.  Specifically, the act was amended to include the "Good Neighbor Provision" which requires that State Implementation Plans (SIPs) contain provisions that prohibit "... any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will ... contribute significantly to nonattainment in, or interfere with maintenance by any other State with respect to any ... " national ambient air quality standard (see 42 U.S.C. 7410(a)(2)(D)(i)).  Note also that the national ambient air quality standards are health based standards.  Areas that exceed these standards pose a higher health risk than areas that attain those standards.

Since the act was amended in 1990, EPA has made several runs at issuing regulations explaining and implementing this requirement. Each time it ran into significant opposition, was litigated, and EPA's regulations were deemed flawed.  During this period, some states were more aggressive in putting controls on their industries to attempt to meet this statutory requirement than other states.

EPA's attempt to pass regulations in 2005 were foiled by the DC Circuit Court of Appeals in 2008, which told EPA to do it again.  The court initially vacated EPA's rule, but later directed EPA to keep the 2005 rule in place until it replaces the flawed rule, and told the Agency to act with dispatch (i.e. act quickly).

In 2011, EPA took its latest run at passing regulations interpreting and implementing this provision.  Not only did EPA provide a methodology for allocating upwind state contributions to downwind state attainment problems, it also issued Federal Implementation Plans (FIPs) to states that had clearly not complied with the 1990 requirement.  Many states and industries (mostly fossil fuel) were unhappy with EPA's actions and in 2012, the DC Circuit again struck down EPA's rule and told the Agency it needed to do it yet again.  The matter was appealed to the Supreme Court.

Last week, the Supreme Court (6-2) upheld EPA's interpretations, methodology, and the immediate issuance of FIPs in this instance.  The Court noted the striking parallels between this case and Chevron v. NRDC (1984), where EPA's reasonable interpretation of ambiguity in the Clean Air Act was at issue.  Here, like that case, EPA deserved deference.

So, 24 years after the Good Neighbor Provision gets enacted, it finally gets implemented through regulations. "[E]ach upwind State will be required to reduce emissions by the amount necessary to eliminate that State's largest downwind contribution." Slip at 24.

An interesting tidbit:  There is some poetic justice that Justice Ginsberg would write this opinion, which is protective of environmental interests and which was largely based on Chevron deference to EPA.  Earlier in her career, Judge Ginsberg wrote the D.C. Circuit opinion (also protective of environmental interests) that was overturned by the Court in the original Chevron case.

View this blog at http://peteelaw.blogspot.com/ 
 or http://coloradomediationcenter.com/environment

Supreme Court Gets Some Air - and Climate Change

Is it Yucca Mountain time, again?

Thirty years ago, before I went to law school, I was a hydrogeologist with the Nuclear Regulatory Commission.  My main responsibility was to perform site assessment (computer modelling) of the Department of Energy's proposed high-level radioactive waste repository at Yucca Mountain, Nevada.  At that time, the DOE was working with the USGS and various national laboratories to fully characterize the geology and hydrogeology of Yucca Mountain.  DOE was spending an astronomical amount of money (or so it seemed to me at that time) to perform all of the necessary tests and produce reports to demonstrate the long-term (at least 10,000 years) viability of the Yucca Mountain site.  The NRC was spending a lot of money too, but not nearly as much as DOE since NRC was tasked with reviewing DOE's submissions.

Fast forward 30 years later and the Yucca Mountain site has yet to be fully assessed, let alone built.  Had I not left the NRC in 1984, I might have still been working on that project.  Of course, that would assume that the NRC and DOE were still actively working on the project.  And that would assume that Senator Harry Reid, an ardent opponent of the project, did not ascend to his current position of Senate Majority Leader.  A variety of factors, including politics, money and the stopping of new construction of commercial nuclear reactors, have led to the atrophying of the Yucca Mountain project.  The NRC has stopped all work on this project even though the law directing the development of this project is still on the books, and congress has not completely zeroed out NRC's budget.

But not everyone is content with the status quo.  At least two states, Washington and South Carolina, have petitioned the D.C. Circuit Court of Appeals to have the NRC continue working on the project.

In In re: Aiken County, et al. (DC Cir, Aug 13, 2013) the Court issued a writ of mandamus to the NRC to continue (or restart) work on processing DOE's application, which it submitted in 2011 pursuant to the Nuclear Waste Policy Act.  The Court opined that the NRC did not have discretion to not perform the work that was embodied in law and for which congress appropriated money.  Chief Judge Garland filed a dissent where he noted that the $11M left in unspent appropriated funds will not go very far in moving the project along and will result in the NRC doing a "useless thing."

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http://coloradomediationcenter.com/environment

BACT to the future. The DC Circuit strikes Texas and Wyoming's challenge to EPA greenhouse gas rules.

Another week, another climate change opinion from the D.C. Circuit.  A busy summer for that court!

This week's opinion is the State of Texas v. EPA.  When the emission standards for the Tailpipe Rule went into effect on January 2, 2011, new/modified facilities subject to PSD (prevention of significant deterioration) requirements would need to comply with CAA Part C permitting requirements BEFORE construction could commence.  EPA issued a number of rules to ease this transition, including issuing FIPs (Federal Implementation Plans) in states that did not submit approvable SIPs (State Implementation Plans).  Texas and Wyoming challenged these rules on a number of grounds.

While the court denied Texas and Wyoming's challenge because they lacked standing, the overarching holding (and basis for lack of standing) was the court's determination that CAA 165(a) is self-executing and applies regardless of any EPA regulation or policy that may/may not be consistent with that provision.

Section 165(a) provides:

Preconstruction requirements
(a) Major emitting facilities on which construction is commenced
No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless—
(1) a permit has been issued for such proposed facility in accordance with this part setting
forth emission limitations for such facility which conform to the requirements of this part;
(2) ...
(3) ...
(4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility;
...

So, you cannot start construction on a major facility unless you have a PSD permit, and the facility is subject to BACT (best available control technology) for each pollutant subject to regulation.  Since the Tailpipe Rule rendered CO2 "subject to regulation", new/modified major sources MUST use BACT for CO2 emissions, and that emission limitation MUST be included in the PSD permit.  Texas and Wyoming's challenges to EPA's rules fail for lack of standing because the statute acts independent of EPA's regulations, and trump EPA's regulations.  Even if the court agreed with Texas and Wyoming, which it did not, overturning EPA's rules would not change the statute.  The court could not give those states the relief they were seeking.  Hence no standing.

http://coloradomediationcenter.com/environment
http://peteelaw.blogspot.com/

Another Building Block In EPA's Climate Change Edifice

In July, 2013, the D.C. Circuit Court of Appeals issued its opinion in Center for Biological Diversity v. EPA. While this opinion did not create significant climate change law in of itself, it is built upon the same court's decision in Coalition for Responsible Regulation v. EPA (D.C. Cir. 2012), which is on appeal to the Supreme Court.  If the Supreme Court overturns Coalition for Responsible Regulation, which upheld EPA's CAA climate change rules, then the issues presented in Center for Biological Diversity will be mooted. (Note: The S. Ct. has yet to decide whether it will grant certiorari.  See here and here for summary of arguments seeking and opposing cert.)

In Center for Biological Diversity, petitioners sought to strike down EPA's rules that would have delayed implementation of EPA's CAA greenhouse gas requirements on biofuel (non-fossil-fuel) carbon dioxide sources.  Although there were very few potentially affected sources, the court found that EPA did not justify its deferral under the administrative law doctrines of de minimis, one-step-at-a-time, absurd results, and administrative necessity.  The court's decision was split 2-1, with one of the concurring judges (Judge Kavanaugh) lamenting that the decision was based on the controlling law established in Center for Biological Diversity, which the judge felt was bad law - "I believe, contrary to this Circuit's precedent, that the PSD statute does not cover carbon dioxide, whether biogenic or not."

Recall that the Circuit Court's Coalition for Responsible Regulation opinion was largely based on the petitioners' failure to show that they had standing.  If the Supreme Court reverses on only that point (don't know how likely this is) and remands the matter back to the DC Circuit, then the same administrative law issues presented in Coalition for Responsible Regulation may be litigated in that context, with much higher stakes.

http://coloradomediationcenter.com/environment
http://peteelaw.blogspot.com/

When a Non-Taking Becomes a Taking: The S. Ct. Decides Koontz v. St. Johns River Water Mgmt Dist

In a decision eclipsed by today's voting rights act decision (decided by same 5-4 split), the S. Ct. issued a highly anticipated land use takings decision in Koontz v. St. Johns River Water Mgmt Dist.  The Court overruled a Florida S. Ct. decision and determined that a regulatory taking may occur where a regulatory agency denies a permit when the permit applicant's proposed mitigation was not deemed sufficient, and where mitigation that may be acceptable to the Agency would not meet the Court's tests for nexus and proportionality under Nollan and Dolan.  In the current case, Koontz sought a permit to develop land containing wetlands. Discussions with the regulatory agency included several alternative wetlands mitigation options, including payment for restoring wetlands several miles away. These pre-decisional discussions failed, and Koontz sued.

Mindful that no actual takings occurred (because the permit was not granted, the applicant still owns the land, and no money was spent), the Court found that an "unconstitutional condition" can still give rise to a takings claim where the government extorts (the Court used the word "extortion" numerous times even though no fees were demanded in this case) fees or conditions from an applicant which exceed the Nollan and Dolan nexus and rough proportionality tests.

A government action may give rise to an "unconstitutional condition" claim when it effectively coerces an action (or payment) from someone which would otherwise be protected under the constitution.  In other words, "the government may not deny a benefit because he exercises a constitutional right." (slip op. at 6, quoting other cases).  In this case, the constitutional right would be the just compensation for property that would be taken for a public use.

The dissent takes issue primarily with the notion that Nollan and Dolan are being extended to situations where money (as opposed to real property) is required to be spent or paid to the government as a condition of a permit.

What is the overall significance of this decision?  It clearly extends the Nollan and Dolan line of cases to matters where there was no actual taking (in those cases, real property interests were transferred to the government).   It certainly muddies the water on what leeway federal, state and local governments have in denying or negotiating conditions in permits that affect land use.  The case seems to fundamentally shift the burden to the government agencies to show that there is a nexus between the permit decision (to deny a permit or condition a permit) and the environmental objectives of the permitting program, and that the condition or denial is roughly proportional to the harm that would be caused if the permit were granted (or not subject to conditions).  Agencies will need to take greater care when having pre-decisional discussions with permit applicants in order to ensure that specific conditions were not being demanded, even where the government has zero interest in acquiring an interest in real property.  Agency's will need to decide whether it is worth the risk to engage in pre-decisional discussions at all, or whether to merely deny a permit application that does not meet the specific permitting requirements - but this too will need to be looked at through the lens of significant nexus and rough proportionality.

Even though this decision will likely subject permitting decisions to much greater judicial scrutiny, there is some redeeming dicta in the majority's decision.  The Court went out of its way to note that its decision will not affect a local government's ability to assess "reasonable" permitting fees. (see slip op. at 21). The Court also noted that government agencies insistence that "landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy" (see slip op. at 8).  Thus, the government still has a constitutionally legitimate role in balancing the public interest with private use which may not rise to a takings claim.

http://coloradomediationcenter.com/environment
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The Coal Train and the Clean Water Act - Another Attack on Coal?

CERCLA Arranger Liability - A Tale Of Two Transformers

The Supreme Court Resculpts Chevron Step 0

DC Circuit Overturns Lower Court Ruling and Upholds EPA's Retroactive 404(c) Veto Authority

4th Cir Upholds Decision on CERCLA Liability re 107 Apportionment and 113 Allocation

9th Cir: Utility poles not a point source under the CWA and aren't considerd solid waste/don't release solid waste under RCRA