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Environmental, Natural Resource & Energy Matters

Professional Assistance To Address Environmental Issues:

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http://www.mediationnow.com/cmc/images/small%20blue%20arrow.gif Groundwater and Surface Water Contamination http://www.mediationnow.com/cmc/images/small%20blue%20arrow.gifHydraulic Fracturing
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Mediation, Arbitration, and Facilitation

Colorado Mediation Center, LLC, offers expertise in mediating, arbitrating, and facilitating multi-party conflicts typical of environmental matters, including related energy and land disputes.

Consulting and Case Evaluation

We work with you, your legal counsel and your technical experts to provide an independent evaluation of the technical and legal merit of your case.

Why Choose Colorado Mediation Center, LLC?

  • You will be working with our unique team of independent, impartial dispute resolution professionals specializing in environmental matters.
  • Our team’s expertise is rooted in extensive corporate, government and community experience.
  • Our team will help with creative approaches to meet your specific needs for prompt, collaborative resolution of environmental, natural resource or energy issues.

Who Will Be Working With You?

Beth Ornstein, JD, the founder and manager of CMC has worked as a dispute resolution professional, trainer and coach, and is a Professional Mediator Member of the Mediation Association of Colorado. She has worked in many cases involving high conflict and has broad legal expertise in government contracting.

Peter Ornstein, MS, JD, is a hydrogeologist and attorney with over 30 years of experience working in energy, environmental law and policy. Peter worked for the Nuclear Regulatory Commission and the US EPA, ultimately serving as Deputy Regional Counsel for the US EPA in Denver. Since retiring from the EPA, he has taught environmental law at the University of Denver.

Working in Association with:

Jane Gardner, JD, an independent contractor with Colorado Mediation Center, LLC, has over 30 years experience in environmental law, both in government (US EPA) and corporate (General Electric Company) settings. Jane retired from GE as senior counsel and manager for GE’s worldwide legacy environmental program. She has expertise in all phases of environmental assessment, investigation & remediation at local, state, and federal levels and has extensive experience in nuclear waste and Native American lands.

Hot Topics in Environmental Law

Water and Air Toxics- Leaving a trace...

Published: Tue, 30 Jun 2015 20:15:00 +0000

Monday, June 29, 2015, was a big day for the Environmental Protection Agency.  On that day, EPA published its final (and long time coming) rule clarifying what constitutes a “waters of the United States” subject to the Clean Water Act, and the Supreme Court issued its decision in Michigan v. EPA striking down another (and also long time coming) rule regulating mercury and other toxic pollutants emitted from coal fired power plants.  Much has been written about both of these actions, but much of the media discussion has been about how EPA will ruin farmers with the CWA rule (it won’t) or how the Supreme Court is reigning in EPA’s expansive reach.  The Supreme Court decision is interesting in that it parses out whether and when EPA needs to consider costs in regulating the power plant emissions.  The entire focus is on whether and when EPA considers a power plant’s costs verses the benefit to the public of imposing those costs.  There seems to be an implied assumption that a power plant has a right to emit toxic emissions into the public domain.  The Supreme Court appears to support this assumption as it could easily have viewed EPA’s rule in the context of the overall purpose of the Clean Air Act to protect the public commons from pollution.  The debate over EPA’s CWA rule is similar: is there an implied right for someone to do something to their property that may adversely affect the downstream public?  Both the CWA and CAA issues seem to swirl around the question of what degree of public harm needs to be shown before a private unregulated activity transitions into something that should be regulated.   While the tests are different [the CWA rule focuses on whether there is a significant nexus between a stream reach and a navigable waterway; whereas the CAA rule issue is whether EPA needed to consider regulation impact costs upfront, before it even develops the regulations] the overarching issue is similar.  In the CWA rule, and while there are numerous loopholes, EPA is taking a more environmentally conservative/protective view in essentially saying that there is no implied right to conduct your private business on your property if it has a potential to impact downstream users or the public.  The Supreme Court, in the CAA matter, appears to be coming down on the other side of this question, and more in line with the balancing-of-interests test historically used in common law nuisance actions.  In those situations, it is OK to pollute the public commons as long as the activity creates a greater benefit.

Hikers, backpackers, and campers – including the Boy Scouts -  in our national parks, forests, and wilderness generally have an ethic of “leave no trace.” What you bring in, you pack out and don’t leave your residue for others to find. How would the above discussion play out if we had a national ethic of “leave no trace”?


Supreme Court Strikes Down Paralyzed Veterans

Published: Tue, 17 Mar 2015 01:50:00 +0000

On March 9, 2015, the Supreme Court (Perez v. Mortgage Bankers Assn) unanimously struck down the Paralyzed Veterans line of cases that had held that when a federal agency changes an interpretative rule, it must go through a notice and comment process.  The Court held that interpretative rules categorically do not need to go through the Administrative Procedures Act's notice and comment rulemaking process.

The net result of this ruling is that Agency interpretations may readily be changed and no longer need to show any semblance of consistency between (or even within) political administrations.

While this case did not upset existing jurisprudence concerning Chevron deference (i.e. Agencies get deference for interpreting ambiguous statutes), several conservative justices (Alito, Scalia, and Thomas) also served notice that in the future they will likely seek to strike down a line of cases which give federal agencies deference over interpretations of ambiguous regulations.

Dicta in the decision noted that many statutes contain safe harbor decisions that protect against reliance on an agency decision which the agency then changes (slip at 13).  In the environmental arena, these safe harbor provisions manifest as protections against enforcement actions when a permitee fully complies with the terms of a permit (i.e. "permit as a shield"), but runs afoul of a newer agency statutory interpretation, or discharges pollutants seemingly beyond the scope of the permit.  The Supreme Court is being presented with an opportunity to put a finer point on this in Aurora Energy Services v. Alaska Action on Torts (petition for cert), where they are being asked to decide whether a Clean Water Act discharge permit covers unlisted pollutants even though the permit explicitly excludes unlisted pollutants.

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



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

Published: Thu, 25 Dec 2014 17:41:00 +0000

This week, EPA announced that it will be finalizing its regulation of coal ash under RCRA, and that it will not be regulating it as a hazardous waste.  The proposed June 2010 regulation considered the regulation of coal ash as either a Subtitle C hazardous waste, or s Subtitle D solid waste.  EPA decided that coal ash from power plants will be regulated under the much less stringent Subtitle D regulations.  EPA even toned down the groundwater monitoring requirements from what it had previously proposed.

Some of the changes between the proposed rule and the final can be found here.

By not regulating coal ash as a hazardous waste, coal ash can continue to be readily used (“beneficial use”) in commercial products and construction projects.  That said, coal ash is often laden with toxic metals that can leach into the environment.

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


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

Published: Thu, 18 Dec 2014 18:59:00 +0000

Republicans in Colorado's state legislature are drafting a bill that would compensate mineral rights owners for lost opportunity associated with municipal and county fracking bans and moratoria.   If a community chooses to ban fracking within its borders, it will have to pay the mineral rights owners their lost royalties.  On its face, this seems eminently fair:  if a person or corporation owned valuable resources that it cannot access because a local government would not allow it, then shouldn't it be compensated for that loss?  This sentiment, and the proposed state legislation, parallels the 5thAmendment: "nor shall private property be taken for public use, without just compensation",  and Article 2 of Colorado's constitution: "that private property shall not be taken or damaged, for public or private use, without just compensation."  Laudable, but why is it needed if it is already covered by both the 5th Amendment and Colorado's constitution?  Perhaps the bill's proponents want mineral rights to be unfettered from federal common law that has built up over the last 2 and a half centuries over the application of the 5thAmendment.  Notably, the courts have come to balance an individual's rights to property with a community's right to safety.  For example, a coal mine does not have a right to cause a public nuisance by removing all of the coal beneath a town - which would have jeopardized the health and safety of the citizens living in the town (see Keystone Bituminous Coal, 480 US 470 (1987)).   It is hard to believe that the bill's proponents would want to compensate a mineral rights owner if it were to be shown that extraction of those minerals would in itself endanger public welfare or otherwise constitute a public nuisance. So why draft the legislation?  Wouldn't a better course be to merely let the courts decide whether a community's ban on fracking constitutes a constitutional takings requiring compensation?

On the other side of the fracking divide, what is driving community bans and moratoria?  Boulder County recently extended its fracking moratorium for several years in order to be able to fully understand the health and safety impacts of fracking.  The moratorium's expiration date was fixed to allow for the conclusion of several ongoing regional and national studies.   (Note: with the recent release of several other high profile studies by New York and the NRDC, more and more studies are highlighting the risks associated with hydraulic fracturing).   Community concerns over fracking extend not just to concerns over health and safety of the fracking operations, but to the wear and tear on infrastructure, environmental and aesthetic impacts, and on way of life or lifestyle concerns (e.g. noise, lights, transient workers, building infrastructure to accommodate boom and bust cycles, etc.) This rather large and undifferentiated basket of concerns is often presented to voters as why a ban is needed. 

Perhaps lawmakers should be consider another approach that addresses many community concerns, but does not impose an outright ban.  Some of the public fears and concerns associated with fracking are similar to the concerns with hazardous waste facilities - especially the threat of environmental releases and who gets stuck cleaning up a mess, groundwater contamination, air emissions, and what happens when the company finishes its operations or goes bankrupt? Under federal environmental law, many of these issues are addressed by having enforceable financial instruments in place before the operations - as part of the cost of doing business - to ensure that all contingencies and costs are covered by the company.  These up-front financial instruments may include 3rd party insurance or surety bonds, and can be accessed by the government or a 3rd party if necessary.  The financial instruments are structured to cover not only any operational corrective action costs, but costs to close the facility and clean up any residual releases.  In addition, hazardous waste groundwater monitoring requirements, including Colorado's own hazardous waste groundwater monitoring requirements, are much more extensive than Colorado's current (and much touted by industry) groundwater monitoring requirements for oil and gas.  If Colorado's regulations were to treat fracking facilities with the same rigor it treats hazardous waste facilities, many of the community concerns could be alleviated, and industry would be driven toward a higher standard of environmental responsibility.

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


Uranium and the Grand Canyon - A Precautionary Tale

Published: Wed, 15 Oct 2014 18:27:00 +0000

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

Published: Fri, 25 Jul 2014 18:00:00 +0000

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

Published: Mon, 05 May 2014 17:25:00 +0000

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

Published: Tue, 15 Oct 2013 17:43:00 +0000

The Supreme Court has granted certiorari in two significant clean air cases: 1) Environmental Protection Agency v. EME Homer City Generation; and 2) Coalition for Responsible Regulation, Inc. v. EPA (D.C. Cir. Jun. 26, 2012).  The first case involves EPA's attempt to ensure that cross-state air pollution from an upwind state does not significantly contribute to air pollution in the downwind state.  What ought to have been a fairly straightforward (albeit fairly technical) process has been complicated by the lower court's view of how the process ought to work.  The lower court decision was appealed by both EPA and industry and the Supreme Court will decide whether EPA ought to get deference.

The second case is perhaps the most significant environmental case of this Court's term.  The entire scaffold of this Administration's climate change initiatives will rise or fall based on the outcome of this case.  A ruling against the EPA will likely negate EPA's strategy of using the Clean Air Act to regulate greenhouse gas emissions.  A favorable ruling will clear the way for EPA to continue to use the Clean Air Act to ratchet down such emissions.

On October 15, 2013, the Supreme Court granted certiorari with respect to the following question: 

"Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases."

Of all of the issues raised in the lower court decisions (that were consolidated in this appeal), it is curious why the Court would pick the issue that it did, and phrase it along the lines of a Chevron 2 test.  The issues raised ranged from attacks on EPA's endangerment determination to the lack-of-standing determinations repeatedly made by the lower court.  Based on this seemingly fairly narrow question, the answer appears to be straightforward and EPA's greenhouse gas regulations ought to survive in tact. But Justices have been known to stray far from the script, and all bets are off.

Nonetheless, a Chevron analysis poses the following questions: 1) Is the Clean Air Act ambiguous as to whether EPA must regulate greenhouse gas emissions from stationary sources once it started regulating greenhouse gases from new motor vehicles; and if the statute is ambiguous, 2) Whether EPA's determination that permitting requirements were triggered for stationary sources was arbitrary, capricious, or contrary to law.

The EPA (and the D.C. Court of Appeals) bases its determination on the language of CAA 165(a)(4) (42 USC 7412(a)(4)) which says "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" (emphasis added).  I think the key language here is "subject to regulation under this chapter", that is, subject to regulation under the entire Clean Air Act.  Hence, once greenhouse gases are identified as pollutants subject to regulation under the Clean Air Act for new motor vehicles, it is subject to regulation under Section 165 for new stationary sources.  Within the Clean Air Act there are numerous instances where Congress parsed out the phrase "subject to regulation" and where Congress created either a very focused or a very broad scope.  For example, see the following uses of the phrase and note the scope, with "chapter" meaning the entire Clean Air Act:
  • subject to regulation under subchapter II of this chapter (7412(a)(2))
  • subject to regulation under subsection (r) of this section (7412(b)(2))
  • subject to regulation under this section (7412(b)(2))
  • subject to regulation under this section (7412(c)(3))
  • subject to regulation under this section (7412(f)(1)(A))
  • subject to regulation under this section (7412(j)(5))
  • subject to regulations under this subsection (7412(r)(3))
  • subject to regulations or requirements under this subsection (7412(r)(7)(F))
  • subject to regulation under this chapter (7475(a)(4))
  • subject to regulation under this chapter (7475(e)(1))
  • subject to regulation under this chapter (7479(3))
  • subject to regulation under paragraph (1) (7511b(h)(4))
  • subject to regulation under this chapter (7543(e)(1))
So, if I were a Supreme Court Justice, I would have stopped at Chevron 1 and denied cert since the statute is NOT ambiguous and EPA (and the lower court) had no choice in regulating greenhouse gas emissions at stationary sources.  However, since the Court appears to have jumped over Chevron 1 by phrasing its question in Chevron 2 parlance and granting cert, all bets are off.


Is it Yucca Mountain time, again?

Published: Tue, 20 Aug 2013 17:54:00 +0000

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."

View this blog at http://peteelaw.blogspot.com/ 


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

Published: Wed, 31 Jul 2013 18:44:00 +0000

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.



Another Building Block In EPA's Climate Change Edifice

Published: Thu, 25 Jul 2013 17:51:00 +0000

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.



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

Published: Tue, 25 Jun 2013 19:56:00 +0000

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.



The Coal Train and the Clean Water Act - Another Attack on Coal?

Published: Thu, 06 Jun 2013 21:22:00 +0000

On June 4th, the Sierra Club and several partners filed an action against BNSF Railway, and others, alleging past and ongoing violations of the Clean Water Act. In essence, the Sierra Club alleges that hundreds of thousands of pounds of coal dust are emitted from each coal train every day, and some of it directly into the nations' river and streams.   The emissions occur through holes in the sides and bottoms of rail cars, and from the open top. The coal contains numerous toxins which may end up in fish, and our food.

Recall that under the Clean Water Act, a Section 402 permit is required in order to discharge a pollutant into a water of the United States from a point source.  The Sierra Club alleges that the emissions from coal trains constitute such a practice and that the CWA requires a permit for each rail car, which BNSF does not have.

The Sierra Club is seeking injunctive relief which would require a complete revamp of railway transportation practices, as well as penalties for past and ongoing violations.

Click here for additional information from the Sierra Club, and here for a copy of the complaint.

While this action may be meritorious in its own right, it also is another attack on the coal industry.  The allegations Sierra Club makes are limited to the Pacific Northwest, but may just as easily be made anywhere else in the country.  This places a spotlight on a common practice which may ultimately result in additional and costly controls for the entire coal industry.  So, is this a concern about coal dust in our water, or an attempt to have the coal industry cover some of the good housekeeping environmental costs associated with coal extraction and transportation?



CERCLA Arranger Liability - A Tale Of Two Transformers

Published: Wed, 05 Jun 2013 04:22:00 +0000

Consider the following scenarios:
Company A sells its pcb-laden transformers to Company X, who repairs and resells them. Company B sends its pcb-laden transformers to Company X who repairs and returns them. The repair work on both sets of transformers was the same.  Afterward, releases from Company X's operations triggered CERCLA response actions. Does either Company A or Company B have CERCLA

In Duke Energy Progress Inc. v. Alcan Aluminum Corp., No. 5:08-cv-460-FL (E.D.N.C. 5/6/13) (http://www.shb.com/newsletters/ECU/Etc/DukeEnergy.pdf), the court described how the seller (Company A in the above scenario) would not have liability, while the company that continued to hold ownership (Company B in the above scenario) would likely have liability as an "arranger." This follows the Burlington Northern case (Burlington N. & Sante Fe Ry. Co. v. United States, 556 U.S. 599, 610 (2009)) where the seller escapes liability as it has no intention of disposal. Liability for the non-seller would turn on a fact-specific inquiry as to the level of control it exercised in the repair process and its intent to arrange for disposal of the discarded pcb-laden oil.

The hard-learned lesson?  It may be better to sell your ailing assets (or transformers), and then re-purchase when they have been repaired.



The Supreme Court Resculpts Chevron Step 0

Published: Thu, 23 May 2013 17:15:00 +0000

On May 20, 2013, the US Supreme Court issued its opinion in the City of Arlington v. Federal Communications Commission (http://www.supremecourt.gov/opinions/12pdf/11-1545_1b7d.pdf) which held that the FCC was appropriately given Chevron deference when the FCC put specific bounds around what is meant by a "reasonable period of time" for state and local governments to act on wireless siting applications.  The majority opinion was written by Justice Scalia, and joined by Justices Thomas, Kagan, Sotomayor, and Ginsburg.  Justice Breyer concurred in part and concurred in the judgment.  Chief Justice Roberts issued a dissenting opinion, joined by Justices Kennedy and Alito. 

The issue in this case revolved around whether and when a federal agency is entitled to Chevron deference.  Specifically, is there a difference between matters that call into question whether an agency has jurisdiction to resolve statutory ambiguity, and matters that do not.  According to the majority, "[n]o matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority" (emphasis added).

So where does Mead (Chevron Step 0) fit in?  Recall that under Chevron v. Natural Resources Defense Council (1984), the Court identified a 2 step test in determining whether a federal agency should get deference in interpreting a statute it administers: 1) if the intent of Congress is clear, then that is the end of the matter; else 2) if the statute is silent or ambiguous with respect to a specific issue, then the agency will get deference if it's interpretation is reasonable.  Further, under United States v. Mead Corp (2001), the Court said that the Chevron two-step test to resolve possible statutory ambiguity applies only if the federal agency has jurisdiction to address the matter in the first place.

As Scalia noted in City of Arlington, whether an agency has jurisdiction is often inseparably tangled up with the specific issues a court may be grappling with under the Chevron test.  That is, if an agency is acting ultra vires, then it gets no Chevron deference.  If the agency is acting consistent with the underlying statute, then the Chevron test, and appropriate deference, applies.  Courts should not second guess an agency's reasonable interpretation of an ambiguous statute if the agency is not acting outside of its authority.  This narrows Mead, but does not eliminate it.  The Mead/Chevron Step 0 is still the appropriate inquiry to determine whether a federal agency is acting outside of the bounds of the administered statute.

View this blog at http://peteelaw.blogspot.com/


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

Published: Wed, 24 Apr 2013 00:56:00 +0000

On April 23, 2013, the D.C. Circuit Court of Appeals overturned the lower court's ruling in Mingo Logan Coal Company v. EPA and held that EPA's Clean Water Act 404(c) "veto" authority does NOT have a temporal limit, and instead empowers EPA to "restrict or withdraw the specification 'whenever'" the Administrator makes the requisite determination that an unacceptable adverse determination will result.   Mingo Logan's predecessor applied for the 404 permit in 1999 in order to discharge mountain top mine debris into several West Virginia Streams.  The permit was issued by the Corps of Engineers in 2007 after EPA informed the Corps that it did not intend to exercise its 404(c) authority.   In 2009, EPA requested that the Corps revisit the permit based on new information.  The Corps declined, and in 2010 EPA exercised its 404(c) authority.  The District Court found that EPA lacked statutory authority to exercise its 404(c) authority after the permit was issued.  The Court of Appeals found that EPA's authority is so constrained and remanded the case back to the District Court to resolve Mingo's residual Administrative Procedures Act claims (i.e. whether EPA acted arbitrarily and capriciously) that the District Court did not previously address.



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

Published: Thu, 18 Apr 2013 17:39:00 +0000

In PCS Nitrogen, Inc. v. Ashley II of Charlston LLC (4th Cir. April 4, 2013), the 4th Circuit upheld a lower court decision on the scope of liability attributed to a number of parties under both 107 and 113.  The complex fact pattern involved numerous parties, successor corporations, and diverse land use activities over a number of decades.  One of the parties, Ashley II, attempted to position itself as a bona fide prospective purchaser (BFPP) by purchasing the property, performing remediation, and actively seeking instruction and cooperation with the Environmental Protection Agency.  The Court nonetheless found its argument deficient in that Ashley failed to exercise all appropriate care, and was therefore liable under 107.  The Court also held that a current owner/operator, which was not responsible for any disposal or contamination, is nonetheless liable under 107 unless it can demonstrate that it falls under one of CERCLA's limited defenses and exemptions.  Also significantly, the Court refused to apportion 107 liability among the parties.  The Court distinguished the facts in this case from the less complex facts addressed by the Supreme Court in Burllington Northern.  The parties were unable to overcome the burden of providing a reasonable basis for apportioning its own harm - this was perhaps made difficult by the reworking/redisposal of the contamination over the years.

With liability established for the parties, the Court relied on equitable factors to allocate response costs among the liable parties.

UPDATE (Aug 2013): PCS Nitrogen, Inc. is seeking S. Ct. review over the 4th Circuit's refusal to apportion 107 liability among the parties.  PCS believes that the lower courts (not just in the 4th Circuit) do not follow the S. Ct.'s instruction in Burlington Northern, which PCS characterizes as a more relaxed standard to determine whether apportionment is appropriate.  PCS is also seeking S. Ct. review of the 4th Cir's deference to the district court's apportionment determination instead of conducting a de novo review.



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

Published: Sat, 06 Apr 2013 22:08:00 +0000


What does this case mean re passive releases? 


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