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Mass. v. EPA bears fruit for environmental petitioners

Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico 

A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court’s greenhouse gas emissions decision in Massachusetts v. EPA, in fact it’s a direct descendant. 

The Administrative Procedure Act allows any interested person to petition any federal agency to make, change, or repeal regulations. The APA doesn’t specifically say how courts should review agency responses to petitions, and in general the courts have been quite deferential to petition denials.

Massachusetts v. EPA is best known for holding that states have standing in federal court to challenge actions that contribute to climate change. But it also has important implications for APA rulemaking petitions. The plaintiffs in Massachusetts v. EPA had petitioned EPA to set limits on greenhouse gas emissions from cars. EPA denied the petition on the grounds that it did not have, and in any case would not choose to exercise, authority over greenhouse gas emissions. A slim majority of the Supreme Court, after finding that plaintiffs had standing and that greenhouse gas emissions are within the scope of the Clean Air Act, went on to hold that EPA could not deny the rulemaking petition for reasons “divorced from the statutory text.” In that case, that meant that EPA had to actually make a judgment about whether greenhouse gas emissions cause or contribute to air pollution reasonably anticipated to endanger public health or welfare. That holding (and a change in presidential administration) eventually led to EPA’s endangerment finding and regulation of greenhouse gas emissions from (so far) tailpipes and large new stationary sources.


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What’s holding up the Clean Water Act jurisdictional guidance?

Reposted from LegalPlanet.

People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he’s not convincing his political opponents — he doesn’t appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn’t perfect, but that shouldn’t be the test. EPA should be allowed to issue its guidance, and to correct it when and if experience shows that to be necessary.

The jurisdictional issue has been problematic for a dozen years now. The law requires a permit for the addition of pollutants to “navigable waters,” which it defines as “the waters of the United States.” That seemed clear enough in 1985, when the Supreme Court decided U.S. v. Riverside Bayview Homes. At that point, most observers thought the Clean Water Act covered all waters constitutionally subject to federal authority, and that the Commerce Clause extended federal authority to the vast majority of the waters in the country. Federal jurisdiction was hardly ever in question.

But then the underlying assumptions changed. In the late 1990s the Supreme Court indicated a renewed interest in establishing boundaries to federal Commerce Clause jurisdiction. And in 2001 in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (SWANCC) the Court ruled that the Clean Water Act does not cover at least some “isolated” waters, but provided little guidance on where the jurisdictional line lies.

The Court revisited that question in 2006 in Rapanos v. United States. Sean posted this explanation four years ago of the mess left by Rapanos. The short version is that no opinion commanded a majority of the Court. Four justices, led by Justice Scalia, would have limited federal jurisdiction to relatively permanent bodies of water connected to traditionally navigable waterways and wetlands with a continuous surface connection to jurisdictional waters. Four others would have deferred to the Corps of Engineers’ broad reading. Justice Kennedy, writing only for himself, opined that jurisdiction over wetlands and waters that are not navigable in the traditional sense “depends upon the existence of a significant nexus” with navigable waters. Because Kennedy’s was the swing vote, his “significant nexus” test has been seen as controlling by most courts and commenters. But that test is hardly self-explaining, and confusion remains over whether Scalia’s “relatively permanent waters and adjacent wetlands” test is an alternative path to jurisdiction.

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Jane Lubchenco's Legacy at NOAA

Cross-posted from Legal Planet.

NOAA administrator Jane Lubchenco has announced that she will leave her post at the end of February. Her letter to NOAA employees, reprinted in the Washington Post, cites the difficulty of maintaining a bi-coastal family life. Dr. Lubchenco, a distinguished marine biologist, has put in four years at the helm of NOAA, as much time as reasonably could be expected.

She was one of President Obama’s earliest nominees, named before his inauguration as part of a “dream team” of distinguished research scientists he brought into high-level government service in partial fulfillment of his inaugural promise to restore science to its rightful place. While that promise remains, in my view, unfulfilled, it hasn’t been for lack of trying on Lubchenco’s part. Of NOAA’s accomplishments during her tenure, the one I attribute most directly to her influence is adoption of a strong scientific integrity policy. The White House mandated that federal agencies develop scientific integrity policies, but provided precious little guidance or leadership. Most agencies simply imported research misconduct policies, essentially putting the entire onus of ensuring scientific integrity in the regulatory arena on career scientific staff. As I’ve explained in some detail in this article, that approach misses the point. The so-called scientific integrity problem has a lot more to do with the relationship between political appointees and the career scientists they oversee than with deliberate falsification by those scientists. If you don’t believe that, take a quick look at the Department of Interior Inspector General’s reports on the Julie MacDonald affair, here and here. NOAA’s policy, alone among those I’ve looked at, takes on that relationship. It includes a “Code of Ethics for Science Supervision and Management” which, among other things, expressly forbids intimidating employees into altering or censoring scientific findings. You wouldn’t think that was necessary, but look again at the MacDonald report. Then ask yourself why the Department of Interior hasn’t put even that minimal limit on managers in its scientific integrity policy.

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What to Expect in the Logging Roads Case

Cross-posted from Legal Planet.

This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of “point sources” subject to federal regulation, and the availability of citizen suits to enforce the CWA.

I think it’s likely the Ninth Circuit decision will be reversed, but I expect a narrow decision. With the recusal of Justice Breyer (whose brother sat by designation on the Ninth Circuit panel), the best environmental interests can reasonably hope for is a 4-4 deadlock if they can bring Justice Kennedy around. I don’t think that will happen. (To the extent that Justice Kennedy deserves his reputation for sensitivity to the views of the states, note that 31 states have signed on to an amicus brief in support of petitioners and of course Oregon is a petitioner.)

Petitioners make three arguments: first, that runoff from ditches and culverts associated with logging roads is not point source pollution; second, that even if it is not all point source pollution requires an NPDES permit; and third, that the lower courts did not have jurisdiction to hear this suit. My guess is that they will win on the second argument, lose on the third, and that the court may duck the first. If I’m right, the Court’s decision won’t radically undermine the CWA, but it will leave EPA with a great deal of discretion to decide what to do about logging road pollution. Whatever the outcome in the Supreme Court, it’s crucial that EPA take its mission of restoring and maintaining the integrity of the nation’s waters seriously, and recognize the importance of dealing with logging roads and other “unconventional” pollution sources to achieving that mission.

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Should We Revive an Extinct Galapagos Tortoise?

Cross-posted from Legal Planet.

The Washington Post reported this week that scientists think they can resurrect the Pinta Island subspecies of Galapagos tortoise whose last remaining member, “Lonesome George," died this summer. Scientists at Ecuador’s Galapagos National Park say they have found enough Pinta Island genetic material in tortoise on another nearby island that an intensive breeding program over 100 to 150 years could regenerate the pure Pinta Island subspecies.

It’s all very cool and sci-fi to think we might be able to regenerate extinct species (does anyone besides me remember Jurassic Park?). But from a policy perspective, the question is not can we do it, but should we? It’s the kind of question we’ll have to face more and more, with climate change radically changing the world’s habitats. What exactly do we want to conserve, and what level of resources are we willing to put into conservation or into conserving one entity possibly at the expense of others further down the list?

We can’t answer that question without thinking a lot harder about why we think conservation is desirable. Are we trying to save “nature” in some sense, and if so is a deliberately human-bred species natural in the sense that matters or not? Or in a slightly different context, should we be moving pikas or other species from areas that are or soon will be no longer suitable habitat to areas outside their historic range that might become suitable?

I don’t pretend to have the answers to those questions. In fact, I don’t think any one person should be expected to answer them, or should suppose that they alone have the definitive answer. As Alejandro Camacho, Jason McLachlan, Ben Minteer and I wrote a couple of years ago, we need a multidisciplinary national or global conversation on conservation goals. Whether Lonesome George should be given virtual children is as good a place to start that conversation as any.

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More on BP's Guilty Plea: It's Not Just About the Money

Cross-posted from Legal Planet.

As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.

Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and natural resource damages remain to be determined. The plea agreement specifies that the payments it requires do not affect its liability for civil claims or natural resource damages.

I was struck by the scope of the fines for the environmental offenses relative to the others. BP agreed to pay the maximum possible fine for each of the 11 manslaughter counts and the obstruction of Congress count. Together, the agreed fine for those counts totals $6 million, a tiny fraction of the total criminal fines. BP will pay another $100 million for violating the Migratory Bird Treaty Act, and a whopping (at least relatively speaking) $1.15 billion for violating the Clean Water Act.

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Ninth Circuit Corrects Itself on Gold Mining and the ESA

Cross-posted from Legal Planet.

The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined by 3 others.

I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the ESA quite deliberately requires. Second, the extraordinary rhetoric of the dissent highlights the fact that tea-party tactics are not limited to political debates. Their increasing use by conservative judges is an unfortunate development that threatens to undermine the proper functioning of the judicial branch, not to mention its credibility.

First, the en banc opinion is substantively correct in its reading of the ESA. The Ninth Circuit was right to take this case en banc, because the panel’s decision was both wrong and important. The issue in this case was whether the Forest Service was required by section 7 of the ESA to consult with the National Marine Fisheries Service and U.S. Fish and Wildlife Service on the potential impacts of suction dredging and other recreational gold mining activities before allowing them to proceed. The panel said no, characterizing what the Forest Service did as inaction, simply allowing miners to go there merry way.

But that’s not what happened, as Judge Fletcher pointed out in his panel dissent and explained again in his opinion for the en banc majority.

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40 Years Hasn't Taught Some Agencies Much About NEPA

Cross-posted from Legal Planet.

You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to describe the action, alternatives to it, and their effects on the environment relative to not taking the action. Pretty straightforward, really, but a new decision from the 4th Circuit shows that there are still some agencies (and some federal judges) that don’t, or won’t, get it.

Back in the day, the architects of NEPA knew that some agencies would resist giving any real consideration to the environmental costs of their actions. So they designed the EIS requirement to force agencies not only to document the expected environmental impacts of proposed actions, but to release that information to the public, providing an opportunity for the political process to correct any overzealous pursuit of their primary missions.

With the help of citizens who were ready to litigate when NEPA’s procedures were bypassed, most federal agencies learned relatively quickly that they now must own up to the environmental costs of their decisions. But not all, or at least not when they are trying to please state and local partners.

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Court Skeptical of EPA's Section 404 Role Overturns Mine Veto

Cross-posted from Legal Planet.

Regular readers of this blog know that on January 13, 2011, EPA vetoed a Clean Water Act section 404 permit issued by the Corp of Engineers for valley fill at the Spruce No. 1 mountaintop removal mine project in West Virginia. This was only the 13th time EPA had used its veto power, and the first time it had vetoed a permit after it was formally issued. I wrote at the time: “Expect litigation, and expect it to focus on the timing of the veto.”

It’s nice, sort of, to have my instincts confirmed. Sure enough, the mining company, Mingo Logan, challenged the veto precisely on the grounds that EPA lacked authority to revoke a permit once issued. On Friday the D.C. District Court agreed with that argument. Here’s how the court summarized its ruling:

The Court concludes that EPA exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court’s view that it could deem EPA’s action to be unlawful without venturing beyond the first step of the analysis called for by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA’s interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be.

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Where Does NOAA Belong?

Cross-posted from Legal Planet.

Clearly I need to slow down Rick’s internet connection to get him to stop scooping me.

Rick reported earlier that the President has floated a proposal to reorganize the Commerce Department and related agencies which would apparently include moving NOAA (all of NOAA, according to OMB’s Jeffrey Zeints, not just its ESA functions) into the Department of Interior.

Actually, although that’s the way the story is being spun out in the media, it’s not exactly what’s going on. What the President has really proposed is that Congress give him the authority that presidents routinely enjoyed before 1984 to reorganize and streamline government agencies. That proposal makes all kinds of sense, both substantively and politically. Substantively, of course as circumstances and societal priorities shift, government agencies should not permanently remain static. But the current Congress is so shameless and so obsessed with micromanaging the executive branch that it refuses to confirm presidential appointees if a minority objects to the agency those appointees will oversee and holds sham sessions at which no business may be conducted to try to prevent the President from making recess appointments. This Congress is not going to give President Obama what he’s asking for, which makes the proposal a smart political move. It gives Obama a concrete way to campaign against the Congress, and to put the Republicans on the defensive.

No doubt to maximize that political benefit, or perhaps just to tweak his most dedicated congressional opponents, the example the President is offering is the merger of a number of agencies, including many functions of the Department of Commerce, focused on business and trade. Those, of course, are typically viewed as higher Republican than Democratic priorities. Obama asserted in his remarks today that the changes he wants authority to make respond directly to feedback that what businesses really hate in dealing with government is not the fact of regulation but “a system that [is] too much of a maze.”

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