Environmental Law News

U.S. Circuit Courts Decide Against Mining Interests

Posted in Agency News, Energy, EPA, Kentucky, Natural Resources, Water

On Friday, July 11, 2014, two U.S. Circuit Courts of Appeals issued important decisions regarding Clean Water Act permitting.  Both appeals saw the losing side supported by numerous and diverse amici.  These levels of participation in the appellate process indicate the far-reaching significance of the decisions beyond the cases’ direct application to Appalachian coal mining.

First, National Mining Association v McCarthy (formerly Jackson) concerned the oversight of EPA and the Corps of Engineers over Clean Water Act permitting for Appalachian coal mining operations.  The D.C. Circuit reversed the D.C. District Court and found that agencies’ adoption of the Enhanced Coordination Procedure for reviewing the Clean Water Act permits for Appalachian mining operations did not violate the statutory authority granted by the Act. The court further found that the Final Guidance regarding more stringent limits to be applied to those permits was not a final agency action subject to review by the court.

Second, in Southern Appalachian Mountain Stewards v. A&G Coal, the Fourth Circuit affirmed the lower court’s ruling and held the Clean Water Act’s “permit shield” did not protect a surface coal mining permittee from citizens’ suit for pollutants discharged from the operation. In reaching this decision the court found that the mining permittee had not complied with the obligation to disclose fully the pollutants discharged from the operation.

We will be analyzing these decisions and will provide expanded discussion here on this site.

Stay tuned.


Business Group Says Climate Change is Risky Business

Posted in Climate Change, Natural Resources, Sustainability, Sustainability Policy

Contingency planning and risk management are important to any business, but have you thought about including climate change among the risks to consider in those plans? A group including business leaders and former government officials released an analysis of the possible impacts that climate change may have on business in the United States, titled Risky Business: The Economic Risks of Climate Change in the United States.

The report does not debate evidence about climate change or question causation. Instead, it takes a risk management approach to evaluate the potential economic impacts of a variety of climatic changes predicted from peer-reviewed studies.

Risky Business identifies three primary areas of risk: (1) losses of coastal property and infrastructure; (2) higher temperatures, especially in the South and Midwest, that reduce productivity, threaten human health, and increase demand for energy; and (3) changes in agricultural production that favor northern areas and reduce yields in the South, lower Great Plains, and the Midwest. The report includes specific discussions on six regions of the continental U.S. and separate discussions of Alaska and Hawaii.

Co-Chairs of the Risky Business Project are Michael Bloomberg, former Mayor of the City of New York; Henry Paulson, former U.S. Secretary of the Treasury; and Tom Steyer, former Senior Managing Member of Farallon Capital Management.  The group’s Risk Committee includes Henry Cisneros, Gregory Page, Robert Rubin, Olympia Snowe, Donna Shalala, George Shultz, and Al Sommer.

The clearly-written discussion is a good place to begin the important dialogue to answer the question “what if?” and to begin to manage the risks presented by the answers to that question.


EPA Cannot Impose Emission Limits Based Only on Greenhouse Gases

Posted in Agency News, Air, Climate Change, Climate Change and Greenhouse Gases, EPA, Federal

The U.S. Supreme Court’s decision Monday, June 23, limits EPA’s authority to impose limits on emissions of greenhouse gases (“GHGs”).   Reviewing challenges to EPA’s rule limiting GHGs under the Clean Air Act’s provisions of Prevention of Significant Deterioration (“PSD”) and Title V permitting, the Court held that the Act did not require that EPA impose limits on GHGs in instances where the GHGs were the only pollutants to trigger compliance with PSD and Title V requirements.  The Court also held that EPA’s interpretation of its authority under the Act was not a reasonable interpretation and so the agency’s interpretation was not eligible for deference under the Chevron line of cases.

The decision upheld, however, EPA’s authority to require the use of best available control technology (“BACT”) for GHGs for sources that were already subject to PSD or Title V requirements due to emissions of other, conventional pollutants.



Cooperative Community Efforts for Renewable Energy

Posted in Climate Change, Climate Change and Greenhouse Gases, Energy, Green Building, Solar Energy, Sustainability, Sustainability Policy

An article from the New York Times highlights the innovative approaches that some states and communities are taking to develop solar energy resources.  High cost and lack of space for installation hinder many people who would like to install solar panels to produce electricity.  The article by Diane Cardwell describes how cooperative ventures can help overcome those obstacles.

State action in support of the venutes helps.  Many states discussed in the article (California, Colorado, Massachusetts, and New York) have adopted Renewable Portfolio Standards that require or encourage electric utilities to provide a certain portion of their electricity from renewable sources.  Kentucky, Tennessee, and Georgia are among the states that have not adopted a Renewable Portfolio Standard.  These and other states offer a variety of energy-related incentives, however.

Comment Period Extended on Waters of the United States

Posted in Agency News, EPA, Water

The Environmental Protection Agency and the Corps of Engineers have extended until October 20, 2014, the comment period on the groundbreaking proposed rule to define Waters of the United States.  EPA informed select stakeholders on June 10, but the official notice was published in the Federal Register on June 24, 2014.  For more information, see the EPA “Waters” website at  http://www2.epa.gov/uswaters

Several agencies and stakeholder groups requested additional time to comment on this significant rule (see Bill Penny’s analysis of the rule here).  Agriculture groups made a compelling argument based on the timing of the intial comment period that came at agriculture’s most busy time of the year.  http://www.agrimarketing.com/s/89310

Federal Court Finds Liability for Excess Conductivity

Posted in EPA, Natural Resources, Water

The U.S. District Court for the Southern District of West Virginia, Ohio Valley Envt’l v Elk Run Coal Co  Case No. 12-cv-0785, found liability for discharge to surface waters of ionic pollutants (measured by conductivity) that adversely affect stream macroinvertebrate communities.  The rationale expressed in this decision may have ramifications for the regulated community regarding which types of alleged permit violations may be subject to action by citizens suits and to what extent the courts may act as “super regulators” to impose obligations different from those imposed by the state agencies authorized to oversee the regulated activities.  Although the case orignates in Appalachian coal mining, the court’s evaluation of expert testimony relevant to  general and specific causation of harm, as determined by levels of conductivity and biotic index scores, may affect interpretations of alleged harm caused by pollutants in stormwater and other surface discharges.

Plaintiffs alleged violations of permits issued to the mining company defendants under the Clean Water Act and the Surface Mining Control and Reclamation Act.  The court found that plaintiffs had proved  that defendants had each committed at least one violation of their permits by

discharging . . . high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.”

The court distinguished this case from that of Nat’l Mining Ass’n v. Jackson, 880 F. Supp. 2d 119 (D. D.C. 2012), in which the D.C. District Court invalidated conductivity limits that the US EPA sought to impose by guidance document.  In contrast, the court held in Elk Run Coal that EPA’s findings contained in “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” were scientific findings and, as such, the study was a scientific study within the agency’s area of expertise.

In its detailed, 67-page discussion the court (1) relied on plaintiffs’ expert testimony about the relationship of measures of conductivity and the West Virginia Stream Condition Index (WVSCI) scores; (2) rejected language in a guidance document from the WVDEP that concluded, among other findings, that there was no causative effect between high conductivity and low WVSCI scores; and (3) rejected application of West Virginia legislative actions concerning the relationship between narrative water quality criteria and the makeup of aquatic communities.


Tennessee Innocent Purchaser Defense Requires ASTM E-1527-13: No Choice

Posted in CERCLA, EPA, Tennessee, Waste

EPA has received much criticism for its decision published in its Final Rule, December 30, 2013 (78 Fed. Reg. 79319) to allow both ASTM E-1527-05 and E-1527-13 as meeting the all appropriate inquiries requirements necessary to claim one or more Brownfield Defenses.  These defenses are innocent landowner, bona fide prospective purchaser and contiguous property owner. EPA announced in its Final  Rule that it planned to initiate rulemaking to definitely require version 1527-13 in the near future.  According to some commenters the ’05 version is less onerous, and, therefore, less costly.  Other commenters fear inconsistent treatment of all appropriate inquiries and mass confusion.

Lost in the argument though, is what a state may require of a prospective purchaser to establish the innocent landowner defense.  Most states have remedial action statutes similar to federal law making landowners responsible or liable parties for contaminated property.  The ability to claim the innocent landowner defense could be as much, if not more important at the state level.  In Tennessee, for example, to claim the innocent landowner defense one must use the current version of ASTM E-1527 in effect at the time of acquisition in order to create a presumption of all appropriate inquiry.  Tenn. Code Ann. § 68-212-202(4)(F)(ii).  Version 1527-13 was published by ASTM on November 6, 2013.  Therefore, all acquisitions after that date must comply with the the 2013 version regardless of what the federal rule states.  ASTM E 1527-13 is sold by ASTM and is not made available from state or federal agencies.


Supreme Court Sides With EPA on the Transport Rule

Posted in Air, EPA

In an opinion issued April 29, 2014, the Supreme Court of the United States settled the long standing dispute over cross state air pollution requirements in EPA v E.M.E. Homer. In a 6-2 decision (J. Alito took no part in it) the Court upheld EPA’s Cross-State Air Pollution Rule (“Transport Rule”). The Transport Rule was an interpretation of the “Good Neighbor Provision” in the Clean Air Act which requires states to prohibit in-state sources “from emitting any air pollutant in amounts which will…contribute significantly” to downwind States’ “nonattainment…, or interfere with maintenance,” of any EPA-promulgated National air quality standards.  States are given the first bite at the apple to implement required reductions under the good neighbor provision in their State Implementation Plans (“SIPs”).  Where a state has not provided a SIP, EPA may issue a Federal Implementation Plan (“FIP”).

The issue with the Transport Rule was that the  calculation of emissions reductions was not on the amount of pollutants attributable to the upwind states, but on the cost-effectiveness of the reductions.  The Transport Rule established allocations based on “significant cost thresholds” rather than the actual contribution from that upwind state’s contribution to nonattainment. In effect, EPA determined that the cost-effectiveness of certain emission reductions should be applicable at the point  where a noticeable change occurred in the downwind air quality. These allocations are not dependent on the actual cost to achieve those reductions. The Court used as an example reductions in NOx where at a cost threshold of $500 per ton applied uniformly to upwind states would significantly reduce downwind air quality problems. More than that resulted in only minimal reductions. Thus technology that would be priced at $5,000 and capable of eliminating two tons of pollution would be stated to “cost” $2,500 per ton.

EPA promulgated the Transport Rule and then issued a FIP to implement it without giving states the authority to first submit an acceptable SIP.   States had argued that they could not develop a SIP until EPA identified the amount of pollutants for which each upwind state was responsible.    The Court found EPA had authority to do so under the plain reading of the Statute.

The Court afforded EPA Chevron deference on its cost-effectiveness approach after finding that the Clean Air Act did not state how the reduction in amounts of pollutants would be divided.  Justice Scalia, in dissent stated that the Court should have relied on the textual interpretation of “amounts” of air pollutants. Instead, he stated the majority accepted EPA’s position that it was “more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions.”




Where is the Practice of Environmental Law Going?

Posted in Agency News, Air, CERCLA, Climate Change, Climate Change and Greenhouse Gases, Energy, EPA, Water

The Practice of Environmental Law is ever changing in breadth and in scope based upon the maturing of the science, acceptance of environmental protection, and adoption of sustainability concepts.   The American Bar Association’s Section of Environment, Energy & Resources (“SEER”) in conjunction with Vanderbilt School of Law will discuss the “State of the Practice” at the 42nd National Spring Policy Conference on Environmental Law on May 2, 2014 in Nashville, Tennessee.

According to Professor Richard Lazarus, in his book, “The Making of Environmental Law,” the term “Environmental Law” was believed to have been first used at a meeting in “Arlie House” in Warrenton,  Virginia in September 1969.  Since that time, we experienced the birth of EPA, NEPA, Earth Day in the 1970′s and many of the environmental protection statutes we know today.  I would imagine that not many practitioners in those early days envisioned that the Clean Air Act would one day be used to regulate greenhouse gas emissions, that contaminated property would become urban blights and then be restored through brownfield initiatives or maybe even that sustainability would become a core value of many large corporations.  How has the practice changed and how do practitioners position themselves to take advantage of trends or changes in the practice?

I am looking forward to hearing from speakers who have witnessed first hand the changes and are also able to see the cutting edge of the practice, whether private practice, government, NGO or academia.  The program will also be live-streamed simultaneously.

Waters of United States Proposed Rules Published in Federal Register

Posted in Water

By now I am sure most everyone knows about the Proposed Rules issued on March 25, 2014 by the EPA and the United States Army, Corps of Engineers that define “waters of the United States.”  The 90 day comment period, however, did not begin until it was published in the Federal Register.  On April 21, 2014 (one day before Earth Day), the Proposed Rules were published.  The Comment Period will end July 21, 2014.

On the bright side, the rule simplifies things by pretty much making just about everything that is wet or that looks wet waters of the United States by rule.  On the other hand it is not at all clear that the scope of the definition in the Proposed Rule was intended by Congress when it enacted the Clean Water Act.  The Proposed Rule also identifies a few exceptions, but, by in large, if it is wet, it may be a navigable water.

The Clean Water Act regulates discharges to “navigable waters.”  However, the Congress defined navigable waters as simply “waters of the United States and territorial seas.”  With no more definition, the applicable administrative agencies are left to provide a definition that comports with the purposes and intent of the Clean Water Act.  EPA is responsible for issuing discharge permits under Section 402 of the Clean Water Act, and the Corps of  Engineers is responsible for issuing dredge/fill permits under Section 404 of the Clean Water Act.

The history of the attempts to define regulatory jurisdiction is well known.  In United States v. Riverside Bayview Homes[1] the U.S. Supreme Court clarified that wetlands that were physically adjacent to traditionally navigable waters (in that case Saginaw Bay) are waters of the  United States.  In Solid Waste Association of Cook County v. U.S. Army Corps of Engineers[2], the Supreme Court found that a non-navigable wetland isolated from a traditionally navigable water could not become waters of the United States because of its use by migratory birds in and of itself because the government had not proven a significant nexus between a traditionally navigable water and the wetland.  The most recent state of confusion was created following the plurality decision of the Supreme Court in Rapanos v. United States.[3] In Rapanos (where the TNW was also Saginaw Bay), four of the members adopted a “Joe Six Pack” test related to waters that are relatively permanent or that flow into TNW’s, four members determined the “any hydrologic connection” test used by the government was sufficient, and one member, Justice Kennedy, determined that only waters possessing a significant nexus to a TNW would be jurisdictional.  As a result the EPA/Corps applied both the relative permanent water test as well as the significant nexus test in making jurisdictional determinations.

The Agencies issued joint guidance on June 5, 2007 and December 3, 2008 to assist in making jurisdictional determinations under the decision in Rapanos.  In 2012, the Agencies re-proposed a greatly expanded version of the guidance.  Numerous comments were received by stakeholders.  A common theme among commenters was that  the Agencies should implement the guidance through rulemaking.  The Agencies apparently listened and have issued the Proposed Rule.

The Proposed Rule vastly expands the Agencies’ jurisdictional reach through the use of three defined terms.  The first is the definition of “traditional navigable waters (“TNW”)” and the second is the term “tributary.” While the Agencies’ current rules provide a similar definition as the Proposed Rule for TNW’s, the interpretation given by the Agencies and stated in the Proposed Rule appears to be much broader and has questionable legal support.  Under the Agencies’ interpretation of the rule, a TNW is not only the commonly understood meaning of the term, but includes waters that are “susceptible” to commercial navigation “now or could be made so in the future.”  The Agencies’ interpretation is that if a boat of any kind will float in it, then it is a TNW.

Now combine the expansive interpretation of TNW with the term “tributary,” which is a new definition.  Under the Proposed Rule a tributary is physically characterized by a defined bed and banks and an ordinary high water mark which contributes flow either directly or indirectly to traditionally navigable waters.  A tributary is not just the channel flowing into the TNW, but includes a network of tributaries that could eventually flow into the TWN.  The Proposed Rule declares that such waters have a significant nexus to TNW’s and no case by case analysis is necessary to establish jurisdiction. The definition is intended to capture small intermittent or even ephemeral headwater streams.  With the expansive reading of TNW together with the definition of tributary, it is hard to imagine that any watercourse, including  many roadside ditches, is not waters of the United States.

Finally, the Proposed Rules define the term “neigboring wetlands” for wetlands that are in the defined “Riparian Area.”  Thus, the wetland would not need to be actually adjacent to a TNW, but instead located in the Riparian Area.  That term is defined as “an area bordering a water where surface or subsurface hydrology direcly influence the ecological processes and plant and animal community in that area.”  It is not clear  how far the Agencies will  extend such a broad definition.

To the extent any waters are left over, the Proposed Rule covers “Other Waters” that may be jurisdictional as evaluated on a case by case basis.  The Agencies are soliciting comments as to how they should be evaluate Other Waters.

What appears to be left of non-jurisdictional waters are set out in the Proposed Rules as Exceptions.  These narrow exceptions include waste treatment systems designed to comply with the Clean Water Act and prior converted cropland, both of which are current exclusions.  The rules further clarify that certain ditches (excavated wholly in uplands, drain only uplands, and have less than perennial flow and ditches that do not contribute flow directly or indirectly to a jurisdictional waters) are not jurisdictional.  With the expansive view of jurisdictional waters, even this exclusion appears to be very minimal.  The Proposed Rule clarifies that artificially irrigated lands, artificial stock ponds, reflecting and swimming pools, ornamental waters, water filled depressions created incidental to construction activity, groundwater and gullies and rills are non-jurisdictional.  It seems hard to understand why there would even be any confusion about whether the Agencies would attempt to regulate those features, such as swimming pools, so granting that exclusion appears to be unnecessary or an attempt at trying to show generosity by the Agencies.  Since the exclusions do not expressly or impliedly exclude roof drains from houses, is it possible that the Agencies could take jurisdiction over stormwater from a homeowner’s roof drain as “other waters?”

The Proposed Rule poses a conundrum to the Tennessee jurisdictional scheme for streams. By Tennessee law a “wet weather conveyance” is not a stream.  However the Proposed Rule would, in fact, create federal regulatory jurisdiction over wet weather conveyances that are tributaries, requiring alterations to be subject to Clean Water Act 404 permitting and perhaps more stringent requirements for discharge under Clean Water Act Section 402 permits since many wet weather conveyance will now be federally defined streams.

The breadth and detail of the Proposed Rule is much more complicated than can be provided in this brief article.  However, the impact to the regulated community will be significant.

[1] 474 U.S. 121(1985)

[2] 531 U.S. 159 (2001)

[3] 547 U.S. 715 (2006)