Saturday, May 23, 2015
Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act. Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act. There are many reasons for the opposition, but one key argument is grounded in federalism. According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in this morning's New York Times):
"This rule is not designed to protect the traditional waters of the United States. It is designed to expand the power of Washington bureaucrats."
This is a familiar refrain. Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act. On environmental issues, this kind of rhetoric is particularly prevalent. And in this circumstance--and, I suspect, many others--it's just not true.
For a recent paper (forthcoming in the UCLA Law Review), I spent many hours researching the practices and bureaucratic organization of the Army Corps, the agency with primary responsibility for implementing section 404 of the Clean Water Act (the section 404 permitting program, which governs the filling of "waters of the United States," is the regulatory program likely to be most impacted by the rule). The findings of that research are very difficult to reconcile with the claim that this rule would just empower bureaucrats in Washington. For example:
- Of the 1,200 to 1,300 Army Corps staff in the agency's regulatory program, ten are based in Washington D.C. Of those ten, two are on rotation from an office elsewhere in the country. The rest of the regulatory program staff are based in division, district, and field offices across the nation. And that's where the real power lies. As one of the few headquarters staffers explained to me, district commanders "“are the ones who make the decision, and we reinforce that every chance we get.”
- Many of those non-DC staff were born and raised in the areas where they presently work. Others have moved around, but staff told me that having some staff with roots in the areas where they work did matter. As one said, "you know the culture, you were raised here and know the challenges people are having and you want to help them as much as you can."
- Even most of the DC staff have extensive field experience. As one district chief explained to me:
"Over the years, the people who have gotten in managerial positions have gotten there through the ranks. So… they know the real world, and that is even consistent with the people in headquarters. Most of those people have come from the district offices [and] were at one point a project manager processing permit applications."
- That geographic distribution of personnel matters to the implementation of the program. It lets non-DC staff tailor the program to local environmental conditions. It enables extensive communication and coordination with state agencies. And it allows for extensive, often face-to-face contact with the people who are regulated by, and who benefit from, the program. The DC office isn't irrelevant, of course, and Corps staff repeatedly told me about efforts to ensure consistency across the nation. But I do not think anyone who takes a close look at the program could say, with a straight face, that this new rule is just about empowering Washington bureaucrats.
And therein lies the larger motivation for the research project. Senator Barrasso is hardly alone in equating federal law with Washington DC bureaucracy. Other politicians say similar things all the time, as do legal academics. And while Senator Barrasso is unlikely to abandon a resonant political line just because it rests on dubious factual premises, those of us who profess to speak accurately ought to be more careful. In some federal programs, Washington bureaucrats play dominating roles, and in a few, all the bureaucrats really are in Washington. But in many contexts, federal offices spread across the country really do matter, and we ought to pay attention to what they do. The waters of the United States controversy is just one of many in which that attention would be well justified.
- Dave Owen
Wednesday, May 20, 2015
In recent years, Maine, like many other states, has seen a resurgence of interest in farming. A new generation of farmers is starting up small, diversified farms, and they are supplying a growing number of farmers’ markets and farm-to-table restaurants. In many ways, it’s a wonderful trend. It brings young people and new economic activity to rural areas that have faced declining economies, shrinking populations, and aging populations. It gives urban dwellers access to produce grown without pesticides and meat produced without massive feedlots. And the trend is boosting a food scene that has turned Maine into even more of a tourist destination.
But getting started in farming is hard work, and just one of the many things that makes it hard is the tendency for legal issues to arise. Negotiating and contracting for land access, navigating tort liability and employment law, creating business structures, and navigating employment law requirements are just a few of the many issues that farmers often face. For lawyers, that might sound like an exciting opportunity, and increasing numbers of our students now express interest in legal issues associated with food. But farmers—particularly new ones—often can’t afford lawyers, and even if they could, hiring lawyers just isn’t part of traditional farming culture. So a lot of legal needs are going unmet.
This past semester, several of our students got involved in an innovative effort to respond to that problem. The Conservation Law Foundation, a regional environmental group, has launched a “Legal Service Food Hub” initiative. The initiative is designed to match small-scale farmers and food businesses with pro bono attorneys, and to provide those attorneys with training on the distinctive issues associated with representing this new kind of client. As part of these efforts, four Maine Law students, working with CLF attorney Ben Tettlebaum, spent the past semester creating a guidebook on some of the key legal issues that confront farmers in Maine (the guidebook is modeled on a similar book, jointly created by CLF and Harvard Law School, for attorneys in Massachusetts). Last Monday, CLF officially launched its Maine hub, and several of our students (here pictured with Congresswoman and farmer Chellie Pingree) spoke at the event.
It’s an exciting initiative, and I hope and expect it will continue. It's also a model I think would work well in other places. One of the concerns people often raise about the rise of sustainable food law is that it's unclear who will pay for it. But there's a lot of meaningful legal work to be done for people who can't afford lawyers, and if that work offers law students and lawyers a chance to learn about representing small businesses as well as giving back to their communities, so much the better.
- Dave Owen
Saturday, May 2, 2015
Last year, Pace started a new conference designed to help aspiring environmental law professors prepare for the job market. This year, the Pace faculty are doing it again. The announcement is below.
If you're seriously thinking about going on the job market, this is a great opportunity. Attending certainly doesn't guarantee you a job; the market was brutal last year. And, unfortunately, that market is likely to stay tough in the years to come. But three participants did get hired, with others still in the mix, and I suspect they'd say the conference gave them a leg up in their preparations.
- Dave Owen
|9:00||Introductory remarks by Professor Jason Czarnezki (Pace) and Continental Breakfast|
|9:30||Panel discussion with Professors Mary Jane Angelo (Florida),Kevin Leske (Barry), and Margot Pollans (Pace) —“How To Be Successful on the Environmental Law Professor Job Market”|
|12:00||Keynote lunch address by Professor Douglas Kysar (Yale)|
|Afternoon||Job talk presentations with feedback provided (Selected participants will be asked to present their job talks.)|
Friday, May 1, 2015
Monday, April 6, 2015
Over the last few years, many law schools have introduced a legislation and regulation course into the 1L curriculum. This is a very positive trend, and one I’m glad to be part of. But it does create some curricular challenges.
A typical leg-reg (or leg-admin, as we call it here) curriculum mixes some statutory interpretation with a condensed version of an upper-level administrative law course. That makes a traditional upper-level admin class partly redundant, but not completely redundant, because you just can’t cover as much in a two thirds of a semester. Something has to go, and not something trivial; the traditional admin curriculum is filled with important stuff. That then leads to a big question: what should schools that teach 1L leg-reg do about upper-level admin?
One of my colleagues has developed a great answer. Last fall, Jeff Thaler, a visiting professor at Maine Law, piloted a course called the “Administrative Law Practicum.” Over the course of the semester, Jeff took students through the processes of permitting wind energy developments. They did this in a highly hands-on way, drafting documents, preparing and examining expert witnesses (who were real-life consultants to wind energy developers), and working up toward simulated administrative hearings at the end of the course. The students who took the class already had received, in their 1L year, a general introduction to the roles of administrative agencies within our governance system. This course built on that foundation by helping students start thinking of those agencies as people, and as people that a good lawyer can persuade.
Did it work? Many of Jeff’s students left his class and walked, just a few minutes later, into my environmental law class, so I got a fresh, first-hand account of how the course was going. They loved it. And they seemed to be doing a ton of learning. Jeff also was doing a lot of work, but the results seemed to me to be completely worthwhile.
If you’re interested in finding out more about the course, Jeff has posted a short descriptive account here. I think it’s a great concept, and one that could be reproduced, with some modification, for many other types of administrative proceedings.
- Dave Owen
Tuesday, March 17, 2015
On March 11, a panel of the Fifth Circuit (Higginbotham, Jones, Prado) issued a decision in United States v. Kaluza, a criminal prosecution arising out of the Deepwater Horizon disaster in 2010 in the Gulf of Mexico. Robert Kaluza and Donald Vidrine were “well site leaders,” the highest-ranking BP employees working on the Deepwater Horizon rig. A federal grand jury indicted Kaluza and Vidrine on 23 counts: 11 counts of involuntary manslaughter in violation of 18 U.S.C. § 1112, 11 counts of seaman's manslaughter in violation of 18 U.S.C. § 1115, and 1 count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3). The defendants moved to dismiss the seaman’s manslaughter counts on the grounds that, among other things, the Deepwater Horizon was outside of the territory covered by the seaman’s manslaughter statute and defendants were not within the categories of persons covered by the seaman’s manslaughter statute. The district court rejected the defendants’ extraterritoriality argument but granted the defendants’ motion to dismiss the seaman’s manslaughter counts for failure to charge an offense. The government appealed.
The Fifth Circuit affirmed. First, it held that the defendants, by failing to cross-appeal, had waived their extraterritoriality argument. Second, it held that the seaman’s manslaughter statute, which applies to “[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel,” encompasses “a class of persons dealing with the operation and navigation of the vessel” and does not include the defendants, whose duties were unrelated to the “transportation function” of the Deepwater Horizon.
On March 11, a panel of the Ninth Circuit (Schroeder, Silverman, Garbis (by designation)) issued a decision in NRDC v. EPA. In 2011, the South Coast Air Quality Management District adopted Rule 317, which imposes fees on certain programs aimed at reducing emissions from mobile sources that are primarily responsible for air pollution in the area of Southern California governed by the District. The District proposed Rule 317 to EPA as an alternative means of complying with Clean Air Act § 185, 42 U.S.C. § 7511d, which requires states to assess penalties on major stationary sources in severe or extreme ozone nonattainment areas. EPA approved Rule 317 as a modification to California’s Clean Air Act state implementation plan (SIP), on the ground that pursuant to the Clean Air Act’s anti-backsliding provision, § 172(e), 42 U.S.C. § 7502(e), EPA may approve alternative pollution controls “which are not less stringent” than prior controls. On its face, however, Clean Air Act § 172(e) applies when EPA has relaxed an ambient air quality standard. Here, EPA had revised the applicable air quality standard to make it more stringent. Accordingly, NRDC and Communities for a Better Environment petitioned for review of EPA’s approval, arguing that Clean Air Act § 172(e) did not allow EPA to approve alternative pollution controls when an air quality standard has been tightened rather than relaxed.
The Ninth Circuit upheld EPA’s approval of Rule 317. First, the court noted that Clean Air Act § 172(e) “does not provide for what happens in any context except when the NAAQS has been ‘relaxe[d].’ ” Thus, the language of § 172(e) does not unambiguously preclude EPA’s interpretation. Second, the court concluded that EPA’s interpretation of § 172(e) was reasonable, “both textually and as a matter of policy and Congressional intent.” Probably most important to this analysis, the court agreed with EPA that its interpretation promotes alternative programs such as Rule 317 that promote better air quality.
Thursday, March 12, 2015
On Monday, the Supreme Court decided Perez v. Mortgage Bankers Association, a case in which all the fun is in the concurrences. The Court’s opinion, written with efficiency and clarity by Justice Sotomayor, disposes of the Paralyzed Veterans line of cases from the D.C. Circuit. Those cases held that an agency must go through notice and comment if it wants to change its interpretation of a regulation. The Court rejected that requirement, holding that it was foreclosed by the plain text of the Administrative Procedure Act.
Justices Alito, Scalia, and Thomas, all of whom concurred, had no disagreement with that outcome, and they joined much of the reasoning; the decision was unanimous. But they each wrote separately to explain why a separate line of Supreme Court cases, all according deference to agencies’ interpretations of their own regulations, should be overturned. Yet Seminole Rock or Auer deference, as this doctrine is known, wasn’t at issue in the case at bar. Indeed, Justice Alito and Justice Thomas both ended their opinions by noting that their arguments could be relevant in some future case—which, quite clearly, they eagerly await.
This practice isn’t unprecedented. Supreme Court justices often speculate about how they would resolve disputes not currently before them. Concocting and analyzing hypotheticals, after all, are key parts of judges’ stock in trade. Similarly, opinions announcing interest in enacting a new rule of law are neither unheard of nor unique to the Court’s conservative wing. But still, there’s something about all of this that seems a little weird.
The reason, of course, is Article III of the United States Constitution. Article III grants the federal courts jurisdiction over “cases and controversies,” and that jurisdictional grant, the courts routinely remind us, exists to ensure that judges hear actual, live cases, all based on real facts and litigated by parties directly interested in the questions at bar. As every 1L learns, Article III precludes advisory opinions. Yet what Justices Alito, Scalia, and Thomas have done in Perez is write advisory opinions; they make no pretense that the rules of law they promote would be dispositive in the case at bar. And that raises the question: if issuing those advisory opinions would be constitutionally questionable, at best, for a federal district court judge disposing a case, or for a majority on a circuit court of appeals or the Supreme Court, does it become constitutionally permissible when a justice writes alone?
With that said, another related question also arises: should we care? Constitutional or not, is there any harm in this practice? After all, there are some potential benefits. The advisory opinions may signal, much like a policy statement from an administrative agency, future legal changes the Court might produce, and those signals might help private parties and government agencies order their affairs before Auer deference comes crashing down (if it does). They also guide litigants looking for creative new theories, and they give law professors new things to write about. Finally, perhaps they provide some benefit by helping to demolish the confirmation-hearing myth that judges just call balls and strikes as they’re thrown. Here, the better analogy is that judges are previewing their rule changes for a game that has yet to be played. But with all that said, if we really are committed to the notion that better judging occurs in the context of a live, concrete factual dispute, these kinds of opinions ought to be troubling.
Thankfully, there is a potential remedy. A wonderful outlet exists for the kind of writing the concurring justices (particularly Justice Thomas, at least in this case) seem to want to do. And while it’s a form of writing that some judges disparage, I doubt there are any hard feelings; given the stature of the authors, their work probably would be accepted with open arms. Law review submissions season is upon us. And while that season is getting on, it’s not too late. With relatively little revision, Justice Thomas’s concurrence would be ready to go as a law review article. I suspect it would place well.
- Dave Owen
Sunday, March 8, 2015
Settlement in Vermont Clean Water Case May Serve as Model for Managing New Discharges to Impaired Waters
Restoring impaired waters in the face of ongoing development pressures is one of the more nettlesome problems under the Clean Water Act. EPA rules provide that no permit may be issued to a new discharger if the discharge will “cause or contribute” to the violation of water quality standards. 40 C.F.R. § 122.4 (i) (2000). Courts have strictly interpreted this prohibition. See Friends of the Wild Swan v. EPA, 74 F. App’x 718 (9th Cir. 2003). The rule does make an exception where there is an available load allocation for the pollutant of concern under an approved TMDL and a compliance schedule demonstrating how and when compliance with water quality standards will be achieved. In Friends of Pinto Creek v. EPA, the 9th Circuit held that the compliance schedule must include all point source dischargers to the impaired waters and suggested that nonpoint sources must also be included if necessary to achieve standards. 504 F.3d 1007 (9th Cir. 2007).
In the absence of a TMDL load allocation, the permit applicant must prove that the new discharge will not contribute to violation of any water quality standard. One way to do this is to demonstrate, through offsets, that there will be no net addition of the pollutant of concern. This approach has been approved in a number of state court decisions. Cf. In re: Cities of Annandale and Maple Lake, 731 N.W.2d 502 (Minn. 2007); Crutchfield v State Water Control Board, 612 S.E.2d 249 (Va. Ct. App. 2005). The problem with offsets of course is how to assure they will work and how much new development should be allowed in the impaired waters before restoration efforts prove successful.
These issues were recently presented in the appeal of stormwater discharge permits issued by the Vermont Agency of Natural Resources, Department of Environmental Conservation (Department) to Jay Peak Resort, a fast-growing, four-season ski resort in northern Vermont. The Environmental and Natural Resources Law Clinic of Vermont Law School (ENRLC) represented the Vermont Natural Resources Council (VNRC) before the Vermont Environmental Court. The permit issued by the Department was problematic because it lacked adequate protective measures and increased the sediment pollution into the area’s streams, even though those streams have failed to meet water quality standards for at least a decade.
In 2004, the Department found that Jay Branch and Tributary 9 of Jay Branch were impaired by sediment pollution and failed to meet applicable minimum state water quality standards for aquatic life support. According to the Department, the initial impairment of the Jay Branch was attributed to the failure to comply with applicable Vermont construction and erosion control permits and operational stormwater permits. Recently, an additional stream, Tributary 3 of South Mountain Branch, was identified as impaired. Despite implementation of several water quality remediation plans approved by the Agency over the past ten years, the streams remain impaired.
In 2014, VNRC and ENRLC negotiated a comprehensive settlement that, for the first time, requires that the area’s streams meet water quality standards by a date certain before Jay Peak can begin significant new development projects. Another innovative part of the agreement requires Jay Peak to offset sediment discharges for any new discharges so there is no net increase of sediment into impaired streams. The agreement also sets forth detailed stream remediation and monitoring requirements, as well as an enforceable schedule for compliance with water quality standards.
On February 20, 2015, Judge Thomas Durkin issued an order approving the settlement agreement between VNRC, Jay Peak Resort, and the Department. We hope this agreement will set a benchmark for future permits issued to other ski resorts in Vermont and serve as a model for citizen actions not only in Vermont but across the country.
- Guest Bloggers Rachel Stevens, Fellow, ENRLC, and Pat Parenteau, Senior Counsel (both at Vermont Law School)
Wednesday, March 4, 2015
The ABA Section on Environmental, Energy, and Resources just announced a student writing competition. Here's the blurb, with details about where to submit and what you can win:
The Alternative Dispute Committee is pleased to announce the 2015 Law Student Writing Competition--Alternative Dispute Resolution.
Theme: Discuss any aspect of dispute resolution practice, theory or research related to environmental, energy, or natural resource conflicts or should critique or analyze the dispute resolution process used in a particular case. Submissions may advocate a position, educate the reader, or analyze one or more cases.
Submission Deadline: April 13, 2015
View the ADR Topic- Writing Competition Rules.
Submission Requirements: All submissions must be the original work of the entrant. Any relevant article or essay may be submitted for the competition, including writing submitted for academic credit. Submissions must not have been previously published in any media. Only one essay, per competition theme, may be submitted by each entrant. (More details.)
Eligibility: The competition is open to any student enrolled in an ABA-accredited law school during the academic year of the competition who is a legal resident of the United States. Directors, officers and employees of the ABA and their immediate family or household members are not eligible.
Prizes: For each competition theme, the first place winner will receive a $1,000 cash prize, the second place winner will receive $750, and the third place winner will receive $500. The winners will be announced in e-News, the Section's monthly electronic newsletter, as well as on the Section’s website. The three winning essays will be posted on the Section’s website in a pdf format. Winning essays will appear in an upcoming issue of the Section’s Alternative Dispute Resolution Committee Newsletter. Winners must submit a completed W-9 to receive their cash prize. The full fair market value of the prize will be reported on a 1099. Winners are responsible for all taxes in connection with receiving a prize.
Deadline for Submissions: Entries must be submitted by e-mail on or before Monday, April 13, 2015, by 11:59 p.m. (central).
Questions? Please contact Cristina Vautier at (312) 988-5625 or Cristina.Vautier@americanbar.org
Tuesday, February 24, 2015
Several months ago, Secretary of Energy Ernest Moniz made waves with a bold prediction: the United States could double its hydropower capacity by 2030. And that doubling, the Department of Energy argues, could be sustainable. If that prediction even comes close to coming true—and there are many reasons why it might not—a Maine project and some Maine-based research may provide some important guidance.
Of course, this all may seem rather implausible. Dams, according to many environmentalists, are “evil, placed and solid,” as John McPhee wrote in Encounters with the Archdruid. The notion of sustainable hydropower therefore may sound, to many people, like an ironic joke. And partly because of its environmental impacts, hydropower has been in decline. Legal attention has reflected that decline. Go to an energy law conference these days, and you’ll probably hear a lot about wind, solar, and fracking and little or nothing about dams. You might walk away thinking that hydropower is yesterday’s energy.
But there is some basis for Moniz’s enthusiasm about hydropower. In the United States, hydropower still generates more electricity than all other sources of renewable energy—combined. And across the nation, there are tens of thousands of existing dams and other waterworks that don’t generate hydropower. Putting turbines in those places would be a great way to generate relatively clean energy without creating significant environmental impacts. Sometimes, in places where downstream reaches have low dissolved oxygen levels, installing a new turbine can even bring environmental benefits. And if we compensated for the environmental impacts of new dams (and minimized those impacts by placing dams carefully) by taking out old, decrepit dams on river mainstems, new dam construction could actually have net environmental and energy benefits.
For over a year, Colin Apse, a scientist with The Nature Conservancy, and I have been thinking about legal structures that would facilitate that win-win future. Our conceptual model is the Penobscot River Restoration Project, an innovative and ambitious project that allowed continued operation of some dams in return for removals of other dams (and payment of a large sum of money). The net result of the project should be massive environmental improvements and a slight gain in hydropower capacity. Our study asks how that circumstance could be replicated, and, more broadly, how environmental trading system concepts could play a role in that replication. We don’t suggest that it will be easy. But we identify a list of legal reforms that could facilitate the same sort of win-win outcomes elsewhere, and, more broadly, could help achieve a better balance between hydropower development and environmental protection.
- Dave Owen
(The photograph (from nature.org) shows the Howland Dam).
D.C. Circuit Rejects Challenge to FERC Order Approving Cost Pooling Agreement for Trans Alaska Pipeline
On February 20, the D.C. Circuit (Griffith, Kavanaugh, Wilkins) issued a decision in Tesoro Alaska Co. v. FERC. Tesoro Alaska and Anadarko Petroleum ship oil on the Trans Alaska Pipeline System between points within Alaska. In 2013, FERC approved a cost pooling agreement among the owners of the pipeline. Tesoro Alaska and Anadarko Petroleum filed petitions for review challenging FERC's approval of the agreement. The D.C. Circuit denied the petitions, holding (1) that the Interstate Commerce Act gives FERC authority over intrastate oil pipeline traffic, at least where, as here, regulating the intrastate traffic is a necessary incident to regulating interstate traffic; and (2) that FERC did not act arbitrarily or capriciously and had sufficient evidence for its findings.
Tuesday, February 17, 2015
For years now, national attention has been focused on the Keystone XL Pipeline saga. But it isn’t the nation’s only pipeline fight. Here in Maine, what could be some very interesting pipeline litigation has just begun.
The case involves a pipeline that transports oil from South Portland, Maine to Montreal. Since World War II, oil in the pipeline has flowed only north. But with Albertan oil production escalating dramatically, Canada’s need for oil imports has declined, and the pipeline company would like to reverse the flow. That would mean turning the port of Portland, Maine into a major export site for tar sands oil.
But there’s a hitch. The southern terminus of the pipeline lies at the mouth of Portland Harbor, adjacent to South Portland’s most important park and across the water from parks and the Old Port district in Portland. Casco Bay, into which the harbor enters, is a beloved scenic and recreational resource for residents and a major destination for tourists. Still, seventy years ago, this was exactly the kind of place where cities would put oil pipes and tanks; providing industries with good water access often trumped everything else. But values have changed, and South Portland has started envisioning a different future for this part of its waterfront. When the pipeline proposal emerged, the city (through a long process described in more detail here) responded by enacting an ordinance restricting the construction of new “bulk oil” export facilities on its eastern waterfront.
Is that ordinance valid? According to a federal court complaint just filed by Portland Pipe Line Company, the answer is an emphatic no. The complaint foreshadows a whole host of arguments, most of them grounded in the idea that the ordinance is just regulating the contents and flow direction of an international pipeline, and such regulation is the exclusive province of the federal government. As the complaint succinctly puts it, “[o]ne city in Maine cannot impede federal decision-making on international relations, trade, and resource transportation and replace it with its own foreign policy.” And as Maine goes, so goes the nation and, perhaps, the world. The complaint warns of drastic consequences if the ordinance stands: it “sets a precedent for inconsistent local harbor regulation that could cripple import and export activities nationally and invite reciprocal commerce curtailment from other nations.” Even the founding fathers would be horrified. South Portland, according to the complaint, has “contravene[d] fundamental principles upon which our Republic was founded,” and the complaint offers Federalist Papers citations to back that claim up.
South Portland, of course, will have a different story. The ordinance clearly was kick-started by larger-scale events, and it may well have ramifications that extend beyond South Portland’s boundaries. But local land use ordinances are often inspired by larger events, and they often have consequences extending across city lines. That alone, the city will argue, does not make them constitutionally suspect. Indeed, there are dozens, if not hundreds, of cities whose land use ordinances would probably preclude construction of new oil export facilities. Are those ordinances also unconstitutional? If they are, then another venerable constitutional principle—respect for local land use planning authority—may well be in danger.
Beyond that basic conflict, the case will raise many more intriguing sub-issues. By my rough count, perhaps a dozen law school courses seem implicated by the complaint, and once the litigation proceeds, that number could easily get higher. And these questions aren’t just academic. The tension between energy development and transport and local governance has become one of the central legal issues of our age, with very real economic and environmental consequences.
For me, there’s also a personal dimension to the fight. I live in South Portland, about a mile from the oil terminal. And while others deserve far more credit (or blame) than me, I did play a minor part in getting the ordinance passed, and, more generally, in advocating for South Portland to begin thinking about a future in which it no longer is the East Coast’s second largest oil port. I won’t be here to see that future; in a few months, I move back to the San Francisco Bay Area. But the neighborhood in dispute will always be the place where my children were born, and a place that I love. I hope it also will be a place that gets to decide its own future.
- Dave Owen
Friday, February 6, 2015
On January 20, the D.C. Circuit (Garland, Pillard, Sentelle) issued a decision in Grunewald v. Jarvis. The National Park Service adopted a plan in 2012 for managing the deer population in Rock Creek National Park in Washington, D.C., by lethal and non-lethal means. Animal rights advocates sued to prevent the agency from killing deer. The district court granted summary judgment for the Park Service, and the D.C. Circuit affirmed. First, the court held that the deer management plan was consistent with the Rock Creek Park Enabling Act, which the court interpreted to allow killing some animals within the park to prevent serious harms to other natural resources. Second, the court held that the Park Service had adequately supported its findings that lethal action to manage the deer population was warranted to protect park resources. Third, the court held that the Park Service’s Environmental Impact Statement complied with the National Environmental Policy Act. The Park Service appropriately set the objective of reducing the deer population in Rock Creek Park; reasonably decided to analyze an exotic plant plan in a separate, rather than single consolidated, Environmental Impact Statement; and adequately considered the effects of its plan on humans who might witness the killing of deer.
Although animal rights advocates and environmentalists are often aligned, this case is one of several in which efforts by federal agencies to manage animal populations that are damaging public lands lead to conflicts between animal rights and environmental interests. See, e.g., In Defense of Animals v. U.S. Dep't of Interior, 751 F.3d 1054 (9th Cir. 2014) (wild horses and burros); Feldman v. Bomar, 518 F.3d 637, 640 (9th Cir. 2008) (feral pigs).
On January 27, the Sixth Circuit (Merritt, Gibbons (dissenting), McKeague) issued a decision in Sierra Club v. ICG Hazard, LLC. ICG Hazard, LLC, operates the Thunder Ridge surface coal mine in Kentucky under a Coal General Permit issued by the Kentucky Division of Water pursuant to the federal Clean Water Act. ICG’s permit did not contain a discharge limit for selenium. Kentucky does, however, have a state water quality standard for selenium. Some of ICG’s discharges from the Thunder Ridge mine caused exceedances of the selenium water quality standard. Sierra Club filed a Clean Water Act citizen suit based on the selenium discharges. The district court granted summary judgment for ICG, and the court of appeals affirmed. The court upheld EPA’s interpretation of the Clean Water Act’s permit-shield provision, which states that “compliance with a permit . . . shall be deemed compliance” with the statute, 33 U.S.C.§ 1342(k), as allowing discharges of pollutants not specifically listed in a general permit. The court of appeals saw no distinction to be made on this question as between individual permits and general permits. Because the Clean Water Act by its interpretation authorized ICG’s selenium discharges, the court held that the Surface Mining Control and Reclamation Act did not apply.
Judge Merritt dissented. He would have held that ICG, by causing water quality violations, violated the Clean Water Act.
Wednesday, January 21, 2015
I’ve just returned from Israel, where I presented a draft paper to an environmental workshop hosted by David Schorr and Issi Rosen-Svi at the University of Tel Aviv. The trip was short, but between my interactions at the university and some quality time with a very good traveling companion—Alon Tal’s book Pollution in a Promised Land: An Environmental History of Israel—I had a chance to form a few preliminary thoughts about Israeli environmental politics and law.
One reaction is that environmental politics in any developed country can have a certain sameness. The basic clash between development and environmental protection, the constant challenges of creating effective environmental agencies, and the interplay between advocacy groups, government, and industry are just as much a part of the Israeli story as they are part of the American one. But there are also ways in which Israeli environmental politics struck me as quite distinctive.
The most striking differences involves the intertwinement between environmental politics and the Arab-Israeli conflict. In that conflict, one of the Zionists’ central strategies, which they adopted well before Israel became a nation, has been to assert physical possession of space. Sometimes that has meant building settlements, sometimes watering farms in the Negev Desert, sometimes establishing military reserves, and sometimes buying land and planting forests, but a common theme has been to take territory by physically transforming it. That creates a potentially enormous challenge for an environmental movement, for much of traditional environmentalism has involved leaving spaces alone. Indeed, in the United States, environmentalists have succeeded in developing a patriotic narrative of non-development, arguing, in a tradition that dates back the Transcendentalists and Frederick Law Olmstead, that it affirms and strengthens our national character. In Israel, a sense of connection to the land also is a key element of the national character, but even committed environmentalists like Tal agree that the American-style wilderness ideal has little place. Both Issi and David agreed, as did Tal, that open space preservation has become the key environmental issue in Israel, and Israel’s history and current politics would seem to make that issue particularly challenging.
Yet two other details of Israeli environmental politics jumped out at me. First, as I walked around Tel Aviv, I did not see any single-family homes. I asked Issi and David about this, and they confirmed what I suspected: while some Israelis in more rural areas live in single-family homes, the norm is a high-rise apartment. That is a much more efficient use of space than is typical among Americans. And, second, Israel still has wolves (and some other pretty charismatic megafauna). Wolves, to Americans, are one of the ultimate symbols of wildness, and even some states that are pretty wild, like my home state of Maine, don’t have any. Perhaps that little fact doesn’t indicate too much—after all, one would expect to find a lot of biodiversity at the crossroads between Africa, Asia, and Europe—but still, it struck me as a hopeful little reminder of the resilience of nature.
- Dave Owen
Friday, January 16, 2015
Fifth Circuit Holds Designer and Supplier of Dry Cleaning System Is Not Liable under CERCLA as an Arranger
On January 14, a panel of the Fifth Circuit (King, Jolly, Costa) issued a decision in Vine Street LLC v. Borg Warner Corporation. A subsidiary of Borg Warner sold dry cleaning machines to a dry cleaning business in Tyler, Texas, and assisted with the design of the building housing the business, installed the machines, tested the machines, and initially assisted customers with operating the machines. The Borg Warner subsidiary also designed the system that connected the dry cleaning machines to the sewer system, including equipment that attempted to separate out perchloroethylene (PERC) for reuse. Environmental contamination occurred when PERC escaped from the sewer system into the ground. The district court held Borg Warner 75% responsible under CERCLA for the costs of cleaning up the contamination.
On appeal, the issue was whether Borg Warner is liable as an arranger under CERCLA § 107(a)(3)—that is, whether Borg Warner “arranged for disposal” of a hazardous substance. Applying Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009), the Fifth Circuit held that Borg Warner had not intentionally disposed of any PERC—indeed, Borg Warner designed its machines and drain system to prevent PERC from reaching the sewer system—and therefore was not liable as an arranger.
Wednesday, January 14, 2015
Back on June 4, 2014, a panel of the Fifth Circuit (King, Benavides, Dennis) held that BP and Anadarko, co-owners of the Macondo Well involved in the Deepwater Horizon disaster of 2010, are strictly liable for fines under Clean Water Act Section 311. In re Deepwater Horizon, 753 F.3d 570 (5th Cir. 2014). The panel subsequently issued a short per curiam supplemental decision addressing arguments raised in BP’s and Andarko’s rehearing petitions. In re Deepwater Horizon, 772 F.3d 350 (5th Cir. 2014).
On January 9, the Fifth Circuit, by a vote of 7-6, narrowly voted against granting rehearing en banc. Judge Clement, joined by Judges Jolly, Jones, Owen, Elrod, and Southwick, wrote an opinion dissenting from the denial of rehearing en banc. The dissent opined (1) that the panel’s “loss of controlled confinement” test is inconsistent with the text of the Clean Water Act, which imposes liability based on a “discharge”; (2) that at the very least the Clean Water Act is ambiguous, and ambiguities in civil-penalty statutes should be resolved in favor of defendants; (3) that the panel misapplied its “loss of controlled confinement” test because hydrocarbons were never confined in the well; and (4) that the panel’s supplemental opinion changed its original holding, creating lingering uncertainty in the precedent.
Saturday, January 10, 2015
Arizona State University Law School is planning a new annual law professor conference focused on sustainability-related law. Here's a quick blurb:
The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.
This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:
- Climate Change Law
- Energy Law
- Water Law
- Environmental Law
- Natural Resources Law
- Land Use and Zoning Law
- Agricultural and Food Law
- Disaster Law
The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.
Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.
Arizona State University will provide hotel lodging and a $500 travel stipend for all panelists and presenters.
ASU's conference page also includes a link to a site with more information about how to submit an abstract.
Tuesday, December 23, 2014
On December 23, the D.C. Circuit (Tatel, Srinivasan, Randolph) issued a decision in NRDC v. EPA, a case arising out of EPA regulations implementing its 2008 ozone air quality standard. NRDC filed a petition for review of the regulations.
NRDC first challenged EPA’s decision to tie the attainment deadline—that is, the date on which an air quality control region had to reach attainment with the new ozone standard—to the end of the calendar year in which the region was designated as nonattainment under the new ozone standard, rather than the actual date of designation. The D.C. Circuit panel majority agreed with NRDC, holding that, although the Clean Air Act does not specifically address the attainment deadline for an air quality control region designated as nonattainment under a revised air quality standard, the Act consistently ties compliance deadlines to the actual date of designation or classification. Indeed, in its regulations implementing the 1997ozone air quality standard, EPA had interpreted the Clean Air Act to require such an approach.
NRDC’s second argument challenged EPA’s decision to revoke requirements regarding transportation conformity—essentially, a Clean Air Act requirement that regions ensure that new transportation projects will not interfere with the region’s timely attainment of air quality standards—under the prior 1997 ozone standard. Again, the court agreed with NRDC, holding that EPA lacked authority under the Clean Air Act to revoke the transportation conformity requirements under the 1997 standard. The court explicitly left open the possibility that EPA could revoke the 1997 standard altogether, as the agency has proposed to do.
Judge Randolph dissented. As to the deadlines, he believes the statute is ambiguous and EPA’s interpretation is reasonable. As to the transportation conformity requirements, he believes NRDC waived any argument that EPA lacks the authority to revoke the requirements without revoking the entire 1997 standard. According to Judge Randolph, NRDC did not raise such an argument until its reply brief. Even if the merits of that issue were before the court, Judge Randolph believes the Clean Air Act allows EPA to revoke transportation conformity requirements for prior air quality standards.