EPA e-Manifest Rules Go Into Effect June 30th
By Allison A. Torrence
Beginning on June 30, 2018, EPA will launch its new Hazardous Waste Electronic Manifest (e-Manifest) System. EPA’s e-Manifest system is many years in the making and follows the 2012 Hazardous Waste Electronic Manifest Establishment Act, and two final rules issued by EPA in 2014 and 2017.
Beginning on June 30th, the following changes take effect:
Facilities that receive hazardous waste that requires manifesting must submit manifests to EPA.
EPA will charge receiving facilities for all paper and e-manifests (lower fees for e-manifests; higher fees for paper manifests).
Generators, transporters and disposers of hazardous waste may transmit waste manifest data electronically through EPA’s e-Manifest system.
The new requirement for receiving facilities to submit all manifests to EPA is a big change. To assist industry in this transition, EPA recently announced that it would grant extra time for receiving facilities to submit paper manifests during the initial months after system launch.
Under EPA’s regulations, receiving facilities must submit paper manifests to EPA within 30 days of receipt. However, EPA will allow receiving facilities to submit paper manifests they receive between June 30, 2018, and September 1, 2018, by September 30, 2018. This effectively provides receiving facilities up to 60 additional days, over the existing 30 days provided in the regulations, to submit paper manifests to EPA.
EPA will impose a per manifest fee for each manifest submitted to the system based on the type (paper or electronic) and mode of submission (mail, data upload, image file upload). EPA has stated that it will publish the final fee schedule to the e-Manifest website prior to the system launch on June 30, 2018 (but has not done so to date).
EPA’s current best estimates for the initial per manifest fees are:
$4.00 for an electronic manifest (including hybrid)
$7.00 for a data file upload of paper manifest data
$13.00 for the upload of paper manifest image
$20.00 for submission of a paper manifest form by mail
Generators, transporters and disposers of hazardous waste may still use paper manifests, and parties that do so will use EPA’s new five-part form in place of the existing six-part form. However, as shown above, EPA’s manifest fees likely will be significantly higher for paper manifests than for electronic.
For more information, you can check out the following EPA resources:
Environmental Groups Set Stage for Likely Legal Challenge to FERC GHG NEPA Review Policy
By Steven M. Siros
On May 18, 2018, the Federal Energy Regulatory Commission (FERC) issued an order denying a rehearing request on FERC’s prior issuance of a certificate of public convenience and necessity for a natural gas pipeline project for Dominion Transmission. An environmental group had challenged that certificate, arguing in part that FERC failed to adequately consider the upstream and downstream impacts of the project. These upstream and downstream impacts, according to the environmental group, included greenhouse gas (GHG) emissions. FERC, on a party-line vote, concluded that the upstream and downstream GHG impacts of this particular project were not sufficiently causally connected to and/or the reasonable foreseeable effect of the project and therefore fell outside of the scope of the required NEPA analysis. FERC distinguished its holding with the decision in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) by noting that in that case, the pipeline project was delivering natural gas to identifiable gas-fired electric generating plants and therefore the downstream use of the gas was foreseeable.
The Delaware Riverkeeper Network sent a letter to FERC asking it to formally rescind its May 18 order, claiming that FERC’s decision was contrary to the requirements of NEPA. This letter, along with similar letters from other environmental groups, are likely precursors to legal challenges to FERC’s interpretation of its obligations under NEPA. Notwithstanding the positions being advanced by these environmental groups, FERC continues to review and approve pipeline projects without requiring a detailed analysis of GHG emissions as evidenced by FERC’s May 31 approval of the Okeechobee Lateral Project.
White House Cites National Security Concerns as Administration Moves to Save Coal and Nuclear Power Plants
By Matthew G. Lawson
A combination of stagnant power consumption growth and the rise of natural gas and renewable power sources has resulted in the displacement and potential closure of many older coal and nuclear power plants in the United States. According to the U.S. Energy Information Administration, since 2008, coal and nuclear energy have seen a continuous decline in their percentage of the nation’s total energy generation market. And in 2015, the closure of coal fueled power plants accounted for more than 80% of the nation’s retired energy generating capacity.
In an attempt to reverse these trends, President Donald Trump has ordered Energy Secretary Rick Perry to take “immediate action” to stem the closure of nuclear and coal power plants. In an official White House statement issued on June 1, 2018, the Trump Administration stated that “keeping America's energy grid and infrastructure strong and secure protects our national security… Unfortunately, impending retirements of fuel-secure power facilities are leading to a rapid depletion of a critical part of our nation's energy mix, and impacting the resilience of our power grid.”
The statement is not the first time the Administration has asserted that coal and nuclear plants are critical to national security. In January of this year, Mr. Perry presented a sweeping proposal to the Federal Energy Regulatory Commission (“FERC”), which requested subsidies for struggling coal and nuclear plants that were no longer able to operate profitably in the current energy markets. In presenting the proposal, Mr. Perry argued that coal and nuclear plants’ unique ability to store at least 90 days of fuel on-site made the energy sources critical to the reliability and stability of the United States’ energy markets. In a 5-0 decision, FERC rejected the Energy Secretary’s proposal, and casted doubt on Mr. Perry’s claims that energy markets would become vulnerable and unreliable without contributions from coal and nuclear power.
It appears the Trump Administration may now be seeking a more direct route to provide assistance to coal and nuclear power plants. According to Bloomberg, a draft memo from the Department of Energy (“DOE”) reveals that the agency is considering using its authority under Section 202(c) of the Federal Power Act and the Defense Production Act of 1950 to force regional grid operators to buy electricity from a list of coal and nuclear plants the department deems crucial to national security. The plan would require suppliers to purchase power from the plants for 24 months in order to starve off closures as the Administration works to provide a long-term solution. If the DOE plan is implemented, it is likely to face legal challenges from both utilities and environmental groups. Regardless of whether the DOE elects to pursue this strategy, it appears that the Trump Administration is focused on working to protect aging coal and nuclear plants.
CRA Survives Constitutional Challenge—Are More Rules and Guidance at Risk of Disapproval?
By Steven M. Siros
A recent decision by the U.S. District Court for the District of Alaska rejected efforts by the Center for Biological Diversity (the “Center”) to challenge the constitutionality of the Congressional Review Act (CRA). The CRA, which was originally enacted in 1996, allows for Congressional disapproval of rules promulgated by administrative agencies under limited circumstances. Historically, the CRA had been used sporadically, but the current Congress has relied on the CRA on at least 16 occasions to roll back Obama administration regulations, and more CRA resolutions may be on the horizon.
In Center for Biological Diversity v. Zinke, the Center challenged the use of the CRA to invalidate a Department of Interior (DOI) rule which limited certain hunting and fishing practices on Alaskan National Wildlife Refuges. More specifically, the Center argued that the CRA unconstitutionally allowed Congress to alter DOI’s authority without using bicameralism and presentment to amend the underlying statutes that gave DOI its authority over the National Wildlife Refuges in Alaska. The Center also argued that the CRA’s prohibition on the issuance of a future rule in “substantially the same form” violates the separation of powers doctrine.
The district court dismissed the Center’s lawsuit, finding that “Public Law 115-20 was passed by both the House and the Senate and submitted to the President for approval as required by the CRA—which was also passed by both houses of Congress and signed into law by the President. Thus, the requirements of bicameralism and presentment are met and [the Center’s] separation of powers concerns fail to state a plausible claim for relief.” The court further noted that “[a]ny injury caused by DOI’s inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.” The court also noted that even if the Center could establish an “injury in fact,” the Center had not adequately alleged how invalidating the CRA would redress the Center’s alleged injuries.
Although the CRA remains in full force and effect, one might wonder whether it will retreat back into the shadows at least until the next administration. The conventional view had been that Congress only has 60 days after a rule takes effect to pass a CRA resolution disapproving it. However, lawmakers in Congress are advancing a more novel interpretation of the CRA to review (and potentially disapprove) older rules (and guidance). If a rule or guidance was not officially “submitted” to Congress for review (and many apparently have not officially been submitted), then the current administration could now submit them for review which would restart the 60-day clock. For example, in April, the Senate voted to disapprove a 2013 Consumer Financial Protection Bureau guidance on auto loan financing. The House has not yet taken action on the resolution. If, however, the guidance were to be disapproved under the CRA, then the effect of that disapproval is that the agency will be unable to enact a “substantially similar” rule or guidance. That is really the true power of the CRA, and word is that members of Congress are reviewing older rules and guidance that could be the target of a CRA resolution. Whether the CRA remains a powerful tool this far into the Trump administration remains to be seen, but one can expect that the Center’s constitutional challenge to the CRA is unlikely to be the last.
EPA Air Chief Supports Draft House Bill Revising CAA ‘Modification’ Definition
By Allison A. Torrence
Congressman Morgan Griffith (R-VA) has introduced a discussion draft of a bill that proposes to revise the definition of “modification” in the Clean Air Act (CAA) to “clarify when a physical change in, or change in the method of operation of, a stationary source constitutes a modification or construction.”
Under current law, EPA determines whether a change at an existing facility is a “modification” that requires new source review (NSR) by looking at whether the change increases the annual emission rate of an air pollutant. Under Congressman Griffith’s proposal, a change at an existing facility will only be a “modification” if it results in an increase to the hourly emission rate of an air pollutant. This change is significant because it would enable facilities to make changes that would allow them to operate for longer hours, thus increasing annual emissions, as long as the hourly emissions don’t increase.
The proposed bill also makes clear that the term “modification” does not include changes to an existing stationary source that reduce the amount of any air pollutant or that are designed to restore, maintain, or improve the reliability or safety of the source.
At the May 16, 2018, Energy and Commerce Committee Subcommittee on the Environment hearing, William Wehrum, EPA Assistant Administrator for Air and Radiation, told the subcommittee that he strongly supported the proposed bill. The Democrats on the subcommittee opposed the proposal and ranking member Frank Pallone, Jr. (D-NJ) made a statement critical of the proposed bill:
The ultimate test for any legislation to reform the NSR program is simply this: will it reduce air pollution? By that test, this bill fails. There is no doubt this bill will increase pollution. Republicans are simply resurrecting previously rejected ideas promoted during the Bush Administration by two of today’s witnesses: Assistant Administrator Wehrum and Mr. Holmstead. Together, they have worked for years to undermine the NSR program.
The current definition of “modification” for the NSR program is found at 42 U.S.C. § 7411(a)(4):
The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.
Congressman Griffith’s discussion draft proposes the following, revised definition:
(A) The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. For purposes of the preceding sentence, a change increases the amount of any air pollutant emitted by such source only if the maximum achievable hourly emission rate of an air pollutant for such source after the change is higher than such maximum achievable hourly emission rate for such source during the 10-year period immediately preceding the change.
(B) Notwithstanding subparagraph (A), the term ‘modification’ does not include a change at a stationary source that—
(i) reduces the amount of any air pollutant emitted by the source per unit of output; or
(ii) is designed to restore, maintain, or improve the reliability or safety of the source, except when the change increases the maximum achievable hourly emission rate of any air pollutant for the source relative to such rate during the 10-year period immediately preceding the change and the Administrator determines that such increase is harmful to human health or the environment and that the change is not environmentally beneficial.
This proposal is in its initial stages and the prospects of this or a similar bill emerging from committee and passing the House and Senate are uncertain. We will be following this issue and report on any further developments.
Fracking Industry Warns of “Devastating Effects” from Pennsylvania Court Ruling
By Matthew G. Lawson
On April 2, 2018, the Pennsylvania Superior Court issued a potentially groundbreaking decision by holding that trespass and conversion claims arising from hydraulic fracturing are not precluded by the rule of capture. In reaching this conclusion, the court found that the Southwestern Energy Production Company (“Southwestern”) may have committed trespass when it extracted natural gas located under neighboring properties by draining the gas through fissures created from hydrofracturing fluid. Such a holding was almost universally thought to be precluded by the rule of capture. The rule of capture, which can be traced back to 18th century fox hunting, has historically been applied to find that oil and gas companies cannot be held liable for “capturing” oil and gas that drain naturally from neighboring land as a result of legal extraction activities. In differentiating hydraulic fracking from traditional oil and gas extraction, the court focused on the fact that hydraulic fracking actually pumps fluid across property lines to open up non-natural fissures that allow the natural gas to seep back across the property to be extracted.
The potential impact of the Pennsylvania court’s decision has spurred high levels of concern from the greater fracking industry. On the same day that Southwestern filed an appeal requesting an en banc rehearing of the decision, seven separate industry trade groups filed leave with the court seeking permission to file amicus briefs urging the court to grant Southwestern the rehearing. One of these groups, the Marcellus Shale Coalition (“MSC”), is a collection of approximately 200 producers, midstream, and local supply-chain companies that produce more than 95% of the natural gas in Pennsylvania. The group has asserted that the April 2nd ruling interrupts well-established law and creates an “unprecedented form of tort liability” that threatens the entire industry. In a similar filing, the Pennsylvania Chamber of Business and Industry stressed that the decisions could have devastating effects on the industry and the economy of Pennsylvania. According to the American Petroleum Institute, the hydraulic fracking industry currently provides an estimated 322,600 jobs to Pennsylvania and contributes nearly $44.5 million in revenue to the state’s economy.
In Southwestern’s own appeal, the company echoed many of the concerns proclaimed by the industry. The company stressed that the decision would “unleash a torrent of speculative lawsuits” that could threaten the economic livelihood of the industry throughout the state. The company also characterized the April 2nd ruling as an impractical precedent for future decisions. Southwestern noted that the opinion would require courts and juries to speculate whether hydrofracturing fluid located miles below the surface ever moved onto neighboring property, which is a task the company portrayed as “a fool’s errand.”
The ultimate resolution of the matter has potentially far-reaching impacts on the U.S. energy markets. Behind Texas, Pennsylvania is the United States’ second largest producer of natural gas. The state generated 19 percent of the United States’ total output in 2017 and has seen steady gains in production output since 2010. Further, the decision raises questions about whether other state courts may adopt the logic of the Pennsylvania Superior Court and similarly hold that trespass and conversion claims against hydraulic fracking are not precluded by the historic rule of capture.
We will continue to track this case as it moves through the Pennsylvania courts.
Can Blockchain Technology Disrupt Renewable Energy Finance?
By Matthew G. Lawson
In 2016, the world underwent its largest ever annual increase in renewable power by adding an estimated 161 gigawatts of capacity in renewable power generation. The increased stemmed from a world-wide investment of USD $240 billion in renewable energy, marking the seventh straight year that the world’s investment in renewable power sources topped $200 billion dollars. Despite the world’s growing investment in renewable power, an estimated 1.2 billion people still live without access to electricity. Individuals without electricity must supplement their energy needs through fuel based lighting and heating. Burning these sources is not only more expensive relative to many forms of renewable power, but also results in the release of toxic fumes and black carbon, which are major contributors to local air pollution and climate change.
So why the disconnect between the world’s rapidly growing supply of more affordable renewable energy and the large quantity of individuals left relying on expensive and dirty alternatives? According to Renewables 2017 Global Status Report, the problem primarily stems from an inability of traditional electricity grids to provide power to these populations. With roughly 80% of those without power living in rural areas, it simply is technologically or economically infeasible to extend traditional grid networks to many of the residents. In cases where the grid has been extended, the added cost of additional infrastructure and energy transport waste can price residents out of purchasing power.
The solution to this problem could be Distributed Renewable Energy (“DRE”) systems combined with Blockchain technology. In short, DRE systems generate and distribute power to local users independent of a centralized grid. The systems often consist of module solar panels or small-scale wind turbines and operate on a Pay-As-You-Go (PAYG) network that allows energy users to pay for only the energy they use on an ongoing basis. In order to manage the creation of PAYG networks, several companies are now turning to Blockchain technology. Blockchain, best known for its use in cryptocurrencies like Bitcoin, functions as a public ledger that allows massive amounts of data to be securely stored and accessed by the general public without a centralized platform. According to one company’s recently released white paper, utilization of Blockchain technology can spur the development of DRE systems by allowing those seeking power generation to connect seamlessly with potential financiers on a global basis without the need for utility companies or governmental bodies acting as a central coordinator. The company’s platform aims to allow applicants, from a single business owner to large-scale communities, to propose energy generating projects, which can be viewed and approved by a community of financers anywhere in the world. Approval of a project, construction of the DRE system, and even future payments for energy use are all conducted utilizing the Blockchain platform.
While the use of Blockchain technology is originating in areas typically underserved by traditional electrical grids, proponents argue that the platform’s built-in efficiencies will result in the technology one day competing with traditional utility owned grids on a worldwide basis. In fact, some companies are already taking steps towards this goal. For example, a microgrid is currently being installed in Brooklyn, New York, which will allow users to generate and sell renewable energy throughout their neighborhood. While it is still unclear what larger role DRE systems will play in future energy networks, the marriage between DRE and Blockchain creates a new playing field for alternative energy generation and delivery.
CWA Regulation of Groundwater: Circuit Split or U.S. EPA Rulemaking?
By Steven M. Siros
Recent decisions from the Fourth and Ninth Circuits—finding that the Clean Water Act (“CWA”) could regulate discharges into groundwater that ultimately migrate into navigable waterways—may prompt U.S. EPA to revisit its position that the CWA applies to discharges from a “point source via ground water that has a direct hydrologic connection to surface water.” On April 12, 2018, the Fourth Circuit concluded that a release from pipeline that impacted groundwater that ultimately discharged to a nearby creek could trigger liability under the CWA. See Upstate Forever v. Kinder Morgan Energy Partners, L.P. (4th Cir. April 12, 2018). This decision follows on the heels of a Ninth Circuit decision affirming a district court's decision allowing a CWA citizen suit to proceed that alleged CWA violations associated with sanitary wastewater discharges through permitted underground injection wells that ultimately discharged into the ocean. See Hawai’i Wildlife Fund v. County of Maui (9th Cir. Feb. 1, 2018). Defendants are likely to seek Supreme Court review of both the Fourth and Ninth Circuit decisions.
Following the Ninth Circuit decision, on February 20, 2018, U.S. EPA issued a notice seeking comment by May 21, 2018 on whether it should review and potentially revise its previous positions on groundwater discharges; specifically, whether it is consistent with the CWA to subject discharges to jurisdictional surface waters via groundwater to CWA permitting. U.S. EPA also is seeking comment on whether some or all of such discharges are addressed adequately through other federal authorities, existing state statutory or regulatory programs, or through other existing federal regulations and permit programs. It will be interesting to see where U.S. EPA ultimately comes out on this issue; U.S. EPA filed an amicus brief urging the Ninth Circuit to affirm the district court's decision that discharges reaching navigable waters through groundwater are covered by the CWA. However, statements in U.S. EPA’s request for comments would seem to suggest that U.S. EPA is rethinking its position on this issue. We will continue to follow and provide updates as this process unfolds.
U.S. EPA Removes Portion of Former Refinery Site from NPL: Precursor to More Expedited CERCLA Cleanups?
By Steven M. Siros
After almost 30 years having been listed on the NPL, U.S. EPA has removed the surface portion of the 55-acre Pacific Coast Pipeline site from that distinctive list. Since being added to the NPL in 1989, more than 42,000 cubic yards of contaminated soils have been removed from the site and a multi-layer cap has been installed. The groundwater portion of the site will still remain on the NPL in order to address benzene and protect drinking water and agricultural wells.
One goal of EPA Administrator Pruitt’s Superfund Task Force was to improve and expedite site cleanups and accelerate full and partial deletions for sites that meet all applicable requirements. “The partial de-listing of the Pacific Coast Pipeline site is an example of EPA’s commitment to accelerate the remediation of contaminated sites and transform them into productive assets for the community,” said Pruitt.
Whether this partial NPL deletion is a precursor of U.S. EPA taking a more streamlined approach to CERCLA cleanups remains to be seen, but it would appear to be a step in the right direction.
Townships Look to Take the Air Out of Wind Farm
By Matthew G. Lawson
NextEra Energy Resources LLC (“NextEra”), the largest generator of wind energy in North America, is currently locked in legal disputes with local townships over its new wind energy project, the “Tuscola Wind III Energy Center.” NextEra’s subsidiary, Tuscola Wind III LLC (“Tuscola”), plans to construct the 55 turbine wind farm across the Fairgrove, Almer, and Ellington Townships of Tuscola Country, Michigan. The project, if completed, will be the third wind farm constructed by NextEra in Tuscola County. The proposed $200 million dollar wind farm is projected to supply wind energy for up to 50,000 homes.
After reaching agreements with nearly 100 landowners to secure land for the project, Tuscola submitted a Special Land Use Permit (“SLUP”) to the local townships for construction and operation of the wind farm. However, two of the townships, Almer and Ellington, denied the permits and enacted one year moratoriums on the construction of wind farms. According to Tuscola, its permits were blocked by newly elected members of the Townships’ Boards who were affiliated with a regional anti-wind citizens advocacy group. The company alleged that the organization was engaged in a systematic effort to block the Tuscola project and that the group had used “tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects.”
The company is now fighting back. In lawsuits filed in the Eastern District of Michigan, NextEra is seeking to have the Board of Trustees’ denial of the SLUP overturned. On November 3, 2017, the district court issued its first decision on the matter, affirming the denial of the SLUP by the Almer Township. The court found that the Township’s Board had properly denied the application after it determined that the purposed wind farm would violate Almer’s noise zoning ordinance. The court noted that although Almer’s noise ordinance was admittedly ambiguous, the Board should be provided deference to interpret the meaning of its own ordinance. Finding that the board’s interpretation of the ordinance was reasonable, the court elected not to overturn the decision.
On March 13, 2018, the district court reached a markedly different result in Tuscola’s parallel suit against the Ellington Township. Here, the District Court overturned the Ellington Township’s denial of the SLUP. Unlike the Almer Township Board, it appears Ellington’s Board refused to even consider the merits of Tuscola’s SLUP, and relied entirely on its newly enacted moratorium to block consideration of the application. The Court concluded that the township’s moratorium was an inappropriate suspension of its zoning ordinance, and was thus void. Therefore, the Board could no longer rely on the moratorium as a reason to refuse to consider the SLUP application. Left open by the decision was whether Ellington could successfully deny the SLUP on other grounds or what timeframe the township had to approve/deny the permit. Interestingly, the Ellington decision arrived exactly one day after the district court reaffirmed its earlier holding in the Almer case (Both decisions were authored by the same Judge).
Finally, in the newest twist, landowners of property proposed for the Tuscola Wind III site have now filed suit in Tuscola County Circuit Court seeking a court order to ouster the newly elected board members alleged to be part of the anti-wind organization. The ultimate resolution of Tuscola’s dispute may end up relying in part on the success of this new suit.
Congressional Spending Bill Provides Boost to EPA, DOE in Rebuke to Trump Administration Budget
By Alexander J. Bandza
As we previously reported on here, the Trump Administration earlier this month proposed a $2.7 billion budget reduction for U.S. EPA. However, Congress has passed a spending bill that rejects reductions to both U.S. EPA and the Department of Energy. Trump signed the bill today.
As reported here, as to the U.S. EPA, Congress proposed holding the agency’s funding at $8.1 billion, even with the 2017 level.
And, at the DOE:
$6.2 billion for the Department of Energy’s Office of Science, an $868-million jump from the 2017 level. Trump had sought to cut its budget to just under $4.5 billion.
The omnibus includes an increase of nearly $1.5 billion in DOE clean energy funding, including a 14% increase to the renewable energy and efficiency office, and a 16% increase at the Advanced Research Projects Agency-Energy (ARPA-E). Trump had sought to cut the renewables office by 65% and eliminate ARPA-E.
The Office of Fossil Energy would increase by 10%, the nuclear office by 19%, science office by 16%, and the energy office by 8%. The loan programs office would be preserved, as would funding for carbon capture and storage.
These avoided spending cuts and/or spending increases are an encouraging sign for environmentalists and other clean tech advocates.
In the Absence of Any Federal Movement, States Continue to Attempt to Legislate Carbon Rules or Taxes
By Alexander J. Bandza
As reported in Salon and Law360 (sub. req.), states, the “laboratories of democracy,” continue to attempt to experiment with legislation carbon rules or taxes. Washington and Oregon are the latest examples, although such efforts have so far failed. Washington’s proposal would have taxed carbon emissions, whereas Oregon’s proposal would have established a cap-and-trade program.
After the Washington tax bill failed, a coalition of environmental, community and labor groups filed a proposed citizens’ initiative that would put a price on carbon emissions. The proposal would charge $15 per metric ton of carbon content of fossil fuels and electricity sold or used in the state starting in 2020. It would increase by $2 a year in 2021 until the state meets its carbon emissions reduction goal for 2035.
As of February of this year, as reported in Law360 (sub. req.), 10 states have released bills to combat climate change and raise revenue by using the tax system, with some 30 different bills in play. According to this report, the range of carbon taxes are from $5-35/ton (bills in Vermont set the base rate at $5 per ton of carbon while bills in New York set it at $35 per ton).
These state-level efforts underscore the challenge of convincing the public and a broad base of stakeholders to act on a problem that Congress first tried to address over a decade ago, most famously through the McCain-Lieberman Climate Stewardship Act of 2003 and the Waxman-Markey American Clean Energy and Security Act of 2009. Interestingly, it may be this patchwork of state-level action that induces Congress to act sometime in the future.
Who Wants to Buy a Superfund Site?
By Matthew G. Lawson
On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA. The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites. The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program. In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites.
On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.” EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers. “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt. “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”
Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites. The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General. The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”
Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites. To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here.
EPA “Year in Review”
By Allison A. Torrence
On Monday, March 5, 2018, EPA issued a report titled EPA Year in Review 2017-2018. The report contains an introductory letter from Administrator Pruitt, who states that he has been “hard at work enacting President Donald Trump’s agenda during [his] first year as EPA Administrator.” The report highlights accomplishments at EPA over the past year, with a focus on the roll back of regulations from the Obama Administration, such as the Clean Power Plan and the Waters of the United States Rule. Administrator Pruitt stated that “[i]n year one, EPA finalized 22 deregulatory actions, saving Americans more than $1 billion in regulatory costs.”
According to the report, Administrator Scott Pruitt set forth a “back-to-basics agenda” with three objectives:
Refocusing the Agency back to its core mission
Restoring power to the states through cooperative federalism
Adhering to the rule of law and improving Agency processes
The report also identifies EPA’s “core mission” as “clean air, land, and water,” and argues that in recent years, “central responsibilities of the Agency took a backseat to ideological crusades, allowing some environmental threats – like cleaning up toxic land – to go unaddressed.” In light of these alleged lapses, EPA states that:
Administrator Pruitt returned the Agency to its core mission and prioritized issues at the heart of EPA’s purpose: ensuring access to clean air and water, cleaning up contaminated lands and returning them to communities for reuse, improving water infrastructure, and ensuring chemicals entering the marketplace are reviewed for safety. In just one year, EPA made immense progress on these fronts, and the American people have seen real, tangible results.
Topics covered in the report include:
Air: Improving Air Quality
Water: Provide for Clean and Safe Water
Land: Revitalize Land for Reuse
Chemicals: Ensure Safety of Chemicals
Cooperative Federalism and Public Participation
Rule of Law
The report concludes with several pages of quotes from elected officials, state environmental agencies, and industry representatives, offering praise for the work done by EPA and Administrator Pruitt:
Leslie Rutledge, Attorney General, Ark.: “Administrator Pruitt’s decision last month to completely re-evaluate the WOTUS rule, minimizing the regulatory burden on countless landowners, demonstrates his commitment to building stronger relationships with state partners.” (07/20/17)
The Year in Review report was tweeted out by Administrator Pruitt and can be found on EPA’s website.
Lawsuit Challenging Trump’s 2-for-1 Executive Order Dismissed
By Steven M. Siros
In a win for the White House, a D.C. federal judge dismissed a complaint filed by several public interest groups that challenged President Trump’s executive order requiring that two federal regulations be repealed for every new regulation that is promulgated. The lawsuit was dismissed on standing grounds, with the court rejecting the public interest groups' argument that they had both “associational” and “organizational” standing.
The district court rejected the public interest groups' claim that they had standing because the executive order would unlawfully force federal agencies to delay or scrap rules that protect the groups' concrete interests. The court also rejected the public interest groups' claim that the executive order impinges on the groups' advocacy efforts by forcing them to choose between advocating for new regulations at the cost of losing other beneficial rules. Instead, the court found that the public interest groups had not sufficiently identified particular members who would be harmed. The court also found that the interest groups had not offered any evidence as to whether they had declined or were imminently likely to decline to advocate for a new rule because of the executive order.
The court is still evaluating whether to give the groups leave to amend their complaint or whether the lawsuits should be dismissed outright. Please click here to read the opinion.