Author: vjel

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Shea Diaz, Georgetown Environmental Law Review

 

In the United States, poor people and people of color experience higher cancer rates,[1] asthma rates,[2] mortality rates,[3] and overall poorer health than their affluent and white counterparts.[4] The Environmental Justice Movement (EJM) links these health disparities to higher concentrations of environmental pollution sources in these communities.[5] This disproportionate exposure to environmental harms in low-income, minority communities is known as “environmental injustice.”[6] Since the EJM’s inception in the 1960s, empirical evidence of environmental injustice along racial and socioeconomic lines has been produced time and again.[7] Vulnerable populations, however, continue to bear a disproportionate burden of society’s environmental harms, as illustrated in the recent water crises in Flint, Michigan[8], and St. Joseph, Louisiana.[9]

A commitment to eradicating environmental injustice requires a nuanced understanding of its causes. EJM activists often highlight corporations’ role in creating environmental injustices, arguing that firms actively discriminate against racial minorities when making decisions about where pollution sources will be placed.[10] More recently, however, many in the movement have recognized the causal complexity of environmental injustice.[11]

Disentangling the causes of environmental injustice presents an empirical problem common in social science: it can be nearly impossible to isolate causal variables when it comes to human phenomena. Attempting to address this problem, researchers have developed innovative methodologies to test various theories of causation for environmental injustices. While it is clear that discriminatory siting plays a role, other causes may help explain both the behavior of firms and the disparate environmental harms experienced by low-income populations and minorities: Regulators may enforce environmental laws and regulations unequally, affected communities may lack political power, and market dynamics may drive both businesses and residents to low-cost real estate. It is important to understand the contribution of each of these to environmental injustice because they may call for different policy responses.

This paper surveys the evidence for each of these possible causes of environmental injustice. I conclude that, because empirical research shows that discriminatory siting, unequal regulatory enforcement, and unequal political power are the major culprits for environmental injustice, policymakers should work to level the playing field and allow for meaningful stakeholder participation in siting decisions and increase enforcement efforts in minority and impoverished communities.

A. Intentional Discrimination While Sitting

Among all the potential explanations for why impoverished people and people of color are more likely to experience environmental harms, the most alarming theory is that corporations actively target these communities because they lack the resources and political capital to resist the siting of environmental hazards in their communities. One piece of evidence frequently cited to support this theory is the “Cerrell Report,” a document produced by a consulting firm, Cerrell Associates, advising the California Waste Management Board on where to site trash incinerators.[12] The report states:

All socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socioeconomic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed cite.[13]

The recommendation that logically follows this report is sinister: polluting firms should target the communities with the least amount of political and financial capital when making siting decisions.

Even though it was produced over thirty years ago, the Cerrell Report continues to be held up as an illustration of dastardly polluters committing environmental injustice.[14] The analysis in the report hinges on the fact that minority and impoverished communities lack the same political power as more affluent and white communities. Consequently, firms in these areas are less likely to be the subject of regulatory scrutiny.[15]

However, intentionally siting high polluting facilities in racial minority and impoverished communities is not the only factor contributing to environmental injustice.[16] As demonstrated in the following sections, facially neutral environmental enforcement principles, unequal enforcement of environmental regulations, and lack of political power each play a role in causing polluters and low-income minorities to end up in the same geographic locales.

B. Regulatory Principles May Unintentionally Contribute to Environmental Injustice

While regulatory agencies are frequently blamed for environmental injustice, some have suggested that environmental injustice is an unintended consequence of neutral risk-management strategies.[17] As the theory goes, policymakers seek to place noxious facilities in areas with low population density in order to manage the risk associated with these facilities.[18] While this “makes good sense as a means of minimizing public health risks,” this criterion increases the number of facilities in some rural areas highly correlated with poverty.[19] Thus, the policy may have the unintended consequence of targeting disadvantaged communities “to act as hosts to solid and hazardous waste landfills.”[20] Policymakers should closely examine the principles that guide regulatory siting decisions for their potential to subject vulnerable populations to a disproportionate amount of environmental harm.

C. Unequal Enforcement

Regulators are also guilty, in at least some instances, of applying enforcement initiatives inequitably. Advocates for environmental justice often contend that low-income communities of color experience disproportionate environmental harm because of unequal enforcement of environmental protection laws and regulations in these communities.[21] Some believe that regulatory capture has resulted in lackluster detection and penalty.[22] For example, politicians in the southern United States have been accused of lax enforcement of environmental regulations in order to profit from outside industry relocating to their jurisdictions.[23]

Empirical evidence confirms that low-income areas are not subject to the same level of enforcement as more affluent areas. The role of race, independent of income, in influencing enforcement decisions is less clear. Moreover, the concentration of enforcement efforts in more affluent communities may ultimately be a function of political influence being disproportionately focused in these communities. Regardless, because governmental enforcement provides a powerful incentive for firms to abide by regulations,[24] it merits special attention as a solution to environmental injustice.

1. Unequal Detection Speed and Penalties for Noncompliance

Some researchers have found that regulators detect violations at a slower rate and impose lighter penalties on violators in vulnerable communities. Lavelle and Coyle found that the U.S. Environmental Protection Agency (EPA) discriminated against minority communities with respect to cleanup decisions and enforcement of existing environmental laws.[25] The study discovered that financial penalties were around five hundred percent higher for violations affecting predominately white neighborhoods as opposed to predominately minority neighborhoods.[26] They also found it took twenty percent longer for hazardous waste sites in minority communities to be listed on the federal priority system for cleanup.[27]

Other studies provide further support. Mennis similarly found that fewer administrative orders and lower monetary penalties were issued to facilities in high-percent minority areas compared to low-percent minority areas.[28] Hellend establish that penalties for environmental noncompliance vary based on the economic situation of the community surrounding the violator: when the community was deemed “affluent,” a violating plant was more likely to face a shutdown.[29]

The relative lack of environmental enforcement efforts in vulnerable communities likely incentivizes firms to site facilities and be more lax with compliance efforts in low-income communities and communities of color. If the penalties assessed for violating environmental regulations in low-income, minority communities are insubstantial and less than complying with existing laws, they will not deter future violations—they will simply be considered a cost of doing business.

2. Compliance Bias

Another way that unequal enforcement occurs is through systematic non-detection of violations. There is evidence that regulators miss violations altogether in these communities by wrongly believing firms are compliant with the law. This phenomenon is known as “compliance bias.”[30]

Empirical evidence shows that industrial facilities cited in low-income neighborhoods are less likely to be monitored and inspected than facilities in more affluence neighborhoods. Dion et al. found that the likelihood of inspection increases with the percentage of employment in the surrounding population, because plants in high employment areas are more “visible.”[31] If low employment is an indicator of poverty or lack of political power, then this study adds support to the EJM’s claim of unequal enforcement in marginalized communities.

When controlling for income, however, the research on compliance bias in racial minority communities is mixed. In 2009, Konisky found that disparities in detection exist for low-income and Hispanic communities, but not in predominantly black communities in particular.[32] Koninsky and Reenock’s 2013 study found that compliance bias is more likely in Hispanic, (but, not in African American, communities.[33]

Some research, however, does support the claim that the percentage of minority residents is a factor in violation detection. Scholz and Wang found inspections to be negatively associated with the percentage of black and Hispanic residents.[34] Konisky and Shario’s 2010 study provides modest evidence for race-based disparities in both inspections and punitive actions taken in response to noncompliant behavior.[35] If enforcement targeting decisions are influenced by a community’s income level, political power, or racial makeup, then facilities will be perversely incentivized to site facilities in the communities in which they can most effectively skirt regulations.

3. Implications of Unequal Enforcement

These findings show that there is significant support to EJM’s claim that enforcement is less vigilant in minority and low-income communities. They demonstrate a strong, negative relationship between socioeconomic status and expenditure of enforcement resources. More research is required to clarify the extent of the relationship between race and enforcement decisions. Future research should seek to test this phenomenon by evaluating agencies at different bureaucratic levels and their implementation of a variety of regulatory initiatives.

D. Low Political Power in Affected Communities

Political power unquestionably plays a role in a community’s ability to effectively oppose the siting of toxic facilities in their communities. As previously noted, the Cerrell Report advised firms that “middle and upper socioeconomic strata possess better resources to effectuate their opposition.”[36] Indeed, some researchers take it as a given that “which groups hold the political power” is a factor “inherent in land use decisions.”[37] If this is true, low political capital could explain both discriminator siting decisions and poor regulatory enforcement.

Research offers some insight into what characteristics make some communities more politically powerful than others. Unsurprisingly, median income is a measure of community influence.[38] Additionally, the percentage of residents who possess a high school diploma and the percentage of residents who are employed are both positively correlated with political power.[39] High voter turnout is also an indicator in some circumstances.[40] Less political power is needed for EJM activists in states that are already aligned with pro-environmental politics, because the political establishment is more familiar with environmental justice arguments and more willing to tackle problems when they arise.[41] These indicators of political power offer regulators a more nuanced way to test for community vulnerability than simply looking at income and minority status. Indeed, some research shows the compliance bias described above can be mitigated by increased political mobilization in affected communities.[42]

Siting facilities on the edges of multiple jurisdictions also creates an additional impediment for residents that oppose a facility. In these situations, multiple communities and local governments must come together to successfully oppose the plant. Gray and Shadbegian found that plants sited in one state but primarily polluting other states emit more pollution than plants that pollute communities in their home state. [43] By siting facilities in such a way as to harm only a minority of each affected jurisdiction, firms minimize the potential for any one community to gain political traction within their local system.

This research suggests that low political capital in affected communities creates an incentive for firms to continue the discriminatory siting practices exemplified by the Cerrell Report. Policy and advocacy efforts should focus on how to ensure that communities lacking political influence are not burdened with a disproportionate amount of society’s environmental pollution.

Conclusion

There is empirical evidence that environmental injustice is caused by many factors, including discriminatory siting, misguided regulatory policy, unequal regulation enforcement, and unequal political power. These factors do not function independently. Low-income and minority communities are often more likely to have less political power, and communities with less political power less likely to have their voices heard by regulators. However, research that establishes each factor’s role in creating incidents of environmental injustice lends credence and actionability to the environmental justice movement. With empirical proof of its causes, policymakers have multiple avenues through which they can combat environmental injustice.

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[1] Elizabeth Ward et al., Cancer Disparities by Race/Ethnicity and Socioeconomic Status, 54 CA: Cancer J. Clinicians 78, 78 (2004). (“For all cancer sites combined, residents of poorer counties (those with greater than or equal to 20% of the population below the poverty line) have 13% higher death rates from cancer in men and 3% higher rates in women compared with more affluent counties (less than 10% below the poverty line)… Even when census tract poverty rate is accounted for, however, African American, American Indian/Alaskan Native, and Asian/ Pacific Islander men and African American and American Indian/Alaskan Native women have lower five-year survival than non-Hispanic Whites.”).

[2] Lolita D. Gray & Glenn S. Johnson, A Study of Asthma as a Socio-Economic Health Disparity Among Minority Communities, 22 Race, Gender, & Class 337, 337 (2015).

[3] Diane K. McLaughlin & C. Shannon Stokes, Income Inequality and Mortality in US Counties: Does Minority Racial Concentration Matter?, 92 Am. J. Pub. Health 99, 99 (2002) (“Higher income inequality at the county level was significantly associated with higher total mortality. Higher minority racial concentration also was significantly related to higher mortality and interacted with income inequality.”).

[4] See, e.g., U.S. Dep’t of Health & Hum. Serv.: Ctr. for Disease Control & Prevention, CDC Health Disparities and Inequalities Report—United States, 2013, 62 Morbidity & Mortality Weekly Rep. 1, 1 (2013).

[5] Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility 1 (2014).

[6] David N. Pellow, Environmental Inequality Formation: Toward a Theory of Environmental Injustice, 43 Am. Behav. Sci. 581, 582 (2002).

[7] See, e.g., Conner Bailey et al., Environmental Justice and the Professional, in Environmental Justice: Issues, Policies, and Solutions 35 (Bunyan Bryant ed. 1995) (“There is no doubt that risks associated with environmental hazards disproportionately affect minority populations that are least able to defend themselves due to poverty and political powerlessness.”).

[8] John Eligon, A Question of Environmental Racism in Flint, N.Y. Times, Jan. 21, 2016, at A1 (available at http://www.nytimes.com/2016/01/22/us/a-question-of-environmental-racism-in-flint.html?_r=0).

[9] Antoaneta Roussi, It’s Not Just a Flint Problem: Other U.S. Cities are Suffering from Toxic Water, Salon, Jan. 25, 2016 (available at http://www.salon.com/2016/01/25/its_not_just_a_flint_problem_other_u_s_cities_are_suffering_from_toxic_water/).

[10] Robert D. Bullard, Confronting Environmental Racism 18 (1993).

[11] Gordon Walker, Beyond Distribution and Proximity, 41 Antipode 614, 616 (2009).

[12] Bullard, supra note 10, at 18.

[13] Cerrell Associates, Inc., Political Difficulties Facing Waste-to-Energy Conversion Plant Siting 43 (1984) (available at http://www.ejnet.org/ej/cerrell.pdf).

[14] An Environmental Justice Network presentation in Washington, D.C. on November 12, 2015 made much of this report.

[15] Contrast this idea with the characterization of the causes of environmental injustice as either racism or market dynamics. See Yushim Kim et al., Residential Choice Constraints and Environmental Justice, Soc. Sci. Q. 40, 41 (2013) (citing Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990)).

[16] Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. Law 1, 21 (1995).

[17] Bailey, supra note 7, at 37.

[18] Id.

[19] Id.

[20] Id.

[21] Bullard, supra note 10, at 17 (“Agencies at all levels of government, including the federal EPA, have done a poor job protecting people of color from the ravages of pollution and industrial encroachment.”).

[22] Beverly Wright, Environmental Equity Justice Centers: A Response to Inequity, in Environmental Justice: Issues, Policies, and Solutions 63 (Bullard 1995) (“[G]overnment agencies responsible for regulating industry are seen as inappropriately biased in favor or particular industry risk management policies or approaches.”).

[23] Robert D. Bullard & Glenn S. Johnson, Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making, 56 J. Soc. Issues 555, 565 (2000).

[24] Wayne B Gray & Ronald J. Shadbegian, ‘Optimal’ pollution abatement—whose benefits matter, and how much?, 47 J. Envtl. Econ. & Mgmt. 510, 514 (2004) (“[T]he main motivation for controlling pollution emissions in the US is government regulation of pollution, especially for the air and water pollutants…”).

[25] Marianne Lavelle & Marcia Coyle, Unequal Protection: the Racial Divide in Environmental Law, 21 Nat. L. J. supplement (1992).

[26] Id.

[27] Id.

[28] Jeremy L. Mennis, The Distribution and Enforcement of Air Polluting Facilities in New Jersey, 57 Prof. Geographer 411–22 (2005).

[29] Eric Hellend, The Enforcement of Pollution Control Laws: Inspections, Violations, and Self-Reporting, 80 Rev. Econ. & Stat. 141, 152 (1998).

[30] David M. Koninsky & Christopher Reenock, Compliance Bias and Environmental (In)Justice, 75 J. Pol. 506, 507 (2013).

[31] Catherine Dion et al., Monitoring of Pollution Regulation: Do Local Conditions Matter?, 13 J. Reg. Econ. 5, 15. (1998).

[32] David M. Koninsky, Inequities in Enforcement? Environmental Justice and Government Performance, 28 J. Pol’y Anal. & Mgmt. 102-21. (2009)

[33] Koninsky & Reenock, supra note 29, at 507.

[34] John T. Scholz & Cheng-Lung Wang, Cooptation or Transformation? Local Policy Networks and Federal Regulatory Enforcement, 50 Am J. Pol. Sci. 81, 93 (2006).

[35] David M. Konisky & Tyler S. Schario, Examining Environmental Justice in Facility-Level Regulatory Enforcement, 91 Soc. Sci. Q. 835-55 (2010).

[36] Cerrell Associates, supra note 13.

[37] Patricia E. Salkin. Intersection between Environmenal Justica and Land Use Planning at 3. American Planning Association Planning & Environmental Law. May 2006 Volume 58 No. 5. First page is 3.

[38] H. Sigman, The pace of progress at Superfund sites: policy goals and interest group influence, J. Law Econ. 44 (2001) 315–344.

[39] Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L. Q. 1, 23 (1997).

[40] W. Kip Viscusi & James T. Hamilton, Are Risk Regulators Rtional? Evidence from Hazardous Waste Cleanup Decisions, 89 Amer. Econ. Rev. 1010, 1010-1027 (1999); James T. Hamilton, Testing for Environmental Racism: Prejudice, Profits, and Political Power?, 14 J. Pol’y Anal. & Mgmt. 107, 107-132 (1995).

[41] Viscusi & Hamilton, supra note 41; Gray & Shadbegian, supra note 23, at 531-32.

[42] Koninsky & Reenock, supra note 29.

[43] Gray & Shadbegian, supra note 23, at 531-32.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By David Williams, Editor at Virginia Environmental Law Journal

 

In the wake of Massachusetts v. EPA,[1] the EPA fashioned new regulations to cover greenhouse gasses. As part of the new suite of regulations, the agency promulgated a “Tailoring Rule”[2] that departed from the plain text of the Clean Air Act (“CAA”).[3] The EPA justified this rule with reference to two canons of interpretation: absurd results[4] and administrative necessity.[5] The EPA describes the canon of administrative necessity as a three part test:

When an agency has identified what it believes may be insurmountable burdens in administering a statutory requirement, the first step the agency must take is to evaluate how it could streamline administration as much as possible, while remaining within the confines of the statutory requirements. The second step is that the agency must determine whether it can justifiably conclude that . . . the remaining administrative tasks are impossible for the agency because they are beyond its resources, e.g., beyond the capacities of its personnel and funding . . . .Then the agency may take the third step, which is to phase in or otherwise adjust the requirements so that they are administrable.[6]

The way the agency describes and applies the administrative necessity doctrine suggests that it is a well-established, clearly defined doctrine that has been used often to justify agency departures from statutory requirements. I argue to the contrary. The doctrine of administrative necessity is actually a recently assembled collection of disparate statements from a small handful of D.C. Circuit cases. Never has a regulatory scheme that departs from statutory requirements been justified by administrative necessity. Such a piecemeal rule is inadequate to justify the EPA’s regulatory departure from the Clean Air Act.

1. Origins of the Doctrine of Administrative Necessity

The three-step test as articulated by the EPA was only assembled coherently in the tailoring rule itself.[7] Administrative necessity applies when Congress gives an agency more non-discretionary duties than it can actually fulfill given constraints on budget, time, and manpower. The agency should thus be able to limit its regulatory reach in concert with its resource constraints.

The idea underlying administrative necessity was first posited in dicta in Alabama Power Co. v. Costel,[8] which came in the wake of the 1977 CAA Amendments. The EPA interpreted the “potential to emit”[9] provision of the CAA to exempt major emitting facilities from regulation if their actual emissions were below 50 tons per year (“tpy”), even though it would leave some facilities unregulated.[10] The EPA tried to justify this regulation in litigation through cost benefit analysis, arguing that the huge burden imposed by regulating the major emitters in question would yield minimal benefits.[11]

The Alabama Power Court decided the case on grounds that rendered the 50 tpy regulation moot, but still elected to address “the principles pertinent to an agency’s authority to adopt general exemptions to statutory requirements.”[12] The Court began the discussion by stating that even though there is an implicit ability to create exemptions not explicitly authorized by the statute inherent in the administrative process, cost benefit analysis is not an adequate foundation for those exemptions.[13] Rather, “the existence of an impossibility,” such as restraints caused by lack of resources or manpower, is required for an exemption.[14] To show that an impossibility exists, a court must look to the statute to see if the legislature has built in flexibility that the agency could use that does not run directly counter to the statute.[15]

1. Early Application of Pseudo Administrative Necessity

The doctrine continued to develop in Environmental Defense Fund v. EPA,[16] where the agency tried to justify its interpretation of the Toxic Substances Control Act (“TSCA”). The EPA included exemptions for products with low concentrations of polychlorinated biphenyls (“PCBs”).[17] The EPA tried to justify the exemptions by arguing that it did not have the capacity to enforce the statute completely.[18] The Court found that the agency’s interpretation was not justified by administrative necessity because it failed to rely on exemption authority provided elsewhere in the statute.[19] The agency should turn first to statutory exemptions before relying on self-created exemptions. Although the EPA’s assertion of administrative necessity was unsuccessful, the contours of the doctrine began to take shape.

In Sierra Club v. EPA,[20] the EPA was required to promulgate regulations dealing with the problem of stationary sources raising stack heights to circumvent ground-level pollutant thresholds. Rather than confront the underlying issue, the EPA’s final rule only regulated three specific techniques used to avoid these thresholds.[21] The Sierra Club Court held that the administrative necessity doctrine did not justify this regulation because the EPA had not carried the heavy burden of proving that full enforcement was impossible given its current resources.[22] It had “offered mere predictions, rather than conclusions drawn from good faith efforts at enforcement,”[23] and it had “caved in” without having “adequately explored . . . regulatory alternatives” like regulating plumes based on their engineering purposes.[24]

Center for Biological Diversity v. EPA[25] provides the most recent discussion of administrative necessity. For three years The EPA defered its decision whether to regulate sources of biogenic carbon dioxide the same way that they regulated other stationary sources.[26] The court held the agency’s action was arbitrary and capricious despite an administrative necessity claim.[27] The opinion emphasized that impossibility is the standard the agency must meet, not mere inconvenience, and added that agencies faced with impossibility must adopt the narrowest feasible exemption to the statutory mandate.[28] The exemption did not meet the impossibility standard because it did not satisfy the Sierra Club v. EPA requirement that all feasible alternatives to the exemption be explored.[29] The EPA had previously rejected without investigation a “middle-ground” approach where biogenic carbon dioxide sources could obtain permits but only if they fail to make “any effort to take into account net carbon cycle impacts.”[30] The agency should have responded to this regulatory alternative with adequate exploration in order to establish impossibility.

The concurring opinion in Center for Biological Diversity also rejected the administrative necessity doctrine, but for a different reason. That opinion argued that the EPA had no statutory basis for distinguishing between biogenic carbon dioxide and other sources of carbon dioxide.[31] The fact that the agency tried to distinguish between these sources concerned the concurring judge because it appeared that the decision to distinguish may have come from cost benefit analysis, which was impermissible under Alabama Power.[32]

Even outside the context of environmental law, the administrative necessity doctrine is rarely applied and never successful. Public Citizen v. Shalala[33] concerned a restaurant menu exemption from the nutrition and health labeling requirements of the Nutrition Labeling and Education Act (“NLEA”). The district court gave significant consideration to the FDA’s argument that administrative necessity justified the exception before ultimately deciding that the doctrine could not justify the exception.[34] After acknowledging that the doctrine could theoretically justify this type of exception, the court held that the “FDA has not borne its ‘especially heavy’ burden of establishing the administrative impossibility of applying the . . . provisions of the NLEA to restaurant menus.” [35] The agency had twice stated that a lack of resources prevented it from enforcing its regulations in restaurants, but those statements had been “proffered in support of the agency’s decision to hold restaurants to a lower standard for substantiating claims of nutrition content and health, not of its decision to exempt menus altogether.”[36] The proof that the FDA had given of its lack of resources pertained only to another context, so it had not met the heavy burden of proving impossibility.[37]

In Public Citizen v. FTC,[38] an FTC interpretation of the Smokeless Tobacco Act exempted utilitarian items from required health warnings on advertisements for smokeless tobacco. The court decided the case on the grounds that the statute was unambiguous, and therefore the regulatory departure failed under the first step of Chevron analysis.[39] But in dicta, the Court hinted that it might be possible to uphold similar exceptions under the administrative necessity doctrine.[40] The exemptions at issue, however, failed because they were based on cost-benefit analysis, which according to Alabama Power is not a permissible basis for exemptions.[41]

It is important to note that none of the cases upon which the EPA relied for its formulation of the administrative necessity doctrine actually allowed the exemptions in question to stand. The same holds true generally. I found no cases in which administrative necessity justified an exception contrary to statutory language. The case law is notably sparse, and when the language which the EPA’s Tailoring Rule relies on to establish the three-part test is cited, it is usually used to establish propositions other than administrative necessity.[42]

III. Defenses and Criticisms of Administrative Necessity

The main argument in support of the use of the administrative necessity doctrine is that it would help avoid the enormous costs that would come from directly applying the unambiguous language of certain statutes. Since “current administrative law doctrines do not adequately accommodate an agency’s inability to fully carry out an excess of delegated nondiscretionary power, and Congress has proven unwilling to adjust delegated authority in light of strained agency budgets,”[43] the agency should have some recourse. When agencies are asked to do more than they are capable of, costs accrue to the agency, the taxpayers, and those the statute was meant to protect. Deadlines get pushed back indefinitely, agency resources get stretched so thin that otherwise remediable violations get left unenforced, and other agency responsibilities fall by the wayside.

To illustrate this problem, consider the costs that would come from immediate full enforcement of the CAA without the Tailoring Rule:

Over six million sources would be newly classified as major stationary sources for PSD purposes. EPA estimates that over 80,000 sources would be required to apply for PSD permits each year for new construction and modifications. Each of the over six million newly major stationary sources would also be required to apply for a Title V permit. The estimated cost of the PSD and Title V permitting programs would increase from $74 million annually to $22.5 billion annually. The annual number of work hours needed to run the permitting programs would increase from close to 1.5 million hours to nearly 480 million hours, which would require an additional 200,000 employees to be hired, trained, and managed.[44]

This would mean huge administrative burdens and exorbitant costs, impeding the issuance of permits to the newly included sources and to the thousands of sources that Congress expected to be covered.

Another reason to favor the administrative necessity doctrine is that agencies have already been using undesirable non-transparent means to deal with this type of situation. Whether through under-enforcement or simple neglect, resource-strapped agencies have found ways to limit the non-discretionary power assigned to them. Application of the administrative necessity doctrine would bring those decisions out into the open, allowing agencies to publicize their inability to carry out their responsibilities and pressure Congress to address the issue. The public would receive valuable information on what statutes are going under-enforced and the risks associated with the regulatory limitations. Through notice-and-comment rulemaking or litigation, administrative necessity would bring transparency to the administrative state.

Although there are some potential benefits to use of the doctrine, the problems it creates are difficult to overcome. Primary among these is the fact that, by definition, exceptions justified by administrative necessity run counter to the statutory mandates given by Congress. Allowing agencies the discretion to deviate from the plain text of a statute creates concerns analogous to those motivating the non-delegation doctrine, which “prevents ‘agency lawmaking on the cheap’ by requiring the legislative power to be exercised through the Article I, Section 7 requirement of bicameralism and presentment.”[45] By allowing agencies to cure the implementation issues that aspirational statutes create, the administrative necessity rationale arguably allows Congress to “avoid making the hard choice of where to direct scarce administrative resources.” [46] Allowing an agency to substitute its own policy choices for Congress’s policy choices in this manner would undermine core separation of powers principles.[47]

A more pragmatic concern is that agencies may use the doctrine as a pretext to shirk their duties. This could be manifested in two ways. First, the “impossibility” standard announced in Alabama Power could feasibly be diluted over time to become “inconvenience,” allowing agencies to defy statutory responsibility whenever executing the statute would be costly or difficult. Second, agencies may claim they lack resources to enforce policies whenever they disagree with Congressional judgment. Agencies would then have a convenient end-run for any situation in which they would have legislated differently than Congress did.

One commentator downplays this concern by claiming that agencies who don’t want to enforce a statute use non-transparent means like under-enforcement anyway.[48] This does not mean, however, that a robust administrative necessity doctrine would not expand this kind of agency quasi-legislation. Bringing administrative necessity into mainstream administrative law would grant it an air of legitimacy, which may make agency end-runs around statutory mandates pervasive.

1. Whether Past Applications of Administrative Necessity Justify EPA’s GHG Tailoring Rule

The administrative necessity doctrine is not as well-defined as the EPA makes it appear. The novelty of the three-part test which the EPA presents is somewhat problematic, but every doctrine must have its genesis somewhere. The real issue is that no agency action has actually been upheld based on the administrative necessity doctrine. This means that there is no standard for what would actually have to be established to meet the requirements of the test.

Furthermore, the case law is so thin that it is not clear what any given element really means. The element of impossibility is a good example of this. The text of the tailoring rule makes the costs of directly applying the CAA sound so prohibitive that it is functionally impossible. But there is good reason to think that the impossibility is partially of the agency’s own making:

The need for PSD and Title V permits for greenhouse gas emissions is a result of prior regulatory choices made by EPA, described in Part I, each of which is under legal challenge . . . .Furthermore, EPA could have revised the language in its current regulations to avoid triggering a requirement to regulate greenhouse gases.[49]

If the impossibility really is created by the agency’s own regulatory choices, perhaps a presumption that the statute is not actually impossible to administer should be established. But issues like these have not been addressed in the courts, so it really is not clear how to apply any given element of the doctrine.

Another reason why the administrative necessity doctrine cannot uphold the tailoring rule comes from the EPA’s other proffered defense of the rule: absurd results. Assuming that the absurd results doctrine actually applies to the tailoring rule, an issue I do not address here, the interplay between the two doctrines renders them incompatible. In their true form, they assume different things about congressional intent. The absurd results canon assumes that since the outcome of literal enforcement of the statutory text is so ridiculous, there is no way that Congress could have actually intended that outcome. So in this case, Congress could not actually have intended for the EPA to regulate greenhouse gasses like air pollutants. Administrative necessity, however, assumes that Congress did actually want the agency to enforce the statute in that way, but the agency does not have sufficient resources to do it. Thus, the EPA is simultaneously asserting two irreconcilable stances regarding Congressional intent. If the absurd results doctrine does apply here, then administrative necessity cannot apply as well.

In sum, administrative necessity is a patchwork doctrine that has never been applied by the courts to uphold agency decisions to limit enforcement. Its origins and existence are somewhat dubious, and its wisdom is questionable. The unstable foundation upon which the administrative necessity doctrine rests makes it seem unlikely to be a valid justification for the EPA’s Tailoring Rule.

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[1] 549 U.S. 497 (2007) (holding that the EPA has authority to regulate greenhouse gasses under the Clean Air Act).

[2] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55,292 (Oct. 27, 2009) (to be codified at 40 C.F.R. Parts 51, 52, 70, 71).

[3] Rather than regulate at the 100/250 tpy threshold required by the Clean Air Act, the EPA decided to regulate at thresholds of 75,000/100,000 tpy. Id. at 55,292.

[4] Id. at 55,295 (“The judicial doctrine of “absurd results” authorizes departure from a literal application of statutory provisions if it would produce a result that is inconsistent with other statutory provisions or congressional intent, and particularly one that would undermine congressional purposes.”).

[5] Id. at 55,313 (citing Alabama Power Co. v. Costel, 636 F.2d 323, 400 (D.C. Cir. 1979)) (“EPA does have discretion, in administering the statute’s ‘modification’ provision, to exempt from PSD review some emission increases on grounds of de minimis or administrative necessity.”).

[6] 74 Fed. Reg. 55,315 (Oct 27, 2009).

[7] For a more in-depth discussion of the D.C. Circuit precedent leading to the use of the administrative necessity doctrine in the tailoring rule than I have space for here, see Kirti Datla, Note, The Tailoring Rule: Mending the Conflict Between Plain Text and Agency Resource Constraints, 86 N.Y.U. L. Rev. 1989 (2011); Travis Garrison, Comment, The EPA’s Greenhouse Gas Regulation Tailoring Rule: Administrative Necessity Avoiding or Pursuing Absurd Results? 56 Loy. L. Rev. 685 (2010).

[8] 636 F.2d 323 (D.C. Cir. 1979).

[9] 42 U.S.C. 7479(1) (2012).

[10] Alabama Power Co. v. Costel, 636 F.2d 323, 355–56 (D.C. Cir. 1979).

[11] Id. at 356–57.

[12] Id. at 357.

[13] Id. at 357–58.

[14] Id. at 359.

[15] Id. at 359–60.

[16] 636 F.2d 1267 (D.C. Cir. 1980).

[17] Id. at 1272–73.

[18] Id. at 1283–84.

[19] Id.

[20] 719 F.2d 436 (D.C. Cir. 1983).

[21] Id. at 442–43.

[22] Id. at 462–63.

[23] Id. at 463.

[24] Id. at 464.

[25] 722 F.3d 401 (D.C. Cir. 2013).

[26] Id. at 404.

[27] Id.

[28] Id. at 410–11.

[29] Id. at 411.

[30] Id. at 411.

[31] Id. at 412 (Kavanaugh, J., concurring).

[32] Id. at 414 (Kavanaugh, J., concurring).

[33] 932 F. Supp. 13 (D.D.C. 1996).

[34] Id. at 17.

[35] Id. (citing Environmental Defense Fund v. EPA, 636 F.2d 1267, 1283 (D.C. Cir. 1980)).

[36] Id. at 17 (emphasis in original).

[37] Id.

[38] 869 F.2d 1541 (D.C. Cir. 1989).

[39] Public Citizen v. FTC, 869 F.2d at 1555–56.

[40] Id.

[41] Id. at 1557.

[42] See New York v. EPA, 443 F.3d 880, 888 (D.C. Cir. 2006) (citing Alabama Power in support of the general proposition that agencies can create exceptions to statutory language only under rare circumstances); United States v. Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931, 945 (S.D. Ohio 2002) (same); see also Potomac Elec. Power Co. v. EPA, 650 F.2d 509, 516–18 (4th Cir. 1981) (citing Alabama Power in support of its substantive finding about “common sense industrial groupings” under the Clean Air Act); Texas v. EPA, 726 F.3d 180, 191 (D.C. Cir. 2013) (same); Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 483 (Sixth Cir. 2008) (same); United States v. Ohio Edison Power Co., 276 F. Supp. 2d 829, 888 (S.D. Ohio 2003) (same); see also Public Citizen v. Mineta, 427 F. Supp. 2d 7, 12–13 (D.D.C. 2006) (citing administrative necessity to support the proposition that the agency has discretion to choose between categorical rulemaking and case by case adjudication); Pharm Research & Mfrs. of Am. v. FTC, 44 F. Supp. 3d 95 (D.D.C. 2014) (same).

[43] Datla, supra note 7, at 2023.

[44] Id. at 2001 (internal citations omitted).

[45] Id. at 2026 (internal citations omitted).

[46] Id.

[47] Note that this concern may be more theoretical than practical since non-delegation has been rarely enforced since Mistretta v. United States, 488 U.S. 361 (1989).

[48] Datla, supra note 7, at 2024–25 .

[49] Id. at n. 88.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Daniel Carpenter-Gold, Managing Editor, Harvard Environmental Law Review

 

It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?

What did we promise?

After some initial optimism, debate over the outcome document has been mostly about precisely what flavor of evil the negotiators have handed us. There are interesting framing moves in the document—the target for a cap on temperature increases is being nudged down from 2°C to 1.5°C, the net-zero “carbon neutrality” approach makes carbon sinks and carbon-capture technology more prominent, and the $100 billion promised in the Copenhagen Accord ended up in the non-binding Paris Decision rather than the Agreement itself—but the real action is in Art. 4, dealing with Nationally Determined Contributions (“NDCs”).

Since Luke Grunbaum at the UCLA Journal of Environmental Law & Policy has already put out a great breakdown of the NDC approach, I’ll keep it short: the NDCs are statements from each country (or group, in the case of the EU) laying out how much they will decrease their greenhouse gas emissions. Unlike the Kyoto Protocol, the Paris Agreement does not require specific emissions reduction from each country. Instead, Art. 4.9 requires each nation to issue an NDC every five years, and Art. 4.3 demands that each new NDC “will represent a progression beyond” the country’s previous commitment. (NDCs are also supposed to represent each country’s “highest possible ambition”—which raises the question whether countries might overpromise and get stuck with an unattainable goal. Then again, overly ambitious goals have not historically been a problem for the UNFCCC.)

Nearly all UNFCCC parties submitted Intended NDCs (“INDCs”) prior to the Paris negotiations, so we already have an idea of what NDCs will look like. The first impression is that they are too little, too late, but this is not news (which the head of the Secretariat made clear by threatening to “chop the head off” of any reporter that treated the INDCs’ shortcomings as new information). For our part, the U.S. INDC has promised a 26–28% reduction in greenhouse gas emissions by 2025 (measured against 2005 levels), which is roughly equivalent to the 32% reduction by 2030 that the White House says the Clean Power Plan will provide.

Do we really have to?

This is the meat of the Paris question: will President Obama’s signature on the Paris Agreement change anything back home?

As anyone who takes the law seriously knows (and as I just looked up), international agreements make take one of three forms: treaties, requiring “the advice and consent” of two-thirds of the Senate; “congressional-executive agreements,” in which Congress uses its legislative powers to enact (typically, to pre-approve) whatever arrangement the President comes to with other countries; and what are called “executive agreements,” which are agreed to by the President, but neither ratified by the Senate nor enacted into law by Congress. Needless to say, the chances of getting Congress to agree on anything climate-related are slim—so we are for the foreseeable future left with executive agreements.

The thing about executive agreements is that their impact on domestic law (as opposed to international law) is limited by the Constitution. The federal government must act pursuant to a grant of power, after all, and while the President is blessed with certain authorities (including the right to appoint U.S. diplomats and to “receive Ambassadors and other public Ministers”), the executive’s powers do not include the authority to make laws.

One preexisting source of authority for implementing the Paris Agreement is the UNFCCC itself, which was ratified by the Senate in 1992. However, the Bush (Sr.) Administration very specifically intended that any protocol to the UNFCCC “containing targets and timetables” for greenhouse gas emission reductions would require its own ratification process, and the report of the Senate Committee on Foreign Relations made this understanding explicit in reporting the treaty. Because the Senate’s initial ratification of the UNFCCC was based on this promise, any future binding emissions limits will likely have to go through the process again, even if they are technically made pursuant to the UNFCCC.

But presidential authority also encompasses powers that Congress has already delegated to the executive branch, including the authority to implement the Clean Air Act. And under Massachusetts v. EPA, the CAA authorizes regulation of greenhouse gases, meaning that the President has authority to fulfill the terms of any climate agreement that remains within the bounds of the CAA’s grant of authority. (An interesting alternative argument is that EPA also has authority to impose limit greenhouse gas emissions through CAA § 115 on “International Air Pollution”—David Wirth breaks this down in his recent Harvard Environmental Law Review article “The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?”)

So the executive branch can implement the INDC on its own—in fact, the U.S. INDC appears to rest entirely on authority already in place—but neither domestic nor international law requires it to do so. And this means that there will be essentially no legal avenue for holding future administrations accountable to the promises made now.

What if we don’t?

The Paris Agreement, on its own terms, does not require specific actions on the NDCs, or impose any sanction on countries that do not meet them. Art. 4.2 provides that “Parties shall pursue domestic mitigation measures with the aim of achieving the objectives” in their NDCs (my italics). There are a handful of mechanisms for checking up on countries’ progress—most importantly, a “global stocktake” in 2023 and every five years afterward (Art. 14), and an “enhanced transparency framework” for the NDCs and financial commitments (Art. 13)—but there are no actual punishments for failing to follow-up on the NDCs. In fact, the only provision to “promote compliance” with the Paris Agreement is specifically required to be “non-punitive.”

Furthermore, the U.S.’s NDC, which (unlike, say, the EU’s) does not purport to be a binding commitment and commits to almost no mitigation work beyond the Clean Power Plan. So the Paris Agreement essentially amounts to promising to continue doing what we’ve already started—which, given the scope of the Clean Power Plan and the resistance to it, may be all we’re capable of anyway.

Will we anyway?

As all climate reporting must, this piece ends with more questions than it started. What will the 2020 NDCs look like? Will China’s cap-and-trade program work? Will the Clean Power Plan survive litigation, or the change in administration? Will private industry come through with a silver-bullet plan? Will the revolution come? It’s been said before, but the Paris Agreement can only be a platform, supporting and magnifying domestic actions.

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By Malia McPherson, J.D. Candidate, Stanford Law School, Expected 2016 

Introduction

On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests

1. THE RISKS POSED BY FRACKING

“Fracking” is the collective and colloquial term for the use of high volume hydraulic fracturing for fossil fuel extraction.[1] Its purpose is to extract oil and gas from rock formations deep underground (in deep shale formations) with high-pressure ‘fracking fluids’. These fluids contain “significant amounts of water, sand, and chemicals” that fracture the rock layers to free the trapped oil or gas so it can be pumped out.[2]

Although fracking as a process has been in use for decades, its environmental consequences remain significant. First, fracking is an intensive activity that requires large access roads, acres of clearing sites, drilling rig access, and storage and processing structures.[3] Once a well is drilled, millions of gallons of water are brought into the site and mixed with chemical agents, sand and emulsifiers.[4] Although the fracking fluid is 98% water, the oil and gas industries have reported that between 2005 and 2009, 29 chemicals were used in fracking fluids that were “(1) known or possible human carcinogens, (2) regulated under the Safe Water Drinking Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act.”[5] These fluids have to be kept out of normal watersheds in surface containments, or be sequestered underground – in either location these fluids have the potential to “eventually . . . migrate into and contaminate groundwater sources for waterways and drinking supplies.”[6]

Separate from the concerns of storage and disposal of contaminated fracking fluids, there are risks with “propping” substances.[7] The oil and gas industries use silica gels to “prop” open wells before water injection. [8] If these gels are improperly handled, they can become airborne, enter a person’s lungs, and cause incurable lung diseases.[9] Further indirect effects can come transporting oil and gas away from the fracking site, which can be a way for accidents and spills to occur.[10] Finally, in California there are also concerns about fracking’s significant water use during drought conditions, and about the disposal of wastewater, which has been linked to small-scale earthquakes.[11] Cyclic steam injections used in unconventional oil and gas recovery also carry similar risks – millions of gallons of water are required for steam heating, leading to problems of aquifer depletion and contaminated wastewater.[12]

1. LEGAL CONTEXT: THE REGULATORY GAP IN CALIFORNIA
2. The Federal and State Regulatory ‘Patchwork’

The risks posed by fracking are worrisome in part because there is no national regulatory framework governing it, only a “patchwork” of inconsistent regulations that leave open the potential for spills, contamination and other ill effects throughout the country.[13] Although there are numerous other federal environmental regulations that explicitly preempt state law to ensure national uniformity,[14] prior to the passage of Measure J in 2014, the federal government had taken little action to regulate fracking.[15] Despite extensive federal environmental legislative activity from 1969 through the 1980s, fracking operations and “its roughly thirty affiliated and component processes” fell through the cracks.[16] This trend continued in 2005 when Congress explicitly exempted most types of fracking from the federal Safe Water Drinking Act.[17] Despite that statute’s goal of protecting public and municipal water supplies, the impacts of “underground injection and disposal of hazardous substances” on water quality were ignored.[18]

More recently, the federal government started taking small steps toward regulating fracking. These included announcing a long-term research plan to explore the impacts of fracking,[19] finalizing new Clean Air Act rules to limit emissions of some air pollutants,[20] and adopting regulations that create basic fracking standards for drilling on public lands.[21] These drilling standards, however, do not apply to private or state-owned land.

Recent California state legislation on fracking applies to operations throughout the state, but takes somewhat of a ‘light touch’ approach to regulating drilling operations. Senate Bill 4 (SB 4), passed in 2013,[22] is basically a type of permitting and disclosure scheme in which fracking operations can continue so long as operators meet basic requirements.[23] These requirements include groundwater and air quality monitoring, public disclosure of all chemicals used, and neighbor notification before well stimulation takes place.[24] At the time of its passage, critics were upset that SB 4 did not go much further than public disclosure and neighborhood notification of dangerous drilling operations; many environmental groups had sought a full ban or more strict regulation.[25]

Most importantly, SB 4 does not expressly preempt local law; instead, it contains provisions that “explicitly preserve local authority.”^[26] A more robust state law may have stopped local initiatives from taking root[27] – two separate district courts have found that state law preempts the ability of local or county governments to ban fracking. A Colorado district court held that a voter-approved fracking ban in Longmont was preempted by the Colorado Oil and Gas Conservation Act, and a New Mexico district court found a Mora County Ban preempted by state law.[28]

1. Options for Local Governments – Room for Community-Based Lawyering

Local and county governments can step into the regulatory vacuum left by an incomplete patchwork of state and federal regulations. As authorized in the state of California, cities and counties in particular have great power to control the extent of oil and gas development within their jurisdiction.[29] First, the state Constitution broadly provides that local governments “may make and enforce all ordinances and regulations in respect to municipal affairs…. City charters … with respect to municipal affairs shall supersede all law inconsistent therewith.”^[30] Second, the California Public Resources Code confirms that local authorities retain the power to “enact and enforce laws and regulations regulating the conduct and location of oil production activities, including … zoning,… public safety, nuisance … [and] noise …”[31] California cities by extension have the inherent authority to ban oil and gas development through their zoning powers.[32]

In addition to the ability of local governments in California to pass legislation aimed at fracking concerns, California local governments have a unique voter initiative process. From its long history with voter initiatives, California is considered “the leader in direct democracy.”[33] In California, the initiative is not a right granted by the Constitution, but rather a “power reserved” by the people.[34] This process is certainly not without limits; voter initiatives are subject to numerous limitations and requirements, including constitutional and conflict of laws rules,[35] filing and notice requirements,[36] signature thresholds,[37]^,[38] and other ballot access regulations.[39] But if the initiative appears on the ballot and receives the approval of a majority of voters, it becomes law after ten days,[40] after which it cannot be repealed or amended except by another voter initiative.[41] Because of the procedural requirements and political mobilization necessary to mount an initiative campaign, issues settled by a successful initiative are particularly difficult to overturn later. This is especially the case for local level initiatives focused on community concerns such as land use, governance, and safety, which tend to garner more voter turnout than state-level propositions.[42]

Practically, and as seen in San Benito County, the voter initiative process can also offer new channels for community-based organizations to ensure not just direct, but also equitable democracy. Through inclusive ballot initiative campaigns, community-based organizations can seek (1) more community input into the formulation of public policy and (2) community participation throughout the decision-making process. In doing so, organizations can enlist wide swaths of the voting public in participatory coalitions, propagate messages through social networks, aggregate the interests of many community members, and both create and employ social capital.[43] San Benito Rising, the organization who led the Measure J campaign, used many of these broad techniques for community-based organizing to step into the regulatory gap through the initiative process.

III. MEASURE J IN SAN BENITO COUNTY

1. Context and Motivations

The San Benito fracking ban was motivated by natural gas deposits found relatively recently within the Monterey Shale, a 1,750-mile shale gas formation running down the center of California[44] whose extraction was seen by some to be a potentially “enormous bonanza.”[45] San Benito was considered a “frontline county” before Measure J passed because drillers had already started extracting oil and gas from the region[46] and more exploration was underway in 2013.[47] Without federal or state regulatory protection before the passage of Measure J, San Benito County may have been a place where environmental harms could have gone unchecked. With a small total population, a significant portion of whom are migrant farm workers, and vast acres of undeveloped agricultural lands, San Benito County is “out of sight and out of mind” for many state politicians.[48]

            Skeptical that state regulations and regulators would adequately protect their interests, a small group of about twenty members of the San Benito County community banded together to form San Benito Rising. Early founders of San Benito Rising raised concerns that “[r]egulations are just a way of giving the industry a road map to frack. States like Pennsylvania and Texas have regulations, but that hasn’t stopped the [environmental impacts of the] process. It’s only made a mess. We realized we needed to ban the process entirely” to protect economically vital local groundwater resources.[49] Representatives of the group claimed they were not looking to role models of “environmental activism” within California for guidance, but rather to the many localities in New York that hired lawyers to draft local legislation.[50] With small amounts taken from their retirement funds, the early founders of San Benito Rising hired Shute, Mihaly & Weinberger LLP (SMW), a San Francisco law firm noted for its expertise in land use and community environmental issues, to help draft the legislation.[51]

1. The Mechanics of Measure J

Lawyers from SMW carefully drafted Measure J’s text to prohibit “the use of any land within the County’s unincorporated area for “High-Intensity Petroleum Operations.”^[52] The initiative defined such operations to include “well stimulation treatments (such as hydraulic fracturing, also known as fracking, and acid well stimulation treatments) and enhanced recovery wells (such as cyclic steam injection).”^[53] Measure J’s general purpose was to “protect San Benito County’s water quality and supplies, agricultural lands, environmental quality, rural character, scenic vistas, and quality of life.”^[54] This fell directly under the recognized local powers of zoning and public safety regulation. Rather than banning “all oil and gas extraction,” it banned all extraction activities in residential areas and stimulation treatments, except for vested interests.^[55] The initiative allowed parties with vested rights to such operations to seek approval from the planning commission for up to three years.^[56] It also allowed the San Benito County Board of Supervisors to grant exceptions to the initiative, if not doing so would constitute an unconstitutional taking.^[57] Finally, for protection, it allowed severability if any portion was deemed invalid.^[58] Unlike many voter initiatives in California, and perhaps as a result of its careful drafting, Measure J was fortunate to avoid any pre-election litigation challenge.[59] Though they had invested their own personal funds in the effort from the beginning, the leaders of San Benito Rising knew that their movement was not about themselves and would only succeed if it could engage and involve the larger countywide community.[60]

1. The Measure J Campaign

San Benito Rising departed from several common approaches for California ballot initiatives: by using volunteers instead of paid signature gatherers, by focusing on voter education, and by having candid, largely unscripted discussions about the complexities surrounding fracking.[61] San Benito Rising did not formally associate with any political parties or hire campaign consultants.[62]

During the signature collection stage, several messages about the initiative helped expand their base of support beyond environmental protection to include those concerned about: (1) the future of the county and how fracking would affect agricultural interests, (2) the business community’s interests in avoiding extractive mining impacts, and (3) the general importance of water to sustain local life and families.[63] Because of this, San Benito Rising was able to attract prominent farmers, ranchers, and even Chamber of Commerce members to support a “green” initiative.[64] Perhaps most impressively, the environmental group was able to get support from the plumbers union and the state employees association.[65] Key support also came from the Latino community; Luis Valdez, regarded as the “father of the Chicano theater in the United States,” vocally and prominently supported the movement.[66] He helped organize events such as the “Latinos United Against Fracking Conference” in San Benito.[67] Additionally, prominent teachers with connections to former students and school districts became very involved.[68] Younger high school students also became allies and took to social media: “Hay Bailers Against Fracking” (a title invoking the local high school mascot) became the Facebook platform to unite the community.[69]^,[70] San Benito Rising fundamentally tried to be “as broad as possible.”[71] By the time their initiative was turned into the county elections office for certification on April 22, 2014, San Benito Rising had collected over 4,000 signatures. The signatures were collected in merely fourteen days, which may have set a state record.^[72]

Lastly, the oil and gas industry marketing efforts deployed to oppose Measure J may actually have worked in favor of the initiative. As soon as “outside money” started flowing into community advertising – bringing repetitive television commercials, radio coverage, and mailings to San Benito County – the community became skeptical of its message.[73] Many of the groups had opaque “insider sounding names” such as “San Benito United for Energy,” which also frustrated community members.[74] Oil companies, including Chevron, Inc. and Occidental Petroleum, spent at least $6.7 million in the election cycle to oppose fracking bans.[75] In contrast, San Benito Rising raised and spent only $120,000.[76]

San Benito Rising’s inclusive and informative process succeeded in building consensus and generating interest through Election Day. The leader of Measure J’s opposition even called the movement a “great grassroots campaign,”[77] which succeeded in bringing out an extremely high voter turnout for an the off-year election (58.9%). The initiative found support from voters of all economic backgrounds, and enjoyed its strongest support from Latinos (with over 73% of Latino voters supporting the measure).[78] After the results were tallied, San Benito Rising was proud and optimistic for the future: “I think it means that people actually have more power than the biggest corporations that when you get a community involved in something ­– that has tremendous force. I think that the millions of dollars spent by the industry was really a sign of their fear more than anything else.”[79]

1. CONCLUSION

Because of the strength of its initiative process, California is a unique state that enables environmental interests to prevail at the local level. While it may often seem that one small county alone is powerless to control its destiny, inclusive voter initiatives can help tip the scale back in favor of community-based decision-making. San Benito County became the first county to ban fracking in California, and presents at least anecdotal guidance for communities who desire a fracking-free future. While the economic interests of a particular region may provide the best guide to ultimate success,[80] because of Measure J, the oil and gas industry no doubt will approach the voter initiative process with greater caution in the future. San Benito County’s Measure J experience should make communities hopeful but realistic about the possibility of using direct democracy and grassroots organizing in what may otherwise be a David and Goliath struggle to safeguard community environmental interests.

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[1] Elizabeth Ridlington & John Rumpler, Fracking by the Numbers 8 (Envir. Am., Oct. 2013), http://www.environmentamerica.org/sites/environment/files/reports/EA_FrackingNumbers_scrn.pdf.

[2] Michael Murza & Richard M. Frank, Senate Bill 4: A Past and Future Look at Regulating Hydraulic Fracturing in California, 4 (U.C. Davis, June 2014),

https://law.ucdavis.edu/centers/environmental/files/CELPC-SB4-report.pdf.

[3] Emily C. Powers, Fracking and Federalism: Support for An Adaptive Approach that Avoids the Tragedy of the Regulatory Commons, 19 J.L. & Pol’y 913, 919 (2010-2011).

[4] Murza & Frank, supra note 2, at 9 (stating that the amount used is estimated between 2 to 5 million gallons of water per well stimulation);

[5] Id. at 8.

[6] Powers, supra note 3.

[7] Murza & Frank, supra note 2, at 9.

[8] Id.

[9] Id.

[10] Id. at 10.

[11] Id. at 4.

[12] Protect San Benito, http://www.protectsanbenito.org/uploads/2/5/9/2/25924404/cyclic_steam_fact_sheet_.pdf (last visited June 27, 2015).

[13] Mfon Etukeren, Hydrofracking and Environmental Justice: A Proposal to Lower the Threshold for Evidence of Discriminatory Impact in Title VI Complaints, 4 Seattle J. Envtl. L. 51, 53 (2014).

[14] See Philip Weinberg & Kevin Reilly, Understanding Environmental Law, section 1.04 (Lexis Nexis, 2007) (noting that the Clean Air Act explicitly preempts state law with regards to emission control system for new cars and for the labeling of pesticides).

[15] Coral Davenport, New Federal Rules Set for Fracking, N.Y. Times (March 20, 2015), http://www.nytimes.com/2015/03/21/us/politics/obama-administration-unveils-federal-fracking-regulations.html?_r=0.

[16] Powers, supra note 3, at 913-14.

[17] Id. at 939.

[18] Id.

[19] Dr. Saby Ghoshray, Charting the Future Trajectory for Fracking Regulation: From Environmental Democracy to Cooperative Federalism, 38 T. Marshall L.Rev. 199, 204 (2013).

[20] Lawrence G. Cetrulo, Toxic Torts Litigation Guide, § 44:10 (West 2014) (noting that the rules don’t cover oil wells or set limits on methane release).

[21] Davenport, supra note 15.

[22] Murza & Frank, supra note 2.

[23] Michael N. Mills & Shannon L. Morrissey, California’s Efforts to Regulate Hydraulic Fracking Stimulates Litigation Flurry, ABA: Energy & Nat. Res. Comm., 9 (March 2015), http://www.americanbar.org/content/dam/aba/publications/nr_newsletters/enrl/201503_enrl.authcheckdam.pdf.

[24] Id.

[25] The Times Editorial Board, A Fracking Bill Gone Bad, L.A. Times (Sept. 12, 2013), http://www.latimes.com/opinion/editorials/la-ed-fracking-california-sb4-20130912-story.html#ixzz2ncadpe8H.

[26] Hollin Kretzmann & Kassie Siegel, Local Governments and the Power to Ban Fracking and Other Forms of Unconventional Oil and Gas Activity in California, Ctr. Bio. Diversity (Jan. 31, 2014), http://www.cafrackfacts.org/wp-content/uploads/2013/11/Local-Governments-and-the-Power-to-Ban-Fracking-January-201412.pdf. See also Cal. Pub. Res. Code § 3690 (an existing law predating SB 4 that explicitly states that state-wide oil and gas regulations “shall not be deemed a preemption by the state of any existing right of cities and counties to enact and enforce laws and regulations regulating the conduct and location of oil production activities…”); Murza & Frank, supra note 2, at 35 (stating that “. . . author Senator Pavley and the legislation’s supporters have made clear that SB 4 should not be considered the definitive and final statement governing fracking in California. To the contrary, SB 4 permits a continuing role for California local governments that wish to enact more stringent fracking regulations or bans than the statewide provisions mandated by SB 4”).

[27] David R. Baker, To Fight Fracking Bans, Oil Firms Heavily Outspend Environmentalists, S.F. Gate (Nov. 2, 2014, 7:03 AM) (discussing that Santa Cruz County in 2013 and the Los Angeles City Council in 2014 both adopted a moratorium on fracking in response to statewide inaction), http://www.sfgate.com/politics/article/To-fight-fracking-bans-oil-firms-heavily-5864369.php#photo-7082245.

[28] See e.g., Colo. Oil and Gas Ass’n v. Longmont, 20th Jud. Dist., 2013-cv-63, order 7/24/14 (the decision is being appealed and an appellate ruling is expected later this year; SWEPI, LP v. Mora County et al., Case No. 1:14-cv-00035-JB-SCY, filed Jan. 19, 2015.

[29] Kretzmann & Siegel, supra note 27.

[30] Id. (quoting Cal. Const. art. XI, sec. 5).

[31] Cal. Pub. Res. Code § 3690 (West 2015).

[32] See Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, 103 Cal. Rptr. 2d 447, 462 (Cal. App. Ct. 2001) (stating that the enactment of a city ordinance prohibiting exploration for and production of oil, unless arbitrary, is a valid exercise of the municipal police power).

[33] Tracy M. Gordon, The Local Initiative in California, Pub. Pol’y Inst. Cal 4, 8 (2004), http://www.ppic.org/content/pubs/report/R_904TGR.pdf (observing in Note 3 that the exercise of initiative power might have been illegal under the city charters because the state didn’t authorize explicitly permit charters to adopt the initiative and referendum until 1902).

[34] Cal. Const. art. 4, § 1 (“[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”).

[35] Gordon, supra note 34, at 14.

[36] Id. at 9-11.

[37] Id.

[38] Cal. Elec. Code §§ 9100-9126; 9200-9226 (2015).

[39] Gordon, supra note 34, at 11.

[40] Id. at 12.

[41] Using Municipal Zoning to Limit or Ban Fracking in California Communities, Earthjustice: Teleconference, http://earthjustice.org/features/using-municipal-zoning-to-limit-or-ban-fracking-in-california-communities (last visited June 27, 2015).

[42] Gordon, supra note 34, at iii.

[43] Nancy C. Carre, Environmental Justice and Hydraulic Fracturing: The Ascendancy of Grassroots Populism in Policy Determination, 4 J. Soc. Change 1, 6 (2012).

[44] Louis Sahagun, U.S. officials cut estimate of recoverable Monterey Shale oil by 96%, L.A. Times (May 20, 2014 9:00 PM), http://www.latimes.com/business/la-fi-oil-20140521-story.html.

[45] Id.

[46] Kate Woods,“Protect Our Water” Initiative Qualifies for November Ballot, Benito Link, (May 1, 2014, 2:13 PM), http://benitolink.com/%E2%80%9Cprotect-our-water%E2%80%9D-initiative-qualifies-november-ballot.

[47] Julie Morris, Oil Exploration to Proceed in South County, San Benito Link (June 5, 2013, 10:32 AM), http://benitolink.com/oil-exploration-proceed-south-county.

[48] Telephone Interview with Andrew Hsia-Coron, San Benito Rising (May 4, 2015).

[49] Deborah Luhrman, San Benito Rising Files Anti-Fracking Initiative, Edible Monterey Bay (May 17, 2014), http://ediblemontereybay.com/blog/san-benito-rising-files-anti-fracking-initiative.

[50] Jason Hoppin, Fracking Stirs Debate in San Benito County, Santa Cruz Sentinel News (April 30, 2014, 12:01 AM), http://www.santacruzsentinel.com/general-news/20140430/fracking-stirs-debate-in-san-benito-county.

[51] Hsia-Coron, supra note 49.

[52] San Benito County Code § 25.29.161.

[53] San Benito County, Proposed Measure J (2014), http://www.foodandwaterwatch.org/sites/default/files/frack_actions_sanbenitocountyca.pdf.

[54] Id.

[55] Id.

[56] Id. at Policy 41.

[57] Id. at Section 5.

[58] Id. at Section 8.

[59] Citadel Drops Measure J Lawsuit Against County, San Benito Link (April 6, 2015, 8:21 PM) (describing post-passage litigation effort), http://benitolink.com/citadel-drops-measure-j-lawsuit-against-county.

[60] Hsia-Coron, supra note 49.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Kate Woods, Luiz Valdez Speaks on the Issue of Fracking, San Benito Link (Oct. 2014), http://benitolink.com/multimedia/luis-valdez-speaks-issue-fracking.

[67] Id.

[68] Hsia-Coron, supra note 49.

[69] Id.

[70] Hsia-Coron, supra note 49, to see full list of endorsements, visit http://www.protectsanbenito.org/endorsements.html.

[71] Hsia-Coron, supra note 49.

[72] Lauren Sommer, Anti-Fracking Activists in California Take Fight to County Ballots, KQED: Science (October 10, 2014), http://ww2.kqed.org/science/2014/10/10/anti-fracking-activists-in-california-take-fight-to-county-ballots.

[73] Hsia-Coron, supra note 49.

[74] Id.

[75] Baker, supra note 28.

[76] Id.

[77] Kollin Kosmicki, Measure J Backers Reflect on Historic Victory, Hopes for “Movement,” San Bentito County Today (Nov. 5, 2014, 12:22 AM), http://www.sanbenitocountytoday.com/news/local_politics/measure-j-backers-reflect-on-historic-victory-hopes-for-movement/article_51cc6342-64c4-11e4-aa39-001a4bcf6878.html.

[78] Hsia-Coron, supra note 49.

[79] Id.

[80] At the same 2014 election, Santa Barbara County also voted on an anti-fracking measure (Measure P), also drafted by lawyers from SMW, and put forward by the Santa Barbara County Water Guardians. Despite the close similarities between the measures, its liberal voting history, and the fact that it was the site of an infamous 1969 oil spill in the Pacific Ocean, Measure P failed in Santa Barbara. Though the politics surrounding Measure P were complex, a few explanations can be found: 1) Santa Barbara is a larger county by population and has a larger oil industry footprint than San Benito, meaning that the general feelings towards the oil and gas industry were not as consistently negative; 2) Misconceptions about the mechanics of Measure P fed confusion about its applicability and effects, eroding support; and 3) The coalition formed in Santa Barbara was less successful at finding allies in other sectors of the economy and at convincing working class voters that their economic interests were served by Measure P. See generally, Darcel Elliot, The Healthy Air and Water Initiative to Ban Fracking, Acidizing and Steam Injection will be “Measure P,” Santa Barbara Indep. (Jun. 26, 2014), http://www.independent.com/releases/2014/jun/26/healthy-air-and-water-initiative-ban-fracking-acid; Mike Mills, Two County Fracking Prohibitions Succeed While One Fails: What the Voting Results in Santa Barbara, San Benito, and Mendocino Counties Mean for the Oil & Gas Industry in California, Stoel Rives, LLP: Envir. L. Blog (Nov. 6, 2014), http://www.californiaenvironmentallawblog.com/oil-and-gas/two-county-fracking-prohibitions-succeed-while-one-fails-what-the-voting-results-in-santa-barbara-san-benito-and-mendocino-counties-mean-for-the-oil-gas-industry-in-california/; Keith Carls, Measure P Oil Ban Soundly Defeated (Nov. 5, 2014, 10:35 AM), http://www.keyt.com/news/measure-p-going-down-to-defeat/29548048. See also Sommer, supra note 73.