2023 TOP 10 BLOG

 

VJEL Staff Editor: Scott Berkley

 

Faculty Member: Patrick Parenteau

 

Memphremagog’s Forever Residents: PFAS Pollutants in Vermont’s Favorite Lake

 

Vermont’s lakes come under threat from all sides: erosion, agricultural pollution, drought, and encroaching development all threaten the welfare of the state’s waters. The state has allocated hundreds of millions of dollars in the past decade to clean up and remediate polluted water bodies, large and small alike, and remediate the pollutants at their upland sources. Most pollutants are transitory, however: they pass through the riverine system seasonally or during flood events. With the specter of PFAS and PFOA (per- and poly-fluoroalkyl chemicals) rising nationwide, Vermont is not immune. These chemicals, which have primarily been used in non-stick and fire-retardant coatings for consumer products and building materials, are known as “forever chemicals” because they retain their composition in environmental settings indefinitely. Nowhere is the conflict over these “forever chemicals” more pronounced than in Lake Memphremagog on Vermont’s northern border.

Vermonters are justly proud of their local water bodies, and few of the state’s water resources garner quite as much enthusiasm as Lake Memphremagog. The lake is situated on the state’s northern border between the cities of Newport, VT and Stanstead, Quebec. Boaters and fishing enthusiasts come to the lake in droves to enjoy its 41 square miles of deep, cold water and largely undeveloped coastline. “Magog,” as many call it, is the outflow point for the four majors rivers of Orleans County, a 700 square-mile watershed. Though three-quarters of the water in the lake comes from the Orleans watershed on the American side of the border, three-quarters of the lake’s surface falls on the Quebec side of the border. The lake drains into the Magog River, the primary water source for most of southern Quebec and its approximately 200,000 residents.

Orleans County, along with Essex and Caledonia, make up Vermont’s Northeast Kingdom, long known as the state’s least economically developed and most rural region. Orleans and its neighbors often rank highest in unemployment and fall lowest on the population growth and local development charts. The county is also home to Vermont’s last remaining landfill: an inconvenient waste-management truth that has not been lost on many local advocates for the continued health of the down-stream Lake Memphremagog.

The 130-acre landfill parcel, owned by the waste-management behemoth Casella, sits just upstream from the city of Newport in the town of Coventry. As the only landfill in Vermont still taking in waste, the Coventry facility has an uneasy place in a state that prides itself on environmental purity, yet relies heavily on inter-state waste management system that farms out garbage from town dumps to other landfills outside of Vermont. When Casella filed an application with the state to expand the landfill more than fifty acres to its current size, five years ago, local Orleans County residents objected. Residents raised the alarm that the significant increase in dump size would be an unsightly spot, visible from miles around, and would give off a distinct odor, despite the efforts to sanitize and de-odorize the dump site. Residents would also see an increase in traffic to the Casella site as trucks offloaded waste from around Vermont and beyond.

Most concerning was the issue of contaminated landfill effluent, a problem noted by members of a local coalition billing itself as DUMP (Don’t Undermine Memphremagog’s Purity). In 2021, water tests in Quebec determined that small traces of PFAS and PFOA chemicals had begun to infiltrate the Memphremagog water source for the southern part of the province. Although the amount of the chemicals discovered would not have raised alarm bells on either side of the border, scientific data suggests that the timeline for chemicals to pass downstream from a pollutant site to a water source could be lengthy, and more contaminants may be on their way into the lake.

Though the quantity of PFAS found by Quebecois regulators was well below the standards set by the provincial government, the finding raises the question of where the chemicals originated. Other industrial sites around the lake could have spawned the contaminants, according to researchers studying the issue. The Casella dump, which includes older, unlined storage areas in addition to new, hermetically-sealed vaults for disposal, is a likely and logical culprit. EPA findings on PFAS contamination suggest that all major waste disposal sites could be polluting their local water sources, and that further testing is needed to determine exact sources.

PFAS and PFOA may be the new “forever chemicals” that Vermont regulators are learning to manage and mitigate. But Orleans County residents have dealt with prior environmental-justice issues. In 2008, researchers at the state health department announced that residents of Newport and surrounding towns were at elevated risks of asbestos contamination following the improper mitigation of an up-valley asbestos mine. Remediation of the mine is still outstanding. Asbestos, with its host of health effects for those exposed, may have been the 20th century’s major unknown contaminant; PFAS and PFOA may prove to be one of the 21st century’s major environmental contaminants.

Coventry is also home to one of Vermont’s four major wastewater management facilities (WWTFs). One function of the WWTF is to process wastewater leaching from landfill facilities such as the active Casella site in Coventry and the now-closed landfill in Randolph (visible just east of I-89 near mile 25). Comprehensive toxicity testing at the Coventry WWTF has determined that the leachate processing at the facility still releases liquids that contain up to two hundred times higher than the EPA’s recommended maximum for healthy water sources.

The only other WWTF in Vermont that accepts leachate from closed landfills is in Montpelier, the state’s capital and a community that is well versed in community efforts to challenge environmental efforts. After the state released findings of PFAS contamination in the Winooski River flowing from Montpelier down to Burlington and Lake Champlain, community members and the anti-toxicity Community Action Works group banded together to lobby the city council to stop accepting leachate-based processing contracts at the WWTF. A further legal challenge to pollutant-creating practices at the Montpelier WWTF would likely entail a series of claims under the Clean Water Act.

Citizen groups in other parts of Vermont have also begun mobilizing to challenge the established wisdom about the long-term health implications of living with contaminated water sources. In Chittenden County, a citizen’s group affiliated with the families of National Guard members stationed on the base in South Burlington has been active in testing for PFAS and PFOA in the lower Winooski River. The Burlington/Winooski urban area has a strong history of community involvement with environmental justice causes at the intersection of the military/civilian population, most recently in the fight against noise pollution resulting from F-35 fighter jets stationed at the base. Suits to block the F-35 stationing were successful in requiring the military to obtain special land-use and NEPA permitting, legal tactics that may come in handy in the fight to compel the state or federal government to remediate the Winooski as a water source.

Meanwhile, in Bennington, legal challenges to corporate PFOA pollution have recently found success. In 2019, county residents and state litigators reached a settlement that compelled a chemical-production company to provide clean drinking water to households whose well water was contaminated with a high levels of PFOA. In 2018, university researchers discovered PFOA chemicals leaching from the Chem Fab fiberglass-fabrics factory in North Bennington and entering an aquifer that fed into private wells at over 400 homes. Contamination stemming from plants and factories that produce Teflon-coated goods is a common issue in the national PFAS/PFOA dialogue. But the scope and efficacy of the remediation in Bennington is a success story, one which the residents of the Memphremagog basin could use for guidance.

The legal implications of the current Memphremagog contaminants could be multiple. Under recently-announced EPA guidance for PFAS and PFOA remediation, any party found responsible for contributing to contamination could be held responsible under the CERCLA guidelines. Depending on the scope of perfluoroalkyl contamination, the Coventry dump could qualify for future site designation under the Superfund. If the Casella-run waste management site were implicated in a federal CERCLA designation, the company could be held liable as a potentially responsible party. In a hypothetical future in which the Coventry dump were designated a Superfund site, the Memphremagog-area residents may have a legal culprit to hold to account.

Even without a CERCLA designation, however, DUMP and other community groups have other avenues to use to address lake pollution. The conversation in Montpelier between Community Action Works and the city council on issues surrounding the wastewater treatment facility demonstrates one way for community members to work with local legislatures on PFAS-related remediation. Memphremagog advocates could follow in a similar path without the need to litigate against Casella, under the Clean Water Act or otherwise, to lower the levels of PFAS and PFOA entering the watershed. Present opposition to the Casella dump in Coventry have centered on concerns around the specific site. As news spreads of the potential impacts of toxic leachate leaving the site, public opposition in the Memphremagog watershed at large, both in the U.S. and in Canada, may increase.

The Bennington Chem Fab settlement also points a way forward for Memphremagog advocacy. If research can tie the Memphremagog PFAS/PFOA contaminants to specific sources on the Vermont side of the border, the polluters could be held liable to remediate and provide the funding to sequester the “forever chemicals” currently troubling the lake’s deep waters. Chemical remediation, an expensive proposition, would thus proceed as both an item of state regulatory importance and a corporate-funded endeavor.

There is no one specific avenue to dealing with Memphremagog’s pollution problem. Continued community advocacy, opposition to dump expansion in Coventry, and further scientific research into the causes of lake pollution are all pieces of a multi-decade puzzle. Critically, as legal means of holding polluters to account become more viable, litigation against responsible parties must move forward. Small victories may happen in the courts, in the lab, at city-council meetings, or through state regulation. Those who love and depend on Lake Memphremagog hope that it will someday be reclaimed from “forever chemicals” for its seasonal and year-round residents to enjoy.

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Nicholas Pellegrini

 

Faculty Member: Mark James

 

The Natural Gas Race: Will Climate Assessments or Industry Concerns Dominate the Reform to FERC’s Pipeline Certification Process?

 

The claim that natural gas is the bridge to a decarbonized world has created a push for additional interstate pipelines and reform to the natural gas permitting process. While natural gas advocates push for more pipelines and a quicker permitting process, the 6th Assessment by the Intergovernmental Panel on Climate Change (IPCC) warns that the world must be fully decarbonized by 2050 to avoid the worst effects of climate change. To this point, the IPCC concludes that the continued installation of fossil fuel infrastructure will only lock in future greenhouse gas (GHG) emissions that the world cannot afford. Both the federal government and many states have acknowledged the need to reduce emissions by setting net-zero GHG emissions targets. The push to build additional pipelines and reform the natural gas permitting process works against the emissions targets that the U.S. and many states are fixed to achieve. However, the outcome of these competing interests lies in the hands of one independent regulatory agency—the Federal Energy Regulatory Commission (FERC).

 

Under the Natural Gas Act (NGA), enacted in 1938, FERC regulates the transportation and sale of natural gas in interstate commerce. Section 7 of the NGA authorizes FERC to review applications for the construction and operation of interstate natural gas pipelines. Thus, before any facilities can be constructed to provide service and prior to a new service being initiated, interstate pipelines must get approval from FERC. FERC’s approval comes in the form of a certificate of public convenience and necessity (CPCN). A CPCN has historically been given if the applicant could proceed without relying on its existing customers to subsidize the proposed construction and operation. An applicant ensures that their project will not be subsidized by existing customers by showing a market need for the projects. Once a market need is shown, then FERC determines if any adverse impacts will arise because of the projects; the adverse impacts are then balanced with the public benefits of the project. Adverse impacts upon the environment are assessed under the National Environmental Policy Act (NEPA). This review process has been in place since 1999 and even though it has remained intact for so long, it has received a great deal of criticism by the D.C. Circuit for its reliance on precedent agreements to establish market need and lack of consideration given to potential adverse impacts, especially those upon the climate and environmental justice communities.

 

In Sierra Club v. FERC, the D.C. Circuit found FERC’s assessment of the environmental impacts of a proposed pipeline project, expected to carry over 1 billion cubic feet of natural gas per day, to be inadequate. The court said that the agency’s environmental impact statement (EIS) did not contain enough information on the GHG emissions that will result from burning the gas that the pipelines will carry. Under NEPA, an agency must consider the indirect environmental effects of the project that are “reasonably foreseeable” in addition to the project’s direct effects.

 

The primary purpose of the project was to transport gas, which would subsequently be burned. FERC acknowledged that burning natural gas releases emissions that can contribute to climate change but did not even attempt to quantify the emissions the project would produce. FERC cannot have informed decision-making process or informed public comment on a project when the amount of GHG emissions it will produce is not quantified. The court accordingly decided that FERC must either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.

 

Two year later, in Birckhead v. FERC, the D.C. Circuit criticized FERC’s review of GHG emissions because of a record-development issue. Although the court could not decide upon the issue because it was not brought up as a claim, the D.C. Circuit was suspect of FERC’s “less-than-dogged efforts” to develop the record it would need to determine that downstream GHG emissions are indeed a reasonably foreseeable indirect effect of the proposed project. Both cases express concern over FERC’s reluctance to include GHG emissions in its review process. Yet, the D.C. Circuit’s criticism goes beyond the sole issue of emissions.

 

In Vecinos para el Bienestar de la Comunidad Costera v. FERC, the D.C. Circuit found FERC’s analyses of a proposed project’s impacts on climate change and impacts on environmental justice (EJ) communities to be deficient. The D.C. Circuit pointed out that FERC had not adequately assessed the impacts of the project’s GHG emissions because it neglected to respond to arguments about the methodology used to determine how the project’s emissions contribute to climate change. Furthermore, FERC had conducted its EJ analysis only on communities in census blocks within 2 miles of the project sites, but the EIS stated elsewhere that the air quality impacts could occur within 31 miles of the project. Beyond the geographical scope of the EJ analysis, FERC had found that every community in the assessed census blocks were minority or low-income, yet ultimately concluded that the project did not disproportionately impact residents who identify as a minority or are low-income. These deficiencies led the D.C. Circuit to order FERC to revisit the CPCN that these analyses had supported.

 

Lastly, in EDF v. FERC, the D.C. Circuit found that FERC had failed to balance the potential adverse impacts of a proposed project with its public benefits. FERC had issued a CPCN to Spire STL Pipeline LLC (Spire STL) to construct a new natural gas pipeline in the St. Louis area. However, all parties—including the Missouri Public Service Commission—agreed that the pipeline was not being constructed to serve new demand. Market need for the pipeline was proven with one precedent agreement for 87.5 % of the pipeline’s projected capacity made between Spire STL Pipeline LLC and Spire Missouri Inc. (corporate affiliates). Moreover, no concrete evidence supported any of the public benefits Spire STL claimed would arise from constructing this new pipeline. Despite the evidence of self-dealing, FERC said that it would not second guess the business decisions of Spire STL and allowed the construction of the pipeline to proceed. The agency’s actions led the D.C. Circuit to vacate Spire STL’s CPCN because it refused to incentivize FERC to allow a project to be built and then comprehensively reviewed later. The adequacy of FERC’s certification process has endured many legal losses over the past years, which has forced FERC to adapt.

 

In February of 2022, the Federal Energy Regulatory Commission (FERC) issued two policy statements to provide further guidance on the agency’s natural gas project certification process. One of the policy statements adds to and revises the factors FERC will consider when it grants a CPCN to a proposed interstate natural gas project. The other statement establishes how FERC will address GHG emissions under the NGA and NEPA for proposed pipeline and liquified natural gas (LNG) projects.

 

However, only weeks later, concerns over the uncertainty the updates could instill into the certification process pushed the agency to declare the two policy statements as “drafts.” The two draft policy statements were left open for public comment until April 25, 2022, and reply comments were later due on May 25, 2022. As the year comes to a close, FERC has still not released any word about the future of the two statements. To add to the uncertainty, Chairman Richard Glick’s imminent departure from FERC puts FERC’s commissioners in deadlock and places the fate of the two draft statements largely in the hands of Glick’s successor.

 

What does this mean for the future of the interstate pipeline certification process? Well, the D.C. Circuit has made it abundantly clear that the current certification process is outdated and dismissive when it comes to climate and EJ concerns. FERC has a legal liability gap that it needs to fill. Therefore, if the policies updates from February are not implemented, different policies of a similar likeness will eventually emerge. However, time is crucial in the fight against climate change. The UN’s 2022 Emissions Gap Report says that the world is woefully behind on meeting the goals set out in the Paris Agreement, and finds that GHG emissions need to be reduced by unprecedented levels over the next eight years to meet the goals of the Paris Agreement. All new sources of emissions pose as threats to the Paris Agreement, the federal government’s goals, and the net-zero carbon emissions targets that many states are fighting to achieve. These efforts can no longer be disregarded. The agency needs to address climate change and acknowledge net-zero carbon emissions targets in its pipeline certification process now. The pressure to expand the nation’s pipeline system and quicken the natural gas permitting process will probably grow due to the projected growth of the production and consumption of natural gas. Thus, FERC needs to act before the debate intensifies. Although the direction of FERC’s use of climate change and carbon emissions in its certification process is uncertain, it is only a matter of time before the agency—or Congress itself—makes a change. Only time will tell if the change will be for the better.

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Nick Bondurant

 

Faculty Member: Janet Milne

 

The Issue with Climate Based Tax Incentives

 

President Biden signed the Inflation Reduction Act (IRA) into law on August 16, 2022. This law provided a slurry of tax incentives to fight against climate change. This bill enacted unprecedented deficit reduction while reducing carbon emissions. While the benefits of this historic piece of legislation are undeniable, there are questions of the need and workability of the tax incentives.

 

The IRA shook the foundation of what has been done in the United States and how tax incentives will continue to develop in the future. The history of tax incentives in the United States are unequivocally different than the incentives provided by the IRA. This historic change has also sparked the question of whether the tax incentives are worth it and what sectors of the economy will be affected. In short, the IRA is expected to reduce inflation and carbon emissions through these incentives.

 

The backdrop for the IRA is important for setting the stage of the country’s current situation. Tax credits are a dollar-for-dollar reduction for the tax that one owes. Historically speaking, the Internal Revenue Service (IRS) adopted a punishment approach. Punishments shaped the financial sphere, not incentives. The IRA enacted more tax incentives than any other piece of legislation before it. This stemmed from lessons learned when the Build Back Better Act (BBBA) enraged everyday Americans by providing tax breaks to wealthy Americans. To gain bi-partisan support, Biden had to hit multiple targets with one arrow. This arrow transformed into incentives when the IRA financially encouraged the fight against climate change while keeping classist tendencies in mind. No family making less than $400,000 is affected by these changes to the tax code. The lessons learned from the BBBA are what jettisoned the IRA to being signed into law.

 

These climate-friendly tax incentives come in various forms. Most of these forms effect the energy sector in one form or another. Specifically, the IRA targets transportation, energy, and industry with these tax incentives. All these incentives promote the reduction of carbon emissions.

 

The tax incentives affecting the transportation sector vary widely. The first set of incentives focus on production of cleaner sources of fuels outside of the fossil fuel industry. These includes renewable energy, hydrogen, and cleaner aviation fuels. In addition to these fuel incentives, consumers are also encouraged to purchase low to zero emission vehicles. This incentive includes electric and fuel cell cars. Importantly, commercial cars are included in this set of incentives. By covering clean vehicles and fuel sources, consumers and members of industry are encouraged to partake in carbon free sources of transportation.

 

Additionally, there are numerous tax incentives provided for the energy sector that support the fight against climate change. Some enable clean energy while enabling homeowners and businesses to take part in these programs. Firstly, existing tax incentives are prolonged through 2024. These tax credits exist for renewable energy production and investment. These tax credits turn into a technology-neutral credit in 2024. Next, carbon sequestration is incentivized through its existing credit and is actually enhanced by incentivizing reserving land for geologic storage and direct air capture. Next, incentives are given for nuclear energy facilities that still provide electricity production. These incentives last until 2032. Additionally, homeowners and businesses are incentivized to take part in making their structures more energy efficient. These incentives apply to new construction, existing structures, and energy efficient places of business. Lastly, homeowners and businesses are encouraged to install battery storage. All of these actions will accumulate to huge steps in the fight against climate change.

 

Industry is the last sector that gets to take advantage of these tax incentives. These incentives include “development of domestic supply chains for critical energy technologies while also driving investments in solutions such as carbon capture, transport, utilization and storage systems consistent with net-zero emissions goals.” Another section of incentives also include manufacturing the materials and structures needed to support and construct renewable energy infrastructure. These incentives will hopefully lead to the manufacturing sector becoming and supporting the transition to a carbon free country.

 

These are the tax incentives that the IRA provides or reinvigorates, but some are concerned about whether the incentives burden taxpayers too much and if they are even worth the trouble. Plainly, some worry that the parties taking advantage of the tax incentives would have already partaken in that climate-friendly activity without the incentive. Additionally, critics worry the cost of these tax incentives poses a great burden on taxpayers.

 

The answer to the first issue, would parties have taken the climate-friendly action without the incentive, is not a definite yes or no. Of course, some parties would have already taken part in these activities without the tax incentive. Critics should note that some of these parties are mostly economically influenced. When it comes to the larger industries, they would not take part in these activities without an economic incentive to decarbonize their sector. So, there certainly are some benefactors that did not need the incentive to take part in these green initiatives. Even with the individuals who would continue with these activities, why shouldn’t they be financially awarded with their climate-friendly behavior? This positive reinforcement could lead the United States towards a cleaner future.

 

Lastly, critics worry about the cost to taxpayers with these incentives. Overall, the IRA is projected to cost $433 billion and will raise $739 billion. Ultimately, these incentives will reduce carbon emissions in the United States by 40% by 2030. Without the IRA, carbon emissions would only fall by 30% by 2030. The tax incentives are well worth the lost raise in revenue for the government.

 

Overall, the Inflation Reduction Act provided an important carrot in the form of tax incentives to engage various sectors to fight against climate change. Transportation, energy, and manufacturing sectors are engaged on both the individual and sector wide level. Without these tax incentives, the United States could continue the spiral down to a bleak future. Policies like this are of vital importance in the fight against climate change for a capitalist focused country.