Category: Ecoperspectives

Summary: Allen Smith, a rising 3L at Vermont Law School, spent the summer in Rhode Island working on climate change policy in both the Statehouse and the Department of Environmental Management. While not only seeing a Climate Bill signed into law, but also being an active part of the implementation process with various state agencies, Smith describes what it was like to work with state officials on a daily basis and the rewarding nature of environmental policy work.

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By Allen Smith

This past summer, through my work with the Rhode Island State Government Internship Program, I was part of an extraordinary effort that resulted in Rhode Island being the 11th state to pass comprehensive climate change legislation.  The program places students with state officials to gain relevant policy and legal experience.  I chose to intern for Representative Arthur Handy , Chair of the Rhode Island House Environmental and Natural Resources Committee, because he was passionate about environmental policy issues and was in the process of writing and sponsoring a bill addressing climate change.

Upon starting my internship, I was immediately brought into a long process that had been ongoing since 2007.  A working group at the Brown University Climate and Development Lab put in a lot of time helping Representative Handy write the bill, which was signed into law by Rhode Island Governor Lincoln Chafee July 2, 2014 and titled ” The Resilient RI Act “.  Though both the Senate and House versions ended up being signed, the effort to write the bill was first initiated by Representative Handy and other members of the House, as well as researchers in the Brown University working group, which included students, professors, state officials, and outside consultants.  The bill sets clear mitigation goals for greenhouse gas emissions reduction (10% below 1990 levels by 2020, 45% below 1990 levels by 2035, and 80% below 1990 levels by 2050) and contains measures for climate change adaptation.  One particularly rewarding part of my experience in the House was speaking with members of the general assembly about the bill, including the House Speaker.  Approaching conversations from the perspective of a student rather than a lobbyist brought many interesting responses and allowed me to connect with representatives in a unique yet significant way.  Ultimately, while some representatives were adamantly against climate change legislation, the bill passed through the House by a margin of 59-6.  For more information about the Resilient RI Act, please visit: http://www.resilientri.org/.

Additionally, I spent the second half of the summer interning for the Department of Environmental Management (DEM), where I did research on different statewide approaches to climate change in order to help the department implement the climate bill under the guidance of Executive Counsel Mary Kay.  In the wake of the climate bill’s passage, there is a great need to implement the new law effectively and hold other state agencies accountable in the process.  Conducting research into how other states were responding to the issue of climate change was incredibly informative and useful to Rhode Island and the DEM, which is ultimately tasked with much of the implementation process.  To complement my research, I also visited numerous state officials working in the Office of Energy Resources and the Office of the Treasurer.  Representative Handy and many other staff members within the DEM are particularly interested in amending the Climate Bill next session to include language on green bonding initiatives.  I looked into what states like Connecticut and New York were doing, such as creating Green Banks and Clean Energy Investment Finance mechanisms, to provide the DEM with recommendations moving forward.

While many environmental advocacy groups in Rhode Island were critical of the way the state was handling environmental policy issues—particularly with the lack of funding and support for green infrastructure and transportation projects—I knew now was not the time to be critical.  Keeping a level head and providing accurate, rational advice ended up being the best way to promote effective policy change in various state departments.  While much is still to be determined, especially with a new administration coming in when the new governor is elected in November, the state remains hopeful and optimistic that state officials are taking the issue of climate change seriously, and increasingly more businesses, especially those most vulnerable to sea level rise, are showing their support of the legislation.

For any student interested in policy work and climate change, my internship provided a rich perspective which I will bring to my future studies and career, and I highly recommend others take a similar path if they are passionate about environmental policy work.

  Allen Smith is a rising 3L at VLS and is pursuing a Certificate in Land Use Law.  He is also a Board Fellow with the Stowe Land Trust and is the 3L Senator in the Food & Agriculture Law Society (FALS).  Before working in Rhode Island, Smith  spent the previous summer interning with the Vermont Housing & Conservation Board in Montpelier, where his work centered on land conservation, including monitoring over 120 conservation easements and producing baseline documentation reports for select parcels.  Smith is interested in the interconnection between land use, agriculture, water, and energy law, as well as the role of climate change policy in each of those areas.

The post Change Policy in Rhode Island: A Personal Perspective appeared first on Vermont Journal of Environmental Law.

Summary: The Bureau of Land Management’s (BLM) highly controversial proposed rule would establish baseline environmental safeguards for the hydraulic fracturing of natural gas on federal and Indian mineral lands. Although BLM’s proposed rule is a good first step in creating a uniform federal scheme for regulating hydraulic fracturing, after about a year of sifting through public comments, BLM has yet to publish a final rule.

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By Thea Graybill

While growing up in Pennsylvania, I saw natural gas wells appear all around me on what were once open fields and forests. As soon as large trucks filled hotel parking lots, the local newspapers seemed to publish more news articles on natural gas development. Knowing that I was interested in the field of environmental law, family friends approached me with growing concern about the potential environmental consequences of hydraulic fracturing and natural gas drilling. It was difficult to look at them while explaining that hydraulic fracturing is federally unregulated and that states control the natural gas industry by regulating it in a piecemeal fashion.

Hydraulic fracturing is the controversial process in which well operators extract natural gas and petroleum from underground shale deposits. There are many potential benefits and issues associated with hydraulic fracturing of natural gas. Hydraulic fracturing is extremely controversial because it is economically advantageous for the United States’ energy industry. Yet, there are many associated inherent environmental risks associated with hydraulic fracturing, including impacts on air quality, and water quantity and quality.

Within the last few years, several federal administrative agencies have stepped forward to do their part in regulating hydraulic fracturing. In 2012, the Bureau of Land Management (BLM), a bureau within the Department of Interior, published its initial proposed rule. BLM’s decision to update its regulations comes after twenty-five years of regulating the extraction of natural gas with regulations that did not take into account hydraulic fracturing. In 2013, after receiving criticism from numerous interest groups, BLM published the second iteration of the proposed rule. BLM extended the public comment period for the revised proposed rule until August 23, 2013, which was about a year ago.

BLM’s goal is that the proposed rule will assist the federal government in establishing baseline environmental safeguards for hydraulic fracturing on federal and Indian mineral lands. There are four major components of the proposed rule: chemical disclosure; well construction standards and reporting; fracture procedures and propagation monitoring; and flowback fluid and wastewater storage. First, well operators must disclose the chemicals used during the drilling process on FracFocus.org , BLM’s online database, or directly to BLM after the operation is complete. Second, well operators must run mechanical integrity tests (MITs) before hydraulic fracturing begins and must record Cement Evaluation Logs (CELs) during the hydraulic fracturing process. Third, well operators must generate topographical maps after the operation, which plot estimations of each site where natural gas drilling will take place with the direction, length, height, and propagation of the hydraulic fracturing process. Last, well operators must submit information to BLM regarding the volume of flowback fluids the operator may use during hydraulic fracturing and the methods by which the operator will handle, store, and dispose of the flowback fluids.

As one could infer, BLM’s proposed rule is highly controversial and unpopular among various interest groups. The industry sector generally believes that the proposed rule goes too far in impeding national energy development and oversteps states’ rights. Environmentalists think that the proposed rule does not go far enough in protecting public health and the environment. As evidence of the public’s interest and the controversial nature of BLM’s proposed rule, BLM received more than 1.3 million public comments regarding the proposed rule.

For such a contentious issue, BLM’s proposed rule is a good first step in creating a uniform federal scheme for the regulation of the natural gas industry and hydraulic fracturing practices. Obviously, there is a great need for federal hydraulic fracturing regulations due to the industry’s positive impact on the United States economy and the potential negative environmental and public health hazards. BLM’s proposed rule demonstrates that it is possible for the federal government to promulgate a comprehensive, uniform regulatory hydraulic fracturing scheme.

Unfortunately, I do not have any encouraging updates for my community in Pennsylvania. Even though BLM’s proposed rule public comment deadline was about a year ago, BLM continues to review the comments. BLM has not set a final rule release date.

Thea is a third-year Juris Doctor student at Vermont Law School. Prior to law school, she worked on various environmental policy issues at the Environmental Law Institute and the National Association of Clean Water Agencies. Thea is the Senior Managing Editor on the Vermont Journal of Environmental Law . After law school, she hopes to obtain a judicial clerkship and eventually enter the field of environmental and natural resources law. In her free time, Thea enjoys cooking, watching documentaries, kayaking with her Dad, traveling, and being very vocal during Steelers games.

The post No News is Not Good News for BLM’s Proposed Rule on Hydraulic Fracking on Federal and Tribal Lands appeared first on Vermont Journal of Environmental Law.

Summary: New drone technology is offering environmental groups an innovative way to ensure compliance with environmental laws. Drones can collect images at a distance while providing environmental groups with important information about ecosystems or with incriminating evidence of individuals who violate the law. Although drone use can provide benefits to environmental advocates in furthering their causes, drone photographs raise privacy right issues for those who are photographed.

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By Cristina Banahan

Drone use for military purposes is widely debated. Countries such as the United States have used drone technology to eliminate enemies of the state in remote parts of the world. Recently, environmental groups have acquired drones, not for military, but for conservation purposes. Although using drones could help environmental groups vindicate their causes, drones also pose new questions about who should regulate their use and what can be done with the information they gather.

The United Nations Environmental Program simply defines drones as: “an aircraft with the capacity to fly semi or fully autonomously thanks to an onboard computer and sensors”.

Both federal and state authorities can regulate drone technology. The Federal Aviation Administration (FAA) generally regulates all domestic aircraft matters. Section 333 of the FAA Modernization and Reform Act of 2012 sought to regulate drone technology. The Act sets out to make private ownership of drones easier by requiring the FAA to accelerate the process of granting licenses. Furthermore, section 336 of the Act prevents the FAA from regulating model aircraft under 55 pounds or drones used for recreational purposes. The brief section addressing drones is directed primarily at ensuring safety, rather than overarching regulation of Unmanned Aircraft Systems.

Although the FAA and Congress have set out laws regulating drones, the states are passing broader drone regulations. States like Texas have severely restricted the use of images taken by privately operated drones.   House Bill No. 912 , gives standing for a civil cause of action to a person that uses a drone to capture an image of a Texas property owner while in her property or of her property. Fines under Texas law run as high as $5,000 for all images captured.  If the images are distributed, the fine can be as high as $10,000. The law enumerates instances where drones may be used to take images without consent on private property. The exceptions include use by energy companies for exploration, and use by law enforcement officers when they have a reasonable belief someone has committed a crime.

In contrast, other states such as Montana have enacted less robust drone regulation. Montana Senate Bill 196  restricts drone use by law enforcement officers. Law enforcement officers can use information collected by drones when the information was collected pursuant to the authority of a search warrant or pursuant to one of the search warrant exceptions. Otherwise, information collected by drones will be inadmissible in court.

Encumbering access to information through drone technology could potentially be found unconstitutional under the First Amendment. The U.S. Department of Justice has recognized the right to videotape police officers while carrying out their duties to ensure accountability of police. Environmental groups can argue that the use of drones would help them monitor loggers, farmers, and corporations to ensure that they are complying with industry standards and environmental laws in a way similar to how the videotaping of police officers helps keep their conduct in check.

However, the First Amendment right of environmental groups to use drone technology to their advantage is at odds with individuals’ right to privacy. Griswold v. Connecticut was the first case where a right to privacy was recognized. The Supreme Court expanded the right to privacy in later cases such as Roe v. Wade . Furthermore, in Sorrell v. IMS Health Inc. , the Court held that an individual’s right to privacy includes the right of a property owner, while on her property, to refuse to engage in conversation with unwelcome visitors. A court deciding a case involving information collected by drones could conclude that information collected by drones is tantamount to an unwelcome conversation with ‘a man in his castle.’

For all of the legal challenges and pitfalls that drones pose, they also offer many benefits to environmental groups. One way environmental groups can benefit from drone technology is by collecting evidence of misconduct. If a state does not have a statute regulating drone use, environmental groups can use images collected by drones as evidence of wrongdoing in a court of law.

Environmental groups have announced plans to use drones to monitor areas to begin holding individuals and corporations accountable. The World Wildlife Fund, with financing from Google, will implement ‘remote aerial survey systems’ to increase detection and detention of illegal poachers.

The Nature Conservancy in California has tested drones’ ability to track the Sandhill Crane population. In fact Lian Pin Koh, founding director of Conservation Drones, believes that drones ‘are a game changer that will become a standard item in the toolbox’ for environmental groups. As drone technology becomes more accessible to environmental groups, these groups will be able to better pursue their organizational goals because government inaction will no longer be a hindrance to protecting the species or ecosystem they seek to preserve.

Ultimately society will benefit from environmental groups gaining access to drone technology. Drone technology brings with it the possibility of democratizing environmental enforcement so that individuals, interest groups, counties or countries with sparse resources can monitor illegal activity at an increasingly affordable price. Access to drone technology can allow data collection for any party interested in a more efficient manner than before. Decentralizing data collection will make the job of law enforcement officers faster and more transparent because they will rely on images obtained by a machine that can provide a live stream of the violation. The low cost and increased reliability of information will lower the opportunity cost of protecting the environment that often causes environmental issues to take a back seat to other issues, such as national security and economic growth. In one fell swoop, drone technology promises better protection of the environment and government accountability for its action or inaction.

Cristina Banahan Ferrer is a third year Juris Doctor candidate at Vermont Law School. Before attending law school she was a legislative aid at the Committee on Education, Non-Profits, and Cooperatives in Puerto Rico’s House of Representatives. Ms. Banahan became a legislative aid after graduating from Fairfield University with a double major in Political Science and Modern Languages. She hopes to work on international Climate Change law and policy while enjoying cooking Latin American dishes and travelling to foreign countries.

The post Back to the Future: Environmental Drones Crash into Constitutional Protections appeared first on Vermont Journal of Environmental Law.

 Summary: The country of Haiti does not have a history of effective environmental regulation and this has continued after the devastating 2010 earthquake due to a lack of political and economic infrastructure. Deforestation, air and water pollution, and lack of sanitation systems have led to public health problems and resource scarcity. However, by internalizing the role of environmental law and grassroots efforts, there is a hope of success for Haiti’s continued reconstruction and long-term development.

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By Marie Hollister

After the catastrophic 2010 earthquake in Haiti, large parts of the small Caribbean country were devastatingly altered. Along with the physical destruction, a general breakdown of political and economic infrastructure occurred that has contributed to regulatory stalemate and poor environmental conditions. During a recent learning-immersion trip organized through the theology graduate department at the University of Notre Dame, I experienced firsthand these conditions. In Port-au-Prince, the capital, as well as in several towns along the country’s southwestern peninsula, there was a constant smell of burning coal, streets lined with garbage, and views of distant mountains stripped of their vegetation. I also saw the amazing natural beauty and resources of this country, which were overshadowed by extreme poverty. Haiti’s lack of an environmental regulatory framework before the earthquake and absence of control measures afterwards puts the country in a difficult position to move forward sustainably. However, grassroots efforts and strong public policy may be able to effectuate the role of environmental law in Haiti’s future.

After the earthquake, immediate medical assistance and food and water supplies were critical priorities. Environmental concerns took a backseat in the face of scarce economic resources. Environmental action plans suggested in the late 1990s and early 2000s, such as the Millennium Development Plan and the Interministerial Commission for the Environment, were defunct once the disaster occurred. While pre-earthquake regulations, such as land and water use and pollution controls were still not effective, Haiti still had some legal framework through the Ministry of the Environment. Haiti is also a party to several international environmental agreements, including the Kyoto Protocol, the Law of the Sea, the Inter-American Convention on the Conservation of Flora, Fauna, and Scenic Beauty, and the Rio Convention on Biological Diversity. Additionally, the 1987 Constitution of the Republic of Haiti contains six articles in Chapter II which pertain to the environment. They include forbidding practices that might “disturb the ecological balance,” making natural sites accessible to all citizens, developing local sources of energy, outlining state’s authority to punish those who violate flora and fauna protection laws, and protect against waste originating from “foreign sources.” Furthermore, in 2006 the provisional president, Boniface Alexandre, issued a Decree of Environmental Management. The goals of the decree were to monitor environmental quality for detrimental effects on human health, put in place plans to protect both farm land and designated no-use areas, and generally rehabilitate the environment. Though these appear to be vague guidelines, they do suggest that environmental protection is an inherent part of Haiti’s institutional makeup.

In these official documents there is no mention of domestic pollution or climate change. This is troubling because these issues are two of the country’s largest environmental issues, along with deforestation, soil erosion, and the lack of clean water. Climate change and the increase in average global temperatures have led to increased flooding and the spread of waterborne diseases, especially those borne by mosquitoes such as Dengue Fever, malaria, and the recent outbreak of chikungunya. Domestic pollution was an issue before the earthquake as well. In urban areas only about 30-50% of waste was collected and recycled; the rest was either burned on-site, which released pollutants into the air, or was drained away by rainwater, polluting natural waterways. Poor sanitation contributed to the spread of diseases such as cholera, typhoid, and tuberculosis. Additionally, the lack of waste management prevented the proper disposal of medical waste such as blood and bandages. Rubble from the earthquake is still a concern, as well as the presence of unregulated landfills, though some measures have been put in place, such as leachate collection for landfills and the use of recycled rubble for new construction.

Another major issue, deforestation, is the result of a surprising incentive. Unlike in many South American rainforests where large international corporations are bulldozing vegetation, farmers and villagers who need wood for fuel in their daily lives are the main reason for Haiti’s deforestation. As I learned from one of our Haitian hosts, Jean Marc, charcoal is created by letting wood burn in a covered pit for an extended period of time. The charcoal is then brought back to homes where it is used mainly for cooking. Another Haitian I spoke with in Léogâne, who is also a part-time law student, is currently a member of an organization that is working to find alternative fuel sources for people’s homes. Another grassroots effort is found in gwoupman peyizan , groups of local farmers who are using agroforestry to improve local conditions. Their method involves crop rotation, livestock grazing, the use of natural boundaries for fields, the replanting of trees, and not growing invasive species. The hope is that these practices will encourage success with their long-term goals of forest regrowth, fertile soil, an increase in food security in both urban and rural populations, and the preservation of biodiversity.

Haiti does have many natural resources that could be harnessed, including groundwater from its mountainous areas, open land for agriculture, access to seaports for trade, and a warm climate that makes it conducive to farming and solar energy systems. Unfortunately, the lack of political and economic infrastructure both before and after the earthquake has dissuaded potential outside investors. The most surprising insight from my recent trip was when several people, both Haitian and American, said that a lack of the rule of law was probably the most glaring problem facing the country. Without a legal system that promotes justice, they were convinced that Haiti could not effectively develop. Law might be able to provide guidance for the continued reconstruction of Haiti in a way that can be universally applied to the entire country, but it is also important that the Haitian people believe in the established rule of law in order for it to work. The law cannot be developed by politicians and policymakers who are not in tune with people’s everyday lives and not keenly aware of how people access resources, their agricultural practices, and their sanitary conditions. The “internal point of view,” a phrase coined by jurisprudence scholar H.L.A. Hart, describes that for a legal system to be effective, members of that society have to believe in it, and thereby internalize it. If a system of environmental regulation can be internalized in Haiti and combined with post-earthquake reconstruction efforts, it is likely that the distribution of resources and public health conditions can be improved.

Marie Hollister (JD 2015) is beginning her third year at the University of Notre Dame Law School where she is Submissions Editor for the Journal of International and Comparative Law , and a member of the Environmental Law Society. Prior to law school, she was an American Studies major at Siena College in upstate New York where she wrote her thesis on the commodification of the American environmental movement. Marie is currently interning at the Environmental Protection Bureau of the New York Office of the Attorney General and enjoys spending her free time running, biking, swimming, reading, and spending time with her friends, family, and adorable dogs. After graduating she hopes to enter the field of environmental law and policy.

The post Starting with a Messy Slate: The Role of Environmental Law in Haiti after the 2010 Earthquake appeared first on Vermont Journal of Environmental Law.

 Summary: While many of the U.S. Supreme Court’s decisions this term were controversial, the air quality cases were marked victories for the environment. One of the Supreme Court’s recent decisions, EME Homer City Generation v. EPA , upheld the Cross-State Air Pollution Rule, (CSAPR). By reinstating CSAPR, the Court sustained EPA’s efforts to improve the National Ambient Air Quality Standards (NAAQS) program and the overall efficacy of the Clean Air Act (CAA).

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By Ashley Welsch

EPA promulgated CSAPR to address the interstate nature of air pollutants in 28 states, affecting over 75% of the population. CSAPR codified a program to achieve the goals of the CAA’s Good Neighbor Provision in the NAAQS framework.  That provision’s goal is to prevent upwind states from polluting in amounts that significantly contribute to downwind states’ nonattainment with the NAAQS.  EPA focused on SO ₂ and NO _x emissions in CSAPR since they most significantly contribute to particulate matter (PM _2.5 ) and ozone.  Reducing these pollutants will reportedly prevent 13,000-34,000 premature deaths, hundreds of thousands of illnesses and hospitals visits, and 1.8 million days of missed work or school.  The $800 million spent annually on CSAPR (in addition to the investments of a previous rule, the Clean Air Interstate Rule (CAIR)) will result in $120-$280 billion in annual benefits.

CSAPR imposes emissions reductions on electric generating units because they present the most cost-effective opportunities for regulation.  EPA developed annual budgets of emissions allowances for each regulated state. The allowances were determined by considering the magnitude of a state’s contribution to upwind nonattainment, the air quality benefits of the reductions, and the cost of controlling pollution from the various sources.  EPA also developed an allowances trading program that permits banking allowances from year-to-year.  In order to expedite CSAPR’s implementation, EPA promulgated a Federal Implementation Plan (FIP) instead of calling for State Implementation Plans (SIPs).

Industry and state petitioners sued in the D.C. Circuit Court of Appeals, arguing that EPA overstepped its statutory authority when it adopted CSAPR.  The Circuit Court vacated CSAPR in its entirety.  The court held that EPA upset the CAA’s cooperative federalism by issuing a FIP without letting the states make their own SIPs.  The court also held that EPA was prohibited from considering costs because it would require uneven, over- or under-reductions by the states.  The Supreme Court granted certiorari and reversed.

From the beginning, the Court emphasized that it would be conducting a Chevron analysis to review CSAPR since EPA was interpreting a CAA provision. Thus, the Court elaborated on the Good Neighbor Provision’s text, its legislative history, its purpose, and case law that supported EPA’s rulemaking.  The Court determined that EPA rightfully complied with the statutory deadline to have any implementation plan in place within 2 years, especially since the D.C. Circuit Court had previously directed EPA to fix CAIR’s problems quickly.  Furthermore, given that the Good Neighbor Provision does not lay out a particular method for implementation, the Court held that EPA had reasonably allocated responsibility amongst upwind states for pollution in downwind states.  Since Congress had been silent, it was up to EPA to “select from reasonable options.”

The biggest flaw in the majority opinion is that it did not point out the irony of petitioners’ advocacy, in effect, for overregulation. The majority erred when it claimed that a strictly proportional allowances allotment (without cost considerations) was impermissible. If it is within EPA’s discretion to adopt a methodology to implement the Good Neighbor Provision, couldn’t a proportional allotment be reasonable? The irony is that EPA factored costs into its methodology to help petitioners avoid costly overregulation. Industry should be grateful that EPA took this route because proportional allotments could have cost more.

The dissent argues that EPA should not have been able to consider costs.  However, Whitman v. American Trucking Ass’n held that EPA cannot consider costs when setting the NAAQS themselves. In fact, it says that EPA cannot take costs into account for implementation, and CSAPR is implementation of the CAA.

The Supreme Court did leave the door open for as-applied challenges. This means that individual affected states could file suit, but they would need to prove actual injury. Nevertheless, the facial challenge to CSAPR failed. Since it was sustained, environmental and public health organizations hope that the CSAPR program can be applied throughout all 50 states.

Ashley Welsch is a JD and Master of Environmental Law and Policy ’15 candidate at Vermont Law School. She has served as an Articles Editor with the Vermont Journal of Environmental Law , Chair of the Campus Greening Committee, Environmental Legal Research Assistant to the Environmental Law Librarian, Co-Chair of Women’s Law Group, and Public Relations Officer for Phi Alpha Delta. Ashley graduated summa cum laude from the University at Buffalo in 2012 with a double major in Social Sciences Interdisciplinary and Political Science. She also served as the Climate Neutrality Coordinator for the UB Undergraduate Student Association. Ashley has interned with the Clean Air Coalition of Western New York and Amdursky, Pelky, Fennel & Wallen, P.C. in Oswego, NY. This summer, Ashley is an intern with the New York State Office of the Attorney General’s Environmental Protection Bureau in Buffalo. She will be interning with the New York State Department of Environmental Conservation’s Office of General Counsel in Albany this fall. After graduation, she would like to practice environmental law with a focus on compliance and enforcement.

The post EME Homer City v. EPA: Another Victory for Clean Air appeared first on Vermont Journal of Environmental Law.

Summary: Last week the Supreme Court handed down its second Clean Air Act case of the term, Utility Air Regulatory Group v. EPA . This plain English guide to the Supreme Court’s opinion summarizes its three holdings, split 5-4, 5-4, and 7-2. It also assesses implications for EPA, business, and industry.

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By  Christopher D. Ahlers

Assistant Professor, Vermont Law School

1. What is the holding of the case ?

The case involved a challenge to EPA’s attempt to regulate greenhouse gases in the Prevention of Significant Deterioration (PSD) program of the Clean Air Act.  Also known as “new source review,” this program requires certain new or modified stationary sources (industrial plants) to obtain a permit before construction and it requires the installation of the best available control technology (BACT).  A facility is subject to new source review if it has potential emissions of 100 or 250 tons per year of an air pollutant, depending on the source.  Such a facility must install BACT for each pollutant subject to regulation under the Clean Air Act.

Justice Scalia’s Opinion of the Court might appear confusing because only two of the other nine justices joined the opinion in full (Justices Roberts and Kennedy).  How could this be the Opinion of the Court?  To understand this, it is important to break the opinion into three distinct holdings.

First, the three justices held that the Clean Air Act did not require EPA to conclude that a facility may trigger new source review based solely on its greenhouse gas emissions, as opposed to conventional pollutants:

 

 

… there is no insuperable textual barrier to EPA’s interpreting “any air pollutant” in the permitting triggers of PSD [Prevention of Significant Deterioration] and Title V to encompass only pollutants emitted in quantities that enable them to be sensibly regulated at the statutory thresholds, and to exclude those atypical pollutants that, like greenhouse gases, are emitted in such vast quantities that their inclusion would radically trans­form those programs and render them unworkable as written.

Justices Alito and Thomas joined in this opinion: “I agree with the Court that the EPA is neither required nor permitted to take this extraordinary step.” With five justices, this is a majority of the Court.

Second, the three justices held that EPA’s interpretation that a facility may trigger new source review based solely on its greenhouse gas emissions, was not justified as an exercise of its discretion:

… it would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.

In addition, the Court held that EPA could not salvage this impermissible interpretation through the Tailoring Rule, which created new regulatory thresholds for greenhouse gases (100,000/75,000 tpy) that replaced those in the statute (100/250 tpy):

We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the Agency’s interpretation of the triggering provisions. An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.'” National Assn. of Home Builders v. Defenders of Wildlife , 551 U. S. 644, 665 (2007) (quoting Chevron , 467 U. S., at 843). It is hard to imagine a statu­tory term less ambiguous than the precise numerical thresholds at which the Act requires PSD and Title V permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the “bounds of its statutory authority.” Arlington , 569 U. S., at ___ (slip op., at 5) (emphasis deleted).

Justices Alito and Thomas joined in this opinion. Again, with five justices, this is a majority of the Court.

Third, the three justices held that EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to the PSD program review was a permissible interpretation of the statute:

Our narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by “anyway” sources.

Justices Breyer, Ginsburg, Sotomayor, and Kagan joined in this opinion:

I agree with the Court’s holding that stationary sources that are subject to the PSD program because they emit other (non-greenhouse-gas) pollutants in quantities above the statutory threshold—those facilities that the Court refers to as “anyway” sources—must meet the “best avail­able control technology” requirement of §7475(a)(4) with respect to greenhouse gas emissions.

With seven justices, this is a majority of the Court.

Therefore, there are actually three holdings in this case, split 5-4, 5-4, and 7-2.

2. What is the implication of the first holding ?

The implication of the first holding is that it avoids the “absurd result” of subjecting smaller facilities to new source review, a program that was intended only for large facilities.  This favors business and industry and hurts EPA, because it means that these facilities will not have to go through new source review.

The holding reflects a moderation of the Court’s decision in Massachusetts v. EPA (2007), in which the Court held that the term “air pollutant” includes greenhouse gases from cars and trucks under Title II of the Clean Air Act.  In the context of new source review for stationary sources under Title I, the Court says that “air pollutant” does not include greenhouse gases.  Because of the vast number of stationary sources of greenhouse gases, and the tremendous volumes of greenhouse gas emissions, a contrary view would transform the PSD program and make it unworkable as written.  The holding is limited to greenhouse gases, and does not extend to other air pollutants.

In dissenting on the Tailoring Rule, Justices Breyer, Ginsburg, Sotomayor, and Kagan disagreed with the notion that greenhouse gases cannot trigger new source review:

But as for the Court’s hold­ing that the EPA cannot interpret the language at issue here to cover facilities that emit more than 100,000 tpy of greenhouse gases by virtue of those emissions, I respect­fully dissent.

In addition, they disagreed with the majority’s creation of an implicit exemption for greenhouse gases from the definition of “air pollutant,” which is not consistent with Massachusetts v. EPA .  Instead, they proposed tying any such implicit exemption to the source triggering new source review, as opposed to the air pollutant coming from that source.

3. What is the implication of the second holding ?

The implication of the second holding is the same as that for the first holding.  The Court’s second holding is a logical extension of the first holding.  If the statute does not require such an extreme result for stationary sources, then EPA does not have the discretion to reach such an extreme result.

4. What is the implication of the third holding ?

The implication of the third holding is that stationary sources that trigger new source review through conventional pollutants must install BACT for greenhouse gases.  This favors EPA and hurts business and industry.  Ultimately, this leads to the question of what is BACT for greenhouse gases.  This is controversial because greenhouse gases cannot be controlled through baghouses, scrubbers, and other equipment like other conventional pollutants can. Rather, the control of greenhouse gases involves lowering the use of fossil fuels in the combustion process that generates energy.

The Court is attentive to this controversy.  The majority opinion calls attention to EPA guidance documents that talk about “efficiency,” which reinforce the concerns of those who say that BACT is fundamentally unsuited to greenhouse gas regulation, and that it is more about regulating energy use.   Still, there are limitations on BACT, including a requirement that it cannot be used to redesign a facility.     

In their dissenting opinion, Justices Alito and Justice Thomas argue that BACT is fundamentally incompatible with the regulation of greenhouse gases, because a facility cannot quantify the environmental benefit gained from the reduction of greenhouse gases at the source, as it is required to do under EPA guidance documents.

At the end of the day, it is likely that the solution to the problem of greenhouse gases requires flexibility by both EPA and business and industry, in finding ways to reduce the combustion of fossil fuels.

Christopher Ahlers is an Assistant Professor of Law at Vermont Law School, where he has taught Air Pollution Law & Policy.  He has a background in conducting environmental due diligence and audits for manufacturing companies, as well as environmental litigation.

The post Opinion of the Court in Utility Air Regulatory Group v. EPA Displays a Curious Alignment of Justices appeared first on Vermont Journal of Environmental Law.

Summary: President Obama recently declared the Organs Mountain-Desert Peaks as a national monument only months after the House of Representatives passed a bill that would curtail his authority to do so under the Antiquities Act. In order to appease critics of broad executive authority, President Obama must use the Antiquities Act in a manner that does more for local communities than simply place nearby public lands under increased federal regulation.

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By  Andrew W. Minikowski

On May 21, President Barack Obama designated the Organs Mountain-Desert Peaks region of New Mexico as the United States’ latest national monument. The Organs Mountain region is home to a robust diversity o f wildlife, numerous distinct plant species, and countless archaeological sites, ranging from the early indigenous period to the Twentieth Century. By declaring Organs Mountain as a national monument, President Obama has ensured that its lands will be federally protected and preserved for the benefit of wildlife, ecosystems, and the American public. Despite being met with resounding praise from conservationists and outdoor recreationists, President Obama’s declaration was also attacked by critics of overbroad Executive authority and the means by which the President made his declaration: the Antiquities Act of 1906.

The Antiquities Act allows the President to withdraw federal public lands from general use and set them aside as national monuments if doing so protects “objects of historic and scientific interest.” President Theodore Roosevelt almost immediately implemented his authority under the Act to preserve two of the United States’ most iconic national monuments: Devil’s Tower and the Grand Canyon. The Executive withdrawal power under the Antiquities Act initially attracted little criticism, especially after the Supreme Court’s 1915 decision in United States v. Midwest Oil Co. in which the President’s broad power to withdraw public lands from use was affirmed. However, with the passage of the Federal Land Policy and Management Act (FLPMA) in 1976, Congress revoked all executive withdrawal authority except that granted under the Antiquities Act. Thus, the Antiquities Act remains as the last vestige of Presidential withdrawal power over the public lands, a power that was upheld by the Supreme Court’s 1976 decision in Cappaert v. United States . Because the Antiquities Act essentially allows the President to bypass the lengthy Congressional process of creating a new national park, the Act has been a prime target for critics of broad executive authority.

This March members of the House of Representatives rallied behind Utah Congressman Rob Bishop (R) in an attempt to defang the President’s broad discretion under the Antiquities Act. The aptly named Ensuring Public Involvement in the Creation of National Monuments Act (H.R. 1459) would limit the President to designating only one national monument per state per term without the authorization of Congress. The declaration of national monuments beyond that would require the President to submit the proposed monument to Congress for approval. Furthermore, the proposed bill would reclassify withdrawals under the Antiquities Act as “major federal actions” and thereby trigger exhaustive review under the National Environmental Policy Act (NEPA). After passing the House, the Senate referred the bill to the Committee on Energy and Natural Resources where it remains pending further action.

The motivations of Representative Bishop and the other House members supporting H.R. 1459 were likely inspired by the contentious relationship between the states and the federal government regarding activity on the public lands. Because large swathes of the Western states are owned by the federal government, much Western economic activity takes place on the public lands. By declaring portions of the public lands as national monuments, the President effectively removes such lands from the multiple-use mandate of FLPMA and deprives the states of any economic benefit that was being garnered from activity—be it mining, logging, or ranching—that was occurring on those lands.

Therefore, President Obama’s decision to declare Organs Mountain and ten other sites as national monuments seems almost a retort to Congressional clamoring against the Antiquities Act. However, it would appear that in doing so President Obama is not deaf to the economic concerns of Westerners. The economic impact of national parks and monuments was a central theme in the President’s statement accompanying his declaration. The President noted that “continuing to set aside federal land for outdoor recreation will drive critical revenue for […] local communities.” President Obama’s words are not mere empty rhetoric either. The White House was quick to provide a deluge of statistics demonstrating the economic benefit of recreation on the public lands, noting that 6.1 million American jobs are in the outdoor recreation industry and that visits to the public lands were responsible for adding $50 billion to the national economy in the last fiscal year. In regard to Organs Mountain specifically, the President observed that the national monument designation could swell the local economy by as much as 70% and that public land recreation in New Mexico already contributes $170 million to the state economy annually. Thus, the President’s designation of Organs Mountain attempts to use the Antiquities Act in a way that reconciles the agendas of conservation advocates and Westerners concerned with their local economies.

Ultimately, it is unlikely that H.R. 1459 will pass the Senate or that even if it did, President Obama would sign it into law. However, the rhetoric employed by President Obama when designating Organs Mountain shows that his administration is willing to wield the Antiquities Act in a manner that attempts to do more for communities than just set aside natural wonders for future generations. By construing the withdrawal power of the Antiquities Act in a fashion that addresses the economic concerns of Americans, it is possible that President Obama can prevent Presidential authority under the Act from becoming an antiquity itself.

Andrew W. Minikowski is a third year Juris Doctor and Master of Environmental Law and Policy student at Vermont Law School. Prior to law school, he studied English and Economics at Eastern Connecticut State University. Andrew is the current Editor-in-Chief of the Vermont Journal of Environmental Law and a member of Vermont Law’s National Environmental Law Moot Court team. He hopes to enter the field of natural resource law and enjoys spending his spare moments birdwatching, botanizing, backpacking, and reading.

The post Of National Monuments and Men: Organs Mountain-Desert Peaks and President Obama’s Use of the Antiquities Act appeared first on Vermont Journal of Environmental Law.

 Summary: In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Deep in this bulwark of financial regulatory overhaul, Congress passed a provision aimed to achieve a purely social good by requiring manufacturers to disclose their supply chains for minerals believed to fund the conflict in the Democratic Republic of Congo.  This piece is the follow-up to Back on the (Supply) Chain Gang that the Vermont Journal of Environmental Law published this year.

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By  Christopher  M. F.  Smith, J.D.

On April 14, 2014, the U.S. Circuit Court of Appeals for the D.C. Circuit (D.C. Circuit) handed down an opinion that may give social and environmental activists a way to affect corporate change through the Securities and Exchange Commission’s (SEC) disclosure regime.  In National Association of Manufacturers (NAM) v. SEC , the D.C. Circuit ruled on a challenge to the SEC’s Final Rule for conflict-mineral supply-chain disclosure.  The National Association of Manufacturers, Business Round Table, and U.S. Chamber of Commerce (Industry Group) raised claims under the Administrative Procedure Act (APA), the Securities Exchange Act of 1934 (34 Act), the and First Amendment of the U.S. Constitution.  The D.C. Circuit held in favor of the SEC on all but the First Amendment Claim.

In 2010, Congress responded to the 2008 financial crisis that caused the Great Recession with the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).  An often overlooked provision of Dodd-Frank is section 1502.  Section 1502 mandates the SEC promulgate a rule for companies to disclose conflict-minerals their supply-chain.  The purpose of section 1502 is to squeeze off funding to militant oppressors of the Congolese people through the forces of U.S. capital markets.  Congress directed the SEC to enhance disclosure requirements to include supply-chain analysis for manufacturing minerals that are germane to the Democratic Republic of Congo.  These minerals serve as the revenue stream for militant guerilla oppressors   Dodd-Frank created a humanitarian based disclosure requirement to influence market demand through disclosure and transparency.

Very simply, the SEC promulgated a three-part rule.  First, the issuer must complete an inquiry in to the country of origin for the minerals Dodd-Frank enumerates. If the company has reason to believe that minerals may have originated in DRC, the issuer must complete a due diligence process to scrutinize and alter their supply-chain.  Last, the rule requires issuers to report their findings and describe the conflict disposition of their products, such as “DRC conflict free” or “not DRC conflict free” to the SEC in Form SD.  Issuers must also publish in that disposition on the   company website.  The Industry Group brought four APA claims, a 34 Act claim, and a First Amendment claim.  The D.C. Circuit District Court held for the SEC in all claims.  The D.C. Circuit heard argument on January 7, 2014.

 

NAM v. SEC : A (Very) Brief Synopsis

The first APA challenge claimed that the SEC’s decision not to exempt de minimis (minimal) users of conflict-minerals was arbitrary and capricious.  The D.C. Circuit deferred to the SEC’s reasoning that Congress did not write in a de minimis exemption, and the SEC interpreted that statutory omission as deliberate, based on the surrounding language.  Furthermore, such an exemption might diminish the impact of the rule because manufacturers often use conflict-minerals in very limited quantities.  Second, the Industry Group claimed that the threshold for completing the due diligence requirement contravened the statutory language and was arbitrary and capricious. The D.C. Circuit held that the requirement did not contravene the statute nor was it arbitrary and capricious because the statute was silent on the threshold and obligation of uncertain issuers. The SEC properly used its delegated authority to resolve ambiguities by ensuring issuers do not ignore red flags.

Third, th e Industry Group argued that the SEC went beyond the scope of its statutory authority by requiring issuers who contract to manufacture products that contain conflict-minerals comply with the rule rather than just manufactures themselves.  The D.C. Circuit held that the SEC reconciled a variation in two provisions of section 1502 by applying the rule to both.  The final APA claim concerned the phase-in period during which issuers may describe their products as “DRC conflict undeterminable” and avoid an independent, third-party audit.  The Industry Group claimed that distinguishing between large issuers and smaller reporting companies with two- and four-year phase-in periods was arbitrary and capricious because smaller reporting companies are in supply-chains of large issuers.  The D.C. Circuit adopted the SEC’s reasoning that large issuers can exert more leverage than smaller reporting companies to gather supply-chain information, thus the disparity in phase-in.

Next, the Industry group argued that the SEC did not follow the proper cost/benefit analysis, as required by the 34 Act.  The Industry Group only challenged the benefit side, rather than cost, stating that the SEC did not quantitatively determine whether the rule would fulfill Congress’s intent.  The D.C. Circuit held that Congress intended to achieve a “compelling social benefit” and  SEC could not possibly measure the positive effects of the rule, as it was a complex issue beyond the SEC’s expertise. The Court went on, bluntly stating “[e]ven if one could estimate how many lives are saved or rapes prevented as a direct result of the [] rule, doing so would be pointless because the cost of the rule – measured in dollars – would create an apples-to-bricks comparison.”  Finally, the Court stated that the SEC properly relied on Congress’s belief that transparency and closure were the means to their intended ends.

Last, the Industry Group challenged the requirement that issuers describe their products as “DRC conflict free” or not.  The D.C. Circuit held for the Industry Group, reasoning that describing products as “not DRC conflict free” indicates a moral viewpoint, essentially compelling issuers to declare blood on their hands.  The D.C. Circuit struck down the description requirement because it unconstitutionally compelled ideological commercial speech.

 

Implications for Social and Environmental Activists

Capital market activism is not new.  Most know it in the context of shareholder activists seeking social and environmental change through shareholder proposals to prescribe corporate behavior.  Section 1502 of Dodd-Frank and the SEC final rule create a purely humanitarian disclosure requirement to make social change by informing investors of issuer supply-chains for minerals financing conflict in the DRC countries.

It may be working.  Intel and HP, both issuers affected by the rule, began the Conflict-Free Smelter Program.  The program seeks transparency by smelters and refiners in their sources for conflict-minerals.  The limited number of smelting facilities makes it a key point in the supply-chain to deter conflict-mineral use.  The Intel-HP initiative may be proof that the rule will fulfill Congress’ intent.

The D.C. Circuit decision may be a foot in the door for social and environmental activists to make change through capital market disclosure.  The drafters of section 1502 sought to change corporate behavior through supply-chain transparency.  The five SEC victories in NAM v. SEC may be an encouraging sign for others who may want to use market forces to influence investor and issuer behavior.

In the comment period for the conflict-mineral rule, one letter suggested expanding supply-chain disclosure to include environmental considerations.  At the 2013 annual meeting of the ABA, former ABA President Laurel Bellows discussed addressing human trafficking through supply-chain disclosure and transparency.  After the NAM v. SEC decision, these ideas seem possible.

NAM v. SEC may be telling for social and environmental activists in several ways.  The APA rulings may inform those who seek other supply-chain disclosure rules, social or environmental.   The First Amendment ruling may be telling for food and agricultural activists who seek disclosure through labeling, such as the GMO law the Vermont State Legislature passed this year. If food producers challenge Vermont’s GMO Labeling law on First Amendment grounds, it will be interesting to see if NAM v. SEC serves as persuasive precedent.

The 34 Act claim is the most compelling part of the decision for capital market activists.  It appears that Congress’ belief that a particular addition to the SEC disclosure regime will fulfill its intent to achieve a compelling social good is benefit analysis enough to satisfy 34 Act’s analytical rulemaking requirements.  A supply-chain disclosure requirement for human trafficking seems analogous to conflict-mineral supply-chain disclosure, and may not require the SEC to quantify the benefit.  If Congress intended to achieve a compelling environmental good, perhaps such an intent combined with a belief that disclosure would achieve environmental good will satisfy the 34 Act benefit analysis.

Some foreign jurisdictions require disclosure of particular environmental metrics, such as emissions, chemicals/substances used, and waste produced.  NAM v. SEC could be an opening for this type of disclosure in the U.S.  The environment is beyond the SEC’s expertise, as were conflict-minerals.  It would be similarly difficult for the SEC to quantify the environmental impacts of environmental disclosure, as it is difficult for the SEC to determine the humanitarian impact of conflict-mineral supply-chain disclosure.  Therefore, in drafting environmental disclosure rules, the SEC may be able to rely on Congress’ intent and belief that disclosing such information would benefit the environment, rather than grasping at straws to quantify an environmental benefit.

 

Conclusion

Economist Adam Smith mused that an invisible hand of the market metaphorically promoted self-regulation by market participants.  In response to the stock market crash of 1929, Congress created an opaque hand of the market by establishing the SEC in the 34 Act.  Through regulatory requirements and anti-fraud enforcement provisions, informed investors influence corporate behavior.  It appears that Congress and the D.C. Circuit extended the power of that opaque hand to influence the market in order to achieve social, humanitarian good.

Before issuers began filing Form SD this week, supply-chain disclosure influenced corporate behavior. Two large issuers are working to divest manufacturing from the DRC conflict, as Congress intended.  Time will tell whether Congress’s political will could make further social change through the opaque hand of the SEC regulatory regime.  Perhaps achieving environmental change will be next.

 

Christopher graduated cum Laude from Vermont Law School in 2014.  Christopher is originally from Boston and graduated Magna cum Laude from Suffolk University with a Bachelor of Science in Politics, Law & the Courts and the History of Women & Gender.  Christopher focuses primarily in corporate finance law, in particular, capital formation and regulatory compliance for securities issuers.  While at Vermont Law Christopher completed the Business Law certificate, engendering a unique interest in the intersection of business and environmental issues.

The post The Opaque Hand: Making Social (and perhaps Environmental) Change through Capital Markets appeared first on Vermont Journal of Environmental Law.

Summary: This EcoPerspective discusses the EPA’s and Army Corps of Engineers’ attempt at redefining the meaning of  “waters of the United States.” Since the Supreme Court decision in Rapanos v. United States , the jurisdictional reach of those agencies over waters with a significant nexus to navigable waters has been somewhat unclear. However, the agencies’ new definition may make farmers and other interest groups unhappy, even with proposed exemptions for some agricultural practices.

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By Emily Lyons

The Clean Water Act’s (CWA) jurisdictional reach has been unclear ever since the Supreme Court’s convoluted decision in Rapanos v. United States . On April 21, 2014, the Environmental Protection Agency (EPA) and Army Corps of Engineers (USACE) published a rule in the Federal Register that redefines “waters of the United States” and gives much needed clarity to the CWA’s jurisdiction. The proposed definition attempts to clarify EPA’s jurisdiction over navigable waters, their tributaries, and other waters—including wetlands and streams—with a significant nexus to a navigable water or tributary.

Politicians, construction and agricultural industry representatives, and other critics of the rule argue that the agencies have gone too far and the rule, if finalized, would be unduly  burdensome to developers and especially to farm and ranch operations. EPA says the program will not protect any new types of waters that the CWA did not historically cover. However, the agency’s own economic analysis estimates that approximately 3% more of U.S. waters would fall under the CWA’s jurisdiction as a result of the proposed rule. The same analysis claims that the proposed definition will impact an additional 1,332 acres nationwide under CWA’s section 404.

 

Muddied Waters Following Rapanos

The CWA prohibits the discharge of pollutants or fill material into “waters of the United States” without a permit. EPA issues permits for the discharge of pollutants, while the USACE issues permits for the discharge of fill material. Individuals who discharge a pollutant or fill material without a permit from the proper agency are subject to civil and criminal penalties. Because the CWA regulates “waters of the United States,” the definition of this phrase is key to determine the statute’s jurisdictional reach.

In 1986, EPA and USACE defined “waters of the United States” to include traditional navigable waters, interstate waters, all other waters that could affect interstate commerce, tributaries, and adjacent wetlands. However, subsequent Supreme Court decisions over the years narrowed the agency’s application of this definition.

In Rapanos , the Supreme Court most recently considered the definition of “waters of the United States.” The Court determined that the USACE’s application of the definition was too broad when applied to a wetland adjacent to a tributary but without a surface water connection. Unfortunately, the Supreme Court could not come to a majority decision in the case. Five justices agreed that USACE’s interpretation was too extensive. Four justices reasoned that wetlands with continuous surface connections to adjacent waters fall under the CWA’s jurisdiction. One concurring justice—who agreed that the interpretation was too broad—wrote that whether or not adjacent wetlands were a “water of the United States” depends upon whether the wetland has a “significant nexus” to a water regulated by the CWA.

Following the Supreme Court’s decision in Rapanos , EPA issued guidance that adopted the concurring opinion’s significant nexus test. Through this guidance, USACE and EPA asserted CWA jurisdiction over all traditional navigable waters, wetlands adjacent to these waters, relatively permanent tributaries of traditional navigable waters, wetlands abutting those tributaries, and non-permanent tributaries and their adjacent wetlands if they had a “significant nexus” to traditional navigable waters. The guidance proved vague, unwieldy, and created a patchwork of court precedents which caused EPA and USACE to propose the clarified “waters of the United States” definition.

The Proposed Rule

When EPA and USACE released the proposed rule, they stated that the definition generally finds all tributaries of traditionally navigable waters, interstate waters, and adjacent water bodies as automatically within the agencies’ jurisdictions because these waters share a “significant nexus” to navigable waters. According to EPA, the proposed rule clarifies that the CWA protects the following waters: seasonal and rain-dependent streams, wetlands near rivers and streams, other types of waters that may have uncertain connections with downstream water based upon a significant nexus to a water body (i.e. ditches).

The proposed rule also establishes default jurisdiction for all streams, ponds, and wetlands located in floodplains and riparian corridors, but leaves jurisdictional determinations on “unidirectional” waters, non-adjacent wetlands, and “other waters” such as prairie potholes, that are outside of riparian and flood zones and determined on a case-by-case basis based on  scientific evidence demonstrating a “significant nexus.” The agencies define “significant nexus” as one that “significantly affects the chemical, physical or biological integrity” of a downstream river, territorial sea, or other jurisdictional water.

EPA and USACE based this draft rule on a peer-reviewed assessment of more than a thousand scientific studies that look at the connectivity of waters in the United States to each other. In essence, this assessment concluded that all streams and wetlands—regardless of size of continuity of flow—are connected to a navigable water because they affect the quality of the larger waterways. The agencies will not issue a final rule until EPA finalizes this connectivity study. However, EPA’s own Science Advisory Board has issues with the study and it is unclear when EPA will complete the study.

  Farmers Unhappy with Overbroad Rule

Many agricultural interest groups are unhappy with the proposed “water of the United States” definition because the proposal brings virtually all waters, regardless of their size or continuity of flow, under the CWA’s jurisdiction. Most of these groups are concerned about that farmers will be required to obtain costly and burdensome CWA permits to conduct everyday chores because the rule would regulate things such as ephemeral drains, small and remote waters, and ditches. Thus, EPA will require farmers to obtain federal permit for activities performed near these “waters.” These groups, and even politicians, see the rule as a new roadblock for farmers and an attempt by EPA to obtain land use regulatory authority.

The CWA grants numerous exemptions and exclusions for farming and ranching. EPA and USACE claims that the proposed rule preserves those exemptions. Additionally, the agencies worked with the United States Department of Agriculture (USDA) to develop an interpretive rule to ensure 56 specific conservation practices related to water quality improvement, such as habitat restoration and establishing riparian forest buffers, will not be subject to CWA’s section 404 permitting requirements. The interpretive rule seeks to exempt these practices by specifying these activities as “normal farming” measures. In order to qualify for this exemption, the activities must be part of an established farming, forestry, or ranching operation and implemented in compliance with USDA technical standards.

These exemptions appear as though they actually benefit agricultural practices by exempting “normal” farming or ranching activities. However, these exemptions are not all that they seem to be. First, many exempted activities are common farming practices such as fencing, grazing, and brush management that have usually been considered “normal” farming and ranching activities under the statutory exemption. Additionally, EPA and USACE narrowly defined “normal” by limiting it to activities that have been ongoing since the 1970s. This means that new farms, farms that have come in and out of production over time, or those that have changed from one type of crop to another fall outside the “normal” farming exemption. Finally, these exemptions only apply to the CWA’s section 404 fill permit program; it does not provide protection from potential liability and section 402 requirements. Many everyday activities such as weed control or fertilizer application could trigger liability if a farmer accidentally deposits materials into a ditch or ephemeral stream. These narrow exemptions do not protect farmers from new restrictions on farming practices or provide for the clarity on the jurisdictional reach of the CWA as the rule intended.

The “water of the United States” rule is open for comment until July 21, 2014.

Emily is a 2014 VLS graduate. Originally from a small dairy farm in Northern Illinois, she graduated from the University of Illinois Urbana-Champaign with a BS in Animal Sciences and a minor in Environmental Economics and Law. Emily’s passion for agriculture drove her to attend law school where she focuses on the interplay between environmental law and agricultural operations. While at VLS, Emily was a member of the National Moot Court Team and a Headnote Editor for the  Vermont Law Review.

The post Muddy Clarity for Farming: EPA’s Proposed “Waters of the United States” Definition appeared first on Vermont Journal of Environmental Law.

Summary: This EcoPerspective takes a critical look at the indirect effects of outdoor recreation on the environment. Large numbers of people are inspired through recreation and related activities to protect the wild and untrammeled places left in the world. But recreation, in itself, has its own environmental consequences. The desire alone to protect these natural playgrounds does very little to address the greater environmental harm that results from work and other day-to-day activities.

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By Scott Lake

The tiny plastic shavings became a thick, suffocating dust, and settled on any available surface. Soon, a thin layer of bizarre, multicolored sawdust covered everything. It left a strange, greasy residue that not even the best dish soap would cut through. The place was a mess. And still the sharp plastic dust kept collecting. It scratched the inside of our throats and plugged our noses. We put up with it. In the early days of the company, everyone was expected to make sacrifices. Generally, this meant long hours and unhealthy working conditions. The plastic dust was just the latest in a long series of environmental challenges that we—as the physical backbone of a struggling small business—had to put up with. Before the dust, I spent hours breaking up chalk, hunched over a fifty-gallon barrel breathing in a different type of suffocating dust. There were no sick days. If you wanted to keep you job, you did not complain. The worst thing any of us could do, as employees, was to make things more difficult for management. Rock climbing, it turns out, is a tough, messy business.

Our company was founded and operated by two men who really enjoyed climbing. They had decided, some years ago, that they wanted to start a climbing company, so they rented space in an old warehouse and began making climbing equipment. We catered to an odd subculture within rock climbing called bouldering. Boulderers—as those who practice bouldering call themselves—do not use ropes. They climb short, relatively technical bits of rock close to the ground. With some exceptions, they rarely climb high enough to risk serious injury. Bouldering tends to be more social than other kinds of climbing. It’s also more accessible than roped climbing, since it requires less gear, and you don’t have to learn how to belay.

Boulderers often fall. To protect themselves, they place pads on the ground below the rocks they climb. The company that I worked for made these pads. In the beginning, I spent most of my days cutting fabric and foam. But soon, we diversified. We began making larger pads and flooring systems for indoor climbing gyms. Later, we made the plastic handholds that indoor gyms bolt onto their walls. The plastic dust came from the handholds. Making holds is a messy process that involves a lot of chemistry and a belt sander. We also dealt in large volumes of other potentially toxic substances, including foam, vinyl, acetone, and many types of glue. We produced a lot of waste; the dumpster in the front parking lot filled up every couple of days. As for the rainbow-colored plastic sawdust, we swept it up and threw it in the dumpster with everything else. Many of those shavings no doubt made it to the river that ran behind the warehouse.

Knowing what I know now, I would hesitate to call bouldering an environmentally friendly activity. Our manufacturing business certainly was not. I think our bosses would have gladly dumped our toxic garbage in the river, if they were not so afraid of getting caught. Most of the people I worked with would have called themselves environmentalists, but they managed to suspend their environmental sympathies between 8:00 a.m. and 5:00 p.m. There was work to be done. Our production schedule tolerated only minimal delays on account of sickness and injury; it certainly did not have room for environmental concerns.

Too often, the environment takes on tertiary importance, circumscribed by the persistent demands of our daily lives. When work calls, the earth can wait; even among climbers who look to natural environments for inspiration. Such an approach trivializes the natural world and erodes our connections to it. As historian Richard White warned, we must “come to terms with our work.” We must “pursue the implications of our labor and our bodies in the natural world.” We are not separate from nature; we are part of it. Nature is not just a place we visit in our free time. Everything we do—especially our work—affects the environmental resources on which we depend. White agued that if we fail to acknowledge our “self-deception,” we will “turn [wild] lands into a public playground. We will . . . imagine nature as . . . a paradise where we leave work behind.” I submit that this has already happened. At the climbing company—which shall remain nameless—we sullied our workspace and then drove miles to climb in remote locations.

The question going forward, then, whether the current alliance of recreation and environmentalism makes sense. I believe the answer depends on whether climbers, and others who play in the outdoors, are willing to acknowledge the true environmental costs of their actions. All of us—even those who go on foot into the wild, pick up after ourselves, and take only pictures—must understand that we alter the places we visit. Sometimes, as is the case with bouldering, we leave permanent reminders of our presence. In other cases—as with the manufacturing of climbing gear—we have indirect, but severe effects. I am not saying we should stop recreating, or stay out of the wilderness. But we need to discard the hypocrisy of claiming that we represent a higher, or more forgivable, use of nature’s abundance. The fact that we tread more lightly on our playground does not change the fact that we consider it a playground. Nor does it excuse the indirect consequences of our activities—plastic dust and all.

Scott Lake is a second-year student at Vermont Law School. He will graduate in Spring 2015 with JD and MELP degrees. He is also VJEL’s incoming Senior Article Editor. Before coming to Vermont Law School, Scott lived in Boise, Idaho, where he worked strange, low-paying jobs with peculiar people and played a lot of guitar. He also worked summers as a wildland firefighter with the U.S. Forest Service. He vehemently insists that Idaho has more to offer than potatoes, but so far, we don’t believe him. After graduation, he plans to practice public interest environmental law in the Pacific Northwest, where he hopes to protect wilderness and wildlife from pollution, exploitation, and the Idaho legislature.

The post Of Plastic and Playgrounds: Re-Thinking the Relationship Between Work, Recreation, and the Environment appeared first on Vermont Journal of Environmental Law.