Category: Ecoperspectives

Summary: A glimmer of (false) hope for public trust plaintiffs.  The Alaska Supreme Court suggested Alaskans might have a right to atmosphere, but declined to provide a remedy.  Adam Murray, of the U.W. Arctic Law & Policy Institute, explains why.

________________________________________

By Adam Patrick Murray

Atmospheric public trust plaintiffs are running out of options. The public trust doctrine usually includes state obligations to manage submerged lands and navigable waters for a public purpose. [1] Certain states, including Alaska, wrote individualized versions the public trust into their constitutions, laws, and court decisions. The resulting variations can draw additional resources into the public trust ambit. In those instances, enforcement might be a problem courts cannot solve.

The Alaska Supreme Court denies relief, but signals that Alaskans may have a public trust right to preservation of the atmosphere

The Alaska Supreme Court suggested that Alaskans might have a public trust right to atmospheric preservation. In Kanuk v. Alaska , [2] the Court implied that Alaska’s obligation might extend to atmosphere, and that state courts can answer the question conclusively. But it found no reason to do so absent a legislative or executive delineation of state rights and obligations regarding climate change. Even if the right exists, the Kanuk decision suggests Alaska courts cannot provide a remedy.

 

The case was part of a national campaign by Our Children’s Trust (OCT). [3]
This Oregon-based non-profit joins youth plaintiffs in “strategic atmospheric trust litigation…to compel governments…to adopt and implement enforceable science-based Climate Recovery Plans.” [4] The Alaska plaintiffs include Nelson Kanuk, a 17-year old Alaska Native from Kipnuk. Kanuk asked the courts to find and enforce a state obligation to enact new climate policies to protect his subsistence lifestyle. [5]

The appeal reviewed a lower court decision that the judiciary cannot answer Kanuk’s claims. [6] Kanuk requested two general kinds of relief. He wanted the Court to order specific climate policies, [7] and to declare Alaska in violation of a public trust obligation to preserve the atmosphere. [8] The Court affirmed that Kanuk’s specific policy requests are non-justiciable political questions. [9] It also denied declaratory relief, but suggested plaintiffs may succeed on nonpolitical claims. [10] This incremental victory probably still signals the end of the road for Alaska atmospheric trust actions.

Alaskan law probably extends the State’s public trust duty to the atmosphere

State law determines the scope of the public trust doctrine. Most states retain a traditionally narrow function, with slight expansions that relate directly to only water or aquatic species. [11] Alaska’s Constitution, statutes, and courts went further, which is why OCT gained some traction there.

The Alaska Constitution establishes: a state policy of making resources available for maximum use consistent with the public interest ; utilization, development, and conservation of all resources for the maximum benefit of Alaskans; reservation of fish, wildlife, and waters for common uses; and sustained-yield management of all ” replenishable resources .” [12] Alaska statutes expressly declare a state policy to manage water, land, and air “as trustee of the environment for the present and future generations”; and to “conserve, improve, and protect its natural resources and environment and control water, land, and air pollution , in order to enhance the health, safety, and welfare” Alaskans. [13] The Alaska Supreme Court expressly recognized a state “fiduciary duty” to manage these resources for public benefit, [14] and uses trust principles to define state duties. [15]

The Court admitted “plaintiffs do make a good case.” [16] The Justices suggested that plaintiffs have a basis to proceed if they manage to allege claims that are justiciable under the political question doctrine. [17] Reviewing an earlier case that denied damages in a public trust context, Brady v. State , [18] the Court said, ” Brady cannot reasonably be read as holding that violations of the public trust doctrine are without remedy.” [19]

 

 

 

The Alaska Supreme Court declined to provide any kind of relief

However, where the plaintiffs sought specific climate policies, the Court declined. [20] The Alaska Supreme Court would not make a “science- and policy-based inquiry” reserved for the executive or legislature under Baker v. Carr . [21]

Where the plaintiffs sought declaratory relief, the Justices were more equivocal. Under declaratory judgment rules that parallel federal practice, Alaska courts have discretion, but no duty, to issue declarations in “actual controversies.” [22] Alaskan touchstones for “actual controversy” include: ‘”definite and concrete, touching the legal relations of parties having adverse legal interests…. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'” [23] As a matter of prudence, according to the decision, Alaska courts should deny declaratory relief when it will not “clarify and settle legal relations” or “terminate and afford relief from the uncertainty, insecurity, and controversy.” [24]

The Alaska Supreme Court denied declaratory relief under these prudential concerns. [25] The Court would not declare the existence of an atmospheric trust obligation after denying the request for a judicially-determined standard to measure state performance. Such a declaration, the Court reasoned, would not “advance the plaintiffs’ interests any more than it will shape the future conduct of the State.” [26]

A right without a remedy?

The Kanuk decision leaves the state of Alaska close to an atmospheric public trust obligation. By constitution, statute, and precedent, Alaska’s duty to preserve natural resources probably does extend to air, and maybe to airborne effects on more traditional trust elements. Yet Kanuk also indicates that enforcement of an expanded obligation depends on the political branches. In other words, atmospheric trust plaintiffs need a statute or administrative rule providing a remedy for any state failure to reduce its contribution to climate change. Degrading the trust corpus does not violate any law. So even if there is a right to atmosphere, it is a right without a remedy. As first year law students will tell you, that is no right at all.

For more information on the lead plaintiff, please see: http://vimeo.com/33921321 .

Adam Murray is the University of Washington School of Law’s Arctic Law & Policy Institute Research Fellow.  His work focusses on international and U.S. environmental and ocean policy.  After his fellowship, he will move to Anchorage, Alaska for two federal clerkships; one in the U.S. District Court, District of Alaska, and another in the Ninth Circuit. Mr. Murray is an avid whitewater kayaker, proud father of two daughters, and a fourth-generation Pacific Northwesterner.  Find more work by Adam Murray, including an expanded version of this post, at http://ssrn.com/author=2290160.

 

 

---

[1] See Phillips Petroleum Co. v. Mississippi , 484 U.S. 469 (1988).

[2] Kanuk ex rel. Kanuk v. State, Dept. of Natural Resources , No. S-14776, 2014 WL 4494394 (Alaska Sept. 12, 2014).

[3] See http://ourchildrenstrust.org (last visited Sept. 26, 2014).

[4] Id.

[5] See http://vimeo.com/33921321 (last visited Sept. 26, 2014).

[6] Kanuk v. State of Alaska, Dept. of Natural Resources , No. 3AN1107474, 2012 WL 8262431 826431 (Alaska Super. March 16, 2012) ( Kanuk I ).

[7] (1) Require use of the” best available science”; (2) reduce greenhouse gas emissions by 6% per year; and (3) order an accounting of current CO2 emissions.

[8] Kanuk at *1.

[9] Id. at *7.

[10] See id. at *8, *9, *10.

[11] See Robin Kudnis Craig, A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust , 37 Ecology L.Q. 53 (2010).

[12] AK Const. art. VIII, §§ 1-4.

[13] Alaska Stat. § 46.03.010.

[14] Baxley v. State , 958 P.2d 422, 434 (Alaska 1998).

[15] E.g. , State v. Weiss , 706 P.2d 681 (Alaska 1985) (trust principles define State duties with regard to federal land grants).

[16] Kanuk at *9.

[17] Id. at *10.

[18] 965 P.2d 1 (Alaska 1998).

[19] Id. at 14.

[20] Kanuk at *6 (quoting Baker v. Carr , 369 U.S. 186, 217 (1962)).

[21] Kanuk at *7.

[22] Alaska Stat. § 22.10.020(g); Alaska R.Civ. P. 57(a); see also Lowell v. Hayes , 117 P.3d 745,755 (Alaska 2005).

[23] Kanuk at *8 (quoting Jefferson v. Asplund , 458 P.2d 995, 998-99 (Alaska 1969)).

[24] Id. at *9 (quoting Lowell v. Hayes , 117 P.3d 745, 755 (Alaska 2005)).

[25] Id. at *11.

[26] Id. at *10.

The post Alaska’s Atmospheric Public Trust: A Right Without a Remedy? appeared first on Vermont Journal of Environmental Law.

Summary: Though the U.S. Constitution does not have an explicit right to a safe environment, many commonwealths, including Puerto Rico, do. For decades natural resources on the Island of Enchantment have been threatened. As a result, legislation has been enacted in order to protect the environment for future generations. The proposed Puerto Rican Model Forest Act attempts to mediate the conflict between humans and nature.

________________________________________

By Roxanne M. Almodóvar-Pérez

The environment is the basis of life and thus the basis of human existence. Consequently, environmental issues are rooted in complex and conflicting fields. By focusing on sustainable development, model forests attempt to mediate the coexistence of humans and nature. However, good governance of natural resources demands public participation.

For instance, in the 1940s Puerto Rican landscapes had only 6% forest cover while the rest of the land was agricultural. However, after a shift from an agricultural based economy to an industrial economy, forest cover started to re-emerge. Open pit mining during the 1980s and, more recently, the 2010 government-proposed construction of a gas duct—‘Vía Verde’—threatened life in some of the most important forests on the Island. At the end of 2010, the Puerto Rican government partnered with energy developer EcoEléctrica and started negotiations to build a 93-mile pipeline that would have directly cut through the interior of the Island. According to the State Government office and the “Autoridad de Energía Eléctrica” (AEE) (the Puerto Rican Department of Energy), the project was supposed to enhance the “poverty-stricken island.” But, it would have done so at the expense of essential ecosystems and natural habitats for endangered species.

Even though the U.S. Constitution does not have an explicit right to a safe environment, the Puerto Rican Constitution, Article VI § 19 states: “It shall be the public policy of the Commonwealth to conserve, develop and use its natural resources in the most effective manner possible for the general welfare of the community .” ‘Vía Verde’ threatened about 1,500 acres of protected forestland and more than 369 acres of wetlands. Additionally, the ‘Vía Verde’ would have directly impacted the habitat of 34 endangered species, along with 235 rivers and streams, which include a critical conservation zone that produces 25% of the water consumed in Puerto Rico. All of these areas are protected under the Puerto Rican Urban Forest Act (P. del S. 1842 Ley 213 of 1999). Furthermore, the Puerto Rican Forest Law establishes that “it is public policy that [Puerto Rican] forests and land have an ‘inherent essence’ which demands they be protected as such” (P. del S. 1842 Ley 133 of 1975).

Yet, for nearly three years former Governor of Puerto Rico Luis Fortuño, and Daniel Pagán, Director of AEE, remained adamant that the project would provide “a new energy era that [would have] strength[ened] the competitiveness of [the Puerto Rican] economy and [would have] improve[d] the quality of life of [Puerto Ricans].” State government officials insisted that sustainable development was a “balance between the protection of the natural resource, and their social and economic use.” Moreover, project developers claimed ‘green energy’ would significantly reduce: (1) electricity costs (by 30%), (2) carbon dioxide emissions (by 60%), and (3) generate 4,500 new jobs while ” temporarily impacting a minimal portion of the country’s physiography.” Although the project promised to decrease the Island’s dependence on oil while boosting natural gas usage to 71% from its current 15%,the public remained concerned about the environmental impacts.

Private interests argued that sustainability should focus on the economic benefits the project would bring to the Island, while minimizing the temporal environmental harm. However, as Harding points out, a more sustainable development project prioritizes the environment over economy because “there are many ecological assets that are essential for human survival.” Accordingly, in the case of “La Vía de la Muerte” many Puerto Ricans decided against “the invasive and volatile nature of the pipeline, and its influence on the long-term energy portfolio of the Island[‘s]” economic development which was intrinsically tied to the fossil fuel industry.

“La Vía de la Muerte” enlightened Puerto Rican citizens to the importance of maintaining protected forestland. As a result, the Puerto Rican Department of Natural Resources proposed the Model Forest Act (P. de la C. 1635). This is an unprecedented law that establishes 17% of the Island’s forest cover (more than 390,000 acres of land, 240,000 people and 20 municipalities) as ecologically rich habitat with sustainable development values and promotes its conservation. “El Bosque del Pueblo” in Adjuntas, Puerto Rico served as model for this law. This forest had been part of the Ibero-American Forest Network since 2007, and paved the way for the Model Forest Act in Puerto Rico.

The model forest project would make protected land available to education, active scientific research, sustainable agricultural practices, and recreation. Yet the proposed act is not a new zoning ordinance and it does not impose limits beyond those already established in the zoning ordinances. The Act consists of unifying almost a third of the Island as protected territory. The Act establishes a concept of forested land where people live while conscious of their impact on nature. In essence, the Act establishes a forest where commerce, industry, and agriculture coexist by recognizing the immense amount of life and biodiversity that is on the Island. After nearly two years of debate both the Senate and the House of Representatives have approved different versions of the Model Forest Act. However, they have yet to agree on a unified version to enact. If the Act can push through legislative debate, vital resources of Puerto Rican land will be conserved for generations to come. However, the future of the Act’s enactment is unpredictable, in that the Act could be enacted tomorrow, yet it may sit in the legislature for years to come.

* * *

For more information please visit:
Ibero-American Forest Network : http://www.bosquesmodelo.net/en/
Casa Pueblo: www.casapueblo.org/
Twitter: @casapuebloorg
Facebook: Casa Pueblo de Adjuntas | 787.829.4842  

* * *

Roxanne M. Almodóvar-Pérez is a 2L student at Vermont Law School pursuing both a Juris Doctor and a Master’s in Environmental Law and Policy.  Prior to attending law school, Roxanne earned a B.S. in Industrial Microbiology and a M.Sc. in Ecosystem Restoration from the University of Puerto Rico, Mayagüez.  Roxanne is a proud Puerto Rican environmentalist on a quest to protect Mother Earth.

The post Sustainable Development through Model Forests on the Island of Enchantment appeared first on Vermont Journal of Environmental Law.

Summary: Thanks to the Wilderness Act, nearly 110 million acres across the United States are forever protected in their naturally pristine state. This month, the Wilderness Act celebrates its 50 ^th anniversary. Considered to be the highest degree of land protection,  “wilderness areas” demonstrate an enduring commitment to preserving our natural heritage.

“If future generations are to remember us with gratitude rather than contempt, we must leave them something more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it. . . . Once our natural splendor is destroyed, it can never be recaptured. And once man can no longer walk with beauty or wonder at nature, his spirit will wither and his sustenance be wasted.”

-Lyndon B. Johnson, on signing the Wilderness Act (1964)

________________________________________

By Will Kirk

When I was in college I used to spend part of my summers leading backpacking trips for high school students on the Appalachian Trail. I worked at a summe r camp in Virginia where we took small groups up to the George Washington National Forest for hiking trips. It was a chance for groups to experience some time away from camp and grow deeper in their relationships with one another. For some kids, it was their very first hiking experience. I still have fond memories of crossing the Tye River and seeing the rugged, wooden sign announcing our arrival at the “Three Ridges Wilderness” area.

I didn’t think much of it at the time because I figured that it was fairly common for these signs to be posted throughout National Forests, especially along the Appalachian Trail. It wasn’t until later that I learned how significant the area actually is: the Three Ridges section of the Appalachian Trail is protected by federal legislation to preserve the pristine beauty of the landscape—to stay permanently “wild.” In fact, the Three Ridges Wilderness is one of the 758 areas in the National Wilderness Preservation System that are protected by the Wilderness Act.

The Wilderness Act, 16 U.S.C. §§ 1131-1136, was signed by President Lyndon Johnson on September 3, 1964. The Act created the National Wilderness Preservation System (NWPS) and immediately set aside 9.1 million acres in 13 states as part of 54 wilderness areas. In addition, the Act created a way for America to protect and preserve the irreplaceable wilderness of this country. To date, there are now 109,511,038 acres in 44 states and Puerto Rico.

To put things in perspective, the National Park System includes 84 million acres and the Bureau of Land Management (BLM) supervises about 247 million acres. However, these figures include significant crossover with federally designated wilderness areas. Across the country, four different federal agencies are entrusted with managing America’s wilderness areas: the National Park Service, BLM, U.S. Forest Service, and the U.S. Fish and Wildlife Service.

One of the signature features of the Wilderness Act is the very definition of “wilderness”: “A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” This legendary definition was drafted by Howard Zahnisier of the The Wilderness Society, who worked tirelessly for almost a decade to guide the passage of the Wilderness Act.

The most recent addition to the NWPS came in March of this year, when Congress designated Sleeping Bear Dunes National Lakeshore in Michigan as a wilderness area. Roughly 32,500 acres in size, this latest designation broke the 5-year drought of Congressional inaction.  Before 2009, every Congress since 1964 had designated a Wilderness Area.

Looking back on the last 50 years, we have slowly begun conserving the very natural splendor that makes this country so special. Indeed, the history of our nation is inextricably linked with the wilderness that America provides. While our natural heritage once fueled the engines of growth and industry,  it is now rejuvenating the people by providing a cure for the “nature-deficit disorder” that plagues this country. Unlike other disorders, we know the cure; we just have to convince the afflicted to take the medicine. And America’s wilderness certainly provides the potent vis medicatrix naturae .

As we reflect on what has happened in the last 50 years, it is appropriate to consider what the next 50 years will bring for the Wilderness Act. In 50 years, which parts of this country will remain pristine, unspoiled, and “untrammeled by man”? It’s possible that the next frontier of wilderness is found beyond our coastline. In the last fifteen years, ocean and marine reserves have increasingly been tapped as National Monuments by executive action. Perhaps, wilderness designation will be the next step for some of the many square miles of ocean area currently protected by the Antiquities Act. After all, there’s probably no better area than ocean reserves that fit the wilderness definition of being an area “where man himself is a visitor who does not remain.”

So now is when I ask the inevitable question: How will YOU celebrate the 50th anniversary of this landmark conservation bill? As you might expect, I would suggest that you, at the very least, spend time with friends and family in the great outdoors. This month in particular, during the transition from the brutal heat of summer to the bitter cold of winter, provides the perfect conditions to experience the beauty of pristine landscapes. In honor of this important milestone, it is perfectly reasonable to “go wild.”

“Wilderness” has been described by some as the land that was and the land that is . Now, thanks to the protections of the Wilderness Act, it is the land that will be .

To discover more about the Wilderness Act, including pictures of some of America’s most beautiful places, please visit wilderness.org. And, to see a fantastic interactive map to help you locate the Wilderness Area that is closest to you, you can visit wilderness.net.

Will Kirk is a third-year Juris Doctor student at Vermont Law School and a Managing Editor on the Vermont Journal of Environmental Law. Prior to law school, he earned a B.A. in History from Christopher Newport University in Newport News, Virginia. A proud Southerner, he is passionate about conserving our natural lands while encouraging our youth to develop a meaningful connection with the natural world. This semester he is working for the Branan Law Firm in Hillsborough, North Carolina.

The post Where the Wild Things Are: Celebrating the 50th Anniversary of The Wilderness Act appeared first on Vermont Journal of Environmental Law.

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.

________________________________________

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.

________________________________________

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.

________________________________________

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.

________________________________________

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).

________________________________________

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.

________________________________________

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.

________________________________________

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.