This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Abigail Hogan and Alexander Steinbach, Staff Editors, Vermont Journal of Environmental Law.
I. THE HISTORY OF PLASTIC PRODUCTION
Typically, when a new product comes on the scene, it takes several generations to evaluate its use and environmental impact. However, synthetic plastics really only began to take over around 50 years ago, and we’re already seeing a movement to ban, or at least drastically reduce, the material. Why has plastic made such a splash in so little time?
Plastic was originally developed from cellulose, or plant material. But in 1907, the first fully synthetic plastic was created.[1] The difference between these two materials is that plastics made from plant material can actually break down, whereas synthetic plastic will only ever break into smaller pieces.[2] In fact, “EPA reports that ‘every bit of plastic ever made still exists.’”[3] Today, plastic and rubber are formed by polymers consisting of smaller units known as monomers.[4] A vast majority of monomers are produced from petroleum and is therefore non-renewable.[5] Around 4% of the world’s oil consumption is used as raw material in plastic production, and a similar amount is used as energy in the production process.[6] In addition to the use of petroleum, plastic production requires the use of additives.[7] A few chemical additives are: plasticizers, flame retardants, heat and UV stabilizers, biocides, pigments, and extenders.[8] Several common additives are classified as hazardous according to the E.U. regulations and are classified as carcinogenic, mutagenic, harmful for reproductive health, harmful to aquatic life, or having persistent negative impacts on the environment.[9]
This first plastic was used for electrical insulation, but it sparked a revolution in materials. New plastics were continuously developed for a multitude of uses, particularly as World War II necessitated more military uses. Not long after, 1960 was the first-time plastic was noticed as a concern when seen in ocean pollution.[10] Besides polluting the ocean, plastics have negative health impacts on humans and the environment. Plastics harm human health because they release toxic chemicals throughout the life cycle of the product.[11] However, because experimental studies exposing humans to environmental contaminants are not allowed, it is difficult to establish indisputable causal relationships between exposure to the chemicals and adverse effects in humans.[12] In addition, the detrimental effects and disease produced from plastic exposure takes decades to produce adverse effects in human health.[13] In some instances, it may even take generations before disease manifests itself in the human population.[14] This makes pinpointing the exact chemical causing the disease difficult. However, there is overwhelming evidence that exposures to anthropogenic chemicals contribute to adverse effects in animals.[15]
II. RECYCLING TO THE RESCUE
In order to fix this negative publicity revolving around plastic and plastic production recycling emerged as a solution due to pressure of environmental groups and outside forces.[16] Recycling however, in not the only solution that is needed to solve the plastic waste crises that is polluting our oceans. Chemical, trash, and fossil fuel companies took advantage of the call from environmental groups for more efficient resource production and promoted the use of recycling and the use of consumer responsibility.[17] After World War II, environmental groups began to push business groups to promote recycling.[18] The Business sector responded and created and industry that organized around the recycling of paper, glass, metal, and plastic separated out by municipal solid waste.[19] This industry has next to zero impact on resource conservation measured in global sales and delivers only weak results in terms of pollution reduction or energy savings.[20]
It is important to note that not every material is created equal in the world of recycling. Glass, aluminum, glass, and metal can be recycled infinitely.[21] Plastic can range from being unrecyclable, recyclable only once or twice, or at a maximum about 7 times.[22] After this limit, the plastic will end up in a landfill. Furthermore, many do not even allow their plastic to have this long of a life. “Humans buy about 1,000,000 plastic bottles per minute in total. Only about 23% of plastic bottles are recycled within the U.S.”[23] Paper can be recycled 5-7 times.[24] However, it is also important to recognize that recycling any material requires an energy input. Only aluminum and paper take less energy to recycle than to make from scratch.[25] In other words, it takes more energy to transform that piece of plastic into a new use than it does to make more plastic. This is another reason recycling is not a complete solution.
Single use plastic is a particularly damaging part of the industry. Much of the plastic made is designed for only one use and to then be thrown away. One example is that a plastic shopping bag usually serves the consumer for 12 minutes, on average, but takes up to 1,000 years to break down.[26] This includes plastic shopping bags, 4 trillion of which are used annually, plastic straws, cutlery, take away boxes, coffee cups (which often give the appearance of being paper but are usually lined with plastic making them unrecyclable), and packaging.[27] 32% of the plastic packaging goes straight into our oceans, and even if plastic does make it to a landfill (which are poorly designed structures preventing much of anything from breaking down due to a lack of oxygen) it will likely leach chemicals into the groundwater.[28]
National and global environmental burdens from material extraction, manufacturing, and distribution show no signs of abating.[29] In fact, “the fossil fuel industry plans to increase plastic production by 40 percent over the next decade.”[30] However, industry success from recycling is promising. Today, it employs around 1.1 million people, generates an annual payroll of $37 billion, and grosses $236 billion in revenue.[31] The success of the recycling economy is mirrored in the status of recycling as a success story for environmentalism.[32] Recycling is the most thoroughly developed practice for managing waste other than burying it or burning it.[33] Recycling is a flourish practice and it is popular, in fact, more Americans recycle than vote.[34]
III. THE SHORTCOMINGS OF RECYCLING AND THE IMPACT ON OUR OCEANS
Although the upsides of recycling are positive, recycling as we know it addresses at most only one-third of the solid municipal waste produced and leaves untouched other far larger waste fractions.[35] Burying and burning continue to be the most common forms of waste management resulting in hazardous effects for human health the environment.[36] The result is that recycling programs promote pragmatic solutions that are not reducing the effects of plastic waste and the negative impacts on the environment. This has negative impacts on aquatic life and the marine environment.
Typically, large debris, called “macroplastics,” have long been studied to determine their impact on the environment.[37] The presence of macroplastics in the environment create an aesthetic issue, as well as damage boats and cause repercussions for the tourist industry, and finally, macroplastics can cause harm to aquatic life by injuring or killing marine birds, mammals, fish, and reptiles that result from plastic entanglement and ingestion.[38] In recent years, there has been concern regarding microplastics. Microplastics are the tiny plastic granules and small plastics fragments that are derived from the breakdown of macroplastics.[39] The presence of small plastic fragments in the ocean was first noted in the 1970s.[40] By 2017, the amount of plastic in the ocean totaled 165 million tons.[41] By 2050, experts say there will be more plastic than fish in the ocean.[42] Renewed scientific discovery in microplastics over the last decade revealed that these contaminants are ubiquitous and widespread within the marine environment, with the potential to cause harm to biota.[43]
Microplastics and microplastics are often confused by fish and eaten as food. If they survive eating this plastic, both the fish and humans are harmed. “Fish in the North Pacific ingest 12,000 to 24,000 tons of plastic each year, which can cause intestinal injury and death and transfers plastic up the food chain to bigger fish, marine mammals and human seafood eaters.”[44] Plastic is responsible for the deaths of whales, seabirds, sea turtles, and fish.[45] It also takes over many endangered species habitats in the ocean.[46] Preventing more plastic from entering the ocean is vital to the survival of many marine species.
One of the areas that consumers have a lot of power is in the single use plastic world. Plastic bags, cutlery, straws, take away coffee cups, and much more can be completely eliminated by simply bringing your own reusable container. Doing so will even save you money, even with the purchase of the reusable alternative (which is often unnecessary as many use what they already have).[47] This is because many grocery stores now charge for plastic bags, and many coffee shops offer discounts for bringing your own container.[48] Beyond consumer power, industrial consumers of plastic like grocery stores are beginning to take up some responsibility as well. Plastic bans have been initiated in many cities, and that number is growing. Hawaii and California have even initiated state-wide plastic bans.[49] Some cities have banned plastic straws altogether.[50] Others choose to tax single use plastics in hopes to deter consumers.[51]
IV. CONCLUSION: LEGISLATURES AND CONSUMERS NEED TO ADDRESS THE PROBLEM
The invention of synthetic plastic has done wonders for modern civilization. However, its convenience comes at a heavy price. The environmental impact of plastic no longer makes single use plastic a viable option for society. Single use plastic is one of the largest contributors to pollution, yet one of the easiest to replace by consumers. While legislation is also needed to correct this problem, when consumers stop demanding single use plastic, producers stop making it. It is imperative that we address the problem of plastic pollution and production immediately.
[1]Conflicts in Chemistry: The Case of Plastics, Science History Institute, https://www.sciencehistory.org/the-history-and-future-of-plastics (last visited Mar. 11, 2019).
[2] Audrey Holmes, How Many Times Can That Be Recycled?, Earth 911 (June 15, 2017), https://earth911.com/business-policy/how-many-times-recycled/.
[4] Markus Klar, David Gunnarsson, Andreas Prevodnik, Cecilia Hedfors, and Ulrika Dahl, Everything you (Don’t) Want to Know About Plastics, 11-24, 15 (2014).
[26] Trevor Nace, Here’s A List Of Every City In The US To Ban Plastic Bags, Will Your City Be Next? (Sept. 20, 2018), https://www.forbes.com/sites/trevornace/2018/09/20/heres-a-list-of-every-city-in-the-us-to-ban-plastic-bags-will-your-city-be-next/#b706d663243c.
[37] Matthew Cole et al., Microplastics as Contaminants in the Marine Environment: A review, 62 Marine Pollution Bull., 2588, 2589 (2011) (discussing microplastic and its impact on the marine environment).
[41] Rebecca Harrington, By 2050, the Oceans Could Have More Plastic Than Fish, Business Insider (Jan. 26, 2017), https://www.businessinsider.com/plastic-in-ocean-outweighs-fish-evidence-report-2017-1.
[47] Clear Barrett, What’s the Return on Investing in a Reusable Coffee Cup?, Financial Times (Feb. 7, 2017), https://www.ft.com/content/edddb47c-0b22-11e8-839d-41ca06376bf2.
[48]Why Do Some Charge for Plastic Bags and Others Don’t? Shoppers Adjusting to Grocery Bag Ban, Crown Poly, http://www.crownpoly.com/charge-plastic-bags-others-dont-shoppers-adjusting-grocery-bag-ban/ (last visited Mar. 11, 2019).
[50] Melissa Locker, Here are the U.S. Cities That Have Banned Plastic Straws So Far, Fast Company (June 1, 2018), https://www.fastcompany.com/40580132/here-are-the-u-s-cities-that-have-banned-plastic-straws-so-far.
[51]State Plastic and Paper Bag Legislation, NCSL (Feb. 27, 2019), http://www.ncsl.org/research/environment-and-natural-resources/plastic-bag-legislation.aspx.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By John Niedzwiecki*
I. An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.
Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.
First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.
Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.
II. Red tides are a relatively common occurrence in Florida historically, and they have strong impacts on the state’s economy and environment.
Before discussing the presence of red tides in Florida, it is important to define what red tides are and how they affect the environments that they touch. “Red tide” is a term generally used “to describe many different kinds of harmful algal blooms” and can be a variety of colors, including “brown, blue, green, yellow, and more.”[1]Algal blooms are “higher-than-normal concentrations of algae [which include] toxic or nuisance algal species that may pose a serious and recurrent threat to human health, wildlife, marine ecosystems, fisheries, coastal aesthetics, and [the] economy.”[2]
In Florida, red tides typically involve one of the most harmful species of HABs, the karenia brevis. Karenia brevis produces “neurotoxins that cause damage to nerve cells or tissues [and] kill large numbers of fish, birds, and other marine mammals.”[3] Shellfish that consume Karenia brevis become poisonous to human consumers, and people can inhale toxins released into the air by seaspray, which cause symptoms including “itchy and watery eyes, wheezing, shortness of breath, coughing, and chest tightness.”[4]Red tides are a frequent occurrence in Florida and “appear off the state’s coast almost every year.”[5] Red tides have been “documented…along Florida’s Gulf Coast since the 1840s.”[6] The ongoing red tide has been present for over 10 months, the longest duration of a red tide since 2006.”[7]
Red tides in Florida have had strong social and cultural effects on local communities throughout the state. HABs, in general, can lead to “loss of recreational and commercial opportunities, disruption of…cultural practices, conflict among resource users, loss of community identity tied to using coastal resources, and social stress in affected families and communities.”[8] In Florida, red tides can mean additional stress for communities that depend on the coast both for leisure and work, and individuals have fewer opportunities to meet with other people that share their interests, which builds community bonds. For example, recreational fishers lose the chance to fish together when beaches are closed.
Red tides also have deep impacts on the economies of localities across Florida. The presence of red tides can disrupt the ability of individuals to go to work and causes an increase in the use of medical resources, because “respiratory and gastrointestinal illnesses increase during red tides” and can cause up to a 54% increase in hospital admissions for coastal residents.[9] Red tides have the unfortunate effect of depressing tourism, because beaches become “strewn…with the stinking carcasses of fish, eels, porpoises, turtles, [and] manatees.”[10] Nationwide, HABs cost “at least $82 million per year including lost income for fisheries, lost recreational opportunities, decreased business in tourism industries, public health costs of illness, and expenses for monitoring and management.”[11] While it is difficult to estimate exactly how much of an impact red tides have on Florida’s economy every year, red tides have a significant impact on the livelihoods of individuals and communities across the state.
Finally, red tides can negatively impact the wildlife and environment across very large areas of the state. In the current red tide, “almost 300 sea turtles have been found dead since January [2018]” in just four Florida counties south of Tampa, and a biologist at the Florida Fish and Wildlife Conservation Commission noted that “he believed that a majority of the turtle deaths were attributable to the red tide.”[12] Additionally, the “number of manatee deaths…this year [as of August had] already exceeded the total for all of 2017” with 554 deaths in 2018 compared to 538 total in 2017.[13] The pattern of rising death rates has been observed for other threatened species across the state, and while it is difficult to attribute the new deaths entirely to the presence of red tide, the two correlate.
III. Scientific research is split on the causes of red tides, but both natural and man-made factors can contribute to the development of red tides.
There are several natural factors that contribute to the growth of red tides. The Florida Department of Health reports that red tides develop “when biology (the organisms), chemistry (natural or man-made nutrients for growth), and physics (concentrating and transport mechanisms) interact to produce the algal bloom.”[14] Without all three factors present, a red tide will not develop. In addition, scientists have discovered that “oceanic and estuarine circulation and river flow greatly influence the…combined physical (e.g., currents, upwellings, etc.) – the chemical (e.g., salinity, nutrients, etc.) factors of the systems.”[15] If the factors that contribute to red tide have the ability to travel and interact with each other, the change of a red tide developing rise much higher.
The organisms, chemistry, and physics that can cause red tides existed before humans developed Florida, but man-made factors can also contribute to the development and growth of red tides. Humans contribute to red tides by increasing the amount of nutrients in the ecosystem, development, increasing the surface temperature of the Gulf of Mexico, and rolling back environmental protections. The “dumping of fertilizer and human waste” into Florida’s waters contributes to red tides, because the “excess nutrients” give the organisms even more energy to grow than what is naturally present in the ecosystem.[16] Fertilizers, along with human and animal wastes, contain large amounts of nutrients that help the algae grow much faster than they otherwise would. As Florida continues to grow its population and its industrial base develops, the problem of excess man-made nutrients in the environment will likely only get worse. In the past few decades, Florida’s “landscape and the flow of water has been radically altered by agriculture, canals, ditches, dikes, levees, and the sprawling housing developments that have sprouted as the state’s population has boomed.”[17] This development has contributed to the rise of red tides, because the wetlands that previously flowered runoff into aquifers or estuaries now “rushes rapidly, unfiltered, into rivers and bays and into the gulf, typically loaded with agricultural nutrients.”[18]
While climate change’s effects on red tides and the rising of sea temperatures is still uncertain, it appears that “the incidences of red tides…have increased since the 1950s and 1960s [and] climate change could be a factor [because] warmer waters…are congenial to growth.”[19] As the effects of climate change become more pronounced in the decades to come, researchers will have more data to see if there is a connection between ride tides and rising water temperatures.
Politically, it appears that governments, at all levels, have been unable to respond effectively to the problem. Some political groups in Florida blame Governor Rick Scott “for weakening the state’s water quality requirements and monitoring [but] Scott blames Sen. Bill Nelson…for not doing something before now to stop” red tides.[20] At the very least, it looks like political actors in both parties have been unable or unwilling to cooperate across different levels of government or across the aisle to come up with a solution. The political gridlock does not appear to be coming to an end any time soon, but there are several potential solutions to the problem of red tide.
IV. There are several potential legal responses to red tide in Florida. State and local governments can and should take an active role in fighting the effects of red tide.
Lawmakers can take action to limit the growth of red tides by encouraging scientific breakthroughs, improving coordination among governments, researchers, and businesses, and tightening fertilizer ordinances The responsibility for addressing the problems caused by red tides has fallen on the Florida’s state and local governments. The legal system could provide a solution to the red tide problem by supporting scientific solutions, encouraging coordination of mitigation activity across governments, and enacting stricter fertilizer ordinances. Finding scientific responses to red tides are complex because scientists are uncertain of “what effects [the methods] could have on the ecosystem,”[21] and because the geographic extent of the red tides covers “hundreds to thousands of square kilometers of shelf waters and extending down to 50 [meters].”[22] The state and local governments could support the effort that scientists are making by providing scientists researching the problem with additional funding, expertise, and data.
In general, coordination and information-sharing on red tides is improving among governments, private parties, and scientists, but there is still much work to be done. While “some of the [current] coordination is formal, most of it consists of informal regional partnerships with common interests.”[23] Florida should formalize the coordination system among localities across the state. If each locality was able to look at the data available from other areas in the state and responses were coordinated across large regions, there would likely be an overall more effective response. Localities and the state as a whole only stand to gain from deeper coordination, but only the state legislature and governor can create the legal structures that are necessary. It was possible for Florida to respond to the threat of hurricanes by developing state-wide emergency response plans, and it should be no different for red tides and other environmental problems.
Finally, the legal system in Florida can respond to the threat of red tides by developing stricter fertilizer ordinances that would deprive the ecosystem of the man-made nutrients that contribute to the growth of red tides. While simply depriving waterways of man-made nutrients will not be enough to stop all red tides, researchers argue that it could help slow down the growth of red tide.[24] However, current restrictions on fertilizers “differ as to type and extent” which limits their effectiveness and make it difficult for individuals and businesses to comply with the laws.[25] By creating a uniform standard that applied throughout the state, lawmakers could “lower the costs of compliance” while ensuring that firms in the fertilizer industry are not “geographically disadvantaged.”[26] While some argue that having a single, uniform standard would lead to an overall weaker set of ordinances, it is likely that having at least some standard statewide that all organizations comply with would have an impact on red tides.[27]
V. Conclusion: The legal system can rise to meet the red tide threat.
Red tides are a problem that threatens the cultural life, economy, and environment of Florida. While red tides have impacted Florida’s coastlines since at least the mid-1800s, recent red tides have grown in strength, duration, and frequency, and as the climate changes, it is likely that red tides will change as well. Researchers have found that while both natural or man-made factors can create red tides, the legal system can respond to this growing problem. If the legal system supports the work of scientists, improves coordination amongst stakeholders, and creates stricter fertilizer ordinances, it is possible that communities throughout the state can respond in an effective way to red tides. Scientists and lawmakers certainly do not have all the answers to the problem of red tides, but by taking firm action today, Florida can become a more environmentally resilient state that leads the way as other states face their own environmental problems.
[5] Tryggvi Adalbjornsson and Melissa Gomez, A Toxic Tide is Killing Florida Wildlife, N.Y. Times, July 30, 2018, https://www.nytimes.com/2018/07/30/climate/florida-red-tide-algae.html.
[6] Florida Dept. of Health, Frequently Asked Questions: Red Tide 1 (2014).
[10] Joel Achenbach, Kate Furby, and Alex Horton, Florida declares a state of emergency as red tide kills animals and disrupts tourism, The Wash. Post, Aug. 14, 2018, https://www.washingtonpost.com/news/speaking-of-science/wp/2018/08/14/red-tide-algaes-deadly-trail-of-marine-animals-has-triggered-a-state-of-emergency-in-florida/?noredirect=on.
[11]E.B. Jewett, et al., Interagency Working Group on Harmful Algal Blooms, Hypoxia, and Human Health of the Joint Subcommittee on Ocean Science and Technology, Harmful Algal Bloom Management and Response: Assessment and Plan 1 (2008).
[13]Craig Pittman, More manatees have died in Florida so far this year than in all of 2017. Here’s why, Tampa Bay Times, Aug. 21, 2018, https://www.tampabay.com/news/environment/wildlife/Red-Tide-s-continuing-toll-The-554-dead-manatees-in-2018-already-surpasses-last-year-s-total-_171056483.
[24] Barbara Kirkpatrick, et al., Human responses to Florida red tides: Policy awareness and adherence to local fertilizer ordinances, 493 Science of the Total Environment 898, 898-909.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Elizabeth Doherty*
I. Introduction
Climate change is internationally recognized as the biggest threat facing the world today.[1] This threat transcends politics, economics, and social views. In 2017 we saw historic flooding, hurricanes, wildfires, and now record snowfall in the southeastern United States.[2] These and other natural disasters are exacerbated by anthropogenic climate change. While it may be too late to prevent global temperatures from rising two degrees Celsius, we must make whatever changes possible to prevent temperatures from rising even higher.
In the United States, almost one-third of total greenhouse gas (GHG) emissions come from the electricity sector alone.[3] If we transition our electricity sector to renewable technologies, we will be able to eliminate a significant portion of our GHG contributions. Further, the transportation sector accounts for another 28% (in 2016) of U.S. GHG emissions.[4] If we electrify the transportation sector and transition to renewable energy technologies, we will be able to eliminate more than half of our national GHG emissions. If we are to successfully combat climate change, the United States must become a global leader and make significant steps toward the transition to a clean energy economy.
The United States federal government has used the tax system to change behavior for decades and as our electricity industry introduces cleaner technologies, that system should be leveraged again to include all economic classes in the energy transition. The Energy Policy Act of 1992 created the renewable electricity production tax credit (PTC), which provides a per-kilowatt-hour credit for business investments in qualified renewable energies.[5] Solar photovoltaic technologies were not added to this list until the American Jobs Creation Act of 2004 (AJCA).[6] In addition to the PTC, Congress also created the residential investment tax credit, also known as the residential energy efficient property credit, or “Section 25D credit,” which provides a 30 percent tax credit on investment for renewable energy equipment placed in service during the taxable year.[7] These efforts, along with other federal and state initiatives, have led to dramatic increases in renewable technology deployment and integration over the past decade.[8]
Despite the dramatic progress seen in recent years, legislatures have failed to include low-income residential consumers in the transition to clean energy production.[9] The PTC is applicable only to businesses that produce electricity from renewable sources and the Section 25D credit is only accessible to those residential customers with enough tax appetite.[10] This has contributed to a growing cost-shifting issue for residential solar photovoltaic investment.[11] Cost-shifting occurs because most current state net metering policies allow residential rooftop solar customers to eliminate their electric bill altogether and avoid paying for the fixed costs associated with using the electric grid.[12] With current ratemaking, this leaves the utility with a smaller pool of customers from whom they can recover those costs, thus raising the electric bills of non-solar customers and creating a cross-subsidy effect.[13]
This paper explores the current status of federal incentives for residential photovoltaic investment, explains the negative externality associated with these incentives, and proposes a solution. The solution involves an environmental tax on electricity generators based on the carbon-emitting quality of the utilized resources. The revenue from the carbon tax will then be used to fund a low-income grant program for residential renewable solar photovoltaic investment.
II. How Does the Section 25D Credit Affect Residential Rooftop Solar?
The Section 25D credit is a key incentive for solar investment in the United States.[14] The Section 25D credit was originally introduced in the Energy Tax Act of 1978 and has been amended and extended four times since.[15] Most recently, the Preventing Americans from Tax Hikes Act extended the Section 25D tax credit for qualifying solar technologies through 2021.[16] Although this program has been widely successful, it has contributed to the increasing cost-shifting effect, disproportionately impeding low-income participation in the energy transition.[17]
The Section 25D Tax Credit
The Section 25D tax credit currently “allows taxpayers to claim a tax credit for properties that generate renewable energy…that they install on their residence.”[18] The credit value is equal to 30% of the purchase and installation expenditures, with no maximum value, for solar technologies until 2020.[19] From 2020 to 2021 the credit will be reduced to 26%. In its final year, 2021 to 2022, the credit will be further reduced to 22% of expenditures.[20]
Cost-Shifting Effect of Current Incentives
The Section 25D tax credit contributes to the cost-shifting effect on non-solar residential consumers.[21] Most states with rooftop solar integration have enacted net metering policies to compensate residential customers for their energy production on their electric bill.[22] Net metering is an accounting mechanism that provides utility customers that have an interconnected, operating solar system with a credit on their electric bill, most often equal to the retail rate of electricity multiplied by kilowatt-hours (kWhs) produced.[23] Total bill amounts represent the month’s net energy usage. This is done using a bidirectional meter that flows in one direction when the customer is consuming more than they are generating and flows in the opposite direction when the customer is producing more than they consume.[24] At the end of each billing cycle, the utility will calculate each customer’s net usage and bill them accordingly (charge if consumption is higher than production or credit if production is higher than consumption).[25]
Current utility rate structures require rates that are “just and reasonable” to prevent excessive utility profits and unreasonable price discrimination while providing utilities with enough revenue to operate and more.[26] In making such determinations, the regulatory body, usually called the state public utility commission (PUC), will allocate all fixed costs associated with delivering electricity to customers (such as grid maintenance) evenly to all the utility’s customers.[27] When the solar electricity-producing customers are able to offset this cost with net metering, the public utility commission will necessarily allow the utility to raise their rates to maintain cost recovery.[28] The solar customers will not realize the increase in rates because their net metering rate will also increase.[29] Non-solar customers, however, see their rates increase. In sum, when residential electricity consumers invest in solar technology, utilities shift the customers’ portion of fixed costs to other residential electricity consumers who have not invested in solar technology.
Current incentive programs exacerbate the cost-shifting effect of net metering.[30] With the current investment tax credit available for residential solar projects, the customer must have the requisite tax appetite to take advantage of any tax incentive.[31] Customers that do not have the tax appetite are less likely to invest in solar and are therefore more likely to experience cost-shifting.[32]
Disproportionate Impact on Low-Income Communities
Low-income consumers are particularly vulnerable to electricity price fluctuations and the cost-shifting effect which, coupled with other barriers to entry into the solar industry, further disadvantage these communities.[33] The increase in solar technology integration in the United States provides an opportunity to address inequities associated with low-income communities, such as the high cost of housing, unemployment, and environmental justice.[34] Energy is generally accepted as a “basic need in modern industrialized societies.”[35] Low-income residents in the United States spend a higher percentage of their household income on energy expenditures, partly because it is more difficult for them to adjust to price fluctuations with less energy-efficient homes.[36] Further, once higher-income households have invested in rooftop solar photovoltaics, the low-income customers will likely be the only customer class left paying the utilities’ fixed costs.
Low-income households are also uniquely vulnerable to fluctuations in energy prices due to their proportionally high energy burden compared to moderate- and high-income households.[37] Economists use the phrase “energy burden” when referring to “the disproportionate allocation of financial resources among low-income households on energy expenditures.”[38] More specifically, “[l]ow-income households spend 10 percent or more of their income on energy expenses,” and “the very poor . . . spend an upwards of 20 percent on energy purchases.”[39] As a result, it is particularly important to create incentive programs that will not exacerbate this burden. Additionally, electricity demand for low-income households is relatively price inelastic;[40] therefore, they are acutely susceptible to any changes in electricity rates. Policies that increase the price of electricity also increase the likelihood of energy poverty and the chances that a low-income household will not be able to pay their bill and their electricity will be shut off. In the winter or other extreme weather events, this could lead to death.[41] As such, low-income residents are uniquely vulnerable and disproportionately affected by the cost-shifting effect of net metering policies.
In addition to lack of capital, low-income customers face other barriers to entry into the solar photovoltaic generation market.[42] These barriers include a lack of homeownership and poor credit scores.[43] Any resident that desires to install solar panels to generate electricity must own property upon which the system can be built.[44] If a customer is renting their dwelling, or living in an apartment complex without roof rights, then the customer cannot install solar on their property without the landlord’s permission.[45] Even if ownership is not an issue, low-income households typically lack the credit necessary to take out a loan to finance the system.[46]
The cross-subsidy effect increases electricity costs for non-solar customers who are often low-income customers, and therefore, applies almost exclusively to the class of citizens least able to handle such a burden.
III. Proposed Federal Carbon Tax
There should be a federal carbon tax imposed on electric generating facilities proportional to their carbon footprint. To address the cross-subsidy issues with net metering, tax revenues can then fund a grant to low-income users subsidizing solar photovoltaic system installation. In contrast with other forms of taxation, environmental taxation “is not designed primarily for revenue-raising or as an instrument directed to marginally influence behavior, but rather strives for fundamental and structural changes in the behavior of economic actors.”[47] The carbon tax should be designed to fundamentally and structurally change electricity suppliers’ purchasing behaviors from fossil fuel generation to renewable generation.
For carbon-intensive fuels, such as coal, the tax rate would be higher than the rate for less carbon-intensive fuels, such as natural gas. The tax rate should be set equal to the average social cost of carbon to reflect the cost to society of using such fuels and to include as many externalities as possible in the calculation.[48] Finally, the revenues from this program must be earmarked first for a low-income residential grant program to stimulate rooftop solar investment and secondly to fund energy efficiency initiatives. This comprehensive, double-dividend tax should help alleviate the cross-subsidy effects on low-income communities.
Tax Base
The tax base should include all electric-generating facilities that release carbon dioxide. The generators are directly responsible for emissions related to electricity production and are therefore the most appropriate party to tax. Further, several states have begun transitioning away from traditional rate regulation and toward retail choice. In such states, electric utilities were once capable of owning and producing their own electricity but are now prohibited from doing this and must purchase the electricity wholesale from third-party producers.[49] If this proposed federal tax were imposed on utilities, it would affect each state differently, depending on how their rate regulation is structured. Although generating facilities will likely pass the cost of this new tax on to power purchasers, the tax will still affect behavioral change at all levels in the energy market, from energy producer to consumer. This will make large-scale renewables more cost-competitive with other generation sources and further incentivize a transition away from fossil fuels.
FERC Order No. 888, issued in 1996, allowed states to deregulate their wholesale markets by unbundling wholesale transactions from the generation and distribution components to encourage open access and competition.[50] In those states, energy generators and distributors (called distribution utilities) are not the same entity. For example, Massachusetts in 1997, with the Electric Industry Restructuring Act, became one of the early states to adopt this new, deregulated model of electricity regulation.[51] As a result, a federal tax on utilities would affect each state differently. Further, states that have deregulated, such as Massachusetts, would be disproportionately impacted. It would not be proper for utilities in restructured states to be taxed based on the carbon content of their customers’ electricity because they are not responsible for the type of energy delivered to their customers. This would not result in the behavioral change that this proposed tax is designed to effect. If the tax were imposed on generating facilities, the states where utilities own their generation would not be unjustly affected because they would still be the owners of the production facility and would therefore be considered generators and be taxed similarly to the other generators.
Electric generating facilities will likely pass the cost of this tax through to electricity suppliers, which would help influence the behavior of the people responsible for deciding between energy sources. If generators pass the cost of the tax to their consumers, then renewable technologies will be more cost-competitive and consumers will be more likely to invest in a sustainable future. Further, as suppliers invest in renewable technologies, the overall cost of renewable technologies for all customer classes is likely to decrease. A low-income renewable energy grant, funded by the tax revenues, should make up the remaining difference.
The tax base should be the total number of kWhs produced at each facility. Coal-fired power plants consume some of the energy that they produce in the process of carbon-capture and sequestration. For these and other similarly-situated facilities, the generator should also be responsible for the carbon dioxide emissions resulting from the energy that is consumed on-site. Thus, as energy is being generated, the facility’s tax base is increasing. While this method is most in line with the goals of this proposed carbon tax, an economic analysis should be conducted to consider whether this cost would discourage carbon-capture and sequestration by coal-fired generating units. If it would discourage such behaviors, then Congress should consider exempting the kWhs consumed on-site.
Tax Rate
The tax rate should be the average social cost of carbon as applied to each generating facility such that their per kWh charge reflects the social cost of carbon emitted for each kWh produced at that particular facility. In other words, if the social cost of carbon is x per ton of carbon dioxide, then a facility’s tax rate would be equal to the amount of carbon dioxide emitted to produce a single kWh multiplied by x. This rate would then be multiplied by the total kWh production of the facility to get the generator’s final tax liability.
There is a higher administrative burden associated with this tax rate structure because each facility would have its own rate, but it would be a more reflective tax policy. By linking the tax rate directly with the negative behaviors that the tax seeks to change, this policy follows traditional Pigouvian tax theory. In 1920, A. C. Pigou concluded,
[T]here is no reason to expect that self-interest will tend to bring about equality between the values of marginal net social products of investments in different industries when the values of social net product and of trade net product in those industries diverge. . . . It is, however, possible for the State, if it so chooses, to remove the divergence in any field by “extraordinary encouragements” or “extraordinary restraints” upon investments in that field. The most obvious forms, which these encouragements and restraints may assume, are, of course, those of bounties and taxes.[52]
This proposed tax shall address the divergence between electricity generators’ carbon dioxide pollution and its social costs. In this situation, carbon dioxide’s negative externality requires the “extraordinary restraints,” or tax. The revenue shall be used to stimulate the positive externality and fund the “extraordinary encouragement” through a low-income grant program.
Other Factors for Consideration
The tax, as proposed, would not require an administrative burden beyond establishing the tax rates for each type of generating facility. It would be simplest for each regional transmission organization (RTO) or independent system operator (ISO) to administer the carbon tax program. These entities already have a record of electricity production from each generator and would be able to most efficiently collect the tax. Once the tax rate has been calculated and implemented, the RTO/ISO could impose and collect the tax at the time of sale of any electricity in the wholesale market. This would not require a major change in current market operations.
There is a very low likelihood for fraud or abuse. This tax will charge only electricity generators; therefore, the pool of tax payers is limited and there is necessarily a record of transactions to verify production levels. A tax-liable entity would not be able to “hide” production or otherwise lie about production because it is recorded in the regional Generation Information System.[53]
Some states and regions have already implemented carbon pricing mechanisms and applied them directly to electricity generators. These areas include California’s cap and trade system, the Regional Greenhouse Gas Initiative, and the recently adopted Massachusetts emissions trading scheme.[54] In these areas, the proposed carbon tax would be an additional incentive. However, if a state adopted a carbon tax that directly charged electric generators, the generators should be able to deduct this from their federal carbon tax liability. This would allow states to adopt additional carbon taxes as they see fit.
Not all of the electricity consumed in the United States has been generated in the United States. For example, the Northeast imports electricity from Hydro-Quebec, a large-scale hydroelectric facility in Canada.[55] For imported electricity, there should be a border-tax adjustment. This proposal does not suggest taxing any emissions from large-scale hydroelectric facilities.
IV. Low-Income Residential Grant Program
The revenues of the carbon tax should be earmarked for a low-income residential grant program for investments in solar photovoltaic systems. This program would provide grants directly to consumers looking to install solar photovoltaic systems. Most low-income households have neither the tax appetite to take advantage of current tax incentives nor the credit required for loan programs. Further, these households do not have the upfront capital necessary for any renewable investment.[56] The proposed carbon tax and other federal incentives for renewable technology integration have exacerbated the cost-shifting effect which this grant program would help remedy.
The administrative burden to implement the grant program will be higher than that of implementing another tax credit program; however, another tax credit program would not address the problem that this program seeks to solve because low-income households do not have the requisite tax appetite for tax credits. A refundable tax credit might also have a lower administrative burden, but low-income households likely could not wait months to realize the credit. This grant program would allow the government to send a check directly to the low-income customer prior to the customer making the up-front investment. This may also help a low-income customer secure loan financing if they can demonstrate that they will receive the grant money.
Double-Dividend Tax Theory
By earmarking the tax revenues to encourage low-income investments in renewable energy, this policy is seemingly at odds with the double-dividend tax theory. However, the grant program will reduce another economically inefficient tax burden, which is consistent with double-dividend theory. This theory describes two dividends: “[t]he first dividend refers to the environmental impact of the environmental tax and the second to the economic impact of the use of the tax revenues.”[57] Here, the first dividend of the carbon tax addresses the environmental impact of carbon dioxide emissions. The second dividend is the use of tax revenue to remedy the economic impacts of other renewable state and federal subsidies on low-income communities. The proposed tax policy includes dedicating the revenue to a particular purpose, but that purpose is to reduce the existing, economically inefficient burden on low-income, residential electricity consumers.
The Low-Income Grant Program
The Internal Revenue Service would administer the low-income grant program on a per-application basis. Low-income residents who have purchased, installed, and placed into service solar facilities for use at their residence (or have contracted to do so) shall certify as such and receive immediate compensation. This compensation may be signed over to a loan servicer in advance to use as collateral for the consumer to be approved for a loan to purchase the solar system. If a low-income resident decided to invest in solar photovoltaics through a cooperative, partnership-flip agreement, or community solar arrangement, they would similarly be able to sign over their grant check.
The grant program should offer the same value as the Section 25D tax credit: 30% of the overall investment. Because these programs are effectively exclusive and together should cover all residential customer income levels, it is fair to set the incentive amounts equal. Although there likely will not be customers that qualify for both incentives, there should nonetheless be a provision restricting any household from realizing benefits from both programs. Finally, this grant program should be continued and extended for as long as there is a similar incentive provided, through tax credits, to moderate- to high-income residential customers.
Energy Efficiency and Climate Adaptation
Any and all funds that are not distributed through the low-income grant program shall be distributed to the states on a per-capita basis with the stipulation that 80% of the funds be used towards increasing energy efficiency and 20% towards climate adaptation measures within the state. The carbon tax will likely generate substantial revenue and not all of it will be realized by low-income residential customers. The purpose of this tax policy is to help all citizens of the United States transition into a clean, sustainable energy future. Energy efficiency measures and climate adaptation investments are critical pieces of this transition.
Energy efficiency investments will reduce load on the electric grid, reduce electricity demand and facilitate the movement towards electric transportation. If energy efficiency can reduce residential electricity demand, it will become easier to integrate electric transportation. These changes can help ensure an ongoing, stable society in the face of climate change threats.
V. Conclusion
Current federal tax incentives for residential investments in renewable solar photovoltaic systems exclude low-income consumers. Low-income consumers often do not have the tax appetite to take advantage of tax credits, lack the homeownership requirement for the Section 25D credit, and do not have the funding to invest upfront, nor the credit to obtain a loan. As such, current net metering policies encourage moderate- to high-income investment, creating a cross-subsidy effect and increasing the growing class divide between high-income citizens and low-income citizens.
It is imperative that we transition our current electricity sector to a clean, renewable energy economy if we hope to mitigate climate change impacts on our society. This transition will require all members to adjust to a new economy, a new electric grid, and other demand-side changes, such as driving electric vehicles. A whole-system evolution of this type requires the participation and inclusion of all members of society. As such, the federal government needs to stimulate and encourage investments from all customer classes. The current system only provides incentives for moderate- to high-income residents.
The carbon tax and low-income grant program proposed in this paper would help transition all sectors of the American economy to a low-carbon future and would address the disproportionate impact of other, cost-shifting renewable incentive programs on low-income communities.
This carbon tax would increase the cost-competitiveness of large-scale renewable energy facilities by increasing the cost of carbon-intensive energy generation. It would directly and proportionally punish the emitters of carbon dioxide pollution for the social cost of their actions. This direct link between the negative behavior and the tax creates the most efficient tax mechanism to encourage behavioral change. The tax revenues would then be dedicated to a low-income grant program with excess funds dedicated to energy efficiency and climate change adaptation measures. This policy will further encourage renewable energy integration and will discourage fossil-fuel electricity generation.
If we are to take climate change seriously, the United States federal government should strongly consider a federal carbon tax, similar to the one proposed here, and invest 100% of the proceeds in preparation for the upcoming energy transition. This tax policy would get us one step closer to securing a safe, healthy, and sustainable future for our generations and generations to follow.
*Elizabeth Doherty, 3L, Vermont Law School and Symposium Editor, Vermont Journal of Environmental Law
[1] Jake Schmidt, Since 2005 the G7 Has Recognized Threat of Climate Change, NRDC (May 25, 2017), https://www.nrdc.org/experts/2005-g7-has-recognized-threat-climate-change.
[2] Adam B. Smith, 2017 U.S. Billion-Dollar Weather and Climate Disasters, Climate.gov (Jan. 8, 2018), https://www.climate.gov/news-features/blogs/beyond-data/2017-us-billion-dollar-weather-and-climate-disasters-historic-year.
[3]Sources of Greenhouse Gas Emissions Envtl. Protection Agency (Apr. 11, 2018), https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions.
[11] Grid Alternatives et al., supra note 9, at 13.
[12]See generally Jim Lazar, Regulatory Assistance Project, Electricity Regulation in the US: A Guide 79 (2d ed. 2016) (describing net metering policies).
[13] Cherrelle Eid et al., The Impact of Net-Metering on Cross Subsidies Between Network Users 1 (2014).
[14] Sadie Cox et al., Clean Energy Sols. Ctr., Solar Power: Policy Overview and Good Practices 12 (2015).
[15] Crandall-Hollick & Sherlock, supra note 7, at 17–20.
[21] Grid Alternatives et al., supra note 9, at 8.
[22] Luke Richardson, Virtual Net Metering: What is It? How Does It Work?, EnergySage (Sept. 8, 2016) http://news.energysage.com/virtual-net-metering-what-is-it-how-does-it-work/.
[23]Net Metering, Solar Energy Indus. Ass’n, https://www.seia.org/initiatives/net-metering (last visited Apr. 25, 2018).
[30] Grid Alternatives et al., supra note 9, at 8.
[31] Mark Bolinger et al., Lawrence Berkeley Nat’l Lab., An Analysis of the Costs, Benefits, and Implications of Different Approaches to Capturing the Value of Renewable Energy Tax Incentives i (2014).
[45]Id. While it is possible to purchase and install a solar facility with an additional contract with the landlord, practical considerations make it highly unlikely and infeasible.
[47] Michael G. Faure & Stefan E. Weishaar, The Role of Environmental Taxation: Economics and the Law, in Handbook of Research on Environmental Taxation 399, 399 (Janet E. Milne & Mikael Skou Andersen eds., 2012).
[48] There is not a general consensus on what the true social cost of carbon is; therefore the rate should be based on the average social cost of carbon as determined by expert agencies.
[49] Kenneth C. Baldwin, Energy Facility Siting, in Capturing the Power of Electric Restructuring 133–173, 135 (Joey Lee Miranda ed., 2009); see John W. Wadsworth, Electric Industry Restructuring in Massachusetts 103 (explaining how Massachusetts is an example of a state that has deregulated its electricity sector to disallow utilities from owning their own generation, allowed new generators to enter the market, and created renewable incentives within this framework to encourage renewable development).
[51] Gregory Bialecki & Richard Sullivan, Jr., Exec. Office of Hous. & Econ. Dev. & Exec. Office of Energy & Envtl. Affairs, Recent Electricity Market Reforms in Massachusetts 4 (2011).
[52] Janet E. Milne & Mikael Skou Andersen, Introduction to Environmental Taxation Concepts and Research, in Handbook of Research on Environmental Taxation 15, 16 (Janet E. Milne & Mikael Skou Andersen eds., 2012) (quoting A. C. Pigou, The Economics of Welfare v (1920)).
[53]See, e.g., Resource Mix, ISO-New England (Apr. 27, 2018), https://www.iso-ne.com/about/key-stats/resource-mix.
[54]Massachusetts Introduces Additional Cap-and-Trade System, Int’l Carbon Action Partnership (ICAP), https://icapcarbonaction.com/en/news-archive/483-massachusetts-introduces-additional-cap-and-trade-system (Apr. 27, 2018); Jackson Morris & Bruce Ho, California Leads Off: Now RGGI Must Grab the Climate Baton, NRDC (July 19, 2017), https://www.nrdc.org/experts/jackson-morris/california-leads-now-rggi-must-grab-climate-baton.
[55]See generally Inter-Area Operating Agreements and Asset Owner Agreements, ISO-New England (Apr. 27, 2018), https://www.iso-ne.com/participate/governing-agreements/interconnection-operating-asset-owners/ (detailing ISO-NE’s agreement with Hydro-Quebec).
[56] Grid Alternatives et al., supra note 9, at 8.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
The summer of 2017 set the West on fire, both physically and politically. By early September, the Western states had 65 fires burning at once.[1] As millions of acres burned—along with the U.S. Forest Service’s (USFS) budget—lawmakers gathered in Congress to create a “fire funding fix.”[2] Summer 2018 will likely be no different—even after the celebrated passage of the bipartisan 2018 Omnibus spending bill focused on new budget appropriations for wildfire suppression and prevention.[3] Argued here, the USFS’s budgeting problem represents only one straw in a dry, hot haystack.
In an opinion published in High Country News, retired former USFS Chief Dale Bosworth and retired former USFS National Director of Fire and Aviation Management Jerry T. Williams suggested that, without an investigation into the root-causes of wildfires, federal agencies will remain “bound to convention, [and] . . . left to suffer the next unimaginable disaster” like the wildfires of 2017.[4] The USFS does not have adequate legislation to address the full scope of contributory factors of wildfire—namely, national forests’ altered landscapes created by the mistake of allowing 100 years of fire suppression; wildfires exacerbated by unaccounted for climate change contributory factors; and the public’s apparent unwillingness to allow the USFS to correct its mistake by mitigating environmental harms in forests that depend on wildfire for healthy, sustainable ecosystems.[5] The Omnibus spending bill provides a start to this management paralysis. The USFS needs a “commission on wildfire” (Wildfire Commission) to find the roots of the problem.
Bosworth and Williams presented three strong arguments for the USFS’s inability to effectively manage wildfires. First, altered national forests created by naïve land management practices, such as “take-the-best-and-leave-the-rest-logging,” which created forests dependent on human action for wildfire prevention.[6] When the USFS suppressed fires, it suppressed the forests’ natural ability to reduce fuel loads, thin trees, and regenerate ecosystems through wildfire, it created a forest dependent on human action to remedy the environmental harms that resulted from that suppression.[7] Second, without a strong market for “small-diameter trees and deadfall” cut during wildfire prevention efforts that thin forest understory, the USFS cannot subsidize the woody biomass those mitigating cuts would create.[8] Third, fire suppression appropriations grossly outweigh those needed for wildfire mitigation.[9] The second argument could potentially cure the third: subsidizing wildfire mitigation by creating a market for woody biomass might help balance the budget.
This article uses legislative and historical perspectives to build upon Bosworth and Williams’s suggested solution to create a Wildfire Commission that investigates the fuller spectrum of causal and contributory factors of wildfire, to shift to a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.[10] The Wildfire Commission would allow Congress to create more effective legislation and inform the public that accountability for wildfires extends farther than the USFS.[11]
First, this article examines the costs of wildfire and Congress’s fire funding fix. Second, this article provides foundational legislative guidance for Congress to establish the Wildfire Commission using the extant annual reporting requirements within the Consolidated Appropriations Act of 2018[12] (Appropriations Act) and builds off questions addressed by the National Forest Commission of 1896–1897.[13] Finally, this article concludes that a full-scope investigation of contributory factors—if seen through a lens different from the economic-based paradigm that currently exists—elucidates the necessity for a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.
I. Background
A. The Costs of Wildfire and the “Fire Funding Fix”
After visiting several post-wildfire sites in late 2017,[14] the newly appointed U.S. Secretary of Agriculture Sonny Perdue (Secretary) called upon Congress to create a “fire funding fix.”[15] The Secretary sought legislation that would fix how the USDA receives and allocates funds to suppress wildfires in two ways: first, by establishing an emergency fund to fight existing fires; and second, by allocating more funding for preventative wildfire management practices that remove “fuel load[s]”[16] in national forests.[17] To reduce fuel loads, the Secretary sought to create a categorical exclusion for the USFS to clear “underbrush” under the National Environmental Policy Act (NEPA).[18]
Until the Appropriations Act, funding allocations for wildfire suppression and prevention were interdependent—during a fire, the USFS would “borrow” funds from a separate wildfire prevention fund.[19] Suppression costs rose to over 50% of the budget by 2017,[20] and wildfires’ severity and impacted acreages mirrored this increase, indicating that borrowing is increasingly untenable.[21] The USFS wildfire suppression costs alone reached a record $2 billion in 2017.[22] Without mitigation or better management, wildfires and socioeconomic costs will continue to increase and uncontrollable wildfires will continue to exceed expectations.[23]
B. The Consolidated Appropriations Act of 2018
On March 23, 2018, Congress passed and the President signed the Appropriations Act.[24] The Appropriations Act contains the Wildfire Suppression Funding and Forest Management Activities Act (Wildfire Suppression Act). The Wildfire Suppression Act directly addressed the Secretary’s call to Congress by creating a new eight-year funding structure, beginning in fiscal year 2020.[25] Under the new funding structure, the USDA and Department of the Interior (DOI) have an increased budget allowance of $2.25 billion that incrementally authorizes an additional $100 million each year over the following seven years.[26]
States and counties also benefit from The Appropriations Act.[27] Congress allocated approximately $200 million to rural counties using a two-year extension of the Secure Rural Schools and Self-Determination Act of 2000,[28] which provides funding for prevention, restoration, and stewardship projects to rural counties that contain federal land or are near national forests.[29] The Act also authorizes the DOI and USFS to purchase and acquire privately-held inholdings in areas such as “national parks, national wildlife refuges, [and] national forests.”[30]
C. Wildfire Costs Are Neither a Sole Budget Problem nor a Sole NEPA Problem
The Secretary’s plea to Congress assumes that this new funding structure and associated grants will allow the USFS will be able to fight fires more effectively.[31] However, the fire funding fix is limited in two notable ways: first, it only considers fire suppression; and second, it only creates a limited categorical exclusion under NEPA in forest management planning processes for areas less than 3,000 acres, authorized for “forest restoration treatments” in rural counties, or within the “wildland-urban interface” (WUI).[32] The latter’s categorical exclusion from NEPA[33] only applies to the limited acreage requirements of Wildfire Resilience Projects;[34] it still requires the USFS to prepare an impact statement and annual report that is “transparent and nonexclusive;”[35] and does not apply to “a component of the National Wilderness Preservation System,” National Monuments, “congressionally designated wilderness study area[s],” or areas inconsistent with previously enacted land and resource management plans under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974.”[36]
The Wildfire Suppression Act authorizes funding and exemptions that reduce the time between authorization and implementation.[37] However, the Act does not address wildfire management, why wildfires have increased so dramatically, and whether they may be contained at all. The DOI and the USFS now need to consider what will happen in eight years when the funding fix expires. The USFS must focus more on regulating human actions in and around national forests, rather than trying to contain the possibly uncontainable—wildfire. A Wildfire Commission should be formed to provide an unbiased answer to these difficult questions.
II. Creating the Wildfire Commission
A. The Wildfire Commission Must Consider Climate Change Factors
Our current forest management structure remains at a “dangerous impasse.”[38] Scientists provide “strong evidence that regional warming and drying, including that directly attributed to anthropogenic climate change,” contributes to an increase in wildfires’ fire severity, frequency, and length. Climate change causes “increased frequency of heat waves,”[39] increased incidents of drought, and extended drought seasons,[40] all of which contribute to wildfire severity.[41] “[N]o environmental issue has captured the scientific community’s interest, the media’s eye, the public’s concern, and even the policymakers’ attention more than the climate change crisis.”[42] Yet, the USFS cannot control these contributory factors. Climate change has changed the world in ways most USFS land-management legislation failed to anticipate.[43] Unless Congress enacts legislation that authorizes the USFS to exercise their expertise in wildfire management, it will continue to fund a fight it cannot win, and the USFS will continue to be “hamstrung by convention.”[44]
A Wildfire Commission needs to investigate new legislation to mitigate an extended and increased wildfire season’s economic and socio-economic costs, and it must incorporate contributing factors associated with altered forests’ health. The increase in wildfires, when compounded by rising global temperatures, requires a shift from the economy-based paradigm read into the USFS’s enabling act[45] to an anthropogenic-based paradigm for analyzing and managing wildfire. [46]
B. The Wildfire Suppression Funding and Forest Management Activities Act of 2018
Appropriations Act amendments provide an apt model for an investigatory Wildfire Commission. The Wildfire Suppression Act requires the Secretary of the DOI or USFS to consult with the Director of the Office of Management and Budget (OMB) to prepare an annual report if either Agency withdraws emergency funds for wildfire suppression in the prior fiscal year.[47] The report only applies to funds taken by either Agency for emergency funds, not funds already appropriated to the USFS. The annual report requires that the Secretary of the DOI or USFS:
(1) document obligations and outlays of the additional new budget authority for wildfire suppression operations;
(2) identify risk-based factors that influenced management decisions with respect to wildfire suppression operations;
(3) analyze a statistically significant sample of large fires, including an analysis for each fire of—
(A) cost drivers;
(B) the effectiveness of risk management techniques and whether fire operations strategy tracked the risk assessment;
(C) any resulting ecological or other benefits to the landscape;
(D) the impact of investments in wildfire suppression operations preparedness;
(E) effectiveness of wildfire suppression operations, including an analysis of resources lost versus dollars invested;
(F) effectiveness of any fuel treatments on fire behavior and suppression expenditures;
(G) levels of exposure experienced by firefighters;
(H) suggested corrective actions; and
(I) any other factors the Secretary of the Interior or Secretary of Agriculture (as applicable) determines to be appropriate;
(4) include an accounting of overall fire management and
spending by the Department of the Interior or the Department of Agriculture, which shall be analyzed by fire size, cost, regional location, and other factors;
(5) describe any lessons learned in the conduct of wildfire suppression operations; and
(6) include any other elements that the Secretary of the Interior or the Secretary of Agriculture (as applicable) determines to be necessary.[48]
The Wildfire Suppression Act forms a good basis for the Wildfire Commission to begin their investigations.[49] Notably, the Wildfire Suppression Act’s requisite report leaves out factors outside an agency’s control such as climate change-induced weather that impacts fuel types within historically fire-suppressed forests. Thus, the reports primarily focus on whether the wildfires were appropriately budgeted and timely handled during a wildfire emergency. The Wildfire Commission could close this gap.
The Wildfire Commission’s investigation should utilize the Wildfire Suppression Act’s list of factors but focus more on broader, external factors, such as:
(1) whether the wildfire risks were appropriately and effectively tracked considering weather conditions;
(2) how weather contributed to the fire’s path and strength;
(3) whether humans or natural causes ignited the fire and where they started;
(4)any ecological benefits or environmental harms existing post-fire,[50]including levels of harmful exposure to community and firefighters (e.g., air and water pollution and at what levels), which could be compared to baseline documentation from previous years; and
(5) whether policies altering the forest floor by removing “fuel loads” mitigates the wildfire’s impacts versus abstention from removal or intervention.[51]
These findings may shift some accountability away from the USFS and allow Congress to look beyond the suppression appropriations and limited prevention exceptions, encouraging more apt legislation that considers these contributory factors. Legislation could include restricting access to national forests on high-risk days;[52] implementing development restrictions within the WUI by acquiring property rights or working with land trust organizations to place conservation easements in high-risk areas;[53] or providing a cost-benefit analysis of pre-wildfire and post-wildfire health impacts, loss of homes and property, and loss of human, plant, and animal species to encourage laws that allow for more underbrush removal by prescribed fire or mechanical means within high-risk areas.
III. Legislative and Anthropogenic Considerations
A. A Foundational Commission Example: The National Forest Commission of 1896–1897
Congress established the National Forest Commission in 1896 to determine how the public forest reserves should be managed as a “national forest system.”[54] Hoke Smith, the Secretary of the Interior in 1896,[55] asked the president of the National Academy of Sciences, Wolcott Gibbs, to have the National Forest Commission focus on answering three specific questions:
(1) Should forest lands dedicated to timber growth be protected from fire?
The answers became part of the Administrative Organic Act of 1897 (Organic Act): “[n]o national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens. . . .”[57]
The Wildfire Commission could base its investigations on clauses from the Organic Act. It could investigate water quality, water diversion, nearby agricultural farming practices, and the effects of “uncontrolled residential development” near or the WUI[58] that may contribute to drought conditions. Secretary Smith’s focus on ecology counsels a revisit to those considerations. Additionally, the Organic Act suggests investigating market resources for underbrush cleared during wildfire prevention.
Under these considerations the Wildfire Commission may find reason to restrict property development and water diversion to the WUI, or at least require high fire-prevention standards for their properties. In addition, it may address accountability factors that influence homeowners’ expectations regarding the USFS’s role in fighting deadly wildfires that threaten their homes. Finally, the Wildfire Commission may consider decreased air quality brought on by wildfires versus prescribed burns near their homes.[59]
B. Anthropogenic Factors: Investigating Smaller Scales of Prescribed-Fire Management and Altered Forest Comparisons
The Wildfire Commission could gain a broader perspective on wildfire management by investigating indigenous cultures’ agricultural practices. The Wildfire Commission should investigate work that the USFS performs with Native American tribes and other countries and cultures, including in places where higher average temperatures could prove useful models.[60] Specifically, the Wildfire Commission should consider altitude and forest-types when analyzing fuel loads. Variances in vegetation are critical because, of “the three elements that influence fire behavior-weather, topography, and fuels[, fuels are] the only element that can be manipulated.”[61]
The USFS has historically collaborated with Native American tribes to help combat forest fires resulting from droughts brought on by climate change.[62] In the West, scientists, foresters, and tribes have developed collaborative approaches to utilize “tribal traditional ecological knowledge” (TEK) to improve forest management and wildfire prevention.[63] Scientists recognize that TEK, a combination of “contemporary tribal/indigenous people’s [oral history or ethnographic information] about climate and fire regimes,” creates core knowledge for successful land management.[64]
The USFS’s work with Aborigines in Northern Australia provides a template for how the Wildfire Commission should quantify fuel types and help predict fire behavior, create physical models of fuel types, and suggest a universal standard for fuel assessments.[65] A report by scientists working with northern Australian Aborigines provides an apt overview of why the Wildfire Commission should investigate fuel assessment practices and differences between altered and unaltered forest types:
As combustion is a fundamental process, the same relationships between fuel and fire behaviour occur universally. Consequently, there is potential for developing novel fuel assessment methods that are more broadly applicable and allow fire research to be leveraged worldwide. Such a movement would require broad cooperation between researchers and would most likely necessitate a focus on universal properties of fuel. However, to truly understand fuel dynamics, the complex biotic nature of fuel would also need to remain a consideration—particularly when looking to understand the effects of altered fire regimes or changing climate.[66]
The benefits of the USFS’s work with TEK establishes a reason to investigate different scale models.[67] In investigating these practices, the Wildfire Commission should expand this scope to compare and contrast the agricultural practices of other indigenous cultures. It may be important to note that most indigenous cultures’ agricultural practices are unlike the industrialized, mono-type agricultural practices in the states.[68] The Commission should investigate the differences in agricultural practices, including water resources and diversion schemes, fire-retardants and pesticide effects on soil types, and water run-off of these chemicals in areas close to, or within, national forests.
Conclusion
The Wildfire Suppression Act provides the perfect impetus for Congress to create a Wildfire Commission. Congress should establish a Wildfire Commission to perform investigations that include: (1) examining broader geographic areas and forest types and considering their altered state; (2) performing environmental quality comparisons between prescribed burns and wildfire impacts to consider adjustments to state and federal environmental limitations on prescribed burns;[69] (3) adopting indigenous people’s agricultural management practices in warmer climates; (4) developing climate change models that include temperature inflations and fluctuations, weather patterns, and drought cycles; and (5) considering population migration patterns and proximity to forests to form incentives to leave the WUI and allow for an increase in prescribed burns or forest thinning practices, or—at minimum—encourage an uptake in public accountability.
The Organic Act’s legislative history provides guidance on base models of USFS wildfire policy. Expanding on questions to be addressed in annual reports on emergency funds under the Wildfire Suppression Act may return findings that suppression and prevention efforts still cannot combat climate change effects.[70] Knowledge regarding fuel types and variations between altered and unaltered forests will help predict ignition causes, whether the USFS can control wildfires in certain areas if the risk of socioeconomic harms are too high to justify suppression. If the USFS is unable to control the intensity of predicted fires, legislation may be needed to restrict further alterations and human activities within certain high-risk areas. Studies on the “long-term health and sustainability of wilderness areas” performed by previous foresters and scientists could also offer solutions for creative wildfire management and when to allow forests to burn.[71] That way, nature could possibly pick up the tab on at least part of the federal budget allotted towards wildfire suppression.
In conclusion, the root-causes of wildfire management have still yet to be addressed even with the enactment of the Wildfire Suppression Act.[72] The problem is “not the way we fight wildfires in the West. . . . The problem is the way we manage our fire-dependent forests.”[73]
*Kelly Brantzi is a 3L at Vermont Law School where she is a Managing Editor on the Vermont Journal of Environmental Law. Kelly wishes to express sincere thanks to the Executive Board of VJEL for their superior editing skills; Dale Bosworth, Orville Daniels, and Olleke Rappe-Daniels for their invaluable and unique perspectives on forest management and wildfires; Al Sample for continually sparking my educational curiosity; and special thanks to Dale Bosworth and Jerry Williams for providing the inspiration and impetus to write this article.
[1] Tom Di Liberto, Massive Fires Burning Across the West in September 2017, Climate.gov (Sept. 7, 2017), https://www.climate.gov/news-features/event-tracker/massive-fires-burning-across-west-september-2017.
[2] Press Release, U.S. Dep’t of Agric., Secretary Perdue Applauds Fire Funding Fix in Omnibus (Mar. 23, 2018), https://www.usda.gov/media/press-releases/2018/03/23/secretary-perdue-applauds-fire-funding-fix-omnibus [hereinafter Perdue Applauds Omnibus] (tagging the budget appropriations in the omnibus bill as “the fire funding fix”).
[3] Consolidated Appropriations Act, Pub. L. No. 115-141, div. O, §§ 102, 605 (Mar. 23, 2018) [hereinafter Appropriations Act] (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2) (2012), and the Healthy Forests Restoration Act of 2003, 16 U.S.C. § 6511(2)).
[4] Dale Bosworth & Jerry T. Williams, We Need a Commission to Take Action on Wildfire in the West, High Country News (Nov. 30, 2017), https://www.hcn.org/articles/opinion-we-need-a-commission-to-take-action-on-wildfire-in-the-west; see also Robert B. Keiter, The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation, 36 Envtl. L. 301, 310–12 (2006) (detailing lives lost during wildfires that occurred in the last decade).
[5] Jamison Colburn, The Fire Next Time: Land Use Planning in the Wildland/Urban Interface, 28 J. Land Res. & Envtl. L. 223, 225–227 (2008).
[7] Diane Smith, From Research to Policy, The White Cap Wilderness Fire Study, Forest history today, Spring/Fall 2014, at 4, 6.
[8] U.S. Dep’t of Agric., Forest Serv., RMRS-GTR-149, Strategic Assessment of Forest Biomass and Fuel Reduction Treatments in Western States,8–12 (2005) (describing the potential of merchantable timber potentially generated from trees less than 10 inches diameter left behind during fuel reduction treatments).
[10]Id.; seealso Thomas J. Duff et al., Revisiting Wildland Fire Fuel Quantification Methods: The Challenge of Understanding a Dynamic, Biotic Entity, Forests, Sept. 2017, at 351, 351 (“Fire behaviour is the product of the weather, topography, human intervention and, importantly, the fuel properties at the time a fire occurs.”).
[12] Appropriations Act, Pub. L. No. 115-141, div. O, § 104 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2)(F)(i)).
[13] Williams & Miller, At the Creation: The National Forest Commission of 1896–97, Forest History Today, Spring/Fall 2005, at 32, 32–34.
[14] Perdue Applauds Omnibus, supra note 2 (detailing the Secretary’s visits to regions impacted by wildfires).
[15]See Dino Grandoni, The Energy 202: Hurricanes Are Dominating the News. But Forest Fires Are Raging out West., Wash. Post (Sept. 20, 2017), https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2017/09/20/the-energy-202-congress-want-to-fix-firefighting-in-federal-forests-but-it-can-t-agree-on-how/59c1616530fb045176650d47/?utm_term=.954136dce369 (quoting USFS spokeswoman Babete Anderson, who stated that “[t]he Forest Service is working with the Administration and Congress on a fire funding fix,” and reporting an increase of “about 2.5 million more acres [of burn] than in an average year”).
[16]See Forest Service Manual, ch. 5105, Hazardous Fuels Management and Prescribed Fire, Amend. No. 5100-2014-3 (2014) (defining “fuel as combustible wildland vegetative materials, living or dead”).
[17] Press Release, U.S. Dep’t of Agric., Perdue Calls on Congress to Fix Forest Service Fire Funding Problem (Sept. 8, 2017), https://www.usda.gov/media/press-releases/2017/09/08/perdue-calls-congress-fix-forest-service-fire-funding-problem.
[18]Id.; 40 C.F.R. § 1508.4 (2017); see also Appropriations Act, Pub. L. No. 115-141, div. O, § 605 (Mar. 23, 2018) (amending Healthy Forests Restoration Act of 2003, 16 U.S.C. 6511(2)).
[19] Press Release, U.S. Dep’t of Agric., Forest Service Wildland Fire Suppression Costs Exceed $2 Billion (Sept. 14, 2017), https://www.usda.gov/media/press-releases/2017/09/14/forest-service-wildland-fire-suppression-costs-exceed-2-billion.
[20] Press Release, U.S. Dep’t of Agric., supra note 23; see also USDA Forest Service, Fiscal Year 2017 Budget Overview 3 (2016).
[22] Laura Zuckerman, Cost of Fighting U.S. Wildfires Topped $2 Billion in 2017, Reuters (Sept. 14, 2017, 8:27 PM), https://www.reuters.com/article/us-usa-wildfires/cost-of-fighting-u-s-wildfires-topped-2-billion-in-2017-idUSKCN1BQ01F. These costs do not take into account the socioeconomic costs such as lost lives and homes or claims against the federal government for property damage or negligence. See Keiter, supra note 4, at 350–59 (discussing socioeconomic policy and litigation costs).
[23]See Bosworth & Williams, supra note 4 (“If the aim is to protect life and property, and to minimize natural resource damage at the lowest possible cost, then [the USFS is] headed down the wrong trail.”).
[24] Appropriations Act, Pub. L. No. 115-141, div. O, §§ 102, 104, 605 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2) (2012), and the Healthy Forests Restoration Act of 2003, 16 U.S.C. § 6511).
[25] Perdue Applauds Omnibus, supra note 2; Cost of Fire Operations, U.S. Forest Serv., https://www.fs.fed.us/about-agency/budget-performance/cost-fire-operations (last visited Apr. 12, 2018); see Appropriations Act § 102 (defining “wildfire suppression operations” as “the emergency and unpredictable aspects of wildland firefighting, including . . . support, response, and emergency stabilization activities; other emergency management activities; and the funds necessary to repay any transfers needed for the costs of wildfire suppression operations”).
[26]Cost of Fire Operations, supra note 25; see also Appropriations Act §§ 102, 104 (amending 5 U.S.C. § 401(a)) (detailing the USFS’s appropriated emergency allowance under section 102 and the USFS authority under section 605 for prevention measures).
[27]NACo Legislative Brief: Highlights of the FY 2018 Omnibus Federal Spending Package for Counties, NACo (Mar. 23, 2018), http://www.naco.org/featured-resources/highlights-fy-2018-omnibus-federal-spending-package-counties.
[32]See Appropriations Act § 102 (defining terms in new section 605, Wildfire Resilience Projects, for “hazardous fuel reduction projects, as defined in the Healthy Forests Restoration Act of 2003,” 16 U.S.C. § 6511(2), to be considered “an action categorically excluded from the requirements of [NEPA],” 42 U.S.C. § 4321–4370m-12); 36 C.F.R. § 220.6 (2017).
[33] National Environmental Policy Act, 42 U.S.C. § 4321–4370m-12.
[34] Appropriations Act §§ 201, 202, 605 (defining terms in new section 605, Wildfire Resilience Projects, for “hazardous fuel reduction projects, as defined in the Healthy Forests Restoration Act of 2003,” 16 U.S.C. § 6511(2), to be considered “an action categorically excluded from the requirements of [NEPA]”).
[35]Id. § 605 (establishing that Wildfire Resilience Projects for reducing hazardous fuels shall be “transparent and nonexclusive” under 16 U.S.C. § 1611(2)(a)–(b)).
[37]See id. § 208 (removing the requirement for additional consultation in the Forest Rangeland Renewable Resources Planning Act, 16 U.S.C. 1604(d)).
[38] Bosworth & Williams, supra note 4; seeparadigm, American Heritage Dictionary of the English Language (5th ed. 2016) (“A set of assumptions, concepts, values, and practices that constitutes a way of viewing reality for the community that shares them, especially in an intellectual discipline.”).
[39] Jennifer K. Balch et al., Human-Started Wildfires Expand the Fire Niche Across the United States, 114 Proc. Nat’l Acad. Sci. 2946, 2946 (2017).
[41] Bosworth & Williams, supra note 4; see also Frank K. Lake, Trails, Fires, and Tribulations: Tribal Resource Management and Research Issues in Northern California, 5 Occasion 1, 14 (2013) (arguing that national wildfire policies should consider climate change).
[42] Mary Jane Angelo, Corn, Carbon and Conservation: Rethinking U.S. Agricultural Policy in a Changing Global Environment, 17 Geo. Mason L. Rev. 593, 599 (2010); see also Climatic Variability Report, supra note 7, at 111 (acknowledging the future changes and threats to forests due to climate change).
[44] Bosworth & Williams, supra note 4 (arguing for a Wildfire Commission based on an analogy to the 9/11 Commission’s finding that the “system . . . was hamstrung by convention”).
[47] Appropriations Act, Pub. L. No. 115-141, div. O, § 102 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901(b)(3)(F)(i)).
[49] Economic factors should not be considered by the Commission; the Wildfire Suppression Act already requires an economic analysis. Seeid. § 104 (requiring a report that considers “cost drivers”).
[50] Robert L. Beschta et al., Postfire Management on Forested Public Lands of the Western United States, 18 Conservation Biology 957, 959 (2004).
[51] Lake, supra note 41, at 4 (“Tribal TEK may . . . describe how climate and weather influence fire behavior, from the yearly to decadal scale, with generalized understanding of century-scale climate and fire regime changes.”)
[52]See Balch et al., supra note 3, at 2946 (pointing to a survey, which covered roughly two decades of U.S. wildfire research and reviewed over 1.5 million government records, that reported that humans had caused over 84% of wildfires).
[53] V.C. Radeloff et al., The Wildland-Urban Interface in the United States, 15 Ecological Applications 799, 802 (2005) (“The wildland-urban interface (WUI) is the area where houses meet or intermingle with undeveloped wildland vegetation.”).
[55] In 1896, forest reserves—what are now called national forests—were under the management of the DOI. See Williams & Miller, supra note 18, at 33 (discussing the amendments that shifted the management of forest reserves from the DOI to a newly formed Forest Service).
[60]See Climatic Variability Report, supra note 7, at 10 (providing temperature increase projections).
[61]Appendix E – Fuel Model Definitions/Process, U.S. Forest Serv., https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5109750.pdf (last visited Apr. 12, 2018).
[62]See, e.g., Lake, supra note 41, at 15 (outlining the collaborative effort to fight the Orleans Complex-Somes fires in 2006).
[65] Duff et al., supra note 10, at 353; Christine Eriksen & Don L. Hankins, The Rentention, Revival, and Subjugation of Indigenous Fire Knowledge Through Agency Fire Fighting in Eastern Australia and California, 27 Soc’y Nat. Res. 1288, 1296 (2014).
[67] Lake, supra note 41, at 14–15 (discussing scaled approaches to determine how anthropogenic factors could be used for modeling hazardous fuel reduction treatments).
[68]See Laurie Ristino & Gabriela Steier, Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future, 42 Colum. J. Envtl. L. 59, 84–88 (2016) (outlining the industrialization of American agriculture).
[73] Bosworth & Williams, supra note 4; see also Beschta et al., supra note 50, at 959 (“The biota of [postfire] landscapes is adapted to, and often dependent upon, the occurrence of fires having highly variable frequency (return interval), season of occurrence, size, severity, and ecological effect.”).
By Sarah L. Fine*
As the old saying goes, whiskey is for drinking—water is for fighting over.
I. Introduction
The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up.[1] Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea,[2] to provide potable water to increasing populations.[3] A water level drop of one meter per year has led the surface area to decrease from 960 km2 to 620 km2 in the last fifty years.[4] Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”[5]
Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water.[6] Facilitated by the World Bank Group, the Red Sea–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.[7]
II. Issues Sought to Be Addressed
The Dead Sea—neither dead, nor a sea—supports a wide variety of microfauna and macrofauna at the lowest point on the Earth’s surface.[8] As the lowest point on Earth, the Dead Sea acts as “the water seismograph of the region . . . express[ing] the nonsustainable use of fresh water.”[9] Since the 1960s, the surface area of the Dead Sea has declined by one-third,[10] resulting in increased incidence of dust storms, “losses of freshwater springs, river bed erosion, and occurrence of over one thousand sinkholes.”[11] The sinkholes occur because
[t]he retreat of the water (which is almost 10 times saltier than the ocean’s) has allowed fresh groundwater to well up and dissolve the layer of salt within the land’s subsurface. Underground cavities form and eventually trigger collapses. . . . The deepest pit could fit an eight-story building. . . . Today’s sinkholes, located almost exclusively on the sea’s Israeli side, first appeared in the early 1980s. . . . According to Eli Raz, a geology consultant who has tracked the problem almost since it began, more than 4,000 sinkholes now pockmark the land.[12]
The decline of the Dead Sea water level also disrupted the water tables; the low level of groundwater has “allow[ed] seawater intrusion,”[13] contaminating an aquifer in the Gaza Strip.[14]
There are multiple causes of the Dead Sea water level decline. The Jordan River’s flow into the Dead Sea has been most significantly impacted by diversion to satisfy increasing water consumption in Israel, Jordan, and Syria, driven by rapidly growing populations.[15] In addition, the large evaporation-based chemical industries in Israel and Jordan consume a significant amount of raw Dead Sea water, further contributing to the water level decline.[16] Further, as this is all occurring in desert nations, the problems of water scarcity will be only “exacerbated by the anticipated negative climate change scenarios” over time.[17]
A. Water Resources by Region
Hashemite Kingdom of Jordan
The Hashemite Kingdom of Jordan, once a relatively water-rich nation, is now “the third most water insecure country in the world.”[18] Jordan, which has rationed water since the 1980s, found itself in 2013 in a full-blown water crisis—having integrated into their population nearly 1.4 million people seeking refuge from the Syrian Civil War.[19]
In 2008, Jordan implemented a water strategy expected to protect its water needs until at least 2022.[20] This strategy centered on the building of the Disi aquifer, which opened in 2013 and pumps 100 million cubic meters of water per year.[21] However, this strategy also relied upon pre-Syrian crisis population assessments. In a 2014 study, Jordan determined that the new $1.1 billion aquifer could only support the population through 2016.[22] According to Jordan’s Ministry of Water and Irrigation, water needs will exceed resources by more than 26% by 2025.[23]
To address its water crisis, in 2014 Jordan enacted “Water Wise Women” with funding from Germany’s Agency for International Cooperation (GIZ), a program which trains women to be plumbers and community outreach representatives.
Each group of “Water Wise Women” goes through eight different levels of training run by a German expert from GIZ and supervised by program alumni. The levels include: eradicating water leakage, harnessing technology, reducing water usage in the household, and improving hygiene. Each trained woman is expected to disseminate the technology and information within their community, and to reach out to at least 20–25 other women. They are given funding for travel for this outreach, and at the end of the course, each participant receives a box of tools.[24]
The program has trained more than three hundred women plumbers in fifteen locations across the Kingdom.[25] In those areas, Jordan’s Ministry for Water and Irrigation found “there has been a 30–40% reduction in household water consumption.”[26]
In March of 2017, the Kingdom’s first desalination plant opened in Aqaba.[27] This plant doubled Jordan’s potable water supply, providing five million cubic meters of potable water per year. In spite of these efforts, in December of 2017, the Economist reported that Jordan could provide only 15% of the threshold the World Bank defined as “water scarcity.”[28]
In early 2018, the Jordanian government partnered with another community group to promote conservation: college students. In a partnership with students at Princess Sumaya University for Technology, Jordan’s Ministry of Water and Irrigation launched a game application in February of 2018 to raise water conservation awareness among the general public.[29] In the style of Chutes and Ladders, the game entertains players while educating them about water rationing and water waste.[30]
State of Israel
In 2008, after a decade-long drought, “its worst in at least 900 years,” Israel was running out of water.[31] But a few years of rain, combined with new, highly efficient preservation and desalination technology, put Israel in a vastly different position: by 2014, rather than experiencing water scarcity, it suddenly had a surplus.[32] Today, Israel leads the world in water reclamation: “87% of its wastewater is purified and reused for agriculture. For reference, Singapore, second on the list, reclaims some 35% of its sewage water, and most countries . . . reclaim less than 10% of their water.” [33] In support of this innovative water treatment system is a wholistic approach of water conservation, using “low-flow toilets and showerheads . . . installed nationwide” and an agricultural system powered by drip irrigation.[34]
The most significant change has been Israel’s newest source of freshwater: desalinated seawater.[35] Even as the world’s leader in water conservation, “Israel still needed about 1.9 billion cubic meters . . . of freshwater per year and was getting just 1.4 billion cubic meters . . . from natural sources.”[36] Desalination, or desal, was once considered a method of “last resort” due to its expense and inefficiency.[37] But a breakthrough innovation by Israel’s Zuckerburg Institute for Water Research changed that:
Desal works by pushing saltwater into membranes containing microscopic pores. The water gets through, while the larger salt molecules are left behind. Microorganisms in seawater quickly colonize the membranes and block the pores, and controlling them requires periodic costly and chemical-intensive cleaning. But [the Institute] developed a chemical-free system using porous lava stone to capture the microorganisms before they reach the membranes. . . . Israel now gets 55 percent of its domestic water from desalination.[38]
Israel’s Mediterranean coast is now home to five desalination plants, producing “roughly 550 million cubic meters per year” of potable water.[39] By 2025, “the Israel Water Authority plan[s] to establish another [plant] in Western Galilee and another four large facilities along the coast.”[40]
Today, as the nation faces its fifth consecutive drought year, Israel is no longer in a state of water surplus and has resumed water rationing.[41] This demonstrates the continued incentive Israel has for participating in the water conveyance project apart from concerns for the Dead Sea.
Palestinian Authority: West Bank & Gaza Strip
The 1995 Oslo II Accords, an interim resolution meant to be revised within five years, granted Palestinian Authority jurisdiction over 40% of the West Bank, with Israel retaining control over Area C.[42] To “deal with all water and sewage related issues in the West Bank,” Oslo II established a Joint Water Committee (JWC).[43]
Oslo II also established the amount of water Israel is required to “make available to the Palestinians during the interim period a total quantity of 28.6 mcm/year,” based on a joint estimate of the “future needs of the Palestinians in the West Bank [as] between 70–80 mcm/year.”[44] B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, reported in 2016 that because the “Palestinian population of the West Bank has nearly doubled . . . the Palestinian Authority (PA) is forced to purchase from Mekorot [the Israeli state-owned water distribution company] an amount two and [a] half times greater than [those] set out in the accords.”[45]
The World Health Organization recommends a minimum water consumption of one hundred liters per capita per day.[46] In 2014, the Palestinian Water Authority reported an average Palestinian water consumption of seventy-nine liters per capita per day.[47] B’Tselem reported that while this figure is reflective of Palestinians who are hooked up to the water grid, the figure for Palestinians who are not is much lower, an estimated twenty to fifty liters per capita per day.[48]
A significant component to the Palestinian Authority’s water scarcity is the extensive damage to the Gaza Strip’s water and wastewater infrastructure during the Second Intifada from 2000–2005.[49] In order to restore access to water and wastewater services to the area, the World Bank engaged in the Gaza Emergency Water Project, which closed in January 2012.[50] This project completed:
Drilling of more than 50 water production wells with small pumping capacity (new wells or replacement of existing polluted wells); Supply of chemicals and dosing pumps and chlorination of 99.7 percent of water supply; Replacement of more than 30,000 meters of old service connections and old asbestos main pipes, and installation of 15,000 domestic meters and 20 public meters; Monitoring program established for wastewater plants; [and] Emergency response plan established following the rupture of the temporary effluent basin at Beit Lahia wastewater treatment plant.[51]
Historically, the water source for the Gaza Strip has been an underlying coastal aquifer.[52] Complicating matters further, in 2012, the United Nations Country Team reported that, due to declining groundwater levels and resultant seawater infiltrates, the aquifer could become unusable as early as 2016, with the damage irreversible by 2020.[53]
Due to the Gaza Strip’s location on the Mediterranean coast, combined with the newly reduced cost of desalination, other sources of water have become possible. In January 2017, with contributions by UNICEF and the European Union, Gaza opened a significant seawater desalination plant in Deir al Balah.[54] This plant initially produced 6,000 cubic meters of desalinated water per day (or 2.19 million cubic meters per year), and has a projected target of approximately 20,000 cubic meters per day by 2020 (or 7.3 million cubic meters per year).[55]
The 1995 water allocation agreement in Oslo II was updated in July 2017 in the bilateral water agreement between Israel and the Palestinian Authority.[56] This agreement increased the amount Israel agreed to allocate to the Palestinian Authority from 28.6 million cubic meters per year to 32 million cubic meters of water per year.[57]
B. Lateral Water Agreements
While the possibility of an inter-basin transfer from the Red Sea to the Dead Sea has been studied in many forms since the mid-1800s, the significant Dead Sea water level decline in the last fifty years and wide-spread potable water scarcity led to an agreement in the 1994 Jordan–Israel Peace Treaty (joined by the Palestinian Authority) to consider a water conveyance to “save” the Dead Sea.[58] This treaty built on the water-sharing agreements in the Oslo I Accord in 1993[59] and was reinforced by Oslo II Accord.[60] In the 1994 treaty, the water conveyance was described as “The Two Seas Canal or the Peace Conduit.” [61] From the beginning, it was not only meant to provide 850 million cubic meters of potable water to Jordan, Israel, and Palestine,[62] but was also intended to be “a symbol of peace and cooperation in the Middle East.”[63]
In 2005, the Palestinian Authority, Israel, and Jordan (“the Beneficiary Parties”) signed a joint letter requesting that the World Bank “coordinate donor financing and manage the implementation of the Study Program.”[64] From the beginning, there was a “general consensus on the need to restore the Dead Sea, but opinions on how to achieve this objective var[ied].”[65] The resultant “Red Sea–Dead Sea Water Conveyance Study Program” was therefore multi-faceted, consisting of five main studies: a Feasibility Study, an Environmental and Social Assessment, a Study of Alternatives “examin[ing] other options available to the Beneficiary Parties to address the degradation of the Dead Sea and the production of additional potable water by means other than the identified water conveyance option,” a Red Sea Modelling Study, and a Dead Sea Modeling Study.[66]
As the various studies progressed, the Beneficiary Parties and the World Bank made a series of bilateral and trilateral agreements in negotiations to continue the project. First, in 2011, two Palestinian civil society organizations, Stop the Wall Campaign and the Palestinian Farmers Union, as well as the Global Initiative for Economic, Social and Cultural Rights, representing residents of the West Bank, filed a Request for Inspection of the Study Program.[67] This Request stated that West Bank residents “rely on ground water resources that are put at risk by the decline of the Dead Sea and which do not appear to be effectively addressed by the . . . Program,” and identified flaws in the Study Program Terms of Reference which “would result in inadequate and incomplete Environmental Social Assessments.”[68] Then, in 2013, all three Beneficiary Parties signed a “milestone regional cooperation agreement,” in the form of a Memorandum of Understanding, outlining “three major regional water sharing initiatives” to be pursued by the parties.[69] At this stage, the initiatives included:
the development of a desalination plant in Aqaba at the head of the Red Sea, where the water produced will be shared between Israel and Jordan; increased releases of water by Israel from Lake Tiberias for use in Jordan; and the sale of about 20–30 million m3/year of desalinated water from Mekorot (the Israeli water utility) to the Palestinian Water Authority for use in the West Bank. In addition, a pipeline from the desalination plant at Aqaba would convey brine to the Dead Sea to study the effects of mixing the brine with Dead Sea water.[70]
In 2015, Israel and Jordan signed a bilateral water cooperation agreement to further the project. Pursuant to this agreement, the two parties agreed to “share the potable water produced by a future desalination plant in Aqaba, from which salty brines will be piped to the Dead Sea. In return for its portion . . . Israel will be doubling its sales of Lake Kinneret (Sea of Galilee) water to Jordan.”[71] As the proposed pipeline would “lie[] entirely in Jordanian territory,”[72] in 2016, Jordan and the World Bank entered into a “Country Partnership Framework” to fund the pipeline.[73]
In 2017, Israel and the Palestinian Authority signed a bilateral agreement allocating thirty-two million cubic meters of water to the Palestinian Authority to be split, twenty-two million cubic meters to the West Bank, and ten million cubic meters to the Gaza Strip.[74] Recall that the 2013 trilateral Memorandum of Understanding included an agreement for Israel to sell “about 20–30 million m3/year of desalinated water . . . to the Palestinian Water Authority for use in the West Bank.”[75]
Today, the future of the water project is uncertain.[76] Just as the Dead Sea is “the water seismograph of the region,”[77] the water conveyance project is the region’s political seismograph.
III. The Water Conveyance
The proposed water conveyance seeks to address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties. As a “three birds with one stone” approach, “[o]n paper, Red–Dead looks as elegant as it is ambitious—a simple solution for a huge environmental crisis that includes jobs, infrastructure, and profits.”[78] It is planned that with one conveyance, all three issues would be addressed:
A hydroelectric plant would be built, generating energy; desalination plants would pump out drinking water; and the reject brine, the by-product of the desalination process, would replenish the Dead Sea like a hose filling a swimming pool. The Israelis and Jordanians would share responsibility for building, maintaining, and operating the system. Thus, water, a historic cause of anxiety, contention, and even war in the region, becomes a conduit for economic and social cooperation.[79]
Taking into account the technological, political, and financial complexity of the water conveyance, the Study Program examined the numerous impacts and effectiveness of the proposal over many years.
The objective of the Red Sea–Dead Sea Water Conveyance Project Study Program was to “investigate the feasibility of the concept as a solution to the decline of the Dead Sea water level” and was originally intended to be completed by 2010.[80] In order to get the full picture, the environmental impacts—both earthly and social—were studied.[81] A study of alternatives was also made, informed by a chemical industry analysis study.[82] Once these were completed, the Feasibility Study was finalized and published.
The Feasibility Study, completed in 2014, evaluated “six potential project configurations . . . based on three alternative conveyance systems.”[83] It considered estimated capital costs, whole lifecycle net present costs, environmental impacts during construction and operation, and the effect on the microbiome of mixing Red Sea and Dead Sea waters.[84] Based on a “weighted multi-criteria assessment process,” the Feasibility Study concluded that a “pipeline conveyance combined with a high level desalination plant is the recommended optimum solution.”[85] In reaching this conclusion, the Study Program explored multiple limitations and potential adverse effects of the conveyance plan, and in so doing introduced a number of safeguards and mitigation factors to address the myriad needs of the three Beneficiary Parties.[86]
There is one factor not addressed in the 2014 Study Program findings: the impact of large-scale use of desalination plants—something only beginning to be studied in Israel, where desalinated water has recently become the majority source of potable water. While the quality of the water produced in desalination is high, it is also “devoid of some key minerals found in normal water, like magnesium,” as the mineral is removed in the reverse-osmosis process alongside other salts.[87] Use of desalinated water in agriculture has therefore been shown to require an increased need for fertilizer. In addition, long-term consumption of desalinated water has also been linked to “an elevated mortality risk of myocardial infarction”—i.e., heart attacks. It is theorized that this can be alleviated by the addition of magnesium to the treated water, which must be considered when implementing wide-spread use.
V. Conclusion
Having adequately addressed the multi-faceted concerns of all three Beneficiary Parties, by all accounts the Red Sea–Dead Sea Water Conveyance Project will break ground in the coming year.[88] In the two decades since the 1994 Jordan-Israel Peace Treaty and the 1993 and 1995 Oslo Accords, the political dynamics between the Dead Sea’s three bordering entities has remained complex, if not outright violent.[89] And yet, the inevitability of the Dead Sea’s decline, the inevitability of climate change, and the continued water scarcity in the entire Jordan River Basin has inexorably tied these parties together just as strongly as any treaty.
If the water conveyance project can be the region’s political seismograph, perhaps peace in the Middle East is closer than we think.
* Sarah L. Fine is a J.D. candidate at Lewis & Clark Law School and an Online Journal Editor of Environmental Law.
[1] The surface area of the Dead Sea has shrunk by at least one-third since 1960; the water level falls at “an alarming pace of 0.8 to 1.2 meters per year.” World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Overview – Updated January 2013, at 1 (2013), http://siteresources.worldbank.org/EXTREDSEADEADSEA/Resources/Overview_RDS_Jan_2013.pdf?resourceurlname=Overview_RDS_Jan_2013.pdf%26.
[2] Stephen C. McCaffrey, The Shrinking Dead Sea and the Red–Dead Canal: A Sisyphean Tale?, 19 Pac. McGeorge Global Bus. & Dev. L.J. 259, 260 (2006).
[3] Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Preliminary Scoping Report 13, 16 (2008).
[4] Coyne et Bellier et al., Red Sea – Dead Sea Water Conveyance Study Program Feasibility Study: Final Feasibility Study Report Summary 1 (2014).
[6] The Dead Sea is “roughly bisected from the north to the south by the border between Jordan on the eastern side, and Palestine (the West Bank) and Israel on the western side, placing it in the middle of some of the most hotly-contested land on earth.” See McCaffrey, supra note 2, at 259, 260 n.4. Likely as a result, many of the document and agreements which comprise the Red Sea–Dead Sea Water Conveyance are confidential.
[8] Regarding microfauna: “In 2009, a marine biologist from Germany’s Max Planck Institute for Marine Microbiology discovered new species of green sulfur bacteria, cyanobacteria, and diatoms [in the Dead Sea]. Found within sediments nourished by underwater springs, these microorganisms have metabolisms allowing them to adapt to extreme changes in salinity.” Todd Pitock, Could Water from the Red Sea Help Revive the Dead Sea?, Nat. Resources Def. Council (Jan. 23, 2017), https://www.nrdc.org/onearth/could-water-red-sea-help-revive-dead-sea. Regarding macrofauna:
Located off the Dead Sea’s northwestern shore, the nature reserve is the world’s lowest in altitude, and its wetlands are the only place on the planet where rare blue and Dead Sea killifish coexist. The landscape’s altered hydrology is putting them at risk as well as causing the springs on the Dead Sea floor to migrate eastward.
Id.
[9] Michael Beyth, Water Crisis in Israel, in Water: Histories, Cultures, Ecologies 171, 174 (Marnie Leybourne & Andrea Gaynor eds., 2006).
[11] World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Background Note – October 2010, at 1 (2010), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/Background_Note_October_2010.pdf; see Envlt. Res. Mgmt. et al., supra note 3, at 4.
[23]Jordan’s Water Wise Women, Al Jazeera (May 17, 2017), http://www.aljazeera.com/programmes/earthrise/2017/05/jordan-water-wise-women-170516110004513.html.
[24] Odette Chalaby, Jordan Is Solving Its Water Crisis by Training Women as Plumbers, Apolitical (Nov. 3, 2017), https://apolitical.co/solution_article/jordan-solving-water-crisis-training-women-plumbers/.
[27]Jordan’s First Water Desalination Plant Opens in Aqaba, Jordan Times (Mar. 18, 2017), http://www.jordantimes.com/news/local/jordan%E2%80%99s-first-water-desalination-plant-opens-aqaba.
[28]Diplomatic Drought: Jordan’s Water Crisis Is Made Worse by a Feud with Israel, Economist (Dec. 2, 2017), https://www.economist.com/news/middle-east-and-africa/21731844-thirsty-kingdom-can-ill-afford-fall-out-its-neighbour-jordans-water.
[29]Ministry Launches Water Conservation Awareness Game, Jordan Times (Feb. 19, 2018), http://www.jordantimes.com/news/local/ministry-launches-water-conservation-awareness-game.
[31] “Israel’s largest source of freshwater, the Sea of Galilee, had dropped to within inches of the ‘black line’ at which irreversible salt infiltration would flood the lake and ruin it forever.” Rowan Jacobsen, How a New Source of Water Is Helping Reduce Conflict in the Middle East, Ensia (July 19, 2016), https://ensia.com/features/water-desalination-middle-east/.
[32]Id.; Julia Pyper, Israel Is Creating a Water Surplus Using Desalination, E&E News: Climatewire (Feb. 7, 2014), https://www.eenews.net/stories/1059994202.
[39] Brett Walton, Israel’s Mediterranean Desalination Plants Shift Regional Water Balance, Circle Blue (July 25, 2016), http://www.circleofblue.org/2016/middle-east/israels-mediterranean-desalination-plants-shift-regional-water-balance/.
[40] Zafrir Rinat, Desalination Problems Begin to Rise to the Surface in Israel, Haaretz (Feb. 6, 2017), https://www.haaretz.com/israel-news/.premium-desalination-problems-begin-to-rise-to-the-surface-in-israel-1.5494726.
[41] Hagai Amit, Dry, Dry Again: After Several Wet Years, the Big Drought Is Back Again in Israel, Haaretz (Jan. 19, 2018), https://www.haaretz.com/israel-news/.premium-after-several-wet-years-the-big-drought-is-back-in-israel-1.5746445.
[42] World Bank, West Bank and Gaza: Assessment of Restrictions on Palestinian Water Sector Development 5–6 (2009).
[43]Id. at 5. In their 2009 report, the World Bank criticized the JWC as an “[in]effective mechanism for facilitating sector investment.” Id. at 47 & n.77.
[44] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Isr.-Palestine, Sept. 28, 1995, U.N. Doc. A/51/889.
[45]Summer 2016 – Israel Cut Back on the Already Inadequate Water Supply to Palestinians, B’TSELEM (Sept. 27, 2016), https://www.btselem.org/video/201609_water_salem#full.
[56] Press Release, White House, Donald J. Trump Administration Welcomes Israeli-Palestinian Deal to Implement the Red–Dead Water Agreement (July 1, 2017), https://www.whitehouse.gov/briefings-statements/donald-j-trump-administration-welcomes-israeli-palestinian-deal-implement-red-dead-water-agreement/.
[57]Id.; see also Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 44.
[63] World Bank Grp., Red Sea – Dead Sea Water Conveyance Concept Feasibility Study and Environmental and Social Assessment: Information Note – July 2007, at 3 (2007), http://siteresources.worldbank.org/MENAEXT/Resources/RDS_Background_Note_V050707.pdf?resourceurlname=RDS_Background_Note_V050707.pdf.
[66] World Bank Grp., Red Sea-Dead Sea Water Conveyance Study Program: Questions and Answer Sheet 1 (2011), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/RDSQ&A13Dec2011_final.pdf.
[67] Memorandum from Roberto Lenton, Chairperson, Inspection Panel, World Bank, to President of the International Bank for Reconstruction and Development and the International Development Association (Oct. 20, 2011), http://documents.worldbank.org/curated/en/510341468184139751/pdf/651110IPNR0Box000INSP0SECM201100008.pdf.
[69] Press Release, World Bank, Senior Israeli, Jordanian and Palestinian Representatives Sign Milestone Water Sharing Agreement (Dec. 9, 2013), http://www.worldbank.org/en/news/press-release/2013/12/09/senior-israel-jordanian-palestinian-representatives-water-sharing-agreement.
[73]See generally Int’l Bank for Reconstruction & Dev. et al., Country Partnership Framework for Hashemite Kingdom of Jordan for the Period FY17–FY22 (2016).
[74]See Press Release, White House, supra note 56; Dalia Hatuqa, Water Deal Tightens Israel’s Control Over Palestinians, Al Jazeera (Aug. 1, 2017), http://www.aljazeera.com/indepth/features/2017/07/water-deal-tightens-israel-control-palestinians-170730144424989.html.
[75]See Press Release, World Bank, supra note 69 (emphasis added).
[76] In November of 2017, Israeli media reported that Israel was refusing to further participate in the project until it was allowed to reopen its embassy in Amman. In February of 2018, Israeli and Jordanian media reported that “Jordan is committed to implementing the . . . Project despite repeated Israeli signals that it was withdrawing from the regional scheme.” Hana Namrouqa, Jordan to Go Ahead with Red-Dead Water Project Despite Israel Withdrawal, Jerusalem Post (Feb. 12, 2018), http://www.jpost.com/Arab-Israeli-Conflict/Jordan-to-go-ahead-with-Red-Sea-Dead-Sea-project-542417. In late January, after six months of shut down and diplomatic dispute, the Israeli embassy began the process of gradually reopening; in early February, a Jordan government official reported they had not yet been notified of the naming of a new ambassador. Mohammad Ghazal, Jordan Says ‘Not Officially Notified’ of New Israeli Ambassador, Jordan Times (Feb. 8, 2018), http://www.jordantimes.com/news/local/jordan-says-not-officially-notified%E2%80%99-new-israeli-ambassador.
[81]See generally Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Final Environmental and Social Assessment (ESA) Report – Executive Summary (2014); Tahal Grp. & Geological Survey of Isr. & Assocs., Dead Sea Study: Final Report (2011); Thetis SpA et al., Red Sea Study: Draft Final Report (2013).
[82]See generally Vladimir Zbranek, Chemical Industry Analysis Study: Final Report (2013); Allan et al., supra, note 15.
[83]See Coyne et Bellier et al., supra note 4, at 82.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs are] borne by those responsible for the contamination.”[ii] The proper application of CERCLA’s two private causes of action are necessary to achieve these goals. When applied properly they encourage private parties to voluntarily cleanup hazardous waste sites, effectively spread the cost of cleanup to the responsible parties, and encourage settlement.
For example, when a private potentially responsible party (PRP) voluntarily cleans up a site before any action regarding the site is commenced the PRP eliminates their exposure to uncertain liability, and avails itself of the “arguably preferred recovery vehicle for a PRP,” the cost recovery action. The private cost recovery action, under § 107(a)(4)(B), allows private parties to seek to recover the costs they incurred in voluntarily cleaning up a contaminated site from PRPs (regardless of their contribution to the site’s contamination).[iii] The PRP subject to the § 107(a)(4)(B) cost recovery action, can counterclaim in or bring against multiple other PRPs a § 113(f)(1) contribution action, requiring the equitable apportionment of the response costs.[iv] The remedy and the shorter statute of limitations afforded by contribution actions incentivizes PRPs to immediately locate other PRPs and initiate lawsuits sooner.[v]
The Supreme Court’s framework for the application of these private causes of action created in Atlantic Research[vi] jeopardizes CERCLA’s mechanisms that encourage PRPs to settle with the EPA. The Court’s framework identifies the cause of action that applies exclusively in some circumstances but not all. Specifically, the framework leaves open the availability of both causes of actions in situations in which costs are directly incurred as a result of forced cleanup. Uncertainty around the cause of action that a court will allow in circumstances of compelled cleanup may cause PRPs to stray away from settling with the Environmental Protection Agency (EPA), and thus make it more difficult for the EPA to negotiate cleanup and reimbursement settlements.[vii] Or it could incentivize PRPs to attempt to pass their tab on to another PRP by settling [to cleanup] and then bringing a cost recovery action to recover those cleanup costs. Which if permitted would leave the defendant unable to counter-sue for contribution, because of the plaintiff-PRP’s contribution bar, defeating CERCLA’s goal to have the responsible parties pay for cleanup.[viii]
The United States’ Courts of Appeals, have advanced a mutually exclusive framework that fully clarifies the applicability of and the interplay between the private causes of actions. This Article supports the mutually exclusive approach. First, the Article provides a brief overview of the history and development of the private causes of actions. Second, the Article highlights the issues regarding the applicability of the private causes of actions left unresolved by the Court. Third, the Article demonstrates how the mutually exclusive framework, established by the U.S. courts of appeals, seamlessly resolves those issues and facilitates the advancement of CERCLA’s goals.
I. HISTORY AND DEVELOPMENT OF CERCLA’S PRIVATE CAUSES OF ACTION
A. CERCLA’s Enactment
Congress’s prime motivation for passing CERCLA was to provide the EPA with the ability to promptly respond to the country’s hazardous waste sites and to place the cost of the response on the responsible parties, the “polluters.”[ix] To that end, Congress furnished the EPA with the means to undertake cleanup itself,[x] sue PRPs for reimbursement,[xi] and the authority to compel PRPs to clean up contaminated sites.[xii] However, Congress recognized that the EPA would not be equipped on its own to address 30,000 to 50,000 improperly managed hazardous waste sites.[xiii] CERCLA would also have to induce private parties to perform cleanup.[xiv] Accordingly, Congress included § 107(a)(4)(B), to enable private parties to recover their costs of cleanup from PRPs.[xv]
Because of CERCLA’s liability scheme, the remedies available to PRPs were in dispute.[xvi] Under § 107(a)(4)(A) the courts have interpreted CERCLA’s liability to apply retroactively, strictly, jointly, and severally.[xvii] Additionally, CERCLA liability extends beyond polluters to also include those who would benefit from cleaned sites, such as current owners and operators.[xviii] Thus, a current owner of contaminated property who did not contribute to the release of hazardous waste, or a past owner who only contributed a small part of the waste, may be a PRP.[xix] PRPs may find themselves subject to a cost recovery action, and if so, ultimately liable for the entire cost of cleanup.
To mitigate these harsh results, some courts held either that § 107(a)(4)(B) or federal common law provided litigants subject to a § 107 cost recovery claim an implied right to contribution.[xx] This allowed PRPs to either counterclaim for contribution or sue other PRPs for contribution.[xxi] A successful contribution action permits the equitable apportionment of costs among PRPs,[xxii] ameliorating the harsh effects of joint and several liability. As a result, more PRPs were required to pay their proportionate share of the cleanup instead of leaving a single PRP liable. Despite these efforts, extensive litigation continued, necessitating a CERCLA amendment.[xxiii]
B. SARA’s Contribution Action and Contribution Protection
Congress passed the Superfund Amendments and Reauthorization Act (SARA) in 1986 to address: (1) the EPA’s inability to timely recover response costs; (2) the threat that the courts would erode joint and several liability into a “fair share” allocation; and (3) the effectiveness of contribution actions in spreading the cost of cleanup to responsible parties.[xxiv] SARA created an express cause of action for contribution and incorporated statutes of limitations.[xxv] The right to contribution, codified in § 113(f)(1),[xxvi] allows a PRP, “during or following” a § 106 (compelled clean-up) or § 107 civil action, to seek contribution payments from another PRP that has not resolved its liability.[xxvii] The “settlement bar” created by SARA in § 113(f)(2), provides parties who have reached an “administrative or judicially approved settlement” with “contribution protection”—immunity from contribution claims that concern matters within the agreement.[xxviii]
The new provisions, although preserving contribution, did not fully resolve existing issues and indeed generated new ones. For example, SARA did not answer whether an implied right to contribution still remains when contribution pursuant to § 113(f) is unavailable—i.e., whether PRPs may pursue contribution only through § 113(f).[xxix] Many United States Courts of Appeals, while attempting to navigate § 107(a) and § 113(f) claims, have held that a claim for contribution under § 113(f) was the exclusive remedy for PRPs.[xxx] By preventing PRPs from pursuing an action under § 107(a), § 113(f) served as PRPs’ sole avenue to seek contribution.[xxxi] Still, some courts expanded § 113(f)’s provisions to allow recovery actions even in the absence of a suit under § 106 or § 107.[xxxii]
C. The Supreme Court’s Cooper Industries Decision
In Cooper Industries, Inc. v. Aviall Services, Inc. the Court addressed the expanded application of § 113(f)(1) and ultimately limited its availability to PRPs “during or following” a § 106 or § 107 civil action.[xxxiii] The Court held that current property owners who voluntarily cleaned up the contaminated site could not maintain a contribution action under § 113(f)(1) because the claim did not arise out of a § 106 or § 107 civil action.[xxxiv] First, the Court held that “may” in § 113(f)(1) should not be read as permissive; it should be read to only authorize § 113(f)(1) contribution claims “during or following” § 106 or § 107 civil actions.[xxxv] The Court stated that reading “may” to allow a PRP to bring a “contribution action at any time, regardless of the existence of a . . . civil action,” would render the language “during or following” superfluous, along with § 113(f)(3)(B), which permits contribution actions after settlement.[xxxvi] Second, the Court found that § 113(f)(1)’s saving clause, does not change its reading.[xxxvii] The Court specified that the saving clause functions only to prevent the loss of “any cause(s) of action for contribution that may exist independently of § 113(f)(1).”[xxxviii] Therefore, it does not expand the scope of § 113(f)(1) or create a cause of action, it only “rebuts any presumption that the express right of contribution provided by . . . [§ 113(f)(1)] is the exclusive cause of action for contribution available to a PRP.”[xxxix]
Following this application of § 113(f)(1), several Courts of Appeals reconsidered whether PRPs have any right of action under § 107(a)(4)(B).[xl] After revisiting this issue, some courts permitted private cost recovery actions under § 107(a)(4)(B).[xli] However, the Third Circuit continued to hold § 113(f) as the exclusive cause of action available for PRPs.[xlii] Accordingly, the Third Circuit in E.I. DuPont De Nemours and Co. v. U.S. held that there was no cause of action for PRPs who engaged in “sua sponte voluntary cleanups,”[xliii] effectively disincentivizing voluntary cleanup.
D. Supreme Court’s Atlantic Research Decision
The Court again revisited the scope of CERCLA’s private causes of action. In United States v. Atlantic Research Corp., the Court: (1) held that PRPs have a right to cost recovery under § 107(a)(4)(B);[xliv] (2) clarified that §§ 107(a) and 113(f) provide distinct remedies; and (3) provided a framework for the application of §§ 107(a)(4)(B) and 113(f)(1) actions.[xlv] The Court made the inference that Congress sculpted § 113(f)(1) based on the traditional sense of contribution, which is contingent “upon an inequitable distribution of common liability among liable parties.”[xlvi] However, because the statute authorizes PRPs to seek contribution “during or following” a civil action, liability does not need to be established before bringing a contribution action under § 113(f)(1).[xlvii]
The Court held that PRPs may utilize a cost recovery action, pursuant to § 107(a)(4)(B), only to recover costs the PRP “‘incurred’ in cleaning up a site.”[xlviii] For instance, when a PRP reimburses another party, the PRP has not incurred its own cleanup costs and thus cannot recover them under § 107(a)(4)(B).[xlix] Additionally, the Court held that § 107(a)(4)(B) is the sole cause of action to recover costs incurred during voluntary cleanup.[l] With these distinctions made, the Court states that the remedies available in §§ 107(a) and 113(f) “provid[e] causes of action ‘to persons in different procedural circumstances,’” and as a result they do not cause conflict, or provide an opportunity for a PRP to choose its remedy.[li]
To summarize, § 113(f) authorizes a right to contribution “to PRPs with common liability stemming from an action instituted under § 106 or § 107(a).”[lii] Respectively, after a PRP pays money pursuant to a settlement agreement or a court judgment, in which they are reimbursing those parties they may, and may only, pursue § 113(f) for contribution.[liii] On the contrary, “§ 107(a) permits cost recovery . . . by a private party that has itself incurred cleanup costs.”[liv] As a result, in cases of reimbursement, a PRP cannot circumvent § 113(f)(1)’s three-year statute of limitations by attempting to bring an action in cost recovery, which has a six-year limitation.[lv]
Lastly, the Court claims PRPs that utilize § 107(a) “will not eviscerate the settlement bar set forth in § 113(f)(2).”[lvi] The settlement bar provision “prohibits § 113(f) contribution claims against ‘[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement.’”[lvii] The Court explains that although the contribution bar “does not by its terms protect against cost-recovery liability,” the defendant can trigger equitable apportionment by filing a § 113(f) counterclaim.[lviii] In footnote 6, the Court states that in cases of reimbursement and voluntary cleanup, §§ 107(a)(4)(B) and 113(f) have no overlap, but there may be overlap when a PRP incurs expenses pursuant a consent decree.[lix] In cases of “compelled costs” a PRP does not incur costs voluntarily (which would have the effect of precluding a § 113(f)(1) contribution action) but also does not reimburse the costs of another party (which would have the effect of precluding § 107(a)(4)(B) cost recovery action).[lx] The Court did not address whether these compelled costs of response are recoverable under § 107(a) or § 113(f).
II. ISSUES LEFT UNRESOLVED BY THE SUPREME COURT
Although the framework provided by the Court’s Cooper Industries and Atlantic Research decisions reinstate PRP’s ability to utilize § 107(a)(4)(B) for cost recovery and § 113(f) for contribution, the decisions do not clarify the complete applicability and interplay of the private causes of action. The Court’s framework for CERCLA’s private actions is limited to the following: (1) PRPs who pay money to satisfy a settlement agreement or a court judgment—incur costs in the form of reimbursement—may only pursue § 113(f) contribution actions; and (2) PRPs who have incurred cleanup costs directly—not reimbursement costs—may only seek to recover those response costs from other PRPs pursuant to § 107(a)(4)(B). Thus, in those limited “procedural circumstances,” §§ 107(a)(4)(B) and 113(f) are mutually exclusive.[lxi]
This limited framework leaves unresolved the cause of action or actions available to private parties in other situations, specifically when PRPs incur costs directly.[lxii] The following issues, which were unresolved by the Court’s framework, have not only spurred considerable litigation, but have also caused apprehension to settling claims:
Whether settling-PRPs may sue other PRPs for cost recovery pursuant 107(a)(4)(B) to recover cleanup costs that were incurred voluntarily, i.e., costs incurred independent of the administrative or judicially approved settlement.
What causes of action do settling-PRPs that incur costs directly in order to comply with settlement obligations have when such settlement does not satisfy the requirements set forth in 113(f)(3)(B).
What cause of action is available to PRPs who directly incur cleanup costs under an obligation in an “administrative or judicially approved settlement?” May they bring an action in cost recovery pursuant § 107(a)(4)(B) and as a result: (1) circumvent the contribution bar which prevents them from bringing an action in contribution against the other PRPs in their settlement agreement; and (2) render both non-settling PRPs and settling-PRPs unable to counterclaim in contribution because the plaintiff-PRP can utilize the contribution bar.
Whether a PRP that settled with a state entity has a cause of action under CERCLA.
Whether a private entity that finances a cleanup pursuant to a private agreement has a cause of action under CERCLA to recover costs.
If the statute of limitations for a PRP’s contribution claim runs out—and a PRP can no longer pursue its right to contribution—may the PRP pursue cost recovery pursuant § 107(a)(4)(B) when it had incurred cleanup costs as a result of its obligations flowing from an “administrative or judicially approved settlement.”
Strictly adhering to the Court’s framework to resolve these issues would permit either a § 107(a)(4)(B) or § 113(f) action in all the above circumstances. Allowing settling-PRP’s to choose which cause of action they can utilize could cause any PRP, regardless their responsibility of contamination, to be stuck with the entire or a significant portion of the cleanup costs while other PRPs skirt liability.[lxiii] For example, under the Court’s framework, settling-PRPs could pursue cost recovery actions under § 107(a)(4)(B) for costs incurred directly from cleanup required in order to satisfy the “administrative or judicially approved settlement.” As a result, defendant PRPs subject to § 107(a)(4)(B) causes of action brought by a settling-PRP, can be subject to joint and several liability without the ability to counterclaim for contribution pursuant § 113(f)(1) because of the plaintiff-PRP’s contribution bar under § 113(f)(2). This application would not advance Congress’s intent of CERCLA being a “polluter pays” statute, where the responsible parties bear the financial responsibility of the cleanup. To the contrary, under this framework CERCLA functions more like a game of Uno.[lxiv]
III. THE MUTUALLY EXCLUSIVE APPROACH ADOPTED BY THE U.S. COURTS OF APPEALS
Litigation over the unresolved issues has ensued in the lower federal courts since the Court’s holding in Atlantic Research.[lxv] The United States’ Courts of Appeals that have heard the issues, collectively hold that the causes of actions available to private parties apply mutually exclusively.[lxvi] This framework provides a seamless application of the private causes of action in all circumstances, including those that were left unresolved by the Court.
When a private party incurs costs directly, the mutually exclusive approach resolves the issue of what proper cause of action the PRP is authorized to utilize. The lower courts agree that once it is determined that either a § 113(f)(1) or § 113(f)(3)(B) contribution action is available for the costs sought, the PRP must pursue an action for contribution, and is barred from pursuing a § 107(a)(4)(B) cost recovery action.[lxvii] If, however, contribution is not available to recover the costs sought, the private party may pursue a § 107(a)(4)(B) cost recovery action to recover its response costs.[lxviii] The mutual exclusive approach provides a framework for determining the causes of action for each of the unresolved issues mentioned above, while simultaneously advancing CERCLA’s goals.
A. Availability of §§ 113(f)(1) and 113(f)(3)(B) Contribution Actions Under the Mutually Exclusive Approach
All contribution claims under § 113(f) are contingent upon “an inequitable distribution of common liability among” PRPs at the time the underlying claim is resolved.[lxix] Following the Court’s rulings in Cooper Industries and Atlantic Research, PRPs subject to a civil action under either § 106 or § 107 may only seek contribution. The unresolved issues following the Court decisions thus lie within the application of § 113(f)(3)(B).
Section 113(f)(3)(B) provides that contribution claims are available to entities who have resolved their “liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement[.]” Following the language of § 113(f)(3)(B), the agreements that trigger contribution claims must be “administrative or judicially approved settlement[s].”[lxx] A judicially approved settlement can take the form of a consent decree, which results from a court’s approval of a settlement that is “fair, reasonable, and consistent with CERCLA’s goals.”[lxxi] The “defining feature of an ‘administrative settlement’ is” the resolution of a “PRP’s liability to the United States . . . for some or all of a response action or for some or all of the costs of such action.”[lxxii]
For an administrative settlement to trigger the application of § 113(f)(3)(B), the federal government must have followed the procedures set forth in § 122(i).[lxxiii] Although § 112(i) procedural requirements apply only to the federal government, several courts have held that in light of due process concerns, CERCLA administrative settlements entered into with a state entity require hearings or public comments, as required for federal entities in § 112(i).[lxxiv] Thus, a state administrative settlement should provide non-settling parties with notice and an opportunity to be heard.[lxxv] If procedural safeguards similar to those set forth in § 122(i) are not followed, a settlement cannot constitute an “administrative settlement” that triggers § 113(f)(3)(B).[lxxvi] Those PRPs will neither have an action in contribution, nor will they be afforded contribution protection.[lxxvii]
Congress provided contribution protection to those parties entering into settlements to further incentivize settling, as well as to support the “polluters pay” philosophy.[lxxviii] Section 113(f)(2) bars contribution claims against entities that have resolved their liability to the United States or a state in an “administrative or judicially approved settlement” if the costs arise from matters addressed in the settlement.[lxxix] The party claiming contribution protection, whether defendant or plaintiff, must demonstrate that it is afforded such protection. Contribution protection will not be afforded to parties that cannot demonstrate the resolution of their CERCLA liability.[lxxx] In other words, PRPs must demonstrate that they have been subject to “an administrative or judicially approved settlement.”[lxxxi]
For example, the Pennsylvania Middle District Court held that the agreement between the Pennsylvania Department of Environmental Protection and United States did not constitute an administrative settlement because it was devoid of any procedures designed to safeguard due process concerns.[lxxxii] As a result, the court permitted the plaintiff to pursue a contribution claim against the federal government because the federal government was not afforded contribution protection[lxxxiii].
When adhering to the mutually exclusive approach, if the requirements to satisfy an “administrative or judicially approved settlement” are not met by the agreement that causes the PRP to incur cleanup costs directly, that party may pursue a cost recovery action to recover those costs, because it does not have an action for contribution. On the other hand, “a party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”[lxxxiv]
Parties cannot circumvent the mutually exclusive approach by waiting for their contribution action to run so they can employ an action for cost recovery. When a party could have brought a § 113(f) contribution claim, but failed to do so in a timely manner (three years had passed since the party had the availability of an action under § 113(f)) the party cannot evade the statute of limitations and the allocation scheme of a § 113(f) contribution claim by bringing a § 107(a) cost recovery action.[lxxxv]
Moreover, the mutually exclusive approach permits a PRP that has incurred costs as a result of both a civil action or settlement agreement and voluntary cleanup at a single site to pursue both cost recovery and contribution actions without compromising CERCLA’s liability structure. Under the mutually exclusive approach, when any of the statutory triggers for a contribution claim occurs for certain expenses the party may only bring a § 113(f) contribution action for those expenses.[lxxxvi] But, the same party may also bring a § 107(a)(4)(B) action to recover expenses that fall outside of the contribution action.[lxxxvii] “[A] party’s right to contribution for some of its expenses at a site does not necessarily mean that the party loses its right to bring a cost recovery action for other expenses.”[lxxxviii] Thus, costs incurred from work performed outside the obligations of an “administrative or judicial settlement” are recoverable under § 107(a)(4)(B).
B. Availability of Cost Recovery Pursuant § 107(a)(4)(B) Under the Mutually Exclusive Approach
Following the Court decision in Atlantic Research, private parties may bring a cost recovery action against other PRPs to recover costs directly incurred from engaging in cleanup pursuant to § 107(a)(4)(B).[lxxxix] This distinction does not resolve the issue of what cause of action is applicable when PRPs are obligated to incur cleanup costs pursuant to a civil action, an “administrative or judicially approved agreement,” or a private agreement. In all of these circumstances, a PRP does not reimburse another entity, but rather incurs costs directly.
The Third Circuit Court in Agere Systems applied the mutually exclusive approach to determine which, if any, private cause of action is available to a private entity that is obligated under a private settlement agreement to fund a response action. The Third Circuit held that in such circumstances the private party may recover their costs with a § 107(a)(4)(B) cost recovery action.[xc] In Agere, the plaintiffs that had been subject to EPA § 107(a) civil actions were required to comply with consent decrees by doing work such as cleanup at the contaminated facilities.[xci] The two plaintiffs not subject to the consent decree (Agere and TI)[xcii] joined a private settlement agreement with the plaintiffs subject to the consent decree.[xciii] The private settlement agreement required Agere and TI to fund the other plaintiffs’ two consent decrees.[xciv] Agere and TI then brought a cost recovery action under § 107(a)(4)(B) against other PRPs.[xcv] The Third Circuit Court held that the Agere and TI were permitted to bring a cost recovery action pursuant § 107(a)(4)(B).[xcvi]
The Third Circuit explains that this holding is in-line with the Court’s decision in Atlantic Research. First, Agere and TI “incurred” costs in the ordinary sense since they were paying for ongoing work.[xcvii] Second, when the Court made the statement that payments made pursuant to a settlement agreement are not recoverable with a § 107(a)(4)(B) cost recovery claim, those parties had § 113(f) contribution claims for their settlement amounts.[xcviii] In contrast, the two Agere plaintiffs did not have such contribution claims, and as a result they would not have an avenue to recover those amounts under CERCLA if they were not permitted to utilize § 107(a)(4)(B).[xcix]
The Third Circuit goes on to explain that Congress could not have intended such an outcome because CERCLA’s goal is “to encourage private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others.”[c] CERCLA should not be read to discourage private entities’ participation in cleanup in situations where they have not yet been sued, but are aware that they may bear some responsibility for cleaning up hazardous waste.[ci] The Third Circuit correctly explained that private entities would be less likely to settle if it is uncertain whether they can seek to recover some of the amounts they will contribute.[cii] If they cannot recover costs for participating in cleanup, then they will wait for a party to file a civil action against them to ensure they can sue for contribution against other PRPs.[ciii]
Most courts have drawn this line, holding “that costs may be recovered under § 107(a)[(4)(B)] notwithstanding that they may have been ‘compelled’ under an administrative order or settlement with the government where that order or settlement does not give rise to contribution rights under § 113(f)(3)(B).”[civ] But if a PRP meets one of the requirements for suit under 113(f)(1) or (3)(B), it must proceed under that § 113 subsection.[cv]
C. The Benefits of the Mutually Exclusive Approach
This mutually exclusive framework advances CERCLA’s goals by bringing all of the responsible parties to the settlement table, therefore ensuring responsible parties pay their fair share of the cleanup.[cvi] This framework promotes the private causes of actions that Congress contemplated when it enacted SARA.[cvii] It does not allow a settling party to circumvent the contribution bar by bringing a § 107(a)(4)(B) action against another settling party for compelled costs pursuant to its settlement agreement. Moreover, the mutually exclusive framework does not allow a settling party to wait until its contribution claim is no longer ripe once the statute of limitations has run.
Although settling parties may be subject to § 107(a)(4)(B) cost recovery actions as a result of the mutually exclusive approach, settlements in most situations do not “‘resolve liability’ for response actions not yet completed or costs of responses not yet incurred.”[cviii] Thus, a cost recovery action that is permitted under the mutually exclusive approach against a PRP that has already settled or been subject to a civil action is for cleanup that the party did not yet resolve its liability for, and they may counterclaim for contribution under § 113(f)(1). Furthermore, settling PRPs may be subject to claims of contribution for settlements to which it was not a party. The idea is that by the end of response actions, each phase will have a settlement with possibly different PRPs. Through the exhaustion of contribution actions, each PRP will ultimately be responsible for their fair share, and thus fully reimbursing the entities cleaning up the contamination.
However, if instead of settling, a PRP decides to wait and see whether the United States, the State, or another entity brings an action against them, they risk the possibility of being subject to a recovery action for all costs incurred from a facility. As a result, they will bear the costs of: (1) the initial litigation; (2) the substantial judgment amount; and (3) the burden of seeking out other PRPs and bringing claims in contribution, until they are relieved of the inequitable dispersion of costs. This is the original intent of CERCLA.
CONCLUSION
CERCLA’s purpose is to facilitate the prompt cleanup of contaminated sites that pose a risk to health and welfare of the country. CERCLA’s success and integrity hinges on PRPs’ cooperation in voluntarily cleaning up sites, reimbursing the EPA for response costs, and sorting out amongst themselves the equitable allocation of the costs based on their responsibility. The mutually exclusive framework created by the United States’ Courts of Appeals encourages that cooperation. It maintains the liability structure that Congress contemplated when it adopted SARA, and ensures that the responsible parties at some point throughout a site’s cleanup will be allocated their share of the costs. In conclusion, circuits that have not yet heard these issues should adopt the mutually exclusive approach to maintain CERCLA through consistency and reliability.
[i] J.D. Candidate, 2018, Vermont Law School; Administrative Editor, Vermont Journal of Environmental Law.
[ii] Burlington N. & Santa Fe Ry. Co v. United States, 556 U.S. 599, 602.
[iii] 42 U.S.C. § 9607(a)(4)(B) (2012). Cost recovery is seen as the preferable cause of action because it has a longer statute of limitation and it provides the “opportunity for joint and several recovery.” Whittaker Corp. v. United States, 825 F.3d 1002, 1007 n.4 (9th Cir. 2016).
[iv] The contribution actions, under §§ 113(f)(1) and 113(f)(3)(B), allow parties to recover from other PRPs some of the costs they paid either pursuant to a CERCLA civil action or to “an administrative or judicially approved settlement” through equitable apportionment. 42 U.S.C. §§ 9613(f)(1), (3)(B).
[v] 42 U.S.C. § 9613(g)(3) (contribution actions are subject to a three year statute of limitations); Whittaker Corp. v. United States, 825 F.3d 1002, 1013 (9th Cir. 2016).
[vi] United States v. Atl. Research Corp., 551 U.S. 140, 140 – 41 (2007).
[vii] Martha L. Judy & Katherine N. Probst, Superfund at 30, 11 Vt. J. Envtl. L. 191, 244–46 (2009) (explaining that after Atlantic Research Corp., the contribution-protection provision—provided to private entities in settlement agreements with the United States or States and to parties that have been subject to enforcement actions—have been called into question because uncertain whether private party cost recovery claims may be able to circumvent the contribution bar, dis-incentivizing settlements).
[viii] Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 415–16 (2016).
[ix] Elizabeth F. Mason, Comment, Contribution, Contribution Protection, and Nonsettlor Liability Under CERCLA: Following Laskin’s Lead, 19 B.C. Envtl. Aff. L. Rev. 73, 74–75 (1991).
[xiii] Peter L. Gray, The Superfund Manual: A Practitioner’s Guide to CERCLA Litigation 255 (2016); Judy & Probst, supra note 7, at 193 (citing H.R. Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. (94 Stat.) 6119).
[xiv] United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 (S.D. Ohio 1983) (citing 1980 U.S.C.C.A.N. (94 Stat.) 6119, 6119–20).
[xv] Gray, supra note 13, at 255; Judy & Probst, supra note 7, at 225.
[xvii]See Id. at 85 n.1, 86 n.2, 88 n.10 (listing the cases establishing CERCLA’s liability scheme).
[xviii] Judy & Probst, supra note 7, at 214; Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 396 (2016); see also 42 U.S.C. § 9607(a) (providing the scope of those persons that may be held liable under CERCLA).
[xx] United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007); see Gray, supra note 11, at 257 n.3 (citing cases that found an implied right for contribution pursuant § 107(a) and federal law).
[xxi] The court in United States v. New Castle County, 642 F. Supp. 1258, 1262 (D. Del 1986) questioned whether CERCLA provided contribution rights and found a right to contribution under federal common law…In Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (E.D. Mo. 1985) the court that § 107(e)(2) implied a right of contribution. Look to Cooper Industries, 161-162, 125 S.Ct. 577 for a listing of these cases (if needed); Key Tronic Corp. v. United States, 511 U.S. 908, 816, also has listings of such cases.
[xxii] United States v. Atl. Research Corp., 551 U.S. 128, 140 (2007).
[xxiii] Judy & Probst, supra note 5, at 214; Vera, supra note 16, at 396.
[xxiv] Richard H. Mays, Settlements with SARA: A Comprehensive Review of Settlement Procedures Under the Superfund Amendments and Reauthorization Act, 17 ELR 10101, 10102 (1987).
[xxvi] 42 U.S.C. § 9613(f)(1) (2012) (emphasis added) (“Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)] of this title, during or following any civil action under [§ 106] of this title or under [§ 107] of this title.”).
[xl] United States v. Atl. Research Corp., 551 U.S. 128, 133 (2007).
[xli]Id.; see, e.g., Metro. Water Reclamation Dist. v. N. American Galvanizing & Coatings, Inc., 473 F.3d 824, 835 (7th Cir. 2007) (“Nothing in subsection [§ 107(a)(4)](B) indicates that a potentially liable party . . . should not be considered ‘any other person’ for purposes of a right of action.”).
[xlii] Atl. Research Corp, 551 U.S. at 133 (citations omitted).
[xliii] E.I. DuPont de Demours & Co. v. United States, 460 F.3d 515, 543 (3d Cir. 2006), vacated, 551 U.S. 1129 (2007).
[xlvi]Id. at 138–39 ( “[A] ‘tortfeasor’s’ right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share.”).
[lxi]See id. at 138–41 (describing the distinct differences between § 107 and § 113).
[lxii] Jeffrey M. Gaba, The Private Causes of Action Under CERCLA: Navigating the Intersection of Section 107(a) and 113(f), 5 Mich. J. Envtl. & Admin. L. 117, 141 (2015); Gray, supra note 13, at 258 (2016).
[lxiii] Alfred R. Light, Avoiding the Contribution “Catch-22”: CERCLA Administrative Orders for Cleanup Are Civil Actions, 46 ELR 10791, 10791–92 (2016).
[lxiv] An American card game where the aim of the game is to discard all of your cards to get out of the game first, the last one holding a deck of cards is the loser.
[lxvii]See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, 12 (2016) ( “[A] party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”) (quoting Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016)); see also Niagara Mohawk Power Corp. v. Chevron U.S.A., 596 F.3d 112, 118 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d. 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).
[lxix] Atl. Research Corp., 551 U.S. at 139; Agere Sys. v. Advanced Envtl., Tech. Corp., 602 F.3d 204, 220 (3d Cir. 2010); see Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1336 (N.D. Ala. 2010) (quoting Atlantic Research, 551 U.S. at 139.).
[lxxi] Pa. Dep’t of Envtl. Prot. v. Lockheed Martin Corp., 2015 U.S. Dist. LEXIS 10814 at *15–16 (2015) (citing United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir. 1990)).
[lxxii] Fla. Power Corp. v. First Energy Corp., 810 F.3d 996, 1001(6th Cir. 2015) (alterations omitted) (citing Hobart v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 768 (6th Cir. 2014)).
[lxxiii] 42 U.S.C. § 9612(i) (2012); Lockheed Martin Corp., 2015 LEXIS 10814 at *16.
[lxxiv]See Lockheed Martin Corp., 2015 LEXIS 10814 at *17 (holding that the agreement was neither an administrative settlement nor judicially approved settlement because the agreement was made without following administrative procedures and no impartial arbiter determined whether the settlement amount was fair and reasonable); see CPC Int’l v. Aerojet-Gen. Corp., 759 F. Supp. 1269, 1283 (W.D. Mich. 1991) (stating that an “administrative or judicially approved” settlement must include hearings and public comment).
[lxxv] Lockheed Martin Corp., 2015 LEXIS 10814 at *16.
[lxxviii]Id. at *15; Gray, supra note 13, 175 (2016).
[lxxix] Lockheed Martin Corp., 2015 LEXIS 10814 at *14; U.S. v. Aerojet General Corp., 606 F.3d 1142, 1149 (9th Cir. 2010); Gray, supra note 11, 175 (2016) (This benefit is limited as it only applies to “matters addressed in the settlement.”); see also 42 U.S.C. § 9613(f)(2) (2012).
[lxxx] Lockheed Martin Corp., 2015 LEXIS 10814 at *15.
[lxxxiv]See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, at *12 (2016) (quoting Whittaker Corp. v. United States, 825 F.3d 1002 (9th Cir. June 13, 2016)); Niagara Mohawk Power Corp. v. Chevron U.S.A., 5966 F.3d 112, 112 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).
[lxxxv] ITT Indus. v. BorgWarner, Inc., 615 F.Supp.2d 640, 646–48 (W.D. Mich. 2009).
[lxxxvi]See Whittaker Corp. v. United States., 825 F.3d 1002, 1011 (9th Cir. 2016)(holding that the plaintiff could only bring a contribution action for expenses it was found liable for in a prior action).
[lxxxvii]See Whittaker Corp., 825 F.3d at 1009 (9th Cir. 2016) (holding that plaintiffs could recover costs with a cost recovery action for expenses separate from those which the plaintiff was found liable for in a prior action); Bernstein v. Bankert, 733 F.3d 190, 202–03 (7th Cir. 2012) (holding that plaintiffs could bring cost recovery action for expenses separate from those for which the plaintiffs had a right of contribution); NCR Corp. v. George A. Whiting Paper Co., 768 682, 690–92 (7th Cir. 2014) (holding that the plaintiff was required to bring all claims in contribution because each set of expenses was covered by an order triggering the right to contribution); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602, F.3d 204, 225 (3d Cir. 2010) (holding that a party who had been sued in a § 107(a) cost recovery action could bring a cost recovery action for expenses separate from the liability established by the prior suit, because § 113(f) had not been triggered for those separate costs and a contribution action was therefore unavailable for those costs it seeks).
[lxxxviii] Whittaker Corp. v. United States, 825 F.3d 1002, 1011 (9th Cir. 2016).
[civ]See Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d 1316, 1341 (N.D.A.L., 2010) (citing W.R. Grace & Co.Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90–91 (2d Cir. 2009) (holding that the plaintiff could bering § 107(a) claim based upon cleanup costs incurred pursuant to administrative settlement with state environmental agency that did not give rise to contribution rights under § 113(f)(3)(B), because agreement did not settle liability under CERCLA).
[cv] PCS Nitrogen, Inc., v. Ross Dev. Corp. 104 F. Supp. 3d 729, 740 (D.S.C. 2015); Niagara Mohawk Power Corp. v. Chevron, (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 766 (6th Cir. 2014).
[cvi] A Bill to Extend and Amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and for Other Purposes: Hearings Before the Senate Committee on the Judiciary on S. 51, 99th Cong. 1, 52 (1985).
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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Opportunities to Address Climate Change in the Next Farm Bill[1]
By Sara Dewey,[2] Liz Hanson,[3] & Claire Horan[4]
Introduction
The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.
Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[5] Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[6]
To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.
This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.
I. Background
A. Agricultural Sources of GHG Emissions
Greenhouse gases trap heat in the atmosphere and contribute to increases in global temperatures. Although this a natural process, increased greenhouse gas emissions since the industrial revolution have increased atmospheric greenhouse gases to levels never before recorded. Agriculture, including raising crops and animals as well as resulting land use changes and farm equipment usage, is a source of three GHGs: methane (CH4), nitrous oxide (N2O), and carbon dioxide (CO2).[7]
Globally, emissions from food systems are responsible for nearly a third of all GHG emissions.[9] Domestically, EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks divides up agriculture-related emissions into different categories. N2O and CH4 emissions are categorized as “Agricultural,” and accounted for 8.3 percent of total greenhouse gas emissions in the United States in 2014.[10] In 2014, N2O emissions were 336 million metric tons of carbon dioxide equivalent (MMT CO2 Eq.); these emissions were caused primarily by soil management such as the use of synthetic fertilizers, tillage, and organic soil amendments.[11] Manure management, and biomass burning, also contribute to N2O emissions. CH4 emissions were 238 MMT CO2 Eq. and were produced by enteric fermentation during ruminant digestion (164 MMT CO2 Eq.), manure management (61 MMT CO2 Eq.), and the wetland cultivation of rice (12 MMT CO2 Eq.)[12]
CO2 emissions from agriculture-related land use changes and equipment usage are accounted for in the “Land Use, Land-Use Change, and Forestry” and the “Energy” categories, respectively. Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29%.[13]
II. Strategies for Managing Climate Risk through Mitigation and Adaptation
Given agriculture’s contributions to GHG emissions that are contributing to climate change, which in turn affects agricultural productivity, it is appropriate to consider how climate change can be incorporated across the titles of the Farm Bill. The anticipated reauthorization in 2018 can play a critical role in addressing climate change in the United States by promoting practices that encourage mitigation and adaptation practices on farms.
Adopting new agricultural practices can be challenging, especially for small farmers or operations without access to large amounts of capital or information about adaptation opportunities. However, doing so will not only assist the U.S. farmers and ranchers confront shifting seasons, more severe storm events, new pests, drought, and other challenges,[14] it will also reduce the Farm Bill’s fiscal burden on taxpayers.[15] A number of land managers are already adopting strategies that not only reduce emissions or sequester carbon in the soil, but also have the important co-benefits of improving productivity and resilience.[16]
A. Mitigation Measures
Land managers can mitigate GHG emissions by offsetting current emissions, sequestering carbon, and/or preventing future emissions.[17] Figure 2 describes these strategies and the practices to achieve them.
First, land managers can reduce the GHG emissions of their farming practices in a number of ways. Practices such as conservation tillage reduce soil disturbance, and prevent some erosion, which can lower soil carbon loss. Precision agriculture strategies can reduce fertilizer inputs on cropland, which in turn reduces GHG emissions from fertilizer production and application.[18] Reincorporating livestock manure onto cropland as well as improved management of liquid manure using anaerobic digesters or other on-farm technology can reduce methane emissions from livestock waste by capturing it rather than emitting it.[19]
Second, land managers can sequester additional carbon through on-farm practices. Soil carbon can be increased by incorporating cover crops, including legumes, into crop rotations, reducing tillage, and agroforestry practices.[20] In addition, planting perennial crops or incorporating trees into farms through alley cropping, hedgerows, and riparian forest buffers can lead to long-term sequestration of carbon in woody biomass.
Finally, land managers can take steps to avoid future emissions. The most critical way to avoid new on-farm emissions is to avoid land conversion, which releases carbon that was previously sequestered in the soil and in woody biomass.
Figure 2. Practices for agricultural greenhouse gas mitigation[21]
B. Adaptation Measures
Adapting to a changing climate will require farmers, foresters, and ranchers to prepare for and respond to new risks, including extreme weather events, shifts in growing seasons, and different pests and plant diseases. Figure 3 provides an overview of the range of practices that farmers can undertake to adapt to climate change.
To make farming operations more resilient, farmers can enhance soil health, which will make agricultural systems better able to withstand extreme weather, drought, and erosion due to high winds or flooding.[22] Strategies for enhancing soil health include adjusting production inputs, timing of planting and soil amendments, cover crops, tillage, new crop species, and diversified crop rotations.[23]
Farmers can also take additional steps to make their farms more resilient to other climate risks. For example, to prepare for flooding, heavy rainfall, and other risks, farmers can implement resilient farm landscapes that include buffer strips and the return of marginal cropland to native vegetation. To prepare for new pests and diseases, farmers can diversify their crop selection and alter crop rotations. To adjust to changing seasons and a warming climate, farmers can plant different crops; crop scientists can also develop more heat- and drought-resistant crop varieties. Resilience planning is also important on the community level, as rural communities can ensure that new infrastructure investments supported by the Farm Bill, such as rural water and energy systems, are resilient to climate change effects.
Figure 3. Practices for agricultural adaptation to climate change[24]
C. Opportunities for Complementary Mitigation and Adaptation
Importantly, many on-farm practices can help with both climate adaptation and mitigation.[25] For example, improving soil health not only mitigates climate change, it also makes farms more resilient and better able to withstand the shifting, and at times extreme, conditions of a changing climate. Efficient fertilizer application will reduce GHG emissions while enhancing soil resilience. Similarly, cover cropping, diversified crops, and other practices that stabilize the soil will reduce GHG emissions from the soil while building soil health. It is important to note that the efficiency of these on-farm practices will vary by region, impacting the ways they can and should be implemented.[26]
Mitigation and adaptation strategies for agricultural systems often require long-term planning to strengthen “climate-sensitive assets,” such as soil and water, over time and in changing conditions.[27] Developing better regionally specific agricultural climate and conservation practice adoption data is required for this long-term planning to be successful. From those baseline data, regional efforts will be critical to identify mitigation opportunities, develop strategic adaptation planning, and implement enhanced soil and livestock management practices.[28]
III. Metrics for Prioritizing Reform Proposals
As the summary above indicates, there are many actions that can promote climate change mitigation or adaptation in agriculture. In addition, changes can be made to every Title of the Farm Bill that would promote one or more of these mitigation and adaptation strategies. Given this complexity, the uncertainties associated with quantitative estimates of the mitigation potential of different strategies, and the qualitative differences between mitigation and adaptation as goals, we developed a range of qualitative metrics that we used to analyze potential reforms. In particular, we considered:
Potential magnitude of climate impact: Priority was given to proposals that had proven climate benefits, did not require significant additional research, and targeted the largest sources of agricultural GHG emissions.
Co-benefits: Priority was given to proposals that could increase resiliency or economic benefits of farms.
Equity: Priority was given to programs that could benefit small and large farms in all regions.
Scalability: Priority was given to proposals that seemed replicable and applicable to farms across the country or where Climate Hubs could facilitate regional diversity.
Enforceability/Administrability: Priority was given to proposals that could be tied in with or build upon existing requirements or programs in the Farm Bill.
Feasibility: Feasibility considerations included ease of implementation technically, economically, and politically. Because any legislative change will need to be passed in Congress, political feasibility was determined to be one of the most important considerations. Accordingly, we prioritized proposals that seemed, based on stakeholder engagement, suitable for the next Farm Bill, given competing interests for funding and stakeholder sentiment towards climate action.
An analysis of these metrics is included throughout our recommendations. However, these should be considered as only a first step. While we have attempted to target the largest sources of GHG emissions, more detailed proposals will be required before there can be precise estimates of the potential for emission reductions. The USDA’s COMET-Farm, an online farm and ranch GHG accounting tool, can likely facilitate this effort.[29] Similarly, determining the economic feasibility of specific reform proposals has been difficult because of taxpayer subsidization, the uncertainty of how appropriations may be allocated, and the varying degrees of stringency that reforms could encompass (e.g. mandate vs. incentive). Finally, while previous Farm Bill reauthorizations can serve as a guide, the ongoing transitions at U.S. federal agencies engaged in Farm Bill programs will likely have impacts on the political feasibility of proposals that cannot be appropriately assessed at this time. For these reasons, we recommend that additional research measure the climate impact of proposals, outline the benefits and co-benefits for farmers and the public, articulate the administrability of the program, and gather stakeholder input and support for proposals.
IV. Pathways for Addressing Climate Change in the Farm Bill
To determine how the Farm Bill could better address climate change, we first categorized the range of mitigation and adaptation practices identified in Figures 2 and 3, above, in terms of their potential applicability to the Farm Bill. We then examined how these practices mapped onto the current titles in the Farm Bill. Finally, we assessed how the upcoming Farm Bill could better incentivize these actions across titles, with an eye toward win-win practices with both mitigation and adaptation benefits.
Figure 4 contains the range of possibilities we identified for addressing climate mitigation and adaptation by title. To fully assess the impact of each of these policy options – and its interaction with other policies and programs –requires additional research and outreach to stakeholders affected. We discuss in more detail below a set of recommendations that best fit our metrics, indicated by bold font in this table.
Figure 4. Options for Addressing Climate Change by Farm Bill Title
All of these areas for reform have the potential to advance climate-ready agricultural practices through the Farm Bill. Many of these areas for reform also have wide-ranging benefits beyond climate change mitigation or adaptation such as enhancing on-farm productivity and more efficiently using taxpayer dollars. We elected to focus on three recommendations we judged to be particularly important based on the metrics we established in Part III).
Recommendation 1: Incorporate climate measures into crop insurance and conservation compliance to better manage on-farm climate risks under Title II (Conservation) and Title XI (Crop Insurance).
Recommendation 2: Ensure the best available science and research—including the outcome of pilot programs—are incorporated into Farm Bill programs; support dissemination of downscaled climate data through USDA regional offices and land grant universities to develop agricultural climate mitigation and adaptation capacity under Title VII.
Recommendation 3: Advance manure management collection and storage methods, as well as biogas development under Title IX to mitigate GHG contributions from livestock.
Recommendation 1: Incorporate Climate into Crop Insurance and Conservation Compliance
a. Reform crop insurance to incentivize climate risk management and eliminate disincentives for adopting climate-friendly practices
Crop insurance, Title XI, makes government-subsidized crop insurance available to producers who purchase a policy covering losses in yield, crop revenue, or whole farm revenue. Farmers can select and combine several types of crop insurance policies: catastrophic coverage, “buy-up” coverage, and a supplemental coverage option for selected crops. USDA’s Risk Management Agency (RMA) sets insurance premium subsidy rates and develops specific contracts,[30] working with 18 insurance companies to administer the program.[31]
Crop insurance is deeply subsidized by the federal government, and it represents the single largest federal outlay in the farm safety net.[32] On average, taxpayers cover 62 percent of crop insurance premiums.[33] The insurance companies’ losses are reinsured by USDA, and the government also reimburses their administrative and operating costs.[34] The Congressional Budget Office anticipates that this program will cost taxpayers over $40 billion from 2016 to 2020.[35]
These subsidies disproportionately benefit large farms: while only about 15 percent of farms use crop insurance, insured farms account for 70 percent of U.S. cropland.[36] Small farmers struggle to utilize crop insurance because of the high administrative burden and challenges of insuring specialty crops.[37] In addition to clear equity concerns involving access to crop insurance, this situation is problematic from a climate perspective because larger farms are more likely to grow monocultures, which are both more vulnerable to pests and extreme weather events and can degrade soil health. Indeed, just four crops—corn, cotton, soybeans, and wheat—make up about 70 percent of total acres enrolled in crop insurance.[38]
The current loss coverage policies in the crop insurance program can discourage farmers from proactively reducing their risks by taking steps to enhance soil health and resilience. Because farmers with crop insurance are protected against losses incurred from impacts likely to increase with climate change, farmers may not be properly incentivized to respond to the changing conditions.[39] Some environmental organizations have even raised concerns that in response to the crop insurance transfer of risk, some farmers may be more willing to engage in unsustainable practices, such as aggressive expansion, irresponsible management, and use of marginal land.[40] In addition, farmers may make planting decisions based on the insurance program incentives rather than market-based signals.[41] In these ways, crop insurance can push farmers towards practices that pose risks to both their operations and taxpayer obligations.[42] It is therefore important that the crop insurance program better align farmers’ risk management incentives with the real and growing risks they face from climate change.
One way to achieve this objective is through incentivizing or requiring farmers to undertake actions to improve soil management and promote soil health. Some specific changes to the crop insurance program that could promote these practices include:
Incorporating climate projections to account for changing growing seasons and planting dates.
Providing insurance premium rebates for farmers who voluntarily undertake beneficial practices.
Incentivizing improved soil management practices, diversified crops, and manure management.
Adjusting the length of policies to better reflect the value added from changes that improve long-term soil health.
Writing soil health requirements into insurance policies.
More generally, changes to the crop insurance program that reduce the magnitude of the subsidy offered to farmers, such as setting a dollar-per-acre cap, could reduce the moral hazard that current policies create.[43] The methodology used to set premiums could also be adjusted to be based more on the projected frequency and intensity of events such as droughts and floods rather than on backward-looking data. RMA has started to incorporate climate-related risk metrics into annual rates by weighting recent loss experience more heavily, thereby more accurately reflecting the risks that growers face. However, it is important to consider future risks from climate change as well.
Requirements of the crop insurance program that act as disincentives to climate-friendly farming practices should be updated to account for growing climate risks farmers face. For example, RMA has guidelines in place about the termination of cover crops, because of concerns that these crops will scavenge water from the commodity crops.[44] This requirement can act as a disincentive to farmers’ adoption of cover cropping, a practice that builds the soil and reduces runoff in the non-growing season.[45] The next Farm Bill could specify that there should be no specific termination requirements for cover crops.
Insurance policies may also serve to incentivize some environmentally harmful practices, such as early and excess fertilizer application and cultivation of environmentally sensitive land.[46] Because early application maximizes crops’ uptake of nitrogen, it can increase yield in the short term, but it contributes to nitrous oxide emissions, unhealthy soils that become less able to fix nitrogen and must rely increasingly on fertilizer, and polluted runoff. In addition, synthetic fertilizers, which are made from non-renewable materials, including petroleum and potash, are produced at a huge energy cost.[47] Some studies have suggested that crop insurance may incent some farmers to convert highly erodible or wetlands to farmland.[48] Therefore, the next Farm Bill could also indicate this type of practice is not required to be eligible for crop insurance. This change could be complemented by an increase in the length of insurance policies, as discussed above, because insurance companies would benefit from the longer-term improvements in soil health.
b. Tie crop insurance to a new conservation compliance provision for building soil health for climate ready agriculture
Currently, in order to qualify for crop insurance, farmers must satisfy two conservation compliance requirements, the Wetland Conservation (“Swampbuster”) and Highly Erodible Land Conservation (“Sodbuster”) provisions.[49] These provisions ensure, respectively, that farmers do not convert a wetland or plant crops on highly erodible land or a previously converted wetland.[50] While these current conservation requirements are beneficial in addressing some climate impacts, adding a conservation compliance requirement directly targeted at climate-related practices would improve upon them.
With 70 percent of farmland in the crop insurance program, changes in conservation compliance through the next Farm Bill or through RMA’s policies can drive big climate change benefits. Under Title II, Congress could create an additional conservation compliance requirement for climate-friendly agricultural practices, which could either be required to obtain crop insurance or could make farmers eligible for rebates. The types of on-farm practices that could mitigate risk and enhance climate resilience include more precise irrigation and fertilizer application, reduced tillage of the soil, cover cropping, altering crop rotations, and building buffer strips and riparian buffers. Particularly beneficial practices for building resilient soil include cover cropping, diversified crop rotations, reducing tillage, and efficient irrigation.[51]
In addition, enforcement gaps have limited the success of the existing conservation compliance requirements. To make the mechanism effective, it will be important to establish simple and effective enforcement, for example by using remote sensing, and to ensure that Natural Resources Conservation Service (NRCS) offices have sufficient resources to carry out enforcement efforts.
First, these proposals could produce significant climate benefits from increasing soil health, in terms of both mitigation and adaptation. Reform of the crop insurance and conservation titles could also help address some of the equity issues that currently exist between small and large farms. Existing USDA programs, described in the next section, could help with scalability and administrability. Finally, in terms of feasibility, while any change may be difficult, our stakeholder engagement indicated that farmers are open to programs that target soil health, given the potential economic benefits to their farms. While the actual on-farm impacts will vary based on how the program is designed and constructed, building more resilient, healthy soil can help improve environmental outcomes and decrease the risk of crop loss.[52]
Recommendation 2: Ensure Best Available Science and Research Guides Farm Bill Programs
Agricultural practices that promote climate change mitigation and adaptation, including those described above, are often regionally specific in their implementation. For many new climate-ready practices to be included in conservation compliance or crop insurance, the USDA would need to account for this regional specificity. For example, the benefits of many of the on-farm practices that improve soil health, including more precise irrigation and fertilizer application, reduced tillage of the soil, and altering crop rotations, vary by region and soil type. In some areas, no-till methods may be infeasible; farmers who try to implement no-till in these areas would likely continue to till to some degree or after a short period of time, resulting in quick reversal of the achieved carbon sequestration benefits. Furthermore, the technical specificity of choosing among these practices and correctly implementing them requires guidance at a local level.
To address these types of knowledge gaps and to provide technical assistance to states and farmers, the USDA has created a range of programs, including Climate Hubs, which were established at public land-grant universities in 2014.[53] The Hubs deliver science-based knowledge, practical information, and program support for farmers to engage in “climate-informed decision-making” by farmers.[54]
Increasing funding in the 2018 Farm Bill in Title VII, the Research title, could solidify and expand USDA’s ability to administer and scale climate research and outreach efforts across all regions of the country. Additionally, creating systems to collect and analyze regional data on pilot programs and ensure best practices are adopted could assist long-term efforts to incorporate climate policies into Farm Bill programs.[55] For these reasons the Farm Bill should provide additional funding for climate research and monitoring, especially focused on regional resilience.
Recommendation 3: Address the Significant GHG Contributions of Livestock Management
Improving livestock management, especially manure management, is a significant opportunity for mitigating emissions of methane and achieving several co-benefits for the public and farmers. There is currently very little regulation of livestock manure management. Manure is sometimes stored—uncovered—in a single collection site, which causes the methane to be released directly into the atmosphere. In addition to being a major GHG emissions source, it can cause a range of considerable environmental harms.[56]
a. Require improved manure management, including the covering of lagoons
First, the upcoming Farm Bill could address manure management collection and storage methods. Practices can be improved through actions such as allowing livestock to roam,[57] covering manure lagoons, flaring the methane produced, or producing biogas for use. Simply covering a manure lagoon results in significant decreases in methane emissions, as well as decreased odors. Flaring is the combustion of methane, which yields water and carbon dioxide. Although flaring still emits GHGs, carbon dioxide is a less potent GHG than methane.
The Farm Bill could promote these practices either through incentives or mandates in the Conservation or Crop Insurance titles. For example, the Farm Bill could mandate or incentivize farmers with a threshold number of cattle, swine, or poultry cover manure and flare the produced methane to be eligible for crop insurance. Such a mandate would have the greatest impact at Concentrated Animal Feeding Operations (CAFOs), which may also be better able to bear the high capital costs associated with biogas production
b. Pursue strategies to decrease methane emissions, including biogas and other on-farm renewable energy production
Second, the Energy Title could incentivize on-farm biogas. On farms, many different substrates may be used to produce biogas, including animal excrements (including that of cattle, swine, poultry,[58] and horse), food waste, milling by-products, and catch crops (such as clover grass on farms without livestock).[59] Farmers can realize substantial savings from biogas production, including through substituting biogas for other energy sources, through substituting digestate[60] for commercial fertilizers,[61] and by avoiding disposal and treatment of substrates (such as for waste-water treatment). Farmers may also be able to sell carbon offsets.[62] In addition, farmers producing biogas can avoid some of the worst problems with animal agriculture: farmers must do something with the manure, and its storage can produce strong odors,[63] unhealthy conditions for workers and families,[64] and pollution through runoff in the worst scenarios.[65]
Farmers have two main options for biogas use: (1) generation of electricity for on-site use or sale to the grid; and (2) direct use of biogas locally, either on-site or nearby.[66] Using the biogas to fuel a generator to produce electricity is considered the most profitable use for most farms.[67] Another use is to upgrade the biogas, then called biomethane, to be injected into the national natural gas pipeline network as a substitute for extracted natural gas.
Because farmers could benefit financially from on-farm use or the sale of biogas, the Farm Bill should continue and expand funding for the Rural Energy for America Program, which offers cost-sharing grants and loans for renewable energy improvements. [68] However, these programs are most likely to benefit large farms because anaerobic digesters are expensive and require a large and constant supply of substrate to produce a return on investment. We therefore suggest the Farm Bill also fund pilot programs to assist small farm communities to form cooperatives so that they are also able to utilize this technology and participate in the grant or loan program.
Even with the available grants and loans, farmers are still taking a substantial financial risk. USDA or land-grant universities should actively help communities or cooperatives with the planning and application process. Large farms or cooperatives who are unable or unwilling to operate and maintain anaerobic digesters themselves could hire a company to lease the equipment and manage the biogas production process.[69] USDA Rural Development Agencies could be a valuable liaison between biogas management companies and farmers.
CAFOs could be part of a voluntary program or required to use anaerobic digesters due to their greater contribution to climate change and other environmental harms. Because CAFOs are responsible for high levels of greenhouse gas emissions and because anaerobic digesters are economically feasible for large operations, there is reason to consider the benefits that could be achieved by requiring these practices for large CAFOs in the Farm Bill.
Livestock management is a critical area for addressing climate impacts, and biogas has the potential to be a win-win for farmers willing to invest in alternative energy production.
Conclusion
The U.S. agricultural system must evolve to mitigate climate change and adapt to the effects of a changing climate. Opportunities for climate change mitigation and adaptation exist across the Farm Bill titles, from bolstering climate resilient infrastructure in the Rural Development title to incentivizing sustainable forest management in the Forestry Title. Taking action on climate measures in the next Farm Bill reauthorization will help farmers better plan for changing conditions, protect taxpayers from increasing risks, and assist the United States in meeting its global climate commitments. The next Farm Bill should incorporate climate risk management provisions, and state and local actors should consider ways to support these efforts.
[1] The first draft of this paper was written while the authors were enrolled in Harvard Law School’s Emmett Environmental Law and Policy Clinic, and a previous version was released by the Clinic in Fall 2017. The authors would like to acknowledge Clinical Professor and Director Wendy Jacobs and Senior Clinical Instructor Shaun Goho for their contributions and guidance throughout the project. Thanks also to the editorial staff of the Harvard Environmental Law Review for their help and advice. Any mistakes are the authors’ own.
[3] M.P.P. Candidate, Harvard Kennedy School, Class of 2018.
[4] J.D. Candidate, Harvard Law School, Class of 2018.
[5] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015, at ES-21 (2017).
[6] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.
[7] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 – 2014, at 5-1 (2016) [hereinafter EPA, Inventory], https://perma.cc/HQ9B-BJYP.
[8] EPA, Overview of Greenhouse Gas Emissions [hereinafter EPA, Overview], https://perma.cc/7WS6-JXQY. The two to three percent of emissions unaccounted for are fluorinated gases, which are synthesized during industrial processes. Id.
[9] Natasha Gilbert, One-third of our Greenhouse Gas Emissions Come from Agriculture, Nature (Oct. 31, 2012), https://perma.cc/2GF7-ASMM.
[13] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.
[14]See U.S. Dep’t of Agric., USDA Agriculture Climate Change Adaptation Plan 9 (2014) [hereinafter USDA, Adaptation Plan], https://perma.cc/8SM9-5NDX; Louise Jackson & Susan Ellsworth, Scope of Agricultural Adaptation in the United States: The Need for Agricultural Adaptation, in The State of Adaptation in the United States (2012), https://perma.cc/HS57-K35T.
[15] For example, a recent report from the Office of Management and Budget and the Council of Economic Advisers estimates that the annual cost of the crop insurance program will increase by $4 billion per year in 2080 as a result of the impacts of climate change. OMB & CEA, Climate Change: The Fiscal Risks Facing the Federal Government 6 (Nov. 2016), https://perma.cc/4Y22-P85V; see also USDA, Adaptation Plan, supra note 14, at 9.
[16] U.S. Dep’t of Agric., Climate Change and Agriculture in the United States: Effects and Adaptation 126–27 (2013) [hereinafter USDA, Effects and Adaptation], https://perma.cc/QW8T-Y4RL.
[17] M. McLeod et al., Cost-Effectiveness of Greenhouse Gas Mitigation Measures for Agriculture: A Literature Review, OECD Food, Agriculture and Fisheries Papers, No. 89, at 26 (2015).
[18] Peter Lehner & Nathan Rosenberg, Legal Pathways to Carbon-Neutral Agriculture, 47 Envtl. L. Rep. 10,845, 10,849 (2018).
[20] For a more detailed review of how carbon sequestration can be increased in agriculture, see Daniel Kane, Nat’l Sustainable Agric. Coal., Carbon Sequestration Potential on Agricultural Lands: A Review of Current Science and Available Practices (2015), https://perma.cc/R4WA-2PPK.
[21]Adapted from P. Smith et al., Greenhouse Gas Mitigation in Agriculture, Philosophical Transactions of the Royal Society B, 363, 789–813 (2008).
[22] Alexandra Bot & José Benites, Food & Agric. Org. Of the United Nations, FAO Soils Bulletin 80, The Importance of Soil Organic Matter: Key to Drought-Resistant Soil and Sustained Food and Production 19 (2005), https://perma.cc/6VE8-6KG7.
[23] USDA, Effects and Adaptation, supra note 16, at 123; see also Nat’l Sustainable Agric. Coal., Climate Change and Agriculture Recommendations for Farm Bill Conservation Program Implementation 2 (2014), https://perma.cc/2JKC-AXSY.
[24] While these practices may generally lead to better resilience on farms, adaptation practices are highly region-specific.
[25] USDA, Effects and Adaptation, supra note 16, at 126–27 (2013).
[26] For example, in the Central Valley of California, an adaptation plan that included integrated changes in crop mix and altered irrigation, fertilization, and tillage practices, was found to be most effective for managing climate risk. Id. Along with the USDA Climate Hubs, the following organizations have undertaken projects related to regional agricultural adaptation research and planning: California Healthy Soils Initiative; Wisconsin Initiative on Climate Change Impacts; Southeast Florida Regional Climate Change Compact; The Mid-Atlantic Water Program; U.S. Midwest Field Research Network for Climate Adaptation.
[34] Dennis Shields, Cong. Research Serv., Federal Crop Insurance: Background 2 (2015).
[35] Cong. Budget Office, March 2016 Baseline for Farm Programs (2016), https://perma.cc/896T-TUJ9; see also Heritage Found., Addressing Risk in Agriculture (2016).
[36] U.S. Dep’t of Agric., Structure and Finances of U.S. Farms: Family Farm Report, 2014 Edition 32–33 (2014), https://perma.cc/S9YP-P6CY.
[37] Generally, the more diverse or specialized crops and livestock a farmer produces, the harder it is to obtain insurance. These policies are not designed to support small producers and the policies are administratively complex and burdensome for small farmers, with high premiums for small farmers. On the one hand, if small farmers used yield-based or revenue-based insurance policies, those farmers would need to purchase insurance for each crop, which requires producing a significant volume of each single crop to justify the paperwork and setting up a contracted purchase price from a processor. On the other hand, whole farm insurance policies base policies on average adjusted gross revenue of the farm, regardless of the variety of products the farmer grows. This type of policy is more appropriate for diversified farmers, but may still be too cumbersome for small farms to participate. See Jeff Schahczenski, Nat’l Sustainable Agric. Info. Serv., Crop Insurance Options for Specialty, Diversified, and Organic Farmers (2012), https://perma.cc/64P6-CTRC; Nat’l Sustainable Agric. Coal., Have Access Improvements to the Federal Crop Insurance Program Gone Far Enough?, NSAC’s Blog (July 28, 2016), https://perma.cc/PT37-RNNL.
[38] Shields, Federal Crop Insurance: Background, supra note 35, at 1.
[39] Linda Prokopy et al., Farmers and Climate Change: A Cross-National Comparison of Beliefs and Risk Perceptions in High-Income Countries, 56 Envtl. Mgmt. 492, 497 (2015).
[40] Bruce Babcock, Environmental Working Group, Cutting Waste in the Crop Insurance Program 10 (2013).
[42] C. O’Connor, NRDC Issue Paper 13-04-A, Soil Matters: How the Federal Crop Insurance Program Could Be Reformed to Encourage Low-risk Farming Methods with High-reward Environmental Outcomes (2013).
[43]See, e.g., Heritage Found., Addressing Risk in Agriculture (2016).
[44] NSAC, 10 Ways USDA Can Address Climate Change in 2016, NSAC’s Blog (Dec. 30, 2015), https://perma.cc/L5AZ-NAF5.
[45]See Practical Farmers of Iowa, Cover Crops, https://perma.cc/7GHL-NVXQ.
[46] USDA’s Economic Research Service found that “[l]ands brought into or retained in cultivation due to these crop insurance subsidy increases are, on average, less productive, more vulnerable to erosion […] then cultivated cropland overall. Based on nutrient application data, these lands are also associated with higher levels of potential nutrient losses per acre.” USDA Economic Research Service, Report Summary:Environmental Effects of Agricultural Land Use Change (Aug. 2006); see also Daniel Sumner and Carl Zulauf, The Conservation Crossroads in Agriculture: Insight from Leading Economists. Economic and Environmental Effects of Agricultural Insurance Programs, The Council on Food, Agricultural and Resource Economics (2012).
[47]See Stephanie Ogburn, The Dark Side of Nitrogen, Grist (Feb. 5, 2010), https://perma.cc/9J6E-ZD9J (“About one percent of the world’s annual energy consumption is used to produce ammonia, most of which becomes nitrogen fertilizer.”).
[48]See, e.g., Anne Weir and Craig Cox, Envtl. Working Grp., Crop Insurance: An Annual Disaster (2015).
[49] Sodbuster, 16 U.S.C. § 3811 et seq.; Swampbuster, 16 U.S.C. § 3821 et seq.
[50]See Nat. Res. Conservation Serv., U.S. Dep’t of Agric., Conservation Compliance Provisions, https://perma.cc/6V9X-URBP.
[55] The existing ARS LTAR system, which conducts longterm sustainability research, could be used to inform the regional best practices communicated in outreach efforts. See Agric. Research Serv., U.S. Dep’t of Agric., Long-Term Agroecosystem Research (LTAR) Network, https://perma.cc/6XRT-FBTC.
[56] For example, manure management practices can create a public nuisance for which neighbors have little recourse. In addition, runoff from agriculture is not adequately regulated under the Clean Water Act and results in pollution to the nation’s waterways. Every year a hypoxic zone, also called a dead zone, develops where the Mississippi River dumps pollution from Midwest livestock and fertilizers into the Gulf of Mexico. See Kyle Weldon & Elizabeth Rumley, Nat’l Agric. L. Ctr., States’ Right to Farm Statutes, https://perma.cc/Y8XA-KUBR; Ada Carr, This Year’s Gulf of Mexico “Dead Zone” Will Be the Size of Connecticut, Researchers Say, Weather.com (Jun. 15, 2016), https://perma.cc/36ZZ-NKY9.
[57] Farms where the cattle range freely do not release as much methane to the atmosphere because the less consolidated manure is more likely to be absorbed into the soil rather than anaerobically digested to produce methane.
[58] Using poultry manure as a substrate can be difficult because feathers and poultry litter can clog anaerobic digesters. See Donald L. Van Dyne & J. Alan Weber, Special Article, Biogas Production from Animal Manures: What Is the Potential?, Industrial Uses/IUS-4 20, 22 (Dec. 1994).
[59] SustainGas, Sustainable Biogas Production: A Handbook for Organic Farmers 38 (2013), https://perma.cc/8354-G3A4.
[60] Digestate is the solid that is left over after biogas has been produced. Digestate can be sold or used on farm as fertilizer. It smells better than manure, is free of harmful bacteria, and contains nitrogen in a form that is more bioavailable for crops.
[61] 40 organic farms in Germany, in a region without livestock, have found it worthwhile to cooperate in supplying and transporting clover grass up to 50 km to an AD because the digestate provides them with a flexible organic fertilizer. See SustainGas, supra note 60, at 28. They find that the digestate leads to higher quality for their food crops. Id. “Biogas has to serve food production via improved nutrient supply,” one farmer says. Id.
[62] If farmers can show that they have reduced their methane emissions, they may be able to sell the carbon offsets in exchanges such as the California GHG cap and trade market. See Cal. Air Resources Bd., Compliance Offset Protocol, Livestock Projects: Capturing and Destroying Methane from Manure Management Systems (2014), https://perma.cc/68EF-2SB9.
[63] The odor-reducing benefits are viewed as especially desirable for poultry and swine farms.
[64] Biogas plants dispose of waste and sewage, making conditions healthier. Not only does the anaerobic digestion process remove pathogens, but because biogas production requires collecting manure at a central location, some unhygienic conditions are avoided. See Julia Bramley, et al., Tufts Department of Urban & Environmental Policy & Planning, Agricultural Biogas in the United States: A Market Assessment 122 (2011), https://perma.cc/Z4ER-S4SD.
[65] Livestock manure generated at cattle yards and dairy farms can contaminate surface and ground water through runoff. Anaerobic digestion sanitizes the manure to a large extent, decreasing the risk of water contamination. Id.
[66] EPA, AgSTAR Handbook: A Manual for Developing Biogas Systems at Commercial Farms in the United States, 2d. ed. 2-5 (K.F. Roos et al. eds. Feb. 2004).
[67]Id. at. 3-1. For most farms, electricity comprises 70% to 100% of energy use. Id.
[68] U.S. Dep’t of Agric., Rural Energy for America Program Renewable Energy Systems & Energy Efficiency Improvement Loans & Grants, https://perma.cc/5LE3-2QRF.
[69] This model is frequently used for wind energy production. See Agric. Research Serv., U.S. Dep’t of Agric., Wind and Sun and Farm-Based Energy Sources, Agric. Res., Aug. 2006, https://perma.cc/ZBJ9-R74Q.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
The California Cap-and-Trade program has been a beacon of success for market-based environmentalism. The program masterfully incorporated the lessons learned from previous cap-and-trade initiatives by more precisely allocating emission allowances and by setting higher price floors for auctions. The ambitious emissions reduction target and extensive range of gases covered by cap-and-trade have resulted in a substantial decrease in greenhouse gas emissions across the State. But the program has recently been involved in contentious litigation, with the chief concern being whether the emission regulations exceed the authority of the California Air Resource Board. The recent Morning Star Packing Company v. California Air Resources Board decision ultimately upheld the program, providing California Cap-and-Trade with a new lease on life.[1] However, with recent federal policy demonstrating a marked shift away from ecological conservationism, the survival of the nation’s best hope for free-market environmentalism still hangs in the balance.
I. Introduction
The California Cap-and-Trade Program (“CAT”) is derived from the California Global Warming Solutions Act of 2006 (“Global Warming Act”), which requires the State to reduce its greenhouse gas (“GHG”) emissions to 1990 levels by 2020.[2] The California Air Resource Board (“CARB”) is the State regulatory agency responsible for the project.[3] In 2011, the CARB adopted cap-and-trade regulations and created the CAT to set limits on GHG emissions.[4] The first auctions for the CAT were held in 2012, and the program went into full effect on January 1, 2013.[5]
The CAT operates in two phases each year. First, a number of emission allowances are freely distributed to entities that fall under the purview of the program.[6] Second, the remaining allowances are auctioned off on a quarterly basis.[7] The free distributions are reduced annually, and eventually all the allowances will be distributed via auctions.[8] The program also permits carbon offsets to satisfy up to eight percent of an entity’s compliance obligations.[9] The ultimate objective is to create incentives for businesses to craft environmentally friendly industrial practices as the number of yearly allowances decreases over time.
The CAT also has an enormous scope, and it is the world’s second largest market-based mechanism designed to reduce GHG emissions.[10] This size makes the successful implementation of the program especially impressive. The success is due largely to a design structure that draws upon the shortcomings of previous cap-and-trade initiatives, such as the Regional Greenhouse Gas Initiative (“RGGI”) in the northeastern United States and the Emissions Trading System (“ETS”) in the European Union.
II. Lessons Learned from the Regional Greenhouse Gas Initiative
The CAT was not the first emissions marketplace in the United States. In 2009, the RGGI went into effect as a cap-and-trade marketplace for CO2 emissions in the following nine states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.[11] However, the RGGI has been plagued with numerous shortcomings that have frustrated the performance of the initiative and which impart several lessons on how to more effectively design a cap-and-trade system.
A. Lesson 1: Cap-and-Trade Programs Need a Broad Scope
A key drawback of the RGGI is its limited scope. The program applies exclusively to CO2 emissions and only covers electrical power plants with the capacity to generate twenty-five or more megawatts.[12] Predictably, the results of the RGGI have been underwhelming, as only 163 facilities fall under the regulatory reach of the program.[13] Furthermore, CO2 emissions merely account for twenty percent of the GHG emissions in the nine participant states—a number that shrinks even further since the RGGI only regulates the electrical sector.[14] This narrowed scope has undermined the efficacy of the RGGI so drastically that Congress considers the program’s contribution to global GHG reductions to be “arguably negligible.”[15]
B. Lesson 2: Emission Forecasts Must Be Accurate
The second significant failing of the RGGI was that it overestimated the amount of CO2 emissions among the member states.[16] In fact, the RGGI set an initial emissions cap that was above actual emissions levels.[17] This was a gross oversight that stemmed from two key defects in the RGGI’s design.
First, the RGGI emission limits for the first cap period, which ran from 2009–2013, were based on emission estimations made in 2005.[18] Between 2005 and 2009, the amount of electricity generation in the member states decreased by thirty-six percent due to energy efficiency improvements and structural changes in energy generation portfolios.[19] Second, the RGGI distorted its emission forecasts by including all electrical power plants that had the capacity to generate twenty-five or more megawatts in its estimates.[20] Limiting the emission calculations to power plants that actually generated twenty-five or more megawatts would have produced more accurate projections.
These errors have been catastrophic for the initiative. The initial regulations had no effect on most businesses, which were already emitting below the inflated emissions cap.[21] Participation in the RGGI was therefore minimal, since many of the targeted businesses had no need to reduce emissions, purchase allowances, or generate offset credits.[22] Furthermore, because the RGGI does not limit the amount of allowances that can be “banked” and used in subsequent years, many companies have stored substantial amounts of these initial surplus allowances for future use.[23]
The administrators of the RGGI have taken extreme measures to try and remedy these miscalculations. Most notably, they implemented a “revised emissions cap,” running from 2014–2020, that slashes the emission limits by forty-five percent in an effort to match actual emission levels.[24] Such radical action would not have been necessary if the initial emissions cap had been more precise.
C. Lesson 3: Auctions Need Robust Price Floors
A final pitfall of the RGGI is its undervalued price floor for auctions. The reserve price has hovered around two dollars per allowance, despite being scheduled to increase according to the Consumer Price Index (“CPI”).[25] But the fact that auctioned allowances have been sold at prices exceeding five dollars indicates that businesses are willing to pay more.[26] The program therefore severely underappreciated the corporate demand for allowances and forfeited substantial potential earnings. Moreover, by greatly undervaluing the price floor, the RGGI administrators neglected to protect against suboptimal years when allowance prices have plummeted. A higher reserve price would have preserved the revenue generation capacity of the program, even during these off years.[27]
III. Lessons Learned from the European Union’s Emission Trading System
There are also numerous lessons to be learned from the deficiencies of the European Union’s ETS, which is the world’s largest market-based mechanism for reducing GHG emissions.
A. Lesson 1: Cap-and-Trade Programs Need Ambitious Initial Targets
At the conclusion of Phase I of the ETS, the “Learning Phase” that ran from 2005–2007, it was apparent that the initial targets for emission reductions were far too lenient.[28] Indeed, the lax regulations during Phase I only produced GHG reductions of three percent.[29] The EU was forced to compensate by crafting extreme targets for Phases II and III of the program, setting emissions goals of six percent below 2005 levels for Phase II and twenty-one percent below 2005 levels for Phase III.[30] If the EU had formulated a more ambitious target for Phase I rather than over-prioritizing the transition of members into the program, it would have avoided the need for these drastic adjustments.
B. Lesson 2: Allowances Must Be Apportioned Judiciously
Similar to the RGGI, the ETS grossly over-allocated emission allowances. In fact, ETS allowances initially exceeded the amount of actual emissions by four percent.[31] This miscalculation was devastating for Phase I of the ETS, as it enabled European businesses to emit 130 million tons more in GHGs than they had emitted prior to the implementation of the program.[32] This surplus destroyed the demand for allowances in the ETS marketplace, and auction prices fell precipitously.[33] The EU was forced to heavily reconfigure ETS allowance allocations to try and mitigate the damage caused by these initial overestimations, and it is still attempting to normalize the ETS marketplace.[34]
C. Lesson 3: Cap-and-Trade Programs Need Balanced Market Designs
The ETS has also been hamstrung by its inferior market design. Phase I of the program did not permit any allowances to be banked for future use.[35] Coupled with the initial over-allocation of allowances, this meant that most regulated entities possessed surplus allowances they had to expend by the year-end. This resulted in extreme downward price volatility at the conclusion of trading periods, as many companies attempted to dump the remainder of their emission allowances into the auctions.[36] The EU was once again forced to implement significant revisions to correct this oversight.[37] And while the ETS now permits allowances to be banked, the initial trading instability across Europe nearly destroyed the program.[38]
The EU also does not set a reserve price for ETS auctions, meaning there is no price protection for emission allowances.[39] This remains a gross oversight by the EU, as the lack of a price floor fails to account for the inevitable fluctuation of allowance prices due to changes in weather or energy price cuts. As a consequence, the ETS has lost significant revenue during periods of low auction demand where allowances have sold for pennies on the dollar, and the program will continue to be financially vulnerable until this design flaw is remedied.[40]
D. Lesson 4: Cap-and-Trade Programs Need Administrative Uniformity
Administrative inefficiencies have also plagued the ETS. The most glaring hole was the initial lack of a single registry for ETS participants.[41] Prior to 2012, each nation participating in the ETS had its own registry, which resulted in inconsistent regulation across the system.[42] The Danish registry, for example, failed to vet its registrants for two years.[43] The registry ultimately became so saturated with fraudulent companies that over ninety percent of account holders had to be deleted in 2010.[44] Even after the EU moved all participants into a single registry, the credibility lost among consumers during these initial years continues to plague the reputation of the program.
E. Lesson 5: Cap-and-Trade Programs Need Strong Cyber-Security
The final shortcoming of the ETS is that its cyber-security has been extremely assailable. “Phishing” has been one particularly vexing problem. The scam involves the creation and promotion of fake registries that solicit users to reveal their ETS identification codes. The “phishers” then use this information to carry out carbon trading transactions in legitimate registries. These deceptions have had severe economic ramifications, and as much as three million euros have been stolen in a single month.[45]
Hacking has been another key cyber-security issue for the ETS. Hackers have been able to infiltrate users’ computer systems and sell off all their allowances for immediate cash payments on the “spot market.”[46] Numerous companies have been crippled by this scam, and hackers have defrauded certain businesses of more than seven million euros worth of emission allowances.[47]
IV. The Success of the California Cap-and-Trade Program
When considering the numerous oversights of the RGGI and ETS programs, the success of the CAT is doubly impressive. This success is due to the balanced design of the CAT, which incorporates the strengths of the RGGI and ETS while mitigating their weaknesses.
A. Success 1: The CAT Has Precise Methods for Accurately Allocating Allowances
Both the RGGI and ETS erred by overestimating actual emission levels and allocating excessive allowances. The CARB avoided this mistake by crafting a precise allocation methodology that prevented surplus allowances from derailing the auction marketplace. Foremost, the CARB calculated California emission levels for the years immediately preceding the creation of the CAT to more accurately forecast future emissions. The CARB also narrowed the variability of its emissions estimates by only including emitters who had actually emitted 25,000 or more metric tons of CO2 or equivalents.[48] Emitters who merely had the capacity to emit beyond the 25,000 metric ton threshold were not included in the calculations. The greater accuracy of the CAT estimates was evidenced during the program’s first quarterly auction in 2012, where all twenty-three million allowances offered at the auction were purchased above the reserve price.[49]
B. Success 2: The CAT Began Ambitiously While Also Facilitating Transition
Another common error of the RGGI and ETS was that their design strategies over-prioritized transitioning members into their systems. The programs initially neglected to implement substantive emission reduction targets for fear of overwhelming participants, and they have subsequently instituted dramatic reforms to compensate. By contrast, the CARB recognized the need to balance the transition of members into the program against regulatory efficacy, lest one derail the other.
The CARB facilitated the transition of participants into the CAT by narrowing the scope of the first compliance period to only cover electrical and industrial sectors. It waited until the second compliance period to expand into the transportation and heating fuel sectors to provide companies time to adjust their business practices.[50] Yet the CARB also implemented considerable GHG reduction targets. The CARB initially set a 2020 reduction goal of seventeen percent below 2013 levels, which still eclipses the target of the RGGI.[51] Due to these ambitious benchmarks, the CAT has already produced “non-negligible” emission reductions and economic gains, with 2013 alone seeing GHG reductions of over a million and a half metric tons and statewide economic growth of two percent.[52] The CAT has benefitted greatly from such a stable infrastructure, and it remains on track to reach its ultimate emission reduction target by 2020.[53]
C. Success 3: The CAT Has a Broad Scope
The CARB also built off the mistakes of the RGGI by broadening the regulatory scope of the CAT. Because it only regulates CO2 emissions, the RGGI covers less than twenty percent of the GHG emissions generated across its nine participating states.[54] By contrast, the CAT emulates the ETS by also covering CO2 equivalents such as CH4, N2O and other fluorinated GHGs, resulting in more effective emission restrictions.[55] The CARB also recognized that the RGGI erred in solely regulating electrical power plants. Accordingly, the CARB extended CAT regulations into other sectors heavy in GHG emissions, such as industrial, transportation, and heating fuel sectors.[56] Because of this broader scope, the CAT already covers over 600 facilities in California, whereas the RGGI only reaches 163 facilities across nine states.[57] The CAT also covers more than eighty-five percent of California’s GHG emissions, which is almost four times the amount of GHG coverage under the RGGI.[58]
D. Success 4: The CAT Has a Balanced Market Design
The CAT also avoided the severe design blunders of the RGGI and ETS. Rather than undervaluing or ignoring auction price floors, the CARB instituted a strong reserve price of ten dollars in 2012, which has been set to increase each year thereafter by five percent (in addition to increases for inflation).[59] Allowances have consistently sold above these amounts, but the price floor has provided steady protection against downward price volatility during poor trading periods.[60] Moreover, the built-in mechanism for annual increases to the reserve price has ensured that the price floor continues to increase irrespective of CPI circumstances.[61]
The CAT further protects against precarious price drops by permitting allowances to be banked.[62] This avoids the price instability problems of the ETS by discouraging businesses from dumping surplus allowances into auctions at the end of trading periods. Nevertheless, the CAT imposes limits on the maximum amount of allowances that can be held by a business.[63] This circumvents the design flaw of the RGGI that allows businesses to bank an inordinate amount of allowances and eliminate any need to subsequently reduce emissions.[64]
The revenues generated by the CAT best demonstrate the success of its market design. The first auction raised more than $289 million, and the first compliance period generated $969 million in revenue for California.[65] Projections estimate that the CAT will generate two billion dollars or more per year as the program’s regulatory scope continues to scale upwards.[66]
E. Success 5: The CAT Has Strong Administrative and Security Practices
The CAT has also benefitted immensely from its efficient administration and strong security practices. Foremost, the CAT keeps a single registry for all its regulated entities, ensuring vigilant and orderly monitoring of all participants.[67] The cyber-security protocols of the CAT have been extremely successful as well.[68] To prevent hackers and phishers from infiltrating the program, CAT auctions take place over a four-hour window that is constantly supervised by state employees.[69] The bidders and supervisors remain undisclosed to the public, and all parties must surrender their electronic devices during the auction.[70] This “sealed bid” approach to the auctions has protected the CAT from the fraud and counterfeiting issues that tormented the RGGI and ETS.[71]
V. A Recent Legal Challenge: Are Cap-and-Trade Auctions Tax Programs?
Despite the success of the CAT, the program has faced serious legal obstacles. The principal challenge took place in the recent Morning Star Packing Company v. California Air Resources Board case, where the plaintiffs alleged that the auctions were unconstitutional and violated California law.[72] The chief contention was that the CAT constituted a tax on companies for emitting GHGs.[73] The plaintiffs argued that the statutory authorization of the CAT, the Global Warming Act, therefore fell under the purview of California’s Proposition 13, which requires legislators to pass by two-thirds vote “any act to increase state taxes for the purpose of increasing revenue.”[74] Because the Global Warming Act was not passed by a two-thirds vote, the plaintiffs asserted that the CARB exceeded its regulatory authority when it created the CAT.[75]
The dispositive issue in the case was whether the auctions were unconstitutional taxes or whether they were permissible regulatory fees placed on tradable commodities.[76] The Sacramento superior court ultimately upheld the CAT, concluding that emission allowances were tradable commodities in a marketplace.[77] The court considered several distinctions between taxes and regulatory fees, but the chief difference seemed to be that whereas the government sets tax prices, the market determined the auction price of the emission allowances.[78] Thus, the fact that the allowances had no value independent of the California regulatory scheme did not transform the auctions into a tax program, and the allowances remained tradable commodities.[79]
Yet the superior court ruling did not mark the end of the contentious litigation. The Morning Star decision was appealed to the Sacramento appeals court, which affirmed the lower court judgment by a two-to-one majority decision.[80] In turn, the appellate court ruling was appealed to the California Supreme Court, which ultimately declined to hear the case in June of 2017.[81] What should have been a resounding victory, however, was diminished by the fact that the State Supreme Court did not issue a written opinion on the program itself.[82] Nevertheless, the affirmation of the CAT provided market-based environmentalism with a new lease on life and has galvanized California policymakers and legislators.
VI. The Aftermath of Morning Star
The ramifications of the Morning Star have already been substantial in California. State legislators quickly capitalized on the State Supreme Court’s dismissal of the case by voting to extend the CAT an additional ten years through 2030.[83] The extension produced newfound confidence in environmentalism and revitalized the market economy surrounding the CAT – whereas previous quarterly auction sales had dropped sharply, the California government sold every emission permit offered in the August 2017 auction.[84]
Yet these successes have not been replicated on a national scale. This is somewhat perplexing, as the CAT provides a workable model upon which to base the creation of a federal cap-and-trade program. In particular, Congress could convincingly argue that the Morning Star case supports the notion that cap-and-trade programs deal with tradable commodities and do not constitute tax programs. Congress could therefore avoid having to rely on the Taxing and Spending Clause of the Constitution to justify the creation of an auction program and, instead, could derive its authority from the broader powers of the Commerce Clause.
The affirmation of Morning Star also provides strong persuasive reasoning for Congress to resolve the longstanding debate on whether emission allowances are “physical” (or “nonfinancial”) commodities, which are physically deliverable and consumable, or “financial” commodities that are satisfied through cash settlements.[85] Relying upon the Morning Star court’s description of allowances as being consumable and involving the physical transfer of title, Congress now has a strong basis for asserting, on the federal level, that allowances are physical commodities.[86] This would shield a federal cap-and-trade program from the administrative burdens of complying with the Commodity Exchange Act and other commercial regulations. [87]
Despite the reasoning provided by Morning Star, recent federal policy has demonstrated a marked shift away from the environmentalist approach espoused by the Obama Administration. The recent withdrawal of the Clean Power Plan, the Obama-era rule regulating greenhouse gas emissions, best evinces this change in protocol.[88] Indeed, with the Environmental Protection Agency consistently the choice target of President Trump’s proposed budget cuts, environmentalism on a national level has been placed in a precarious position.[89]
It remains to be seen whether this federal paradigm shift will take a toll on the CAT. It is certain, however, that the demise of the CAT would be the death knell for market-based environmentalism in the United States. Fortunately, the CAT has several contingency protocols to counteract market volatility. In particular, the CARB can hold unsold allowances off the market for at least nine months to compress the supply and force participants back to the auctions.[90] This foresight proved to be invaluable in the wake caused by the initial Morning Star appeal in 2016, during which time the May 2016 and August 2016 auctions only sold eleven percent and thirty-five percent, respectively, of the allowances offered.[91] The remedial mechanisms built into the CAT allowed administrators to re-stabilize the market, and the November 2016 auction resulted in the successful sale of eighty-nine percent of the offered allowances.[92] Nevertheless, these contingencies are merely stopgap solutions, and hesitation among market participants will likely resurface as Californian and national policy progress along their collision course. Until a clear and unified path towards environmentalism is forged across the nation, an ominous shadow will remain cast over the CAT.
VII. Conclusion
The CAT has been a landmark initiative for environmentalism in the United States. Incorporating lessons from the RGGI and ETS, the program has struck a masterful balance in its market design and has produced significant environmental and financial gains for California. The affirming decision of the California judiciary and recent expansion of the program by the California legislature have been beacons of hope for cap-and-trade. Despite these successes, the future of the CAT remains in doubt, plagued by an uncertain socio-political climate where federal support for environmentalism has recently waned. And while the CAT has withstood previous legal and economic challenges, it is undeniable that the decisive battle for market-based environmentalism across the United States has begun.
* J.D. 2017, University of Virginia School of Law. I would like to thank Alisha Mehta for her advice and comments and Pamela Lim for her tireless support, without which this article would not be possible.
[1]Morning Star Packing Co., et al. v. California Air Resources Board, et al., Sacramento Appellate Court, Case No. 34-2012-80001313 [hereinafter Morning Star Appellate Decision], http://documents.latimes.com/appeals-court-upholds-californias-cap-and-trade-program/.
[2] California Environmental Protection Agency, Assembly Bill 32 Overview, http://www.arb.ca.gov/cc/ab32/ab32.htm.
[4]California Cap-and-Trade Program Summary, Center for Climate and Energy Solutions (Jan. 2014), https://www.c2es.org/docUploads/calif-cap-trade-01-14.pdf.
[6]Id. From 2013–2015, the program covered electrical and industrial power plants that emitted 25,000 or more metric tons of CO2 or equivalent gases per year. Since 2015, fuel distributors have also been covered.
[9]Id. Carbon offsets are greenhouse gas emission reductions that are credited to a company that funds or participates in an activity that reduces carbon footprints in the environment.
[11] Lucas Bifera, Regional Greenhouse Gas Initiative, Center for Climate and Energy Solutions 1 (Dec. 2013), https://www.c2es.org/docUploads/rggi-brief-12-18-13-updated.pdf.
[12] Jonathan Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, Congressional Research Service 2 (Apr. 27, 2016), https://www.fas.org/sgp/crs/misc/R41836.pdf.
[28]Emissions Trading in the European Union: Its Brief History, Pew Center on Global Climate Change 1–2 (Mar. 2009), https://www.c2es.org/docUploads/emissions-trading-in-the-EU.pdf.
[39]Flawed Application of the Auction Reserve Price in the EU ETS, Emissions-EUETS.com (Feb. 23, 2013), http://www.emissions-euets.com/auctionsco2allowances/153-flawed-application-of-the-auction-reserve-price-in-the-eu-ets.
[48]California Cap-and-Trade Program Summary, supra note 4.
[49] Dana Hull, 13 Things to Know About California’s Cap-and-Trade Program, San Jose Mercury News (Feb. 22, 2013), http://www.mercurynews.com/ci_22092533/13-things-know-about-california-cap-trade-program.
[50]California Cap-and-Trade Program Summary, supra note 4.
[52] Dave Clegern, California greenhouse gas inventory shows state is on track to achieve 2020 AB 32 target, California Environmental Protection Agency (June 30, 2015), http://www.arb.ca.gov/newsrel/newsrelease.php?id=740.
[53]Id.; Michael Hiltzik, California’s cap-and-trade program has cut pollution. So why do critics keep calling it a failure?, L.A. Times (July 29, 2016), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-captrade-20160728-snap-story.html.
[58]Id.; Emily Reyna, Four Reasons California Cap and Trade Had an Extraordinary First Year, Forbes (Jan. 14, 2014), http://www.forbes.com/sites/edfenergyexchange/2014/01/08/four-reasons-california-cap-and-trade-had-an-extraordinary-first-year/#58ffab0e4dfc.
[59]California Cap-and-Trade Program Summary, supra note 4.
[60]Archived Auction Information and Results, California Environmental Protection Agency, http://www.arb.ca.gov/cc/capandtrade/auction/auction_archive.htm.
[61]California Cap-and-Trade Program Summary, supra note 4.
[62]Archived Auction Information and Results, supra note 60.
[63]California Cap-and-Trade Program Summary, supra note 4.
[65] Hull, supra note 47; Michael Hiltzik, Emissions cap-and-trade program is working well in California, L.A. Times (June 12, 2015), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-20150613-column.html.
[67]California Cap-and-Trade Program Summary, supra note 4.
[68] Laurel Rosenhall, Why hasn’t California’s cap and trade pollution program been the model for the U.S.?, L.A. Daily News (July 31, 2015), http://www.dailynews.com/environment-and-nature/20150731/why-hasnt-californias-cap-and-trade-pollution-program-been-a-model-for-us.
[72]Morning Star Packing Co., et al. v. California Air Resources Board, et al., Sacramento Superior Court, Case No. 34-2013-80001464 [hereinafter Morning Star Superior Court Ruling]. The case was consolidated and decided jointly with California Chamber of Commerce, et al. v. California Air Resources Board, et al., Sacramento Superior Court, Case No. 34- 2012-80001313. The joint decision is available at: http://www.edf.org/sites/default/files/content/decisionchambermorningstar.pdf.
[78]Id.; Allie Goldstein, Cap-and-Trade Is Not A Tax, California Court Says, Ecosystem Marketplace (Nov. 18, 2013), http://www.ecosystemmarketplace.com/articles/cap-and-trade-is-not-a-tax-california-court-says/.
[80] See generally Morning Star Appellate Decision.
[81] Dan Whitcomb, California Supreme Court Upholds Cap-and-Trade Law, CNBC (June 28, 2017), https://www.cnbc.com/2017/06/28/reuters-america-california-supreme-court-upholds-cap-and-trade-law.html.
[82]Id.; Chris Megerian, California Supreme Court Leaves in Place Decision Upholding Cap-and-Trade System, L.A. Times (June 28, 2017), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-cap-and-trade-supreme-1498684764-htmlstory.html.
[83] Melanie Mason & Chris Megerian, California Legislature Extends State’s Cap-and-Trade Program in Rare Bipartisan Effort to Address Climate Change, L.A. Times (July 17, 2017), http://www.latimes.com/politics/la-pol-ca-california-climate-change-vote-republicans-20170717-story.html.
[84] California Cap-and-Trade Program: Summary of Joint Auction Settlement Prices and Results, California Air Resources Board (Aug. 2017), https://www.arb.ca.gov/cc/capandtrade/auction/results_summary.pdf.; Chris Megerian, California Cap-and-Trade Program Gets Shot in the Arm with Strong Permit Auction, L.A. Times (Aug. 23, 2017), http://www.latimes.com/politics/la-pol-sac-cap-trade-auction-results-20170823-story.html.
[85]CFTC Glossary, United Statutes Commodity Futures Trading Commission, http://www.cftc.gov/ConsumerProtection/EducationCenter/CFTCGlossary/glossary_p.
[86]See generallyMorning Star Superior Court Ruling.
[87]See, e.g., 7 U.S.C. § 1a(47)(B)(ii) (2012) (excluding from the definition of “swap” “any sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled”).
[88] Daniella Diaz et al., EPA Administrator Scott Pruitt Announces Withdrawal of Clean Power Plan, CNN (Oct. 10, 2017), http://www.cnn.com/2017/10/09/politics/environmental-protection-agency-scott-pruitt-clean-power-plan/index.html.
[89] Brady Dennis & Juliet Eilperin, EPA Remains Top Target with Trump Administration Proposing a 31 Percent Budget Cut, Washington Post (May 23, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/05/22/epa-remains-top-target-with-trump-administration-proposing-31-percent-budget-cut/?utm_term=.c5889f6eca1d.
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
__________________________________________
By Matt Carlisle, Managing Editor, Vermont Journal of Environmental Law
I. Introduction:
Storm water is a major polluter. As one judge put it, “Storm water runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources.’”[1] Storm water “runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatables.”[2] When it storms or rains, “storm water runoff carries these pollutants into nearby streams, rivers, lakes, estuaries, wetlands, and oceans.”[3] This creates an immediate and dire need to regulate effluent from polluting storm water systems.
Municipal storm water regulation has and is continuing to become a regulatory farce. Sloppy legislative language and short cited court rulings have dulled the tools necessary to curb polluted effluent from contaminating municipal storm water. Due to the legislative carelessness and misguided case law, municipal storm water regulation is treated as almost exempt from the Clean Water Act (CWA) because municipal storm water is not required to strictly comply with water quality standards. This paper proceeds as follows. In part one, the discussion will focus on the regulatory mechanisms of industrial and municipal storm water. Part two will discuss the judicial interpretations of industrial and municipal storm water. Part three discusses the counter arguments to the Ninth Circuit’s decision in Defenders. Finally, part four concludes with the common sense interpretation of municipal storm water regulation.
II. Storm Water regulation
A. General Storm Water Regulation
According to the EPA “[s]tormwater runoff is generated from rain and snowmelt events that flow over land or impervious surfaces, such as paved streets, parking lots, and building rooftops, and does not soak into the ground.”[4] Consequently, “[t]he runoff picks up pollutants like trash, chemicals, oils, and dirt/sediment that can harm our rivers, streams, lakes, and coastal waters.”[5] Storm water runs into municipal or industrial conveyance systems and is discharged into the nearest water body.[6]
The storm water conveyance system is regulated under the CWA’s National Pollution Discharge Elimination System (NPDES) authority because polluted storm water is collected, conveyed, and eventually discharged from a point source.[7] The NPDES program controls all effluents that discharge a pollutant or multiple pollutants through a permit.[8] NPDES permits “contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or people’s health.”[9] A NPDES permit specifies “an acceptable level of a pollutant or pollutant parameter in a discharge.”[10]
NPDES permits control effluents through effluent limitations.[11] There are two types of effluent limitations.[12] The first type is technology-based effluent limitations or TBELs.[13] These types of limitations are based on the available technology and cost of the technology that removes the specific pollutants in the effluent.[14] The second is water-quality-based effluent limitations or QBELs. QBELs are developed to achieve compliance with the established water quality standards specific to each waterbody.[15] According to §1313 of the CWA, all states must establish water quality standards for all bodies of navigable water within the state’s jurisdiction.[16] Therefore, QBELs are based on standards the state establishes for the individual water body.[17] NPDES permits include QBELs if TBELs are not enough to ensure compliance with water-quality standards.[18]
QBELs are the safety net in the NPDES permit system.[19] QBELs ensure water quality standards when the technological limitation does not guarantee water quality attainment.[20] The CWA states that “each NPDES permit shall include… any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to … [a]chieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.”[21] Thus, no matter which effluent technology the program mandates, each NPDES permit must require effluent limitations necessary to achieve the state established water-quality standards.
Storm water effluent limitations are governed by 33 U.S.C. §1342(p). Storm water is divided into two categories: industrial and municipal.[22] According to the act, “[p]ermits for discharges associated with industrial activity shall meet all applicable provisions of this section and §1311 of this title.”[23] Municipal storm water, on the other hand, “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”[24] The two, understandably, have entirely different mandates on the effluent limitation required by the Act.
B. Industrial Storm Water:
Industrial storm water must comply with effluent limitations like all other effluent limitations in the NPDES program. According to the Code of Federal Regulations, “[s]torm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.”[25] Industrial storm water is governed by §1311 of the CWA, which specifies technology- and water-quality-based requirements.[26] The type of pollutant the effluent contains dictates industrial storm water’s effluent limitation.[27] The CWA §1311 mandates that a permit must incorporate both technology and water-quality requirements.[28]
Technology-based effluent limitations are governed by the type of pollutant the effluent contains and reflect the levels of reduction through the use of pollution-control technology.[29] For example, if the pollutant is a toxic or nonconventional pollutant, it must adhere to the “best available technology economically achievable” or BAT.[30] Additionally, if the effluent emits a conventional pollutant then the technology-based limitations are either the “best practicable control technology currently available” (BPT) or “best conventional pollutant control technology” (BCT).[31] In addition to technology-based pollution reduction, the permits must also adhere to QBELs, as mentioned above.[32] Therefore, the CWA requires industrial storm water to adhere to a technologically-based effluent limitation that correlates to the type of pollutant the Industry emits along with water quality based effluent limitations.
C. Municipal Storm Water:
Municipal storm water conveyance systems or municipal separate storm sewer systems (MS4) are regulated “to the maximum extent practicable.”[33] Unlike the TBELs in §1311, Congress did not define what “maximum extent practicable” (MEP) meant. The MEP standard includes “management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”[34] All MS4s must develop and implement storm water management plans in order to reduce pollutants to the maximum extent practicable.[35] Thus, the storm water management plans are the mechanism to reduce pollutants under the MEP effluent standard.
The storm water management plans (SWMP) implement management practices, control techniques, and system design and engineering methods designed to reduce pollutants to MEP. Phase I and II SWMPs differ, but have six core elements or best management practices (BMPs) that overlap.[36] The two SWMPs include some variation of public education, public participation, illicit discharge detection, construction and post-construction runoff control, and municipal housekeeping. Once a SWMP is implemented it goes through what the EPA has coined as the iterative process.[37] The iterative process is a review and assessment of the MS4’s BMP effectiveness.[38] After the review, MS4s are supposed to revise their BMPs with the ultimate goal of meeting WQSs.[39] Currently, there are no maximum iterations or limits in the Act or EPA guidelines about how many times a SWMP can fail to attain WQSs.[40]
MS4s regulated to the MEP standard achieve the standard by storm water management plans that implement best management practices in a narrative form, not a numeric form.[41] There are no numeric baseline criteria in the MEP standard like there are in the TBELs in §1311. Therefore, the MS4 permitting process has no numeric mandates. Therefore, water quality standards (WQS) are the only baseline that exists within the MEP standard. Thus, WQS’s are the only way to “control [] such pollutants” from municipal storm water because without a concrete standard, there is no measure of control.[42]
III. JUDICIAL INTERPRETATIONS:
A. Judicial Interpretation of Industrial Storm Water
Industrial storm water must conform to TBELs that are based on the effluent’s pollutant and must adhere to water-quality-based standards. When analyzing industrial storm water, the court addresses the effluent limitation accounting for both §1342[43] and §1311[44]. In California Sportfishing Prot. All. v. River City Waste Recyclers, LLC, the district court held that “[f]acility operators must meet the applicable standards for discharge of pollutants using the best available technology economically achievable (BAT) and the best conventional pollutant control technology (BCT) to prevent and reduce pollutants in storm water discharges, under Clean Water Act section 301, which regulates pollutant discharges, and section 402….”[45] According to the court, industrial storm water’s technological limitation correlates with the type of pollutant just like any other effluent under §1311.[46]
Additionally, in Santa Monica Baykeeper v. Kramer Metals, Inc, the district court held that the NPDES “[g]eneral Permit implements the requirements of the Clean Water Act through both technology-based provisions and water quality-based standards.”[47] Courts reinforce the pollutant-based technological limitation and the water-quality effluent limitation, treating industrial storm water just like every other effluent limitation. Just as the legislation mandates, industrial storm water must comply with TBELs and QBELs established in §1311. Industrial standards are concrete and held to both the technology- and water-quality-based limitations, with emphasis on a strict compliance to WQSs.[48] The same cannot be said for municipal storm water.
B. Judicial Interpretation of MS4’s:
1. NRDC v. EPA:
Unfortunately, judicial interpretations of MS4’s MEP standard has led to an effluent limitation system that has no teeth. This body of law started in NRDC v. EPA.[49] NRDC challenged the EPA’s storm water regulations alleging that it did not develop a new, substantive standard but instead “wrote vague regulations containing no minimum criteria or performance standards” thus failing their mandate from the 1987 amendments.[50] EPA contended that narrative effluent limitations in MS4 permits are acceptable limitations.[51] Thus, according to EPA, MEP’s effluent limitation can be a narrative limitation instead of numeric.[52]
The court based most of its reasoning on the differences between industrial and municipal storm water rules. The court in NRDC stated that “municipal storm water dischargers were subject to the same substantive control requirements as industrial and other types of storm water” before 1987. When amending the CWA, Congress “retained the existing, stricter controls for industrial storm water dischargers but prescribed new controls for municipal storm water discharge.”[53] Also, the court held that “Congress could have written a statute requiring stricter standards, and it did not.”[54] The Court continued by stating, “Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements.”[55] For all of these reasons, the court deferred to EPA’s narrative standard.
Consequently, MEP’s effluent limitation became a narrative limitation. But the court’s ruling in this case became the jump-off point for a later ruling that abrogates water-quality standards in MS4 permits.[56] There are two important things that we need to take from this ruling. First, the decision in NRDC decided to defer to EPA’s interpretation that narrative effluents are acceptable effluent limitations for MS4s.[57] Second, the court quotes EPA rules in 55 FR 47990-01, which discusses the best way to achieve water quality standards through narrative limitations.[58] Therefore, the document that the court defers to for its ruling asserts the use of water-quality standards in MS4 permits, which contradicts the Ninth Circuit’s later decision in Defenders.
2. Defenders of Wildlife v. Browner
In Defenders of Wildlife v. Browner, the Ninth Circuit eventually held that there was no strict requirement for MS4s to adhere to water-quality standards.[59] Defenders of Wildlife (Defenders), a citizen group, sued the EPA alleging, among other things, that “EPA acted arbitrarily, capriciously, and contrary to law in issuing NPDES storm sewer permits” to five Arizona municipalities.[60] Defenders alleged that the five permits the EPA issued to municipalities “do not assure compliance with water quality standards” because they use BMPs and not numeric water quality-based effluent limitations.[61] Furthermore, Defenders asserted that the CWA “explicitly requires all NPDES permits to contain whatever limitations are necessary to assure compliance with water quality standards (WQS) in the receiving river or lake.”[62] Defenders argued that EPA waived “the requirement to meet water quality standards” and that the waiver conflicted with the Act’s fundamental goal but also with the “Act’s longstanding approach of requiring dischargers to meet both technology-based and water quality-based limits.”[63] Defenders did not believe that the BMPs and narrative effluents would achieve water-quality standards and contended that all MS4 permits must adhere to WQSs through numeric criteria.
The EPA conceded “that the Municipalities’ storm water NPDES permits must contain requirements as stringent as necessary to meet state water quality standards.”[64] The EPA also stated that “[t]o exempt municipal storm water discharge permits from compliance with water quality standards undercuts the goals of the 1987 amendments and the Clean Water Act as a whole.”[65] But, the EPA disagreed with the premise that numeric limitations are the only way to achieve water quality standards. The EPA asserted that the narrative “permits include effluent limitations as stringent as necessary to meet applicable water quality standards” through the MS4’s storm water management plans.[66] EPA claimed that the effluent limitations “may include ‘best management practices’ to control or abate the discharge of pollutants.”[67] Thus, EPA contends that NPDES permits must comply with water quality standards, but that BMPs in the storm water management plans are sufficient to achieve those standards.
The Ninth Circuit sided with neither party stating that both parties ignore statutory precedent and both parties’ readings would render the section superfluous.[68] The Ninth Circuit held that MS4s are not subject to strict WQS adherence because Congress was not as strict with municipal storm water as Congress was with industrial storm water.[69] The court based it reasoning on several arguments. First, the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[70] Second, the court states that the “no-strict” standard gives meaning to the entire statute and does not render any part of the act superfluous.[71] Third, the court states that their ruling harmonizes with their previous decision in NRDC.[72] Thus, according to the court, MS4s do not have a strict compliance mandate with WQSs, making it not a mandate or requirement at all.[73]
IV.COUNTER ARGUMENTS TO THE NINTH CIRCUIT’S DECISION
The court is incorrect on all of its reasons. First, the court applies a Chevron analysis, but the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[74] Confusingly, the court takes aim at industrial storm water and establishes that 402(p) “expressly required industrial storm-water discharges to comply with the requirements of 33 U.S.C. § 1311.”[75] Logically, as the court pointed out (as with all NPDES permits) this mandates that “industrial discharges must comply strictly with state water-quality standards.”[76] Then, the court emphasizes that Congress did not chose the same language and “required municipal storm-sewer discharges ‘to reduce the discharge of pollutants to the maximum extent practicable’” or MEP standard.[77]
The court concluded that both EPA and Defenders “ignored precedent respecting the reading of statutes.”[78] The court quoted Russello v. United States, reasoning that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[79] The court applied a pseudo expressio unius form of interpretation and reasoned that it was “Congress’ choice to require Industrial storm-water discharges to comply with 33 U.S.C. § 1311, but not to include the same requirement for municipal discharge.”[80] And when the court read these two sections together, the court concluded that “33 U.S.C. § 1342(p)(3)(B)(iii) does not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. § 1311(b)(1)(C).”[81] The court continues by stating that “33 U.S.C. § 1342(p)(3)(B) replaces the requirements of §1311 with the requirement that municipal storm-sewer dischargers ‘reduce the discharge of pollutants to the maximum extent practicable’” and that “in the circumstances, the statute unambiguously demonstrates that Congress did not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. §1311(b)(1)(C).”[82]
The court mistakenly ignores that § 402(p) is a pollution-based effluent limitation mandate, not just a mandate to water-quality based standards. Industrial storm water effluent is the same as any other effluent from industry. If the court considered this aspect of industrial storm water, it would realize that the act was not just referring to WQSs. The act, in §402(p) mandates industrial storm water to adhere to the pollutant-based effluent limitations in §1311. As stated above, TBELs are based upon the type of pollutant and the correlating technology.[83] Therefore, it is the intent of Congress that industrial storm water be treated like any other effluent limitation. What is not clear is how industrial storm water’s §1311 mandate affects municipal storm water.
The court’s interpretation leaves two issues. First, by addressing other parts of the act, as the court does in its reasoning, it seems that the congressional intent was to ensure that WQSs are met. As discussed the below, other parts in the act point toward this interpretation. Second, even if the intent is not easily discerned, it means there is an ambiguity, thus requiring the court to go to step two of the Chevron Analysis. If the court went to step two, it would have to defer to the EPA’s interpretation, which concludes that WQSs are necessary requirements to the NPDES permit.[84]
It seems logical that the MEP standard is the technology based standard for municipal storm water. And that MEP does not, however, replace the water quality based standard that is required by the Act and Code.[85] Intent in favor of water quality standards is readily ascertained from the Act because looking at the CWA as whole, all parts of the Act point toward the intent to mandate strict compliance of water quality standards. First §1311(c), the mechanism that controls point source pollution, explicitly states, “in order to carry out the objective of this chapter there shall be achieved … any more stringent limitation, including those necessary to meet water quality standards.”[86] Second, 40 CFR 122.44 explicitly mandates that NPDES permits must include “any requirements in addition to or more stringent than promulgated effluent limitations guidelines … necessary to … [a]chieve water quality standards established under section 303 of the CWA.”[87] Third, the act mandates that states enact water quality standards for the purpose of NPDES permits, effluent limitations, and ultimately water quality improvement.[88] Thus, all parts of the act show congressional intent that favors strict compliance to water quality standards.
Furthermore, the court ignores the context of the rest of the section, especially §1342(p)(2)(E). The Act states that if “the Administrator or the State … determines that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States” the Administrator or State can mandate a NPDES permit from the storm water discharger.[89] This particular section is called Residual Designation Authority, and if the Administrator determines that a non-regulated storm water discharger contributes to a water quality standard violation, the EPA or Administrator can bring the discharger within the NPDES permitting authority.[90] It would be illogical, at best, to include a way to bring a storm water discharger that has not been named in the Act under the NPDES permitting authority for WQS violations and yet allow a no-strict WQSs approach to a storm water discharger already under the NPDES permitting authority. Thus, the storm water discharger that is originally unregulated is strictly held to WQSs; yet, according to the Ninth Circuit, MS4s are not strictly held to WQSs even if they are specifically regulated under the CWA.[91] Section 1342(p)(2)(E) demonstrates the illogical nature of allowing MS4s, a specified discharger under the CWA, to fail to strictly adhere to WQSs when the Act can mandate a non-CWA-specified storm water discharger to attain a permit for WQS violations.
EPA has also explicitly expressed, in a legal memorandum in addition to their brief before the Ninth Circuit, that MEP was not supposed to supplant WQS attainment.[92] In 1991, a legal opinion issued by EPA’s general counsel explained that the MEP standard was only meant to modify the technology-based requirement of §301.[93] The opinion states that one can read §1342 (p)(3)(B)(iii) “as modifying only technology-based requirements for municipal storm water (i.e., MEP substitutes for BAT/BCT); any WQ-based requirements would still be necessary in a municipal permit, even if those requirements are more stringent than ‘practicable.’”[94]
According to the legal opinion, the MEP is the new technology standard used for MS4s, however, WQSs still apply.[95] EPA’s general counsel also stated, “[t]he only interpretation by EPA to date, contained in its proposed rulemaking, has been that WQS would continue to apply to permits for municipal storm water discharges.”[96] Therefore, MEP is the technology used to attain the WQSs that the states have set. In 1996, EPA implicitly affirmed their legal opinion stating that numeric effluent limitations would be substituted by “best management practices … and expanded or better tailored BMPs in subsequent permits … to provide for the attainment of water quality standards.”[97] According to EPA, WQSs have always been part of the NPDES permit requirements regardless of the category of discharge.
Furthermore, if congressional intent is not clear, courts must defer to EPA. If congressional intent is ambiguous, Chevron analysis mandates that EPA’s interpretation should stand as long as the interpretation is not arbitrary or capricious.[98] Since EPA’s view on mandating WQSs as part of MS4s is within its scope of the CWA and serves the purpose of the Act, the court will have no choice but to defer to EPA. Thus, regardless of intent or ambiguity, water-quality standards must be part of every MS4 NPDES permit and must require strict compliance.
The second argument that the court mentions is that the ‘no-strict’ standard gives meaning to the entire statute and does not render any part of the act superfluous.[99] The court states that if it applies a strict water quality mandate on MEP, then it would render §1342(p)(3)(B)(iii) meaningless because “the more stringent requirements of that section always would control,” thus making MEP superfluous.[100] The court misses its mark on three accounts.
First, the court’s reasoning does not pass logical muster. The court contends that because §1311(c) will always be stricter, it will render the MEP standard superfluous. The court provides no evidence of this. Additionally, there are plenty of occasions where WQSs are more stringent than the effluent limitations. Such is the purpose of WQSs; they are ambient requirements that act as a safety net when effluent limitations are not enough.[101] The court misinterprets the Act. WQSs are the baseline standard.[102] If the effluent limitation is not enough, then there needs to be stricter controls of that very effluent limitation. For example, if a MS4 is not meeting WQSs, then the MEP standard it uses will be stricter, just like 40 CFR 122.44 requires. But, the standard is still MEP.
Second, the court’s ruling renders parts of the CWA superfluous in its ruling. As stated above as examples of congressional intent, there are three main parts of the CWA that the court renders superfluous. First, it renders §1311(c) meaningless because it states that it does not apply to MS4s even though the section specifically states that any more stringent limitations necessary to meet water-quality standards must be included in NPDES permits in order to carry out the objectives of the Act.[103] Second, the court ignores that 40 CFR § 122.44 explicitly mandates that NPDES must have requirements that ensure WQS attainment.[104] Finally, the court ignores that the Act mandates that states enact water-quality standards.[105] Thus, in an attempt to not render the MEP standard superfluous, the court renders three other substantial parts of the Act superfluous.
In addition to rendering other parts of the Act superfluous, the court renders the MEP effectively superfluous. By creating the no-strict standard, courts have interpreted that WQSs play no part in MS4 permits. As an example of this consequence in action, in Maryland Dep’t of Environment v. Anacostia Riverkeeper, a state court held that MS4s do not need to adhere to WQSs, period.[106] Environmental groups challenged NPDES permits that were issued to several counties by the Maryland Department of the Environment (MDE), contending that the NPDES permits failed to comply with the state water-quality standards or the TMDL limits.[107] In the opinion directly quoting the Ninth Circuit’s Defender language, the court expressly stated, “MS4s are not subject to the requirement of imposing effluent limitations ‘necessary to meet water quality standards.’”[108] The court stated that the MEP standard established by Congress is a “broad requirement for MS4s and that 33 USC 1342(p)(3)(B)(iii) ‘imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants.’”[109] The holding is an impermissible extension of Defenders, and contradicts the clear mandate that all NPDES permits must adhere to WQSs.[110]
Furthermore, courts are ignoring the purpose of the storm water management plans because there is no strict compliance to WQSs. In Jones Creek, a district court held that “the EPA’s regulations state that this requirement [SWMPs] is satisfied merely by implementing the best management practices listed in the MS4 permit” and “[w]hether those BMPs actually reduce pollutants in the stormwater is immaterial.”[111] The court concluded that because a MS4 permit only requires the county “to ‘implement and enforce’ it’s [sic] SWMP, and because the undisputed facts on the record are that it has implemented and enforced its SWMP to some degree, Columbia County has not violated its NPDES permit by failing to enforce the SWMP as a matter of law.”[112] This court held that as long as a MS4 has a SWMP, whether that plan reduces pollutants is irrelevant. Thus, according to this court, SWMPs are nothing more than a meaningless, or as the Ninth Circuit puts it, superfluous pieces of paper whose impacts are irrelevant. Therefore, without WQSs as the baseline, courts can view SWMPs as superfluous. Furthermore, without WQSs as a strict baseline standard, the MEP is effectively rendered superfluous and meaningless.
The final reason the court gives for its ruling is that its decision is supported by the NRDC case. But requiring MS4s to adhere to WQSs is also supported by the court’s decision in NRDC. The court held that industrial and municipal are different, which the two are. The court also held that industrial’s effluent limitations are stricter, which they are. Industrial storm water has to adhere to pollutant-based technology standards and water quality based standards. MS4s just have to adhere to water-quality-based standards. There is no conflict with the Ninth Circuit’s ruling in NRDC.
V. THE COMMON SENSE READING OF MEP
First, the industrial mandate of §402(p) should be read to mandate industrial storm water’s adherence to a pollutant-based effluent limitations listed in §1311 of the Act. Thus, the effluent limitation is based on whether it is a conventional, nonconventional, or toxic pollutant, just like every other effluent limitation from industrial activity.[113]
Second, the MEP standard should be read according to the EPA legal memorandum by which the MEP standard is nothing more than the effluent technology standard that MS4s must abide by. Because of the wide array of pollutants that storm water produces, MEP’s flexibility allows for a better tailored effluent limitation. The SWMP allows for assessment of these different pollutants, but the MEP standard must still produce an effluent that does not interfere with water-quality standards. From a practical standpoint, this type of reading is common sense. Thus, industrial storm water must adhere to the higher standard of pollutant-based technology standards and MS4s must adopt a SWMP that adheres to WQSs set by the state. If they fail, then their SWMP must increase its efficacy, just like the iterative process that exists today. The only difference is that if the SWMP fails, it is still in violation of the CWA because it failed to attain WQSs. Holding MS4’s feet to the fire is the only way to clean up MS4 effluent.
VI. CONCLUSION
Storm water is a major challenge in this country. Yet, the tools and regulations are in place. The EPA has NPDES permitting authority that uses technological limitations and water-quality-based limitations. The only issue is shortsighted judicial interpretation that conflates a different standard with no standard at all.
Finally, §1342(p) must be read to include strict adherence to WQSs. Strict adherence is the only way to be consistent with the goals of the Act. It is consistent with all parts of the Act. And finally, it is consistent with EPA’s interpretation of the dynamic between technology-based effluents and water-quality-based effluent limitations. Thus, MS4s must strictly comply with WQSs.
[1] Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 840 (9th Cir. 2003) (citing Richard G. Cohn–Lee and Diane M. Cameron, Urban Stormwater Runoff Contamination of the Chesapeake Bay: Sources and Mitigation, The Environmental Professional Vol. 14, p. 10, at 10 (1992)).
[3] National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 FR 68722-01.
[4] Problems with Stormwater Pollution, National Pollutant Discharge Elimination System (NPDES), Envtl. Protection Agency, https://www.epa.gov/npdes/npdes-stormwater-program (last visited May 3, 2017).
[14]See generallyid. §1311(b); see also Theodore Garrett, Overview of the Clean Water Act, in The Clean Water Act Handbook 4 (Mark A. Ryan 3d ed. 2011) (“Technology-based requirements are designed to reflect the levels of effluent quality achievable through the use of the pollution control technology.”).
[19] Karen M. McGaffey and Kelly F. Moser, Water Pollution Control Under the National Pollutant Discharge Elimination System, in The Clean Water Act Handbook 34 (Mark A. Ryan 3rd ed. 2011) (QBELs developed to achieve compliance with established water quality standards and “are included in NPDES permits if technology-based limitations alone are not sufficient to ensure compliance with applicable water quality standards.”); see also 33 U.S.C §1311(b)(1)(C); 33 USC §1312(a); 33 USC §1313(e)(3)(A); 40 C.F.R. §122.44(d).
[20] 33 USC §1311(b)(1)(C) (mandating “any more stringent limitation, including those necessary to meet water quality standards”).
[21] 40 C.F.R. § 122.44(d)(1); see also 1311(b)(1)(C).
[35] 40 C.F.R. 122.26(d)(2)(iv) (involving large to med MS4s; 40 C.F.R. 122.34 (involving small MS4s).
[36]see generally 40 C.F.R. 122.26(d)(2)(iv); 40 C.F.R. 122.34.
[37] John H. Minan, Municipal Separate Storm Sewer System (Ms4) Regulation Under the Federal Clean Water Act: The Role of Water Quality Standards?, 42 San Diego L. Rev. 1215, 1249 (2005).
[40] 40 C.F.R. 122.26(d) (no text on minimum iterations); 40 CFR 122.34 (no text on minimum iterations).
[41]See Tualatin Riverkeepers v. Oregon Dep’t of Envtl. Quality, 235 Or. App. 132, 141–42, 230 P.3d 559, 564 (2010) (quoting Interim Permitting Approach for WaterQuality–BasedEffluentLimitations in Storm Water Permits, 61 Fed Reg 43,761–01 (Aug 26, 1996) (EPA considers the use of best management practices appropriate in permitting of municipal storm water based on typical lack of information on which to base numeric water quality-based effluent limitations)).
[42] 33 U.S.C. § 1342(p)(3)(B) (MEP standard mandates that the storm water management plan consisting of BMP’s have “control of such pollutants.”).
[43] 33 U.S.C. §1342 is §402 in the Clean Water Act legislation.
[44] 33 U.S.C. §1311 is §301 in the Clean Water Act legislation.
[48] Defs. of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999) (using industrial’s strict §1311 mandate as a basis for a municipal storm water to a non-strict WQS standard).
[49] Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 966 F.2d 1292 (9th Cir. 1992);
National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01.
[50]Id. at 1308; National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01.
[51] Nat. Res. Def. Council, Inc., 966 F.2d at 1308.
[58] National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01 (Under the Field Screening Program “state water quality standards should be utilized along with focusing on actual quality in the reaches of a stream.”) (Under Storm Water Quality Management Plans “EPA requested comments on the process and methods for developing appropriate priorities in management programs proposed in applications and how the development of these priorities can be coordinated with controls on other discharges to ensure the achievement of water quality standards and the goals of the CWA.”).
[84] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).
[110] 33 U.S.C. § 1342(a)(2) (requiring that the administrator prescribe conditions for permits to assure compliance with the requirements in §1311 which includes water quality standards).
[111] Jones Creek Inv’rs, L.L.C v. Columbia Cty., Ga., 98 F. Supp. 3d 1279, 1300 (S.D. Ga. 2015), reconsideration denied sub nom. Jones Creek Inv’rs, LLC v. Columbia Cty., Georgia, No. CV 111-174, 2016 WL 593631 (S.D. Ga. Feb. 12, 2016).
This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Garrett Lenahan, UCLA School of Law, JD Candidate 2017
Scoping Plan Background
Two prominent pieces of Californian legislation that seek to address climate change are Assembly Bill 32 (“AB 32”) and Senate Bill 32 (“SB 32”). AB 32 required California to reduce its greenhouse gas (“GHG”) emissions to the 1990 level by 2020. It tasked the Air Resources Board with creating a Scoping Plan for reaching those levels. The original scoping plan contained a range of programs that would reduce GHG emissions from cars, trucks, fuels, industry, and electricity generation. SB 32 now requires the Air Resources Board to ensure that statewide GHG emissions are reduced to 40 percent below the 1990 level by 2030. The proposed Scoping Plan Update builds on the programs from the original Scoping Plan under AB 32 and includes some new ones.[1] Programs under the Proposed Scoping Plan include the Cap and Trade Regulation, the Low Carbon Fuel Standard, the Renewable Portfolio Standard, the Sustainable Community Strategies, the Sustainable Freight Action Plan, and the Mobile Source Strategy, among others.
The proposed Scoping Plan Update is comprehensive and commendable. However, it does lead to a few potential questions and issues. This paper will address two potential concerns regarding the transportation sector in particular. The transportation sector emits the most greenhouse gases of any economic sector in the state, so it is vital to reaching the SB 32 goal.[2] The first concern is whether the new administration under President Trump will revoke California’s waiver to regulate tailpipe emissions and how that affects the Scoping Plan. The second issue about the Scoping Plan is whether California will be able to install adequate infrastructure across the state to accommodate the increased number of zero emission vehicles.
Vulnerability of CA’s Waiver
The statutory text of the Clean Air Act grants California alone the ability to ask the EPA administrator for a waiver to regulate pollution from vehicle tailpipes more strictly than the federal government.[3] Ordinarily, states are prohibited from regulating vehicle emissions. When California sought to regulate greenhouse gases from vehicles, the Obama administration granted the waiver in a 2009 deal with the auto industry that established national standards on GHG emissions from vehicles.[4] As part of the deal, California harmonized its rules for GHGs with the federal government.
In 2013, California received another waiver to regulate GHG emissions for model year vehicles 2017-2025. However, there are indications that the Trump administration may roll back the national standards and also revoke California’s waiver to regulate GHGs from tailpipes.[5] The California Air Resources Board nonetheless decided to move forward with its model year 2022-2025 standards for GHGs.[6] If the Trump administration revokes California’s waiver, then California will be unable to regulate GHGs from vehicles because it will be federally preempted.
California will inevitably sue if the EPA attempts to revoke its waiver. Those ensuing court battles will be lengthy and costly. There is no actual language or mechanism in the Clean Air Act mentioning the revocation of a waiver. Section 209(b) of the Clean Air Act states that the EPA Administrator “shall waive” federal preemption “if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare.”[7] Nonetheless, there are three exceptions where “no such waiver shall be granted if the Administrator finds that – (A) the determination of the State is arbitrary and capricious, (B) such State does not need such State standards to meet compelling and extraordinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.”[8]
If the EPA attempts to revoke the waiver, California will argue that the burden is on those challenging California’s waiver to show that California has not satisfied the statutory criteria.[9] In both the 2009 waiver grant and the 2013 waiver grant, the EPA stated: “Congress recognized that California could serve as a pioneer and a laboratory for the nation in setting new motor vehicle emission standards. Congress intentionally structured this waiver provision to restrict and limit EPA’s ability to deny a waiver, and did this to ensure that California had broad discretion in selecting the means it determined best to protect the health and welfare of its citizens.”[10] The EPA must grant the waiver unless one of the three exceptions is met. According to the EPA in the 2013 waiver, this “reversal of the normal statutory structure embodies and is consistent with the congressional intent of providing deference to California to maintain its own new motor vehicle emissions program.” Furthermore, the EPA stated that “the legislative history indicates Congress quite intentionally restricted and limited EPA’s review of California’s standards, and its express legislative intent was to provide the broadest possible discretion [to California] in selecting the best means to protect the health of its citizens and the public welfare.”[11] Thus, if the new EPA administration aims to revoke California’s waiver, it will have to overcome this strong presumption in favor of California. Moreover, the Administrator has a burden to act “reasonably” when deciding whether to grant a waiver.[12]
California may argue that because there is no precedent or established procedure for revoking a waiver, the EPA should not be able to revoke its GHG waiver for vehicles. If the EPA did try to revoke the waiver, it would have to go through a rulemaking process to do so. Public notice and comment periods take significant time and would inevitably be followed by a lawsuit. Moreover, EPA would likely have to overcome its previous statements in the record supporting California’s waiver. Revoking a waiver would depart from EPA’s historical practice. Since the Clean Air Act was amended, the EPA has only denied one California waiver request. That denial was in 2008 and the EPA reversed course one year later and granted the waiver. In the 2009 waiver, the EPA claimed that the denial featured an incorrect interpretation of Section 209(b)(1). The Administrator declared that the denial was a substantial departure from the administration’s “longstanding interpretation of the Clean Air Act’s waiver provision and EPA’s history of granting waivers to California for its new motor vehicle emissions program.”[13]
Conversely, the EPA may argue that California does not need stricter motor vehicle standards for GHGs to meet compelling and extraordinary conditions under 209(b)(1)(B). EPA would then revert back to the reasoning from the 2008 waiver denial. There, EPA concluded that California’s GHG standards should be reviewed separately from the rest of its motor vehicle emission control program and that California could only promulgate standards that address local or regional pollution problems.[14] However, this reasoning was rejected in more recent waivers. In the 2013 waiver grant, the EPA said the correct interpretation was to see if California has compelling and extraordinary conditions giving rise to a need for its own motor vehicle emissions program.[15] It did not require a separate analysis for the GHG standards. The Administrator also concluded in 2009: “I have evaluated the comments received and evidence in the record and have determined that the opponents of the waiver have not met their burden in demonstrating why evidence such as the impacts of climate change on existing ozone conditions in California along with the cumulative impacts identified by proponents of the waiver (e.g., impacts on snow melt and water resources and agricultural water supply, wildfires, coastal habitats, ecosystems, etc.) is not compelling and extraordinary”.[16] Both the 2009 waiver and the 2013 waiver discussed the compelling and extraordinary conditions that merit state standards. In particular, the 2009 waiver described: “not only are California’s conditions ‘unique and arguably more severe’ (e.g. temperature impacts from global warming are more certain for states like California) but also that no other state faces the combination of ozone exacerbation, wildfire emission’s contributions, water system and coast system impacts and other impacts faced by California.”[17] California will have a strong argument, but some of the reasons for granting the waivers were largely based on agency interpretation. This leaves some wiggle room for the new administration. Although, it still has to overcome the large presumption of deference to California.
If California does lose its GHG waiver, the state may have to shift its policies under its Scoping Plan Update to compensate for that. It may need to adjust the Scoping Plan Update to create greater reductions through its other programs in order to achieve the mandated levels of reductions under SB 32. One option is focusing on other areas of transportation. In the transportation sector, the Low Carbon Fuel Standards and Zero Emission Vehicle (“ZEV”) requirements as written will likely not be enough to compensate for less stringent GHG standards for vehicles. They may need to be updated. Another option is to focus on stationary sources. Regardless, the state will likely need to update the Scoping Plan further if the GHG waiver is revoked.
ZEV Infrastructure
If California is prohibited from stringently regulating GHG emissions from vehicles, then it will be imperative that the state’s zero emissions vehicle efforts are effective under the Proposed Scoping Plan. Transportation is the largest source of emissions in the state, so increasing the number of ZEVs on the road will help mitigate the effects of less stringent fuel economy standards. Regardless of whether California loses the GHG waiver or not, the Proposed Scoping Plan still calls for dramatic increases in ZEV use. Interestingly, the ZEV program in California also requires a waiver. The waiver for the 2018-2025 model year ZEVs is found in the 2013 waiver for California’s Advanced Clean Cars program. That is the same waiver that permits California to regulate GHG emissions from vehicles, as discussed above. Consequently, the ZEV program may be vulnerable in the face of the new administration as well. It is unclear if the ZEV waiver would be simultaneously revoked if the EPA revoked the GHG waiver or if the ZEV waiver would remain in place after the GHG waiver was revoked. Assuming the program is not revoked, the expansion of ZEVs in California can help achieve the reduction goals of SB 32.
A key factor in expanding the number of ZEVs on the road is installing enough charging stations throughout the state to adequately accommodate all of the new plug-in electric vehicles (“PEVs”) vehicles under the program. Some criticisms of ZEVs include the low ranges and inconvenience. Establishing sufficient infrastructure with charging stations across the state will quell some of those concerns. As charging stations become more abundant and commonplace, consumers will be more inclined to buy them.
Executive Order B-16-2012 and the 2016 ZEV Action Plan call for infrastructure to support 1 million ZEVs by 2020. In particular, the 2016 ZEV Action Plan acknowledges the massive task at hand. It discusses a state analysis of the number of PEV charging stations required to meet ZEV goals. The 2014 analysis found that “upwards of 1,000,000 charge points are needed at homes, workplaces, and public locations by 2020. Excluding home charging, there are approximately 11,000 charge points in California, supporting more than 230,000 PEVs on the road.”[18] Moreover, the Scoping Plan Update calls for 4.2 ZEVs on the road by 2030.[19] This massive undertaking will require a significant increase in infrastructure in merely ten years to support the mandated 3.2 million additional ZEVs.
It is important that California effectively utilizes ZEV infrastructure by using renewable energy in PEV charging stations. Senate President pro Tempore Kevin De Leon recently introduced a bill that would require California to generate 100 percent of its electricity from renewable sources by 2045.[20] This ambitious goal would accelerate the state’s Renewable Portfolio Standard, which is a program utilized by the Updated Scoping Plan. It would supplement ZEV infrastructure by ensuring that PEVs are utilized most efficiently. Using electricity generated from coal or natural gas still emits greenhouse gases. Using electricity from renewable resources ensures that greenhouse gases are not emitted during the production of the electricity or during the use of the vehicle. Senate President De Leon’s bill would simultaneously accelerate the Renewable Portfolio Standard and supplement the expansion of ZEV infrastructure. Both are vital programs under the proposed Scoping Plan Update.
Conclusion
The proposed Scoping Plan Update details numerous programs to reduce California’s greenhouse gas emissions across various sectors. The transportation sector is the largest emitter in the state. If the new EPA administration revokes California’s waiver to regulate GHG emissions from vehicles and implements a less stringent national standard, then California may have to adapt its Scoping Plan to compensate in other areas. Regardless, the Scoping Plan calls for massive expansion of ZEV infrastructure. This is a major undertaking for the state, with much still to be done. Supplementing this expansion of charging stations and vehicles with 100 percent clean energy makes sense. It will increase the GHG reductions achieved by the ZEV vehicles even further. There is great potential to reduce emissions in the transportation sector, but there are also major questions and concerns facing those reductions. California can effectively progress toward the SB 32 reduction goal if it preserves its vehicle emissions waiver and expands its ZEV infrastructure.
[1]The 2017 Climate Change Scoping Plan Update: The Proposed Strategy For Achieving California’s 2030 GHG Target, California Air Resources Board, ES1 (Jan. 20, 2017), https://www.arb.ca.gov/cc/scopingplan/2030sp_pp_final.pdf
[2]California GHG Emission Inventory – 2016 Edition, California Air Resources Board, (2016) https://www.arb.ca.gov/cc/inventory/data/data.htm
[4] Robinson Meyer, The Coming Clean-Air War Between Trump and California, The Atlantic (Mar. 6, 2017), https://www.theatlantic.com/science/archive/2017/03/trump-california-clean-air-act-waiver-climate-change/518649/?utm_source=atlfb
[6] Dale Kasler, California vs. Trump: California Regulators Move Forward on Climate Change Rules, The Sacramento Bee (Mar. 24, 2017), http://www.sacbee.com/news/politics-government/capitol-alert/article140631063.html
[9] Leanna Sweha, California Gets in the Driver’s Seat on Fuel Economy Standards, The Davis Vanguard (Mar. 27, 2017), http://www.davisvanguard.org/2017/03/california-gets-drivers-seat-fuel-economy-standards/
[18]2016 ZEV Action Plan, Governor’s Interagency Working Group on Zero Emission Vehicles (Oct. 2016), https://www.gov.ca.gov/docs/2016_ZEV_Action_Plan.pdf
[19] California Air Resources Board, supra note 1, at 34.
[20]Chris Megerian, California Senate Leader Puts 100% Renewable Energy on the Table in New Legislation, LA Times (Feb. 21, 2017), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-puts-100-1487714001-htmlstory.html
