Friday, October 30, 2009
No New Environmental Cases Today
The U.S. federal courts of appeal did not issue any opinions today in the environmental area.
EPA Orders AEP to Test Stability of Ash Piles
The EPA announced yesterday that it is requiring American Electric Power (AEP) to come up with a plan for safety testing of dams holding back coal ash slurry ponds at a disposal site on the Ohio River in West Virginia. The order is part of a nationwide review of the integrity of such dams, which hold back piles of coal ash collected from coal being burned for power at sites throughout the country. According to EPA's press release, EPA officials will oversee the entire safety testing process.
The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.
As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.
After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.
While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”
The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.
As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.
After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.
While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”
Suit Filed to Stop Nuclear Expansion in Georgia
Yesterday, lawyers and students at the Emory University Turner Environmental Law Clinic filed suit in the DC Circuit on behalf of a coalition of environmental groups to reverse a federal Nuclear Regulatory Commission (NRC) decision from earlier this year. The NRC granted Georgia Power, a subsidiary of Southern Company, an early site permit (ESP) to build new reactors at its Plant Vogtle facility near Atlanta. The petition contends that: "the NRC violated the Atomic Energy Act, 42 U.S.C. § 201 1 et seq., the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321 et seq., the Administrative Procedure Act, 52 U.S.C. § 701 et seq.," and their implementing regulations. Petitioners seek review and reversal of the permit(s) issued for the site, as well as an injunction, presumably against any construction that may commence as a result of the permits.
The coalition includes the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy (SACE) (a former client of mine), Georgia Women’s Action for New Directions (WAND), and the Blue Ridge Environmental Defense League.
The joint press release can be read here. And the complaint here.
Georgia Power and Southern Company are heavily coal-dependent, conservative on energy issues and extremely powerful, and will be formidable foes. Their websites, like those of other power companies these days, highlight their interest in energy efficiency and other forms of sustainable energy. But they enjoy an unusual amount of political and market power in their home states based on longstanding monopoly production of (fossil fuel fired) power, and are interested in keeping it that way. That means advocating projects such as nuclear expansion, "clean" coal gasification (with dubious environmental benefit), and carbon sequestration (the risks surrounding which it seeks to have industry indemnified from, as a way to keep coal viable if federal GHG regulation materializes), and resisting state- or federal-level energy efficiency or renewable energy portfolio standards. They have also opposed rigorous cap-and trade legislation--in part through lobbying groups like the American Coalition for Clean Coal Electricity. And, in a development that caused a huge brouhaha in Georgia last year (that you can read about here), they pushed a "construction work in progress" (CWIP) bill through the Georgia Legislature that means they will be paid for new power plants even while they are being built. This shifts all of the risks that expensive projects they undertake--such as, um, building nuclear reactors--might not be completed/economically viable in the end because of rising fuel prices, federal climate legislation, or community opposition onto the shoulders of Georgia ratepayers.
Coverage of the suit from the Augusta Chronicle can be seen here.
The coalition includes the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy (SACE) (a former client of mine), Georgia Women’s Action for New Directions (WAND), and the Blue Ridge Environmental Defense League.
The joint press release can be read here. And the complaint here.
Georgia Power and Southern Company are heavily coal-dependent, conservative on energy issues and extremely powerful, and will be formidable foes. Their websites, like those of other power companies these days, highlight their interest in energy efficiency and other forms of sustainable energy. But they enjoy an unusual amount of political and market power in their home states based on longstanding monopoly production of (fossil fuel fired) power, and are interested in keeping it that way. That means advocating projects such as nuclear expansion, "clean" coal gasification (with dubious environmental benefit), and carbon sequestration (the risks surrounding which it seeks to have industry indemnified from, as a way to keep coal viable if federal GHG regulation materializes), and resisting state- or federal-level energy efficiency or renewable energy portfolio standards. They have also opposed rigorous cap-and trade legislation--in part through lobbying groups like the American Coalition for Clean Coal Electricity. And, in a development that caused a huge brouhaha in Georgia last year (that you can read about here), they pushed a "construction work in progress" (CWIP) bill through the Georgia Legislature that means they will be paid for new power plants even while they are being built. This shifts all of the risks that expensive projects they undertake--such as, um, building nuclear reactors--might not be completed/economically viable in the end because of rising fuel prices, federal climate legislation, or community opposition onto the shoulders of Georgia ratepayers.
Coverage of the suit from the Augusta Chronicle can be seen here.
Republicans Spoiling for a Boycott on Kerry-Boxer
The New York Times is reporting that Senator Inhofe (R, OK) has signaled, himself, that "he has unanimous support among the panel's minority members to boycott the session until they get more data on the legislation from U.S. EPA and the Congressional Budget Office." The full article can be read here. The article further reports that Boxer continued to dismay committee Republicans by calling them out each time she thought they were distorting the truth (as I observed in an earlier post, here.) According to the article, "Sen. George Voinovich (R-Ohio) complain[ed] yesterday that Boxer had been unfairly chiming in after any remarks that did not square with her point of view."
Thursday, October 29, 2009
Evening News Roundup: Day Three of Senate EPW Climate Bill Hearings
The big news out of today's hearings seems to be Boxer's determination to press ahead with her plan to get the bill out of committee on November 3--this coming Tuesday. The objections, presaged in Republican questioning of Tuesday's cabinet-level panelists, as described here, are that the Congressional Budget Office has not done a full analysis, and neither has the EPA. Boxer apparently replied that neither of these pass the "smell test," since CBO analyses usually don't occur until after a bill is out of committee, and since Kerry-Boxer borrows so heavily from Waxman-Markey, the EPA analysis of the differences between the two bills was sufficient. Politico reports on this here, the Washington Post here, and Dow Jones here. In response, Reuters reports in this article, committee Republicans are dangling the possibility of boycotting next week's committee work sessions to prevent a vote from happening at all (since they don't have the votes to keep it in committee if they do meet.)
Meanwhile, this Greenwire article reports that Senator Specter (D, PA) is now officially pushing to get a Clean Air Act preemption clause in the bill, and that Senator Baucus (D, WY) has told reporters that he has not made up his mind on the bill. Senator Boxer can do without their votes in committee, but will need them later on in the process, as explained in this earlier post.
Meanwhile, this Greenwire article reports that Senator Specter (D, PA) is now officially pushing to get a Clean Air Act preemption clause in the bill, and that Senator Baucus (D, WY) has told reporters that he has not made up his mind on the bill. Senator Boxer can do without their votes in committee, but will need them later on in the process, as explained in this earlier post.
No New Environmental Cases Today
No new opinions from the circuit courts on environmental law today. Alas.
Going Off-line for the Afternoon
For the past week, I've been in the fair city of Nashville, Tennessee, where I presented to my friend Nita Farahany's torts class at Vanderbilt Law on the benefits of joint and several liability under Superfund. (I've long been interested in how liability schemes shake out for cleanups under the Act, and filed an amicus brief on behalf of the U.S. Conference of Mayors in United States v. Atlantic Research a couple years ago.) Interestingly, even as tort-reform advocates succeeded in advancing the cause of abolishing or scaling back common law joint and several liability in state houses across the country, getting 18 states to pass reforms in 1986 and 1987, other lobbyists succeeded in getting Congress to codify the right of contribution among jointly and severally liable parties under Superfund in the 1986 Superfund amendments.
At any rate, I will be flying back to DC this afternoon, and off-line until early evening. Expect more postings on Kerry-Boxer, and any new environmentally relevant cases to come out of the federal appeals courts at that time.
Suit Filed to Jumpstart ESA Listing for American Pika
Earthjustice attorneys again trying to use (California) ESA to regulate global warmingEarthjustice and the Center for Biological Diversity announced yesterday that they have filed a lawsuit in California state court against the California Fish and Game Commission, for its refusal to list the American Pika (which I have a soft spot for, because it is a lagomorph) under the California Endangered Species Act. The groups' theory is that the pika is threatened by the effects of global warming in California. The Commission rejected their petition once, and they succeeded in getting the decision remanded for reconsideration. This appeal is the groups' second.
[Ed's note: The animal pictured here is a lagomorph, but not a pika.]
NRDC Reacts to Ninth Circuit Water-Efficiency Decision
As I reported yesterday, in the post "California Beats Back DOE Refusal of Right to Set Efficiency Standards," the Ninth Circuit remanded a DOE decision not to grant California a waiver from preemption under the Energy Policy and Conservation Act (EPCA), after essentially rejecting the whole thing as pretextual.
The Legal Director of NRDC's Western Energy and Climate Project, Kristin Grenfell, lauds the decision in a statement on their website, here. Among other things, she points out that conserving water is an energy conservation issue, as, she says, 20% of California's electricity is used to move water.
The Legal Director of NRDC's Western Energy and Climate Project, Kristin Grenfell, lauds the decision in a statement on their website, here. Among other things, she points out that conserving water is an energy conservation issue, as, she says, 20% of California's electricity is used to move water.
Morning News Roundup on Kerry-Boxer Bill: Day Three
This morning, Politico is describing the tough path ahead for the Senate climate bill, given the doubts expressed by Senator Baucus (D, WY), but also reports that Senator Boxer (D, CA) is determined to get the bill out of committee even without Baucus, given negotiations she conducted with Senator Carper (D, DE) "who played a major role in negotiating a deal with coal-state members and is expected to back the legislation." (It looks, given the grumvblings reported in the article, like Senator Boxer knew that she had to overshoot Waxman-Markey's 17% GHG reduction goal initially in order to hold firm on it in the end, because a lot of folks are taking aim at the 20% figure.)
ClimateWire is reporting that the generosity initially seen in Kerry-Boxer in allocating more allowances to pro-climate moves like sustainable transportation and energy efficiency (as an earlier post discusses here) may not really improve on the House bill, given required deficit-reduction measures, in "Reality Sets In; Senate Allocation Pie Smaller Than House Climate Bill's."
And NPR reports on the "Battle of [the] Statistics" at yesterday's hearings, in which Senator Boxer announced to the assembled Republicans "Since you held up a chart [on Tuesday] we're going to have our little chart wars today — you hold up one and we hold up one; it's kind of equal time." (Its nice to see Boxer tackling the naysayers head-on: On Tuesday, she responded to statistical pronouncements and descriptions of research papers that she felt were distorted immediately, prompting Republicans to complain that she might drag the proceedings into a tit for tat.) According to NPR, Boxer's tough tone didn't stop (fossil fuels) industry executives from trying to invoke scary job-loss numbers, however. The full article can be seen here.
ClimateWire is reporting that the generosity initially seen in Kerry-Boxer in allocating more allowances to pro-climate moves like sustainable transportation and energy efficiency (as an earlier post discusses here) may not really improve on the House bill, given required deficit-reduction measures, in "Reality Sets In; Senate Allocation Pie Smaller Than House Climate Bill's."
And NPR reports on the "Battle of [the] Statistics" at yesterday's hearings, in which Senator Boxer announced to the assembled Republicans "Since you held up a chart [on Tuesday] we're going to have our little chart wars today — you hold up one and we hold up one; it's kind of equal time." (Its nice to see Boxer tackling the naysayers head-on: On Tuesday, she responded to statistical pronouncements and descriptions of research papers that she felt were distorted immediately, prompting Republicans to complain that she might drag the proceedings into a tit for tat.) According to NPR, Boxer's tough tone didn't stop (fossil fuels) industry executives from trying to invoke scary job-loss numbers, however. The full article can be seen here.
Day Three of Hearings before Senate EPW on Kerry-Boxer
Hearings will start in half an hour before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. The full schedule can be viewed here. Again, the hearings will be split into four panels.
Panel 1 is a mixed panel, including, for example, the President of Exelon (which describes itself as "the nation's largest electric and natural gas utility" and has its own plan for emissions reduction underway [Ed's note: unevaluated by Ed.]), the President of Environmental Defense (EDF) (which has been active in lobbying for energy efficiency), the President of the Ohio Coal Miner's Association, and the President of the American Farm Bureau Association.
Panel 2 is focused on transportation efficiency and sustainable communities, including several transportation experts and the Executive Director of the Sacramento Area Council of Governments (which provides transportation planning and funding for the Sacramento region).
Panel 3 will provide economists' takes on climate policy, from the presidents of the (progressive) Center for American Progress Action Fund, Center for Clean Air Policy, and World Resources Institute, as well as the libertarian Competitive Enterprise Institute.
Panel 4 is a mixed panel, including the head of the California EPA, the Director of the Climate Center for NRDC, two Union representatives, and two industry executives.
The full schedule can be accessed here, and the hearings heard here.
Panel 1 is a mixed panel, including, for example, the President of Exelon (which describes itself as "the nation's largest electric and natural gas utility" and has its own plan for emissions reduction underway [Ed's note: unevaluated by Ed.]), the President of Environmental Defense (EDF) (which has been active in lobbying for energy efficiency), the President of the Ohio Coal Miner's Association, and the President of the American Farm Bureau Association.
Panel 2 is focused on transportation efficiency and sustainable communities, including several transportation experts and the Executive Director of the Sacramento Area Council of Governments (which provides transportation planning and funding for the Sacramento region).
Panel 3 will provide economists' takes on climate policy, from the presidents of the (progressive) Center for American Progress Action Fund, Center for Clean Air Policy, and World Resources Institute, as well as the libertarian Competitive Enterprise Institute.
Panel 4 is a mixed panel, including the head of the California EPA, the Director of the Climate Center for NRDC, two Union representatives, and two industry executives.
The full schedule can be accessed here, and the hearings heard here.
Wednesday, October 28, 2009
Inhofe Still Fuming
But Baucus, Specter and others like them may be the ones to watch
Senator Inhofe (R, OK) has posted his opening statement from Wednesday morning's hearings before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. It begins with "Based on all the evidence we've seen, in this and other committees in the Senate, I can say with confidence that Kerry-Boxer will destroy jobs, weaken our national security, and raise electricity prices for consumers" and continues in that vein. (You can read the complete statement here.)
It is becoming very clear that we are seeing a shift in our economy, from one based on non-renewable fossil fuels and some nuclear energy, to a more diversified method of providing for our energy needs through renewable energy, advanced batteries, demand response, and energy efficiency, as well as fossil fuels and nuclear energy. There will be winners and losers as investment, jobs and political capital shift from one set of industries to another. The folks on Senator Inhofe's team are the losers in this scenario, and he's not happy about it.
Senator Inhofe (R, OK) has posted his opening statement from Wednesday morning's hearings before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. It begins with "Based on all the evidence we've seen, in this and other committees in the Senate, I can say with confidence that Kerry-Boxer will destroy jobs, weaken our national security, and raise electricity prices for consumers" and continues in that vein. (You can read the complete statement here.)
It is becoming very clear that we are seeing a shift in our economy, from one based on non-renewable fossil fuels and some nuclear energy, to a more diversified method of providing for our energy needs through renewable energy, advanced batteries, demand response, and energy efficiency, as well as fossil fuels and nuclear energy. There will be winners and losers as investment, jobs and political capital shift from one set of industries to another. The folks on Senator Inhofe's team are the losers in this scenario, and he's not happy about it.
But Inhofe's sour grapes should not distract from a more important set of signals that will foretell the direction of this bill--the opinions of moderate Democrats from fossil-fuel-dependent states. On the Environment and Public Works Committee these include Senator Baucus (D, WY), whose state produces 40% of the coal used in the U.S. every year, and Senator Specter (D, PA), whose state is home to massive bituminous coal fields.
As reported here, Senator Baucus expressed "serious reservations" about achieving the 20% GHG emissions reduction target in the Kerry-Boxer bill, stating that "We cannot afford the unmitigated impacts of climate change but we also cannot afford the unmitigated effects of legislation.” He lines up with Republicans on the committee in asking that the bill include a preemption clause to prevent the EPA from using the Clean Air Act to regulate GHGs. And not only does he have a vote on EPW, but also, as Chairman of the Senate Finance Committee, he will have a crack at rewriting major provisions of the bill before it gets to the Senate floor.
Senator Specter, who only just defected from the Republican party, could be the critical 60th vote to overcome a potential Republican filibuster. In his opening statement on Tuesday, he staked out his position as follows: "My state, Pennsylvania, is a microcosm. It has been built upon coal and steel, and it is critical that any legislation take into account those factors. My state has a great deal of natural gas with the new Marcellus Shale opening clean fuel for the future. . . . A week ago today I held a hearing in Pittsburgh on the potential of green jobs, but at the same time I’m concerned as to what would happen in southwestern Pennsylvania in the coal mines." And he made it clear during questioning on Tuesday that he also wants to see a clause in the bill preventing EPA from using the CAA to regulate GHGs.
So while Inhofe may be making the most noise, just as with Waxman-Markey in the House, it will be the moderate Democrats who ultimately move this bill the most in the Senate.
As reported here, Senator Baucus expressed "serious reservations" about achieving the 20% GHG emissions reduction target in the Kerry-Boxer bill, stating that "We cannot afford the unmitigated impacts of climate change but we also cannot afford the unmitigated effects of legislation.” He lines up with Republicans on the committee in asking that the bill include a preemption clause to prevent the EPA from using the Clean Air Act to regulate GHGs. And not only does he have a vote on EPW, but also, as Chairman of the Senate Finance Committee, he will have a crack at rewriting major provisions of the bill before it gets to the Senate floor.
Senator Specter, who only just defected from the Republican party, could be the critical 60th vote to overcome a potential Republican filibuster. In his opening statement on Tuesday, he staked out his position as follows: "My state, Pennsylvania, is a microcosm. It has been built upon coal and steel, and it is critical that any legislation take into account those factors. My state has a great deal of natural gas with the new Marcellus Shale opening clean fuel for the future. . . . A week ago today I held a hearing in Pittsburgh on the potential of green jobs, but at the same time I’m concerned as to what would happen in southwestern Pennsylvania in the coal mines." And he made it clear during questioning on Tuesday that he also wants to see a clause in the bill preventing EPA from using the CAA to regulate GHGs.
So while Inhofe may be making the most noise, just as with Waxman-Markey in the House, it will be the moderate Democrats who ultimately move this bill the most in the Senate.
Reactions to Today's Hearings
Today, a number of panelists with expertise on different aspects of the climate change issue--energy economics, national security, impacts of climate change, and electricity--testified on the Kerry-Boxer bill before the Senate Environment and Public Works Committee. Reuters describes the first group in this way: "Leaders at companies that develop low-carbon energy told a Senate panel that climate legislation would create millions of new jobs, but lawmakers from fossil-fuel dependent states said the bill would hit employment in the traditional energy economy." (The full article can be accessed here.) Greenwire goes into more detail about the gloom and doom forecast by the petroleum industry, here.
More reviews to follow.
More reviews to follow.
California Beats Back DOE Refusal of Right to Set Efficiency Standards
In California Energy Commission v. U.S. Department of Energy, handed down by the Ninth Circuit today, the California Energy Commission (CEC) appealed from DOE's denial of a waiver it sought from preemption under the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297, so it could establish water efficiency standards for residential clothes washers. (As the panel explains, the "EPCA expressly preempts state regulation of energy efficiency, energy use, or water use of any product covered by federal energy efficiency standards.") To get the waiver, CEC had to show that the state regulation was “needed to meet unusual and compelling State or local . . . water interests.” 42 U.S.C. § 6297(d)(1)(B).
If you haven't heard, California has been having a drought for a while now.
In 2002, California passed a state law mandating water-efficiency standards for washing machines, which the CEC duly issued. The CEC petition for a waiver of express EPCA preemption, and the (Bush II) DOE accepted its application as complete in December 2005. DOE rejected the petition a year later, giving the following reasons:
As a preliminary matter, the panel had to establish that it had jurisdiction. DOE challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, on the basis that EPCA granted appeals only from specific EPCA provisions to the circuit courts. This wasn't one of them, so CEC should have gone to federal district court first. The Ninth Circuit responded that, well, EPCA grants appeals from another specific set of provisions to the federal district courts, too, and this wasn't one of those, either. Since the logic could be applied both ways, obviously this was left up to the discretion of the courts, and, duly filling in the blanks from Florida Power & Light Co. v. Lorion, 470 U.S. 729, 741-45 (1985), as to how it should exercise this jurisdiction, the Ninth Circuit said yup, we should take it. (I'd go into the reasoning, but its pretty clear to me that if the panel had not wanted to take the case, and order CEC to head to district court, it could have filled in the blanks that way, too.)
On the substance, the Ninth Circuit panel rejected DOE's reasons for refusing to grant the waiver as arbitrary and capricious, in violation of the APA. The panel's reasoning for rejecting the first justification is, to be honest, a bit opaque: Basically, they said that its ridiculous to reject an application for a waiver on the basis that when it finally got approved, there would not be a long enough wait, because they could have just changed the effective date or consulted with CEC on that point. And further, since the DOE approval timeline was unpredictable, it was arbitrary for DOE to be strict about what dates the information provided pertained to. See Slip Op at 14581 ("The DOE argues, in effect, that it was entitled to reject the CEC’s data and analysis as entirely irrelevant and inapplicable because the proposed implementation timeline could not be granted under the EPCA. This argument is contrary to the preponderance of evidence standard, as well as common sense.").
As for the second justification, the panel noted that, contrary to what DOE contended, CEC did support its conclusions with underlying data sufficient for DOE's purposes, as shown by the record itself. In the record, "the CEC provided 'a full explanation of its assumptions, data, and analyses' in the form of its own rulemaking record" for the California regulations. In fact, the Ninth Circuit noted, DOE referred to that portion of the record itself--proof that it not only was there, but that DOE actually knew it was there.
Finally, the Ninth Circuit panel rejected the third justification, because the preponderance of the evidence did not show that the class of washers in question--top loading washing machines--would not be available in 2010, when that part of the regulations was to go into effect. DOE, it said, had to "weigh the commenters’ evidence of future availability of top-loaders against that offered by the CEC. The DOE’s finding cannot be sustained on the strength of its citation only of the commenters’ evidence with reference to present capabilities." (emphasis added).
The panel remanded the petition to the DOE for re-consideration. The tone of today's opinion betrays a strong suspicion that the rejection of the waiver petition was pretextual. Therefore, what the (Obama) DOE does with the petition on remand will be telling.
If you haven't heard, California has been having a drought for a while now.
In 2002, California passed a state law mandating water-efficiency standards for washing machines, which the CEC duly issued. The CEC petition for a waiver of express EPCA preemption, and the (Bush II) DOE accepted its application as complete in December 2005. DOE rejected the petition a year later, giving the following reasons:
First, CEC’s proposed regulations purported to take effect on January 1, 2007, far less than the statutory three-year minimum, and CEC did not provide any information necessary to support a different effective date.
Second, CEC did not meet the statutory standard, which requires a state to show unusual and compelling water interests. CEC contended that a cost-benefit analysis showed that its regulation would be preferable to non-regulatory alternatives, but CEC’s petition did not support its conclusions with the underlying data that would have allowed DOE to determine whether the statutory standard was satisfied.
Third, the record demonstrated that CEC’s proposed regulation would make a class of washers unavailable in California, requiring denial of the waiver petition.CEC appealed to the Ninth Circuit.
As a preliminary matter, the panel had to establish that it had jurisdiction. DOE challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, on the basis that EPCA granted appeals only from specific EPCA provisions to the circuit courts. This wasn't one of them, so CEC should have gone to federal district court first. The Ninth Circuit responded that, well, EPCA grants appeals from another specific set of provisions to the federal district courts, too, and this wasn't one of those, either. Since the logic could be applied both ways, obviously this was left up to the discretion of the courts, and, duly filling in the blanks from Florida Power & Light Co. v. Lorion, 470 U.S. 729, 741-45 (1985), as to how it should exercise this jurisdiction, the Ninth Circuit said yup, we should take it. (I'd go into the reasoning, but its pretty clear to me that if the panel had not wanted to take the case, and order CEC to head to district court, it could have filled in the blanks that way, too.)
On the substance, the Ninth Circuit panel rejected DOE's reasons for refusing to grant the waiver as arbitrary and capricious, in violation of the APA. The panel's reasoning for rejecting the first justification is, to be honest, a bit opaque: Basically, they said that its ridiculous to reject an application for a waiver on the basis that when it finally got approved, there would not be a long enough wait, because they could have just changed the effective date or consulted with CEC on that point. And further, since the DOE approval timeline was unpredictable, it was arbitrary for DOE to be strict about what dates the information provided pertained to. See Slip Op at 14581 ("The DOE argues, in effect, that it was entitled to reject the CEC’s data and analysis as entirely irrelevant and inapplicable because the proposed implementation timeline could not be granted under the EPCA. This argument is contrary to the preponderance of evidence standard, as well as common sense.").
As for the second justification, the panel noted that, contrary to what DOE contended, CEC did support its conclusions with underlying data sufficient for DOE's purposes, as shown by the record itself. In the record, "the CEC provided 'a full explanation of its assumptions, data, and analyses' in the form of its own rulemaking record" for the California regulations. In fact, the Ninth Circuit noted, DOE referred to that portion of the record itself--proof that it not only was there, but that DOE actually knew it was there.
Finally, the Ninth Circuit panel rejected the third justification, because the preponderance of the evidence did not show that the class of washers in question--top loading washing machines--would not be available in 2010, when that part of the regulations was to go into effect. DOE, it said, had to "weigh the commenters’ evidence of future availability of top-loaders against that offered by the CEC. The DOE’s finding cannot be sustained on the strength of its citation only of the commenters’ evidence with reference to present capabilities." (emphasis added).
The panel remanded the petition to the DOE for re-consideration. The tone of today's opinion betrays a strong suspicion that the rejection of the waiver petition was pretextual. Therefore, what the (Obama) DOE does with the petition on remand will be telling.
First Circuit Kicks out Challenge to LNG Facility
No substantive issue reached, just consternation at repetition of unripe claim
In Nulankeyutmonen Nkihtagmikon v. Impson, handed down today, the First Circuit rejected a challenge by a group of members of the the Passamaquoddy Tribe in Maine over a Bureau of Indian Affairs (BIA) decision to allow the lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas ("LNG") facility. The lease was approved by tribal authorities in May 2005. The BIA looked at the lease under the Indian Long-Term Leasing Act, 25 U.S.C. § 415, and rubber stamped it in a week--albeit only for the permitting phase, and subject to FERC approval. This FERC approval was to include NEPA review (though, given 2005 amendments to the Natural Gas Act, and subsequent FERC implementing regulations, the NN group had reason to doubt how rigorous this was going to be.)
NN filed suit in the District of Maine, challenging the BIA approval for failure to properly follow the requirements of NEPA, 42 U.S.C. §§ 4321-4327, the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Indian Leasing Act, and the APA, 5 U.S.C. §§ 701-706, by not conducting environmental and other reviews or providing opportunity for public comment. The BIA succeeded in getting the case dismissed for failure to exhaust administrative remedies, since NN had not exhausted the available administrative review at Interior.
What happened next is textbook How To Sink Your Own Case. As the panel describes it: "Back in the district court, NN preserved its administrative remedies, and then, instead of arguing any 'exception' excused its failure to exhaust, told the district court that this court had erred by imposing the exhaustion requirement in the first place." (This reminds me of a case that was before the Tenth Circuit the year I was clerking, Park Lake Resources v. USDA, 378 F.3d 1132 (10th Cir. 2004). In that case, a suit by a mining organization challenging a "research forest" designation that put it off limits to mining, also brought twice, the Tenth Circuit held: "our dismissal of the earlier action for lack of ripeness requires dismissal of this action as well. Plaintiffs can overcome the previous dismissal only by showing satisfaction of the conditions for ripeness set forth in [the prior suit]. Having failed to do so, Plaintiffs cannot proceed with their claim." Doh.) The district court said, no, you have not yet exhausted your remedies, no dice. NN appealed. The First Circuit, in today's opinion, repeated itself--forcefully.
So although, as an environmentalist, I may be sad that this LNG terminal in what is presumably very beautiful country has not yet been stopped, as a lawyer, I have to shake my head. When your panel has to remind you that "when our mandate issued, it established the law of the case," you haven't done your most basic homework, and should be sent home.
In Nulankeyutmonen Nkihtagmikon v. Impson, handed down today, the First Circuit rejected a challenge by a group of members of the the Passamaquoddy Tribe in Maine over a Bureau of Indian Affairs (BIA) decision to allow the lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas ("LNG") facility. The lease was approved by tribal authorities in May 2005. The BIA looked at the lease under the Indian Long-Term Leasing Act, 25 U.S.C. § 415, and rubber stamped it in a week--albeit only for the permitting phase, and subject to FERC approval. This FERC approval was to include NEPA review (though, given 2005 amendments to the Natural Gas Act, and subsequent FERC implementing regulations, the NN group had reason to doubt how rigorous this was going to be.)
NN filed suit in the District of Maine, challenging the BIA approval for failure to properly follow the requirements of NEPA, 42 U.S.C. §§ 4321-4327, the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Indian Leasing Act, and the APA, 5 U.S.C. §§ 701-706, by not conducting environmental and other reviews or providing opportunity for public comment. The BIA succeeded in getting the case dismissed for failure to exhaust administrative remedies, since NN had not exhausted the available administrative review at Interior.
What happened next is textbook How To Sink Your Own Case. As the panel describes it: "Back in the district court, NN preserved its administrative remedies, and then, instead of arguing any 'exception' excused its failure to exhaust, told the district court that this court had erred by imposing the exhaustion requirement in the first place." (This reminds me of a case that was before the Tenth Circuit the year I was clerking, Park Lake Resources v. USDA, 378 F.3d 1132 (10th Cir. 2004). In that case, a suit by a mining organization challenging a "research forest" designation that put it off limits to mining, also brought twice, the Tenth Circuit held: "our dismissal of the earlier action for lack of ripeness requires dismissal of this action as well. Plaintiffs can overcome the previous dismissal only by showing satisfaction of the conditions for ripeness set forth in [the prior suit]. Having failed to do so, Plaintiffs cannot proceed with their claim." Doh.) The district court said, no, you have not yet exhausted your remedies, no dice. NN appealed. The First Circuit, in today's opinion, repeated itself--forcefully.
So although, as an environmentalist, I may be sad that this LNG terminal in what is presumably very beautiful country has not yet been stopped, as a lawyer, I have to shake my head. When your panel has to remind you that "when our mandate issued, it established the law of the case," you haven't done your most basic homework, and should be sent home.
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