Groups Sue to Save West Virginia Flying Squirrel

Today, the Friends of Blackwater, Wilderness Society, Center for Biological Diversity, Southern Appalachian Forest Coalition, and Wild South filed suit in the U.S. District Court for the District of Columbia against the Department of Interior for taking the West Virginia Northern Flying Squirrel off the Endangered Species List. (You can check out the flying squirrel's Wikipedia entry here--it looks like an adorable Super Squirrel!!) The delisting took place in August 2008 under the Bush Administration, and was decried by environmentalists as part of the Administration's attempt to "gut" the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. (The CBD's contemporaneous press release on the action can be viewed here, a more balanced discussion on the decision from ESAblawg here, and the delisting decision itself here. The decision was justified by the fact that the population had stayed stable for twenty years, and "persisted" in certain areas of its habitat, despite its scarcity--not that it had recovered.)

Today's complaint, which can be downloaded here, alleges that the Fish and Wildlife Service (FWS) ignored the criteria of its own 1990 recovery plan for the squirrel, see 16 U.S.C. § 1533 (requiring FWS to implement Recovery Plans), in its decision to delist. The complaint further charges that FWS failed to look at all the available science on the condition of the squirrel and its habitat in making its decision, something it was also required to do in any delisting decision by 16 U.S.C. § 1533. In fact, the complaint points out, FWS asserted in its decision that it was fine to delist a species "without all criteria [of its Recovery Plan] being met." See 73 Fed. Reg. 50226 (Aug. 28, 2008). The action, the complaint alleges, is therefore a violation of both the terms of the ESA and the APA, insofar as FWS acted in an arbitrary and capricious manner in violation of APA § 706.

The group's full press release can be viewed here.

[Update: The Courthouse News has a good article on the case, here.]

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.

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.

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:

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.