Abolition of Supplemental Environmental Projects: A Damaging Retreat for Environmental Enforcement
Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ’s Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) – a long-standing feature of negotiated resolutions of environmental enforcement cases.
SEPs allow a non-complying company, state, or local government to develop an environmentally beneficial project, not otherwise required by law, in lieu of paying part of its fine. To implement its SEP program, EPA carefully crafted a Policy on Supplemental Environmental Projects with the intention of ensuring that SEPs are limited to projects that improve public health or the environment while not directly benefitting a violator or third parties. Under EPA’s policy, acceptable SEPs – such as local public health monitoring for the impacts of a defendant’s pollution or helping to restore an ecosystem affected by that pollution – must relate directly to the underlying violation at issue in the enforcement action. The same policy specifically bars certain projects – such as those that will …
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
The Trump EPA last month proposed a new plan to remove oil and gas developers’ responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward with unprecedented speed. Second, it’s the latest in a growing list of Trump rollbacks opposed by the very industries they’re purportedly intended to help.
The Obama EPA put the methane rule in place for good reason: Methane is a powerful driver of climate disruption. While it doesn’t linger in the atmosphere as long as carbon dioxide, for the 10 or 20 years it …
Originally published on Legal Planet.
Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump administration rollbacks, so it was especially nice to have some good news.
I hesitated about whether to write something about the case because the opinion makes for dull reading, unless you happen to have been deeply involved in the case. As I thought about it, however, I decided that the undramatic features of the case – the ways in which it was pretty routine – were themselves worth writing about. The opinion shows what it looks like when smart, capable judges apply themselves to complex technical issues. It's not glamorous, but it's crucial to the …
Originally published on Legal Planet.
Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those.
The administration took two separate actions. First, the Department of Transportation and EPA sent a letter arguing that California's action appeared to violate the federal statutes governing CAFE (fuel efficiency) and emissions standards for new vehicles. Second, the Justice Department opened an antitrust probe of the car companies themselves. How strong are the government's legal positions?
Let's start with the DOT/EPA letter. The Clean Air Act and the …
In August, Virginians remembered the devastation wrought by Hurricane Camille 50 years earlier. After making landfall on the Gulf Coast, that storm dumped dozens of inches of rain in western portions of the Commonwealth and killed more than 150 people in flash floods and landslides. Today, Virginians along the Atlantic coast and in the Hampton Roads region have Hurricane Dorian on their minds, with potentially life-threatening flooding, property destruction, and toxic floodwaters being serious hazards.
The National Weather Service is now predicting that Dorian could bring storm surge flooding of two to four feet to Hampton Roads by Friday afternoon. Heavy precipitation could also exacerbate storm surge with urban and river flooding.
Over the next several days, residents of Hampton Roads and government officials should also be cautious about the risk of floodwaters contaminated by wastewater and debris and, especially, the threat of flood-induced chemical disaster. Based …
Originally published on Legal Planet.
Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue.
But what if the Democrats win? Then things are more complicated. A lot depends on the identity of the Democratic nominee. Regardless of who that person may be, however, some parts of cost-benefit analysis will survive …
Last week, the six Chesapeake Bay states and the District of Columbia posted their final plans to meet the 2025 pollution reduction targets under the Bay cleanup effort known as the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL" for short). These final Watershed Implementation Plans (WIPs) were, by and large, little different from the draft ones released this spring, at least for the big three Bay jurisdictions (Maryland, Pennsylvania, and Virginia) that are responsible for roughly 90 percent of the nutrient pollution in the Bay.
When the draft Watershed Implementation Plan (WIP) for Pennsylvania was released in April, many were outraged that it contained a fatal flaw. The WIP failed to pass the most basic test, which is to propose actions that would actually provide the pollution reductions needed to meet the state's 2025 final Bay TMDL target. That fatal flaw still remains, although the final …
Originally published on Legal Planet.
On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to prevent non-health harms such as damage to vegetation.
If you think the life of a federal circuit judge is all about dramatic constitutional arguments, you might consider one argument that the court had to wrestle with. The environmental challengers argued that "EPA impermissibly departed from CASAC's advice by setting the secondary standard level using a three-year average W126 benchmark without lowering the level to protect against …
This op-ed was originally published in The Hill.
For the past couple of years, President Trump's federal budget proposal has called for the elimination of a crucial Department of Energy program — the Advanced Research Projects Agency-Energy (ARPA-E).
The agency’s mission is to fund high-risk/high-reward energy research — that is, research that has transformative potential for the nation’s economic and energy needs but that is deemed too expensive or too risky for energy companies to fund on their own. Congress, though, has wisely resisted the president’s proposal, and continued to fund ARPA-E. But the White House has stubbornly proposed eliminating the program again this year.
Congress should hold firm.
In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States?
Trump urged lawmakers to "make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process." On first hearing, this sounds like a call for the government to protect the public from potentially dangerous individuals. But don't be deceived. The president doesn't really want …
