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What will be the top stories of 2015?

23 Jan 2015

edit_calendar_ssk_47433454Happy new year!  I know it’s almost February but as this is my first blog post of the year, I thought (particularly after hearing the State of the Union and the State of the State speeches)  I’d predict the big stories of 2015 in no particular order:

  • Wetland Rules – the EPA and the Army Corps of Engineers finally proposed rules in 2014  to address the fallout of the Rapanos case.  The proposal was met with a firestorm of disapproval, particularly from the farming world.  Will they ever finalize them?
  • Brownfield TIF Legislation – after all that work last year, will the Legislature take up streamlining this program and expanding it to allow Michigan to be even more competitive in redeveloping brownfields?
  • EPA Greenhouse Gas Rules vs. Congress – in September, 2013, EPA issued a proposal for carbon pollution from new power plants; in June  2014, EPA issued a proposal to cut carbon pollution from existing power plants – the GOP and coal and oil interests in Congress have fought this for some time.  Will the rules be adopted and enforced?  Will there be enough time for electricity generators to get alternative plans in place before being forced to shutter their oldest, least efficient and most polluting plants?
  • Keystone Pipeline – President Obama and Congress have been locked in a politically charged dispute over the Keystone XL pipeline for almost 3 years now – he seemed to indicate in the State of the Union that he’d veto legislation – will he?
  • Energy Policy – Governor Snyder has pushed for an energy policy, legislation is expected this year and the Governor recently mentioned an intention to develop a new energy agency that would make Michigan more competitive for business.  What that will entail in light of the likely changes due to federal regulations will be interesting to see – will Michigan upgrade or discard its renewable portfolio standard? Can Michigan reduce electrical cost while improving both reliability and environmental performance?
  • Water Policy – the Governor’s long-awaited great lakes policy is expected this year.
  • Pipelines – in addition to the Keystone pipeline, there has been a lot of interest in pipelines in, under and around the Great Lakes – could there be federal and state changes there?
  • Detroit’s Water Authority – it is supposed to morph into a regional authority – as I said previously, the easy part was getting to the agreement last year – will the hard work succeed or will it fail, causing major shockwaves for roughly half of the State’s population?

The Supreme Court, Environmental Law and Statutes of Repose

12 Jun 2014

SupremeCourtKennedyCenter022This week, the US Supreme Court issued an opinion in the case of CT Corp. v. Waldburger.  The decision dealt with whether the federal Superfund law’s statute of limitations trumps North Carolina’s statute of repose.  In an uncharacteristically short opinion, the Court held that it does not.

Defendant CTS contaminated property which it sold and which was then resold to the plaintiffs.  Plaintiffs sued under the federal Comprehensive Environmental Response, Compensation and Liability Act (the Superfund statute or CERCLA).   CERCLA’s statute of limitations states that if there is a State statute of limitations that begins to run before the federal limitations period begins, then the typically long federal period (which includes a provision that does not “start the clock” until the wrong was “discovered”) to bring suit  governs.  North Carolina has what’s called a “statute of repose” which, in this case, lapsed in 1997, 14 years before the plaintiffs discovered their injuries and filed suit. (more…)

What will be the top green stories of 2014?

8 Jan 2014

greatlakesAs this new year kicks off, we thought we’d look ahead at what we think may be the big stories of 2014 at, in no particular order:

Wetlands – Will EPA and the Army Corps of Engineers finalize guidance regarding the scope of waters regulated under the Clean Water Act? Or will there be new rules or even new legislation?  There are members of Congress on  both sides of this issue and it is unclear which way this issue will go, although the federal trend is to try and govern as many bodies of water no matter what. This fall, EPA published a draft connectivity analysis which many view as a prelude to new regulations attempting to vest the federal government with broad jurisdictional over virtually every drop of water in the country. It will be interesting if the federal government tries to delete the “significant” portion of the Rapanos “significant nexus” test.

• Hydraulic Fracturing –  this continues to be a lightning rod for controversy.  At the end of 2013, the Associated Press reported on both alleged and confirmed environmental problems in 4 states including Ohio and Pennsylvania.  Michigan looks to beef up its oversight of, and its communications regarding, fracking proposals and operations.  The University of Michigan continues to study the technical issues.  The focus on this issue seems to be shifting toward the volumes of water used in fracturing and monitoring withdrawals used for oil and gas production. It appears that the 2012 U.S. Department of the Interior draft rules for fracking on federal and Indian lands remain draft – will they ever be finalized?

• MDEQ Brownfield Process Streamlining.  MDEQ has promised to convene a short-term task force to work on harmonizing, improving and streamlining the various funding mechanisms currently used to incentivize brownfield redevelopment. This can only be a plus.

• MDEQ Cleanup Rules – as required by the Legislature, MDEQ proposed adopting its previously informal standards as formal cleanup rules late in 2013.  The MDEQ will continue to work on improving and in some cases broadening its cleanup rules and criteria – we expect more work on the assumptions of exposure underpinning the standards, more work on vapor intrusion standards and more work on standards and processes applicable to groundwater venting into surface waters.  MDEQ also continues to discuss more rules and standards defining what constitutes “due care” which is an issue for property owners who are not liable pursuant to a BEA and for other reasons.

• Keystone Pipeline.  As we predicted, President Obama and Congress continue to be locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  The President deferred it and lately the pundits have argued that pipelines are safer than transporting shale oil by truck and train.

• Energy Policy In Michigan – at the end of the year, and after a year of “listening” sessions and collecting information, Governor Snyder indicated that he intends to seek legislation improving Michigan’s energy policies, focusing on lowering costs, improving reliability and minimizing environmental impacts.  This will be interesting.

That was quick – Sacketts: 1 – EPA: 0

21 Mar 2012

Earlier this year, I told you about the Sacketts (here) who were arguing to the US Supreme Court over a wetland issue.  The case before the Supreme Court did not deal with the wetland issue itself but with the question of “pre-enforcement review” under the Clean Water Act.  In that case, the EPA argued that a property owner may not obtain judicial review of an EPA wetland order even though the EPA has not yet brought its own lawsuit. In other words, could the EPA force the Sacketts into having to decide to do what EPA told them to do or risk facing gigantic fines when EPA got around to suing them?

Well, the Supreme Court has spoken unanimously, finding that the EPA’s order was final and subject to court review because it had “all of the hallmarks of APA (Administrative Procedures Act) finality that [the Court’s] opinions establish.”

  • The Court noted that the EPA order “determined rights or obligations” because it obligated the Sacketts to restore their property according to an agency-approved Restoration Work Plan, and to give the EPA access to their property and to records and documentation related to the conditions at the Site.
  • Also, “legal consequences flow” from issuance of the order.  The order exposes the Sacketts to double penalties in a future enforcement proceeding.  It also severely limited the Sacketts’ ability to obtain a permit for their fill from the Army Corps of Engineers.
  • The issuance of the compliance order also marked the “consummation” of the agency’s decision making process which was not subject to further review, except at the initiation of the EPA.

Now they get to fight about whether there were regulated wetlands at all.

Most derisively, Justice Scalia, for the Court stated that ” The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.”

No pre-enforcement review – seem wrong to you? Me too. And those 9 justices, maybe them too.

12 Jan 2012

Photo courtesy of the US Supreme Court

Kevin blogged about 2012 environmental issues and the first one out of the box was the wetland case of Sackett v EPA (transcript here). The case raises a really interesting question about Constitutional process and while the Court won’t rule for months, comments by some of the Justices certainly seem to hold a common sense hostility toward the issue of “pre-enforcement review,” something which has troubled the regulated community for years.

Over four years ago, Mr. and Mrs. Sackett started to build a house on undeveloped land they owned. They had some of the property filled in to do the construction and that’s where things started going wrong.  The EPA issued an order stating that their property was a wetland and directing them both to stop construction and to remedy the harm already done.  The Sacketts disagree with the EPA and have tried, without success, to get a federal court to resolve this.  The case has now gotten to the US Supreme Court which is dealing with (not with the wetland issue itself but) the question of whether whether a property owner can obtain judicial review of an EPA wetland order even though the EPA has not yet brought its own lawsuit. In other words, can the EPA back the Sacketts into having to decide to do what EPA told them to do or risk facing gigantic fines when EPA got around to suing them?

This is called a bar on pre-enforcement review. It comes up frequently in environmental law. CERCLA or the Superfund Act bars some pre-enforcement review  as does the Clean Air Act relating to pollution abatement orders. These bars have been upheld because the idea is that it is more important to get out there and clean something up or stop a discharge into the environment than to waste time fighting about an order. In the context of an emergency cleanup of a spill, that makes sense.

However, the Clean Water Act doesn’t specifically answer the question of whether pre-enforcement review is barred. When the work’s been done and the order is to undo something, the land owner is in the horrible position of having to decide to spend money undoing something they believe is proper or guessing wrong and being socked with thousands, if not millions in fines!

If that seems wrong to you, you’re not alone.  Justice Alito called the EPA’s approach “outrageous” and asked Deputy Solicitor General Malcolm Stewart, representing the EPA, “don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” This umbrage wasn’t limited to the right wing of the Court as Justice Breyer, a Clinton appointee, noted “For 75 years, the courts have interpreted statutes with an eye toward permitting judicial review, not the opposite.”   I’d say it doesn’t look good for the EPA on this, nor should it. This is one they deserve to lose.