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Can You Stand to Hear More About Sackett?

Cross-posted from Legal Planet.

As usual, I’m behind Rick on commenting on the latest Supreme Court development. (In my defense, it is the first day of classes, although I know that’s not much of an excuse.)

Unlike Rick, I didn’t attend the oral argument (see lame excuse above), but having read the transcript I agree with the general consensus that EPA is going to lose this case.

However, I don’t agree with Rick’s conclusion that “the Sacketts will wind up winning their long legal battle with federal regulators.” That remains to be seen. Remember, this is all a preliminary skirmish. EPA has said at this point that it believes the Sacketts are in violation of the Clean Water Act. Sacketts disagree, and think they should be able to challenge EPA’s view without waiting for EPA to bring an enforcement action against them. The lower courts said no to that. The Supreme Court seems certain to reverse, but all that means is that Sacketts will get their day in court. If EPA is right, Sacketts will still not be able to fill their parcel without a permit, and they’ll still be subject to EPA’s order that they remove the fill and restore the property.

Three other things I take away from my read of the transcripts.

1. This decision is going to be statutory, based on the Administrative Procedure Act and Clean Water Act. The Court showed no interest in the due process claim, which it doesn’t need to reach if it holds there is a statutory right of pre-enforcement review.

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How the Tenth Circuit Upheld the Clinton-era Roadless Rule

Cross-posted from Legal Planet.

You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency.

The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, and got it invalidated by the District of Wyoming federal court on the grounds that its issuance violated both NEPA and the Wilderness Act. Before the Tenth Circuit heard the government’s appeal, the Bush Administration replaced the Roadless Rule with what it called the State Petitions Rule, giving states the first crack at deciding how inventoried roadless areas within their boundaries should be managed. The Tenth Circuit therefore dismissed the appeal as moot and vacated the District Court opinion.

But then the Ninth Circuit struck down the State Petitions Rule, holding that the Bush administration had failed to comply with NEPA and the consultation requirement of the Endangered Species Act. After the Ninth Circuit reinstated the Roadless Rule, Wyoming renewed its challenge to that rule. The District of Wyoming once again ruled for Wyoming, and enjoined implementation of the Roadless Rule nationwide. Environmental groups appealed, and were later joined by the Obama Administration. Now, more than 3 years after the District of Wyoming issued its decision, the Tenth Circuit has finally reversed.

The Circuit Court rejected the claim that the Roadless Rule “created de facto wilderness areas” in violation of the Wilderness Act, which provides that only Congress can designate an area as statutory wilderness. It noted that management of wilderness areas is more restrictive in several respects than management of areas covered by the Roadless Rule.  The Tenth Circuit also held that the Roadless Rule is within the broad discretion granted the Forest Service by its governing statutes, and that the Forest Service complied with NEPA in issuing the rule.

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Lisa Jackson at Berkeley Law

Cross-posted from Legal Planet.

Yesterday, Berkeley Law’s Center for Law, Energy, and the Environment hosted a public presentation by EPA Administrator Lisa Jackson. She delivered brief prepared remarks, then took a lot of questions. She didn’t announce any new policy initiatives, but she did make it clear that she (and the President) are not going to cave to pressure from Republicans in the House.

Jackson did seem glad to be well outside the Beltway for a while, and who can blame her? She noted that the House has taken some 170 anti-environmental votes this term, more than one for every day it has been in session. And she’s been called in for a number of grillings. Although she faced some difficult questions in Berkeley, she noted that at least Dan Farber, who moderated the questions, didn’t frame each of them as a five-minute tirade against the EPA, and that she was actually given time to respond. She didn’t shy away from any of the questions, which covered the gamut from the delay in issuing new ozone regulations to EPA’s role in the Keystone Pipeline decision to regulation of concentrated animal feeding operations and of toxic chemicals.

This is the first time I’ve seen Jackson speak in person. I was very impressed, with two things standing out for me. First, she truly does seem optimistic despite facing a hostile Congress and challenging (to put it mildly) budget times. She’s clearly both tough and resilient. Second, she has absolute command of what’s going on in her agency, not just on the regulatory side but also at the research labs, and also of the network of interrelated initiatives at other agencies. Whether you agree with EPA’s decisions under her watch or not (and probably most of us, wherever we stand on the political spectrum, can find something to disagree with), you have to respect Administrator Jackson and her approach to her job. She’s the kind of public servant I’d like to see more of in Washington.

Video of the session should be available on the CLEE website soon.

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UK Report: Behavioral Change Takes More Than a Nudge

No one seems to like the idea of regulation these days. Nudges, alternatives that try to get people to voluntarily alter their behavior by changing the context in which they make decisions, have been widely touted as a better approach. Cass Sunstein, Obama’s “regulatory czar” in the Office of Management and Budget, is a leading proponent of the “nudging” idea, and the co-author of a popular book promoting the concept that people should be gently helped to make better decisions for their health and welfare, rather than ordered to do so.

No one is against incorporating nudges into policy, at least no one I know. But the proponents of nudging sometimes make it sound like nudging should entirely replace more coercive approaches. A new report from the UK’s House of Lords Science and Technology Committee throws some cold water on that idea. The report concludes that nudges in isolation are often not as effective as a combination of voluntary and regulatory measures, and that the enthusiasm for nudges is not backed up by much evidence of success.

From the report’s summary:

Our central finding is that non-regulatory measures used in isolation, including “nudges”, are less likely to be effective. Effective policies often use a range of interventions.

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EPA Finalizes Mountaintop Removal Guidance

Cross-posted from Legal Planet.

After a three-and-a-half month delay for White House review, EPA has finalized its guidance for review of mountaintop removal mining permits in Appalachia. I needn’t have worried that the White House would roll EPA Administrator Lisa Jackson on this one. The final guidance maintains the strong stand EPA took last April when it issued the interim guidance it finalized today.

The thrust of this final version, like the interim guidance, is that EPA will actually exercise its oversight authority to make sure that permit decisions follow the law. That hasn’t exactly always been the case for mountaintop removal mining, or really for many Clean Water Act permits.

Mountaintop removal mining operations typically require two types of Clean Water Act permits:  NPDES permits under § 402 for dumping pollutants into the nation’s waters, and wetlands filling permits under § 404. The Clean Water Act sets up an intricate state-federal partnership for NPDES permits, and a Corps of Engineers-EPA partnership for § 404. In both cases, an important part of EPA’s role is to oversee the actions of its partners. This guidance makes it clear that EPA will take that role seriously.

NPDES permits are typically issued by the states under authority delegated by EPA. They are required to include both technology-based pollution control requirements and, if those are not sufficient to protect water quality, additional limitations to make sure that state water quality standards are not exceeded. Those water-quality based restrictions are the key for mountaintop removal permits; this isn’t like a factory outfall where pollution control equipment can be installed at the end of the pipe. But water-quality based restrictions are a notorious weak point of NPDES permits, both in general and specifically, as EPA found in a review before it issued the interim guidance, for surface coal mining permits. The Clean Water Act gives EPA the responsibility to oversee, and if necessary object to, state-issued NPDES permits. This guidance explains what EPA regions should look for in reviewing NPDES permits, including what information the permittee provides; how evaluation of whether the permit has the potential to cause a water quality violation is approached; how compliance with narrative water quality standards is evaluated; and what water-quality based effluent limits are included.

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White Paper on Habitat Conservation Plans and Climate Change

Cross-posted from Legal Planet.

Melinda Taylor at the University of Texas School of Law and I have just put out a white paper on Habitat Conservation Plans and Climate Change: Recommendations for Policy.  It can be accessed here through Berkeley Law’s Center for Law, Energy and the Environment, or here through UT’s Center for Global Energy, International Arbitration, and Environmental Law.

A lot of attention has been paid lately to what role, if any, the Endangered Species Act should play in addressing greenhouse gas emissions.  Much less attention has been paid to the ways that climate change complicates implementation of the Act’s established tools, such as habitat conservation planning.

The ESA prohibits the “take,” broadly defined, of endangered and most threatened animal species. Nonetheless, the Fish and Wildlife Service and National Marine Fisheries Service can issue “incidental take permits” allowing some take incidental to otherwise lawful activities (like logging or development) if certain conditions are met. Permit applicants must submit a habitat conservation plan (HCP) detailing the taking the proposed action will cause, its impacts, mitigation measures, and alternatives the applicant considered. A permit is issued if the FWS or NMFS finds that the taking is incidental to the proposed activity, the applicant will minimize and mitigate the impacts of the taking to the maximum extent practicable, the applicant will ensure adequate funding for the conservation plan, and the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. ESA § 10(a)(2); 16 U.S.C. § 1539(a)(2).

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The New BOEMRE-NOAA MOU: A Good Start, But More is Needed

Cross-posted from Legal Planet.

I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental Affairs Law Review.

As reported by the Times:

The accord will require regulators to “explain in writing any decision not to incorporate a comment by NOAA,” and allow the agency to respond to those explanations.

This is good news, but with some limitations that may not be obvious at first glance. The Memorandum of Understanding is largely aimed at increasing communication between the two agencies, and coordination of their respective work on outer continental shelf energy permitting (both for fossil fuel and renewable resources). It does provide that NOAA will have a chance to comment on BOEMRE’s draft 5-year plans for offshore oil and gas development before those plans are released to the public. It gives NOAA a chance to review exploration and development plans, the stage at which environmental review was most dramatically failing prior to the Deepwater Horizon blowout. It allows NOAA to be involved early on in the NEPA process at all stages of OCSLA decisionmaking. And it indeed does provide that

BOEMRE will document and explain in writing any decision not to incorporate a comment by NOAA and NOAA will have an opportunity to respond, if possible, prior to finalization of the relevant document.

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White House Review Delays EPA Mountaintop Removal Guidance

Cross-posted from Legal Planet.

EPA has announced that it will delay finalizing its guidance memorandum on Clean Water Act permitting for mountaintop removal mining projects pending review by the White House Office of Management and Budget. The announcement is bad news for Appalachian streams, and worse news for environmental interests hoping the Obama administration won’t completely cave to regulated interests.

The guidance was issued in interim form on April 1 of last year. EPA described the memorandum as clarifying how it would review requests for Clean Water Act permits in support of mountaintop removal mining and its expectations of state permitting agencies and the Corps of Engineers. Despite the date of the guidance, EPA wasn’t fooling. The guidance signaled  a new, more aggressive attitude toward EPA’s oversight role, an attitude associated with enhanced review of permit applications and even a rare veto of a permit that had been approved by the Corps.

Not surprisingly, the coal industry is fighting back in all available venues. It’s had some initial success in the courts and is working hard on the Congress, as I hope to explain in another post. This news, though, shows that the White House might turn out to be the easiest of targets.

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Right on the Commerce Clause, Wrong on the ESA

Cross-posted from Legal Planet.

As Rick noted earlier, the Ninth Circuit is now the fifth federal circuit court of appeals to reject a Commerce Clause challenge to the ESA. In San Luis & Delta-Mendota Water Authority v. Salazar, a Ninth Circuit panel upheld protection of the Delta smelt. I agree with Rick’s analysis of the Commerce Clause holding, but wanted to make two additional points. First, while a petition for certiorari is almost inevitable, it’s unlikely to be granted. But second, the portion of the opinion dealing with standing and ripeness misinterprets the ESA in a way that may cause headaches for environmental interests in the future.

First, I’m more confident than Rick seems to be that the Supreme Court will leave this case alone. The Court has already passed up several opportunities to address the application of the Commerce Clause to the ESA. It will do so again this time. Not only is there not a circuit split, there’s a remarkably strong consensus among the courts of appeal that the ESA can be constitutionally applied to protect intrastate species. There is not a clear consensus on rationales, and some tough doctrinal questions remain about the extent to which it’s appropriate to aggregate protection of the full range of species for purposes of evaluating the connection to interstate commerce. It wouldn’t shock me if the Court eventually decided to deal with those issues, but this case is not a good vehicle for exploring them. For one thing, the regulated activity in this case, irrigation deliveries to commercial farming operations, has a clear effect on commerce without any need for aggregation. More importantly, the only section of the ESA that has been or is likely to be applied to regulate irrigation deliveries through the Delta pumps is section 7, which requires consultation on federal actions which may adversely affect listed species. The federal government doesn’t need to show a connection to interstate commerce in order to impose procedural requirements on its own actions.

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Supreme Court Won't Hear Critical Habitat Cases

Cross-posted from Legal Planet.

The Supreme Court on Tuesday denied certiorari on two Endangered Species Act cases, Arizona Cattle Growers Association v. Salazar and Home Builders Association of Northern California v. US Fish and Wildlife Service. The cases were considered together because they raise the same issue: how the economic impacts of critical habitat designation should be calculated. Development and extraction interests hoped the Court would use the cases to force the U.S. to take a broader view of those impacts.

The ESA requires that the Fish and Wildlife Service designate critical habitat when it lists a species as endangered or threatened. The listing decision must be based solely on the species’ biological status. In determining critical habitat, by contrast, FWS must take into economic and other impacts into consideration and may exclude areas from critical habitat if it finds “that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless including the area is necessary to prevent extinction.

FWS has adopted what it calls a “baseline” approach to the required economic analysis. It considers only the incremental costs imposed by critical habitat designation on top of any costs already imposed by listing alone. The costs imposed by ensuring that federal actions do not jeopardize the continued existence of a listed species, as section 7 requires, or by section 9′s prohibition on unpermitted take, do not factor into the agency’s determination of critical habitat. The resulting economic analyses generally conclude that the economic impacts of critical habitat will be fairly small. In its recent economic analysis of critical habitat designation for the polar bear, for example, FWS opined that critical habitat designation would not bring any additional conservation requirements. It concluded that the only costs added by critical habitat were a small amount of additional administrative costs associated with more complex section 7 consultation.

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