William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.” Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform. He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme Court. Wwb11@law.georgetown.edu. Office phone (202) 661-6536.
The United States Environmental Protection Agency and the Army Corps of Engineers on May 27, 2015 released their much awaited and debated final rule articulating what are federally protected jurisdictional “waters of the United States.” Before anyone outside the executive branch could have possibly read the 700 plus pages of legal analysis in the new “Waters Rule” (also referred to as the Clean Water Rule), supporters were lauding it and critics were once again making claims of limitless federal power. House Speaker John Boehner called it a “tyrannical” action. The New York Times provided little analysis of the Rule’s substance, instead quoting partisans and especially regulatory critics about their views. Most environmental groups praised the action, but one group, the Waterkeeper Alliance, criticized the final rule as unduly weak.
This essay analyzes the final Waters Rule, highlighting changes and choices and also assessing clashing claims about the Rule. Perhaps unsurprisingly in this time of political gridlock and partisan acrimony, recent strident claims of regulatory overreach have little basis in reality, especially measured against consensus approaches of past presidents and abundant court rulings since the 1970s. In reality, the new Waters Rule restores some areas of jurisdiction lost due to regulatory forbearance and uncertainty after three Supreme Court cases created legal confusion. Nevertheless, the new rule’s jurisdictional reach actually is narrower than historically claimed by regulators or upheld in dozens of court decisions.Full text
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants. And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals. In an earlier blog analysis, I assessed the statutory language and how it provides EPA with considerable latitude to allow for flexibility and trading of pollution.
Now we have the actual proposal, which in turn solicits comments as the next step in the notice and comment process. Weighing in at 645 pages, this proposal will be scrutinized by legions of lawyers, environmentalists, and political pundits in the coming months. Nevertheless, a quick review of this important proposal reveals its basic logic and strong legal basis. Most importantly, it provides a huge amount of flexibility and room for cost-effective trading and energy efficiency. It also is careful not to punish utilities and jurisdictions that have been leaders in their embrace of GHG reducing strategies and energy efficiency. If finalized, markets for energy efficiency and reduced energy demand should thrive, as should carbon trading markets.Full text
In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows.
This issue presents several important choices and issues. First, regulation of existing US fossil fuel burning power plants—the source of over 30% of US carbon dioxide emissions-- is unavoidably central to US efforts to reduce GHG emissions. Second, in the face of the federal government’s long climate change inaction, many states and regions have already created programs and laws designed to reduce GHG pollution. Some have embraced variants on cap-and-trade schemes, or enacted renewable portfolio standards, or developed demand reduction strategies focused on other sectors, technologies, and consumer use. How would new Section 111(d) mandates mesh with diverse state efforts? Over the long term, Section 111(d) regulation could demonstrate to congress, states, industry and perhaps the world what is possible by providing a major testing ground and microcosm for more comprehensive climate regulation, whether at the national or international level.
A major dividing line in early comments is whether states can adopt diverse strategies that consider or allow strategies such as pollution trading, or whether such regulation needs to focus “inside the fence line,” meaning regulatory limits no more stringent than could be derived through a more individualized unit or plant-based analysis. Much of the early commentary may just reflect taking of sides, but if taken seriously seems to show misunderstandings of the actual language of Section 111(d) and several crucially important cross references.Full text
On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes. It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 “guidance” document regarding what “waters” could be protected; it had been in limbo for many months before the White House regulatory “czar,” the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just a draft. Even under the most optimistic scenario, it will be months, perhaps years, before these draft proposals are finalized. Nevertheless, these steps have already provoked news attention, blistering attacks by legislators and industry groups, and applause by environmental groups. Why all the hoopla?
This blog provides context about these actions, explains why the stakes are indeed high, and flags the key issues and likely points of contention as this ongoing regulatory war unfolds. By way of disclosure, I should note that although I draw mostly on the study of the relevant legal materials and developments, I also draw from my own immersion in the issues. I co-authored a Supreme Court brief for a bi-partisan group of former US EPA Administrators in the Supreme Court’s Rapanos case and then subsequently testified several times before congressional committees about many of the questions discussed here. All of those involvements, however, were on an uncompensated pro bono basis. I’m writing this blog for CPR as a professor and member-scholar of the Center for Progressive Reform, not as counsel for any stakeholder in these battles.
When the issue of what sorts of “waters” are subject to federal protection—so called “jurisdictional” waters—last went before the Supreme Court in the 2006 Rapanos case, this seemingly obscure question under the Clean Water Act provoked dozens of amicus briefs from industry, environmentalists, governments, and various organizations. Although the Bush administration was often viewed as anti-environment, inRapanos it offered a spirited defense of longstanding federal protections of America’s waters. Lines to hear the oral argument snaked around the Supreme Court. After the Court issued a confusing splintered ruling, congressional committees held at least four directly related sets of hearings about the decision’s implications, possible responses, and to debate proposed curative legislation. Even in the contentious world of Washington’s ongoing partisan gridlock, this much attention has been extraordinary.Full text
The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed. A loss for the environment? Actually, the careful and narrow Supreme Court ruling dodged a potential weakening of the CWA, and appears to have left open for consideration whether conceded permit violations by the Los Angeles County District meant it deserved to be held liable. The case potentially could have weakened the centrality of self-reported discharge permit violations and decades of rulings that such violations result in strict liability. The Court, however, dodged such a result, explicitly leaving that issue open in reversing and remanding the case. [Disclosure—I played a limited role in advising the plaintiff-respondent NRDC in this case.]
The case involved numerous self-reported water quality violations by the Los Angeles County Flood Control District. The District, and numerous other municipalities discharging stormwater into the same water bodies, were together allowing too many pollutants to flow into the Los Angeles and San Gabriel Rivers, degrading the water bodies more than allowed in the District permit The 9th Circuit, however, wrote an opinion revealing discomfort with holding the District liable if there was no proof that the Los Angeles County District itself was responsible for such exceedances. And in so doing, the 9th Circuit made either a legal or factual error about the location of the CWA monitoring stations and the ability to attribute causation for violations to the Los Angeles County District. Furthermore, as the District argued before the Supreme Court, parts of the 9th Circuit ruling could be read to violate the Supreme Court’s 2004 Miccosukee decision, which held that so-called discharges that just move polluted water from one part of a water body to another part of the same water body are not “discharges” at all. The Court granted the petition for a writ of certiorari on whether the District could be held liable after Miccosukee for so-called discharges that actually involved movement of polluter waters within the same water body. Before the Supreme Court, parties on both sides (including NRDC), and the United States in its amicus brief, agreed that there couldn’t be liability for water pollutant movements within the same waterbody And today the Supreme Court agreed, restating the basic conclusion in Miccosukee.Full text
The Supreme Court today issued its much-awaited ruling in Williamson v. Mazda. Could an injured or deceased plaintiff sue under common law for damages allegedly attributable to the lack of a rear inner seat seatbelt, when the Department of Transportation (DOT) had declined to require such belts while requiring other seat belts? The case on its face appeared much like the Court’s earlier Geier v. American Honda Motor Co decision, issued in 2000, in which the Court held that a common law injury claim for the lack of an airbag was preempted due to DOT’s decision to allow manufacturers to choose among safety devices. Many lower courts had read Geier expansively, thus preempting claims like those now presented in Williamson. But the reach of that ruling was always in question since the Geier case could also be read in a narrow way, limited to the particular DOT regulatory action, and also because the National Traffic and Motor Vehicle Safety Act actually contained a “savings clause” that explicitly stated that compliance with a “federal safety standard does not exempt any person from liability under common law.” The Geier Court sidestepped that language by concluding that DOT’s regulatory allowance of manufacturer choice precluded a jury concluding under a common law claim that the manufacturer should earlier have put an airbag in place. Such a claim in Geier was held preempted under so-called conflict or “obstacle” preemption doctrine.
The Supreme Court today in Williamson soundly rejected the lower court’s ruling and issued a decision that limits Geier and shows greater respect for Congress’s actual statutory language. The ruling contains several critical building blocks that will now be much-used in future injury and preemption litigation. First, the Court looked closely at the actual underlying regulatory action to see if the federal agency really had meant to preclude common law claims, as well as whether a common law injury claim would actually clash with the agency’s choice and that choice’s underlying rationale. DOT here had not expressed a pro-preemption view, and in issuing its standard about seat belts had basically said it wouldn’t require them in rear center seats but hoped manufacturers would find ways to install them and enhance safety. If a safety standard is to be the source of a preemption claim, Williamson as precedent will call for close attention to what the agency really did. The mere existence of a related safety standard will not suffice. And the mere fact that the DOT assessed costs and benefits in rejecting such a mandate did not preclude the Williamsons’ lawsuit. “[T]hat negative judgment about cost effectiveness . . . cannot by itself show that DOT sought to forbid common-law tort suits in which a judge or jury might reach a different conclusion.” To hold to the contrary would turn regulatory floors, or minimum standards, into “maximum standards.” Such a conclusion could not “be reconciled” with the law’s “statutory savings clause.”Full text
Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and local government actions to address climate risks, fourteen senators and a group of leaders of state environmental agencies recently sent letters to Kerry, Graham, and Lieberman arguing for preservation of state authority to address climate ills. These letters show that some national and state leaders appreciate the importance of climate federalism choices and the value of state action. However, despite historical lessons, a decade of state and local climate leadership, and risks of federal climate policy shortcomings, it is not clear if many environmentalists or enough legislators see preserving state roles as a battle worth fighting. This essay explains the federalism choices, their implications, and the main arguments for broadly and clearly preserving state and local roles.
I. Key Federalism Choices in Leading Bills and Proposed Amendments
The leading House and a Senate bills differed in some of their details, but in many respects shared similar architecture and regulatory strategies. Their key provisions would set up a greenhouse gas (GHG) cap-and-trade regime, under which GHG allowances and offset credits could be bought and sold, provided the aggregate GHG levels stayed below a declining, federally set cap. In addition, an array of other measures would either mandate or encourage lower pollution by large emitters, greater efficiency of energy-draining appliances, and smarter uses of transportation and urban planning. A smattering of provisions also would try to reward technological innovations that help address climate change causes and resulting harms.Full text
This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30
The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the bill’s basic functioning. It retains some of the best elements of the Waxman-Markey bill passed by the House and improves on others, but it leaves unresolved some fundamental choices that could lead to implementation uncertainties down the road. In particular, this analysis will focus first on error risks, especially on the extent to which the bill allows for regulatory agencies to fix mechanisms in the bill that fail to perform, or adjust for assumptions that turn out to be wrong. This analysis will then look at federalism and enforcement provisions that are among the mechanisms that can keep an enacted climate bill on track and also help address shortcomings in the law’s accomplishments.Full text
In the Waxman-Markey bill, as in any proposed federal legislation, a key question concerns the ongoing role of the states. States have long played positive, cooperative and often innovative roles in working to accomplish environmental goals. But state activism is not met with universal applause. In the climate change area, as in other environmental law areas, one of the motivations for industry support of federal legislation is a stated concern with too many different state approaches. The state and local climate laws and several regional cap and trade schemes that are prompting calls for a single federal law, however, have already produced templates for federal law and helped identify strategies to embrace and avoid. So a key question has been how Waxman-Markey would preserve state roles, enlist the states or preempt and thereby displace their regulatory power. Full text
Center for Progressive Reform Member Scholar William Buzbee blogs on the Supreme Court's decision in Summers vs. Institute, and its implications for future environmental and other citizen litigation: On March 3rd, the Supreme Court issued its much awaited decision in Summers v. Earth Island Institute. This was the latest in a series of cases dating to the early 1990s where the central question has concerned citizen standing: will the courts allow a citizen to stand before a court to argue that government or private action violates the law? In Summers, the environmentalists' challenge involved a few layers.... (To read the rest of this post, click the headline.) Full text