Environmental Protection

  • November 13, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    News broke last week that the New York Attorney General is investigating Exxon Mobil for providing false information about climate change to investors and the public. Similar investigations of other energy companies may be on the horizon.

    Specifics about the investigation are in short supply. This could be, as an article in Forbes suggests, the opening salvo in a billion dollar litigation campaign like that brought against big tobacco for concealing information about the health risks of smoking. Or it could be a more limited effort to ensure that energy companies fully comply with their obligations to disclose information under securities laws.

    My guess is the latter is true. Just four days ago, the New York AG’s office announced that it had entered a settlement with Peabody Coal under which the company would revise shareholder documents and more fully disclose climate risk in the future. In 2008 and 2009, the New York AG entered similar settlements with three other energy companies. These settlements do not involve million or billion dollar payments, but rather, simply require better information about the risks that climate change poses to the financial health of the companies involved. Frankly, they look a lot like run-of-the-mill settlements of potential securities violations. No one would pay any attention except they involve the words “climate change.”

    Not only does this investigation seem relatively unremarkable, it also seeks to vindicate principles upon which we should generally be able to agree. Legal regimes that require information disclosure need enforcement to stay vigorous.

  • September 15, 2015
    Guest Post

    by Jamie Pang, Center for Biological Diversity   

    The right to petition the federal government for a "redress of grievances" is one of the heralded freedoms guaranteed in the Bill of Rights.  This right has been codified by the Administrative Procedure Act, and ensures that any citizen can petition an administrative agency of the executive branch to take a course of action.  The ability of citizens to petition the government to make progressive change has been a critical tool under the Endangered Species Act ("ESA"), Clean Air Act, and Clean Water Act, among many other laws.  For example, a citizen petition was the precursor of the landmark Supreme Court case Massachusetts v. Environmental Protection Agency, which requested that the EPA regulate greenhouse gases as a pollutant.  At its most basic, the right to petition serves as a powerful tool that levels the playing field for citizens and  watchdog groups to ensure that environmental protections are not weakened by industry or state governments hostile to progressive change. 

    This summer, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively the "Services") proposed to severely limit the ability of private citizens and organizations to petition for protection of imperiled species as threatened or endangered under the Endangered Species Act. One of the most troubling aspects of this proposal is a requirement that any individual or organization petitioning to have a species listed under the ESA submit their petition to every state where the species may occur (live) prior to submitting the proposal.  Going further, the petitioner must allow each state to respond, refute, or comment on the petition.  The petitioner must also append any responsive information provided by a state agency to the petition, without the opportunity to rebut any information that may be adverse to the petition.  On a practical level, the proposal essentially gives potentially hostile states that are resistant to federal wildlife protections veto power over the petition.  On a constitutional level, the proposal violates the basic right of free speech to the extent that it requires a petitioner to act as a mouthpiece for state data.

    The second proposed requirement would mandate that a petitioner gather "all relevant information" regarding the imperiled species and include that information with the petition.  This unbounded requirement effectively forces a petitioner to act as if they are an expert government agency and compile an enormous amount of information at great cost.  Despite the ESA’s clear instruction that the government has the burden to conduct status reviews of imperiled species, this proposal would burden ordinary citizens with the nearly impossible task of collecting hundreds , if not thousands, of articles, books, reports and virtually everything about the species available on the internet.  The petitioner must legally "certify" that he or she has fully complied with these requirements under penalty of law.  These broad requirements will likely have a chilling effect on speech.  They will dissuade citizens, individual scientists and non-profit organizations from filing petitions to protect species and thereby infringe on the first amendment right to petition.

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Challenge to the EPA’s Clean Power Plan Regulations

    Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.

    But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

    EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.

  • June 29, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

    1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The case will go back to the D.C. Circuit for it to figure out how to address the Supreme Court's ruling. Certainly the case will eventually have to return to EPA; the D.C. Circuit itself will not attempt to undertake the consideration of costs the Supreme Court has ordered. But what happens between the time the case goes back to EPA and the time EPA makes a decision in light of the Supreme Court's ruling? That depends on the D.C. Circuit. The court will need to decide whether to remand or to vacate and remand; that is, whether to simply send the matter back to EPA while leaving the rule in place, or undo the rule in the interim. The D.C. Circuit has lately remanded quite a few agency rules, especially environmental rules, without vacating them. Given the amount of discretion left to the agency by the Supreme Court's decision (see below), and the fact that EPA has previously stated that the rule is justified even in light of its costs, I believe there is a strong case for remand without vacatur.

    2. We do not yet know how EPA will or should take costs into account in revisiting the issue of whether to regulate power plants under section 112. The Court left this matter to EPA, with the qualification that the agency's treatment of costs must be, "[a]s always, within the limits of reasonable interpretation." The Court emphasized that it was not holding that the agency must conduct "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Beyond that, the Court gave little hint of the kind of analysis it would approve. At times, it seemed to be looking for a judgment about whether costs were disproportionate to benefits; at other points, it seemed to highlight cost-effectiveness analysis. These are different inquiries, and it will now be up to EPA – at least in the first instance – to decide which of several cost-sensitive frameworks to use. My sense from the Court's opinion is that as long as EPA considers costs in some fashion, whether through formal cost-benefit analysis or something far more qualitative, it will be sufficient.

    3. We do not yet know which benefits EPA may consider for purposes of the additional analysis the Court has required. Although EPA conducted a formal cost-benefit analysis of the rule for purposes of White House regulatory review, and that analysis included billions of dollars in "ancillary" benefits due to reductions in air pollutants not covered by the air toxics program, the Court did not decide whether these ancillary benefits may be included in the analysis yet to come. That is, the Court said, "a point we need not address." Several justices seemed skeptical of these benefits at oral argument, and there is some (small but discernible) textual basis for excluding them. A number of commentators have argued that EPA must be able to consider such benefits because they are included in standard economic practice and because an OMB circular on cost-benefit analysis, dating from the George W. Bush administration, admits them in the cost-benefit framework. I don't think economic practice and an OMB circular will decide this question, but I do think it would be quite aggressive for a court to tell EPA which regulatory benefits count.

  • June 3, 2015
    Guest Post

    by David R. Baake, Ford Foundation Post Graduate Fellow and Associate Advocate, Natural Resources Defense Counsel.

    Last June, the Environmental Protection Agency (EPA) proposed the Clean Power Plan, an initiative to cut carbon pollution from the power sector by 30 percent from 2005 levels. By any metric, the Clean Power Plan is smart policy. The Plan puts the United States on track to cut carbon pollution by 730 million metric tons, an amount equal to the annual emissions of 150 million cars. It is the centerpiece of the United States’ effort to meet its commitments under the historic U.S.-China climate accord, and it will allow the United States to assume a leadership role in the international negotiations for a universal climate agreement set to conclude in Paris this December. It will prevent thousands of premature deaths (by reducing emissions of smog, soot, and other dangerous pollutants), create tens of thousands of new jobs, and save consumers money on their electric bills. All told, the Plan is expected to create tens of billions of dollars in net benefits for the United States.

    Even so, the Plan will engender a fierce, protracted legal battle (as many of President Obama’s other major domestic initiatives have). Industry groups, together with states that are opposed to greenhouse gas regulation, have promised to use every legal device at their disposal to “gum up the works” for EPA, and judging by the five challenges they have already filed to EPA’s proposed rules, this is a promise they intend to keep.

    EPA’s opponents have developed a host of colorful legal arguments as to why the Clean Power Plan must be rejected in its entirety. But most observers expect the fate of the Plan to turn on a single issue: whether EPA may establish emission goals based on measures such as renewable energy and demand-side energy conservation that are implemented “beyond the fenceline” of regulated power plants. I take up this issue in a forthcoming comment in the Environmental Law Reporter.