Should agencies be allowed to issue interpretive rules without public input?

The Administrative Procedure Act (“APA”) states that agencies must engage in notice-and-comment rulemaking, a three-step process that requires agencies to notify and solicit public feedback, before promulgating a legally binding regulation.[i]  The APA does not, however, require notice-and-comment for “interpretative rules, general statements of policy, or rules of agency organization . . . or practice.”[ii]  Whether agencies should be allowed to issue interpretive rules without soliciting public input is an important and evolving issue in administrative law.

The APA does not define interpretive rules,[iii] but the Attorney General’s Manual on the APA describes them as “rules or statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.”[iv]  Agencies use interpretive rules to establish how their regulations will apply in situations that were unforeseen when a regulation was promulgated, to resolve ambiguities, and to provide information to regulated parties on the way the agency plans to administer a certain program.[v]

Exempting interpretive rules from the notice-and-comment requirement affords agencies a degree of flexibility and enables them to issue timely communications to the public without having to engage in the cumbersome, time-consuming, and expensive notice-and-comment procedure.[vi]  On the other hand, this flexibility can be a cause for concern.  Some scholars have argued that interpretive rules, while not legally-binding, are often “practically binding,” and that enabling agencies to issue binding rules without soliciting public input is problematic.[vii]  As one scholar noted: “The agency treats the interpretation as dispositive of the question involved, and private parties can ignore it only at their peril.”[viii]  Because the APA does not explicitly define interpretive rules, moreover, it can be difficult to distinguish between legislative rules that require notice-and-comment and interpretive rules that do not.[ix]

Allowing agencies to issue interpretive rules without engaging in notice-and-comment rulemaking may also permit agencies to change the way they interpret and enforce regulations from one administration to the next.  The D.C. Circuit recently addressed this very issue in Mortgage Bankers Ass’n v. Harris, invalidating an interpretive rule the Department of Labor (“DOL”) set forth in 2010 to rescind an interpretation it previously issued in 2006.  The court reaffirmed a line of D.C. Circuit cases holding that once an agency has given a regulation a definitive interpretation, it may not significantly revise that interpretation without first engaging in notice-and-comment proceedings.[x]  The court reasoned that because “a definitive interpretation is so closely intertwined with the regulation, . . . a significant change to the former constitutes a repeal or amendment of the latter,” which should trigger the notice-and-comment requirement.[xi]

DOL has petitioned the Supreme Court to review the D.C. Circuit’s opinion.[xii]  DOL argues that because interpretive rules reflect only the agency’s “own views” and do not have the force of law, it does not makes sense to “force agency decisionmakers to dedicate limited agency time and resources” engaging in notice-and-comment rulemaking “simply to inform the public about the agency’s views on the meaning of relevant statutory and regulatory provisions.”[xiii]  DOL also observes that the Courts of Appeals do not agree on this issue and requests that the Court grant certiorari to resolve the split.[xiv]  Lastly, DOL argues that requiring an agency to complete notice-and-comment rulemaking would be inconsistent with the APA and would violate the Vermont Yankee rule that the APA’s rulemaking provision “specifies the ‘maximum requirements which Congress was willing to have the courts impose on agencies’ for rulemaking.”[xv]

A group of 72 administrative law professors have filed an amicus brief in support of the government’s petition.[xvi]  The professors contend that requiring agencies to engage in notice-and-comment rulemaking before issuing interpretive rules would make agencies less likely to respond to requests from regulated entities for clarification as to whether and how agency regulations would apply in a particular situation.  This, the professors argue, would “create unnecessary uncertainty for regulated firms and for the general public.”[xvii]

Mortgage Bankers’ response to DOL’s petition is currently due on May 2.[xviii]  If the Supreme Court decides to hear the case, its decision will likely have important implications for administrative agencies seeking to revise and refine the way they interpret and apply pre-existing regulations.  Perhaps the Court will provide a clearer way to differentiate between legislative and interpretive rules.  Or maybe the Court will determine that, despite the language of the APA, certain types of interpretive rules are sufficiently significant to require notice-and-comment rulemaking.  We will have to wait and see.[xix]

 

-Sommer Engels is a general member on MJEAL.  She can be reached at shengels@umich.edu.



[i] 5 U.S.C. § 553.

[ii] 5 U.S.C. § 553(b)(A).

[iii] Although the APA calls these informal statements “interpretative rules,” they are more commonly referred to as “interpretive rules.” William Funk, A Primer on Nonlegislative Rules, 53 Admin. L. Rev. 1321, 1352 n.2 (2001).

[iv] Attorney General’s Manual on the Administrative Procedure Act at 30 n.3, available at, https://archive.org/details/AttorneyGeneralsManualOnTheAdministrativeProcedureActOf; see also Funk, supra note 3, at 1324-25.

[v]  Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1313 & n.5 (1992); Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397, 399-400 (2007).

[vi] Funk, supra note 3, at 1323; Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretative Rules, 52 Admin. L. Rev. 547, 550-51 (2000).

[vii] Anthony, supra note 5, at 1314 n.6, 1327-32 (practically binding in effect); see also Funk, supra note 3, at 1323.

[viii] Anthony, supra note 5, at 1314 n.6.

[ix] Pierce, supra note 6, at 547-48 (“Courts often refer to the distinction between [legislative rules and interpretive rules] as ‘fuzzy,’ ‘tenuous,’‘blurred,’ ‘baffling,’and ‘enshrouded in considerable smog.’”).

[x] Mortgage Bankers Ass’n v. Harris, 720 F.3d 966, 967 (D.C. Cir. 2013)(citing Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997); Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999)).

[xi] Id. at 969 n.3 (internal emphasis omitted)(citing Envtl. Integrity Proj. v. EPA, 425 F.3d 992, 997 (D.C. Cir. 2005)).

[xii] Petition for a Writ of Certiorari, Perez v. Mortgage Bankers Ass’n, 2014 WL 825178 (Filed Feb. 28, 2014).

[xiii] Id. at *13.

[xiv] Id. at *16-18.

[xv] Id. at *19.

[xvi] Amicus Curiae Brief of Administrative Law Scholars in Support of the Petitioners, 2014 WL 1275189 (Filed Mar. 26, 2014).

[xvii] Id. at *7.

[xviii] Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-1041.htm.

[xix] The case has been docketed as Perez v. Mortgage Bankers Ass’n, Case No. 13-1041.

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Defining “Water”: EPA and Corps of Engineers’ Proposed Rule to Clarify Jurisdiction is a Positive Step Towards Greater Environmental Protection

 On March 25, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) announced that a proposal for a new rule defining “waters of the United States” as it appears in the Clean Water Act (“CWA”) would be appearing in the Federal Register for notice and comment in the coming weeks.[i] The definition is meant to clarify the scope of federal jurisdiction under the CWA, including the reach of the National Pollutant Discharge Elimination System (“NPDES”) permitting program, the oil spill prevention and response program, and the state water quality certification process.[ii]

The pre-existing regulatory definition is very broad; existing regulations (last codified in 1986) define ‘waters of the United States’ as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”[iii] However, recent Supreme Court decisions have called it into question by holding that the phrase “waters of the United States” as used in the CWA conferred authority over only those waters with a “significant nexus” to navigable waters (because waters of the United States is used as part of the Act’s definition of “navigable waters”).[iv] While not necessarily blocking EPA action, these rulings have made it more difficult for the agency to exercise its regulatory authority, because it must determine whether or not it has jurisdiction over a given body of water before even considering whether or not a regulatory action should be taken under the substantive provisions of the acts/regulations it administers.[v]  Determining whether or not it has jurisdiction over particular waters is more difficult for the agencies than it might seem. Several Supreme Court rulings make it clear that the administrative record must contain sufficient evidence/explanation to allow insight into an agency’s decision making processes, which typically requires extensive research, fact-finding and explication on the agency’s part before any action can be taken.[vi] Thus, the agency was required to engage in “time and resource demanding case-specific analysis prior to determining jurisdiction and any need for permit or enforcement actions.” [vii]

The proposed rule issued by the EPA and the Corps would remove this burdensome requirement in many situations by concluding, on the basis of the best available science, that certain water sources are, in a sense, “pre-cleared” as sources over which the CWA grants jurisdiction.[viii] This determination would be based on a peer-reviewed report by the EPA surveying a wide variety of scientific research and concluding that such sources have a “significant nexus” to navigable waters as defined in the CWA.[ix] These would include all “waters which are currently used, were used in the past, or may be susceptible to use in interstate commerce,” interstate waters (including wetlands), the territorial seas, as well as impoundments of the aforementioned waters and their tributaries.[x] The agencies would still be required to conduct case-specific analysis in order to exercise their jurisdiction over all “other” waters not mentioned in the proposed rule to determine whether or not those waters have a “significant nexus” to navigable waters.[xi] Additionally, the rule would (for the first time) explicitly deny the agencies jurisdiction over types of waters that have traditionally not been regulated, including “artificially irrigated areas that would revert to upland should application of the irrigation water to that area cease” and “water-filled depressions created incidental to construction activity.”[xii]

The most significant aspect of this “pre-clearance” is its application to “tributaries,” combined with the inclusion, for the first time, of a regulatory definition of that term as:

[A] water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined by 33 CFR § 328.3(e), which contributes flow, either directly or through another water, to a [larger body of water, such as a river, identified earlier in the regulation]. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified [earlier in the regulation]. . . . A tributary, including wetlands, can be natural, man-altered or man-made water and includes waters . . . . not excluded [by other parts of the regulation].[xiii]

The definition also explains that man-made breaks in tributaries do not deprive them of their status as a “water of the United States.” [xiv] It is this provision that will have the largest impact in reducing the number jurisdictional investigations the agencies must conduct before taking regulatory action.[xv]

Consequently, this is the provision of the rule, which has already drawn the most criticism, even though the official agency announcement of the rule has yet to appear in the Federal Register.[xvi] Various industries affected by EPA regulations (including the construction industry and various agricultural interests) argue that it will increase costs and waste taxpayer money by expanding the scope of agency jurisdiction.[xvii] In particular, farmers are concerned that irrigation ditches and other agricultural activities or uses of water might fall under EPA permitting regimes, while construction companies have expressed similar fears regarding water control measures (such as rainwater ditches) at construction sites.[xviii]

Perhaps in an attempt to head off such criticism, the EPA has expressly denied that the new rule would expand agency jurisdiction in a variety of outlets, including an op-ed by EPA Administrator, Gina McCarthy.[xix] Moreover, the EPA plans to simultaneously issue an interpretive rule addressing concerns that the new rule would increase oversight of farming activities.[xx]

Overall, the criticism of the agency’s proposed rule seems overblown for several reasons. First, it is worth noting that run-off from many industrial sites is already within the regulatory jurisdiction of the EPA.[xxi] Additionally, the proposed rule would not remove any of the myriad statutory limitations on the extent of EPA jurisdiction, including agricultural storm water discharges, maintenance of draining ditches, and return flows from irrigated agriculture. [xxii] The mere fact that the agency need not conduct jurisdictional analysis as to a particular source of water does not mean that the agency will ultimately conclude that regulation or an enforcement action is appropriate.

Interest groups like the American Farm Bureau counter this analysis by suggesting that these exceptions would apply only to “dredge and fill” activities and would leave other normal farming activities (including the use of pesticides) open to increased federal scrutiny.[xxiii] However, while it is true that the interpretive rule issued by the EPA and Corps applies only to dredge and fill activities, the preexisting exceptions to CWA jurisdiction are not so narrowly limited.[xxiv] Among these long-standing regulatory exemptions is one for discharges related to “normal farming, silvicultural, and ranching” activities.[xxv] It is difficult to see how this would not extend to the types of activities the Farm Bureau has expressed concern about. Additionally, the EPA has requested comments from agricultural interests regarding the interpretive rule, which seems to indicate a willingness to make additional adjustments to its regulations in order to avoid severely damaging farming activities.[xxvi]

It is also worth noting that the very nature of the CWA is to impose costs on those whose activities have an impact on our nation’s waterways in order to protect them. While it is important to ensure that farmers are not forced to bear onerous burdens that jeopardize their livelihoods, this concern must be balanced with a need to fulfill the environmental goals of the CWA. This is a balancing that should be addressed head on through a discussion of the substantive merits of exempting certain activities from regulation, not collaterally through a debate over whether or not protection of the waters in question is outside the jurisdiction of the agencies.

Furthermore, it is true that the proposed rule may lead to regulatory actions that the agency had previously declined to pursue due to a hesitancy to engage in the onerous process of jurisdictional analysis and/or a fear of overstepping its statutory authority due to uncertainty over the scope of the CWA.[xxvii] However, the overriding purpose of the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”[xxviii] suffers when the EPA does not exercise jurisdiction over waters that are covered by the statute’s terms. If the public must bear those harms because the agency chooses not to act, it should be based upon a rational consideration of the merits of the proposed action, not on jurisdictional uncertainty. For instance, according to the Fish and Wildlife Service, tens of thousands of acres of wetlands have been lost from 2004 to 2009 alone, approximately 30% of which was due to development activities.[xxix] To the extent those losses could and should have been prevented but for jurisdictional confusion at the EPA, they likely constitute unnecessary damage to the environment that we will pass on to future generations.

The EPA and the Corps’ efforts seem well designed to maximize the protection provided by the CWA, provide greater clarity to regulated entities regarding what is and is not covered by the CWA’s provisions, and reduce red tape at the agency level. For these reasons, it has been applauded by a number of groups who have long requested greater jurisdictional clarity from the agencies.[xxx] At the end of the day, clearer rules and the resulting cleaner water is in everyone’s best interest, despite the opposition of some who would prefer to benefit from the pre-existing uncertainty.

The proposed rule will be subject to a 90-day notice and comment period required by the Administrative Procedure Act before any final action may be taken by the agency. The proposed rule itself specifically requests input into the provisions regarding the assessment of “other waters” in order to determine if the “significant nexus” language drawn from Justice Kennedy’s concurrence is the most appropriate formulation [xxxi] as well as several other aspects of the proposed rule.[xxxii] Accordingly, the issuance of a final version of the rule, if the agencies choose to proceed after reviewing those comments, will not take place in the immediate future.

 

- Ben Reese is a General Member on MJEAL. He can be reached at benreese@umich.edu.



[i] Neela Banerjee, Clean Water Act Proposal Would Protect More Water Sources in West, L.A. Times, Mar. 25, 2014, http://www.latimes.com/nation/la-na-epa-waters- 20140326,0,1080552.story#axzz2y2VrYy3Q

[ii] U.S. Envtl. Prot. Agency, EPA-HQ-OW-2011-0880, Definition of “Waters of the United States” Under the Clean Water Act, at 15-16 (2014), http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_20140325_prepublication.pdf [hereinafter Proposed Rule].

[iii] Proposed Rule at 16 (quoting 33 C.F.R. § 328.3; 40 C.F.R. § 122.2).

[iv] Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159, 167 (2001) (citing United States v. Riverside Bayview Homes, 474 U.S. 121(1985)); Rapanos v. United States, 547 U.S. 715, 759 (2006) (Kennedy, J., concurring in the judgment).

[v] Proposed Rule, supra note ii, at 14-15.

[vi] See e.g. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 864-66 (1984);  Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-51 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417-20 (1971); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery I), 318 U.S. 80, 92-93 (1943); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery II), 332 U.S. 194, 198-202 (1947).

[vii] Proposed Rule, supra note ii, at 15.

[viii] Id. at 19-20.

[ix] Proposed Rule at 13; U.S. Envtl. Prot. Agency, Office of Research and Dev., EPA/600/R-11/098B, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, at 1-3 to 1-4 (2013).

[x] Proposed Rule, supra note ii,  at 325.

[xi] Id. at 19-20, 325-26.

[xii] Id. at 326.

[xiii] Id. at 22, 327-28.

[xiv] Id. at 328.

[xv] Id. at 22.

[xvi] Banerjee, supra note i.

[xvii] Id.

[xviii] See Id.

[xix] Gina McCarthy, Clearer Protections for Clean Water, Huffington Post, Mar. 25, 2014, http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html (“Some may think this rule will broaden the reach of EPA regulations — but that’s simply not the case. Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”); Press Release, U.S. Environmental Protection Agency, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal (Mar. 25, 2014), http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30 (“[The rule] does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”).

[xx] Proposed Rule, supra note ii, at 25-26.

[xxi] See e.g. David Hopkins, No Permit Necessary: How Decker is Expanding Pollution, Mich. J. Envtl. & Admin. L. Blog, March 28, 2014, http://students.law.umich.edu/mjeal/2014/03/no-permit-necessary-how-decker-is-expanding-pollution/.

[xxii] Proposed Rule, supra note ii, at 25.

[xxiii] Annie Snider, Farm Bureau Vows to “Dedicate Itself” to Opposing Clean Water Act Proposal, Greenwire, April 2, 2014, http://libproxy.law.umich.edu:2217/greenwire/stories/1059997197/search?keyword=farmers; David Hopkins, Balancing Clean Water Act Jurisdiction with Agricultural Pragmatism, Mich. J. Envtl. & Admin. L. Blog (forthcoming).

[xxiv] Id.; Proposed Rule, supra note ii, at 25.

[xxv] Proposed Rule, supra note ii, at 25.

[xxvi] Proposed Rule, supra note ii, at 25-26.

[xxvii] Banjeree, supra note i.

[xxviii] 33 U.S.C.A. § 1251(a) (West, Westlaw through P.L. 113-74).

[xxix] Banjeree, supra note i.

[xxx] Press Release, U.S. Environmental Protection Agency, Here’s What They’re Saying About the Clean Water Act Proposed Rule (Mar. 25, 2014), http://water.epa.gov/lawsregs/guidance/wetlands/upload/wus_quotes_326.pdf.

[xxxi] Proposed Rule, supra note ii., at 20-21

[xxxii] See e.g. Proposed Rule, supra note ii, at 29-30.

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One small step for Cape Wind, one giant leap for domestic offshore wind development?

March was a significant month for the Cape Wind project: the utility-scale wind farm proposed for the waters off of Cape Cod would be the first of its kind in the United States. Last month, Cape Wind secured an additional $400 million in financing, bringing its total fundraising to $1.3 billion or about half of the project’s estimated cost of $2.5 billion.[i] The project also prevailed last month in federal court, defeating numerous challenges to federal agency authorizations of the project.[ii] The wind farm has seen well-organized and well-funded opposition since its proposal in 2001.[iii] After more than a decade of litigation, the project may be approaching a crucial turning point. As a Cape Wind press release puts it: “The Court soundly rejected the plaintiffs’ request to vacate the granting of the nation’s first offshore wind lease by the Department of the Interior to Cape Wind.”[iv] But opponents also characterize the outcome as a win for their side too, seeing their narrow gains in the lengthy opinion as further obstructing progress on the planned wind installation.[v]

Plaintiffs in the consolidated case, Pub. Employees for Envtl. Responsibility v. Beaudreu, included a variety of environmental groups, individuals, a Massachusetts township, the Wampanoag Tribe of Gay Head (Aquinnah), and a citizens’ group backed and co-chaired by billionaire industrialist William I. Koch (Alliance to Protect Nantucket Sound). This diverse group brought a litany of charges against several government agencies, including alleged violations of the Administrative Procedure Act (APA); the Endangered Species Act (ESA); the National Environmental Policy Act (NEPA); the Migratory Bird Treaty Act; the Outer Continental Shelf Lands Act (OCSLA); the Clean Water Act (CWA); the Energy Policy Act of 2005; and the Rivers and Harbors Act.[vi]

The court granted summary judgment to the defendants on most of plaintiffs’ challenges, including disposing of arguments regarding alternative locations and technology, navigational safety, historic preservation, sea turtles, and the adequacy of the project’s environmental impact statement (EIS) and biological opinions. Plaintiffs did, however, prevail on two administrative claims.

The court granted summary judgment to the plaintiffs on their claims that the Fish & Wildlife Service (FWS) violated the ESA by failing to make an independent determination as to whether a “feathering operation adjustment” was a reasonable and prudent measure.[vii] The FWS delegated decisionmaking regarding the determination to Cape Wind and to the Bureau of Ocean Energy Management (BOEM). But FWS did not provide any indication that their finding that the measure was not reasonable and prudent since “it modifies the scope of [a] project in a manner that is adverse to the project’s stated purpose and need” was based on an independent determination.[viii] Judge Walton explained:

While collaboration is encouraged, the Joint Consultation Handbook does not support the notion that the FWS should have deferred to the BOEM or Cape Wind when discarding the operational adjustment at issue without at least making clear that it was doing so based on its own independent determination of the issue.[ix]

The court remanded to the FWS to make such an independent determination.

The court also granted summary judgment to the plaintiffs on claims that the National Marine Fisheries Service (NMFS) violated the ESA by failing to issue an “incidental take statement” for North Atlantic right whales. The NMFS did not include an incidental take statement, even though North Atlantic right whales have appeared in the area of the proposed project as well as along routes to be taken by project vessels. “And while the biological opinion states that the ‘NMFS [ ] concluded that the proposed action is not likely to adversely affect right … whales and, therefore, is not likely to jeopardize the[ir] continued existence,’ NMFS1534, the NMFS did not state that incidental take would not occur or was ‘not anticipated.’” Thus, since an incidental take “may occur,” the court concluded that the failure by NMFS to include an incidental take statement with its biological opinion was arbitrary and capricious. The court remanded to NMFS for the issuance of an incidental take statement concerning the take of right whales with its biological opinion, in compliance with the ESA.[x]

The wind project’s latest win comes on the heels of another key victory. In January, the D.C. Circuit upheld the Federal Aviation Association’s (FAA) no hazard determination in the Cape Wind proposal. The FAA “found that the turbines, individually and as a group, would neither exceed the obstruction standards in 14 C.F.R. § 77.17 nor have a physical or electromagnetic radiation effect on the operation of air navigation facilities.”[xi] The FAA’s no hazard determination meant, the court concluded, that no further NEPA analysis was required by the FAA, and that if additional NEPA analysis were to be conducted by FAA it would be duplicative of NEPA analysis being undertaken by the Department of the Interior.

These recent court opinions suggest that opponents of Cape Wind are running out of court options. The Cape Wind saga has been a case study on the use of the courts to stall a locally unpopular project. And what’s more, the opposition in Cape Cod came with a war chest, thanks to billionaire William Koch – a man who owes his fortune to fossil fuels.[xii] So the failure to persuade the courts to put a stop this project is meaningful.[xiii] It would seem the courts are shifting this debate back to the experts in the various federal agencies, inserting themselves only where judicial intervention may be necessary to ensure regulatory compliance.

Indeed, developers have returned to Long Island as a potential site for offshore wind projects. Previous proposals for the New York area have failed (including a proposed wind farm near Long Island that was to be built by FPL Energy but ballooned in cost and never manifested, and more recently, a stalled 350 MW project offshore of the Rockaway Peninsula considered as a “Wind Collaborative” between the local utilities and other stakeholders). But Deepwater Wind, a developer currently looking to site a farm off of Long Island, has already found success in the region, constructing a pilot project off the Rhode Island coast. [xiv] The five-turbine 30 MW demonstration project is located off of Block Island, and could be the first offshore wind farm to generate power in the United States.[xv]

Cape Wind would be the first large-scale offshore wind farm in the United States. The comprehensive opinion finding in favor of Cape Wind and deferring to the federal agencies’ determinations on all but two claims may foreclose not only future challenges to the Cape Wind project, but also to other large-scale offshore wind proposals like the Deepwater proposal for Long Island as well. It would seem the outcome in the most recent Cape Wind courtroom battle has narrowed the scope of possible challenges to future offshore wind proposals, at least for comparable sites in the Mid-Atlantic.

 

-Daniella Roseman is a General Member on MJEAL. She can be reached at droseman@umich.edu.

 


[i] Erin Ailworth, Cape Wind secures $400 million in financing, The Boston Globe (Mar. 26, 2014), http://www.bostonglobe.com/business/2014/03/26/cape-wind-secures-million-financing/tsSLCZCrijgAdUQHZFcgjM/story.html.

[ii] Pub. Employees for Envtl. Responsibility v. Beaudreu, No. 10–1067 (RBW) (DAR), No. 10–1073, No. 10–1079, No. 10–1238, 2014 WL 985394, at *42 (D.D.C. Mar. 14, 2014).

[iii]E.g., Katharine Q. Seelye, Koch Brother Wages 12-Year Fight Over Wind Farm, The New York Times (Oct. 22, 2013), http://www.nytimes.com/2013/10/23/us/koch-brother-wages-12-year-fight-over-wind-farm.html?pagewanted=all&_r=0 (Profiling William Koch’s efforts to stop the Cape Wind project).

[iv] Cape Wind Wins Major Legal Victories, Cape Wind (Mar. 14, 2014), http://www.capewind.org/news1349.htm.S

[v] Barry Cassell, Cape Wind Says Partial Loss in Court not a Major Setback, RenewableEnergyWorld.com, (Mar. 17, 2014), http://www.renewableenergyworld.com/rea/news/article/2014/03/cape-wind-says-partial-loss-in-court-not-a-major-setback (“The court has validated that federal agencies have taken unacceptable shortcuts in their review of Cape Wind.”).

[vi] See Public Employees, 2014 WL 985394 at *1.

[vii] Such an adjustment would cause the turbine rotors to face the wind and stop spinning in order to reduce the risk of collision with the turbines by roseate terns and migrating piping plovers. Public Employees, 2014 WL 985394 at *25.

[viii] See Public Employees, 2014 WL 985394 at *25; see also Cassell, supra note v (noting that Cape Wind has resisted the feathering adjustment as one that would “destroy the economic feasibility” of the proposed project.).

[ix] Public Employees, 2014 WL 985394 at *26.

[x] Id. at *30.

[xi] Town of Barnstable, Mass. v. F.A.A., 740 F.3d 681, 686 (D.C. Cir. 2014).

[xii] Seelye, supra note iii.

[xiii] See, e.g., Lewis Milford, Court Rules for Cape Wind, Ending a Decade of Failed Opposition, Huffington Post (Mar. 18, 2014, 9:38 AM), http://www.huffingtonpost.com/lewis-milford/court-rules-for-cape-wind_b_4979589.html.

[xiv] Claude Solnik, Deepwater Wind proposing wind farm off Montauk coast, Long Island Business News (Mar. 28, 2014), http://libn.com/2014/03/28/deepwater-wind-proposing-wind-farm-off-montauk-coast/.

[xv] Id.

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Government Clashes with Property Owners Over Unused Railroad Tracks

The conflict between private property and public land is nothing new. Property rights have shaped the way in which American society was structured from the moment Europeans reached the New World. Although there have been instances where conservationists have been able to use property rights to their advantage, such as in buying up land that houses sensitive environments, the relationship between conservation and property has typically been rocky. For example, legislation such as the Endangered Species Act allows the federal government to require landowners to preserve critical habitats on their land at the expense of uninterrupted use. Property owners are understandably resistant to this type of intervention, which is often justified in the name of preservation for future generations. On March 10, 2014, the Supreme Court of the United States addressed a case where the federal government wanted to convert railroad tracks into public use trails through private property.  The Court came down on the side of the property owners.

The Marvin Brandt Revocable Trust owns a significant amount of land in the Medicine-Bow Routt National Forest. Some of this land contained railroad track easements owned by the federal government. The United States Forest Service wanted to continue a trail through the family’s land on these federally owned easements, with permission of the railroad and the National Forest Service. The family argued that the land could only be used for railroad purposes, and could not be converted to another public use at the will of the government. After the trust lost in two lower court decisions, the Supreme Court held that after five years of non-use as railroad tracks, these easements reverted to the owner of the property. As such, the Forest Service could not use them as a part of their trail program.

The trail in question is part of the Rails-to-Trails movement that began in the 1980s when railroad transport was beginning to fall into disuse. The government did not want to lose the transportation network for fear that it may one day become useful, so they amended the National Trails System Act to include a procedure called “railbanking.” This procedure allows public or private agreements between track owners and trail builders to convert the land into a public trail until the railroad might need it again.

Resulting trails have a variety of benefits, and seemed like the perfect fix to preserve the railroad network while creating something productive. Health benefits include greater public access to exercise trails and green space, especially in lower-income neighborhoods without many parks where abandoned tracks are often found. The trail system also provides the economic benefit of connecting areas of varying socio-economic wealth, which promotes community development. Transportation infrastructure also improved in many urban areas. For example, the Atlanta Beltline, which is currently in the process of being converted into a multi-use path, allows users to bike or walk short distances that would take infinitely longer in the infamous Atlanta traffic. Trails through national forests or other conservation areas also promote tourism and education about conservation goals. Furthermore, trails have a variety of environmental benefits, such as providing links between fragmented habitats, and improving wetland systems.[i]

These trails have not gone without criticism.  Many of the railroad tracks, such as the ones contested in the Supreme Court case, run through what is otherwise private property in federally-owned easements. An easement is a property right to use someone else’s piece of land for a specific purpose, such as access to the easement owner’s land, or in this case, for railroad tracks. The government owns the easement in question that runs through the family’s land and had the power to assign use of the tracks on its easement to railroad companies. Property owners draw a distinction between this agreed use, and simply allowing the government to do whatever it wishes with the land, especially something that will allow public access to private land.

The Supreme Court agrees with the property owners. The Court seemed extremely concerned about the possibility that some railroad easements go right through people’s homes, saying that this intrusion is unreasonable for any but the initial agreed use.[ii] This contention seems suspect both because the United States government does not have a central database of land that it owns under such circumstances[iii] and because the people who hypothetically built houses on easements are still undertaking a significant risk.

Others criticize that the government is spending exorbitant amounts of money to settle property claims with landowners whose plots abut the trails. In 2013, the government spent $49 million on such claims.[iv] For a project that was supposed to be almost cost-free, that is a lot of money. Additionally, scholars have pointed out that the government is not even getting a deed for this money. So the taxpayers are not paying for the government to buy land for trails.[v]

The real question underlying all of this is whether the benefits are worth the costs. Is the court siding with private property owners when the policy and benefits point the other way? Both the environmentalist and the outdoorsman in me say of course. But legally, there is a long history of protecting private property. Our country was built on this system. And the lone dissenting vote of Justice Sotomayor, shows that the Court is in agreement. Property comes first.

 

-Rachael Westmoreland is a General Member on MJEAL. She can be reached at rwestmor@umich.edu.



[i] Benefits of Rail-Trails, Rails-to-Trails Conservancy (Apr. 9, 2014), http://www.railstotrails.org/ourWork/trailBasics/benefits.html.

[ii] Bill Chappell, Family Trust Wins Supreme Court Fight Against Bike Trail, The Two Way- Breaking News from NPR (Mar. 10, 2014), http://www.npr.org/blogs/thetwo-way/2014/03/10/288584936/family-trust-wins-supreme-court-fight-against-bike-trail.

[iii] Id.

[iv] Jenna Greene, Rail-to-Trails Program Costly to Taxpayers; what could go wrong adapting old railway lines for recreation?, Nat. Law J. (2013).

[v] Id.

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Concerns Raised by the Wave of Hydrofracking in the US

Hydraulic fracturing, more commonly known as “hydrofracking,” is a controversial mining technique that allows natural gas and oil industry developers to reach otherwise unattainable deposits of shale gas.[i] There are varying techniques currently in use, but the general process involves pumping fluids at high pressures into underground wells to force out either oil or natural gas.[ii] The composition of this ‘fluid’ is generally unknown because disclosure is not required by industry groups, but it is estimated that some fluid mixtures may contain up to 29 different carcinogens.[iii] The Environmental Protection Agency (“EPA”) is in the process of actively researching hydrofracking techniques and potential human health effects with a focus on groundwater contamination.[iv]

Hydrofracking took off in the United States in the early-2000s, when the public health and environmental effects of the process were still largely unknown. Since then, there have been various problems with groundwater contamination, leading to people being exposed to an array of chemical compounds, as well as other anecdotal evidence of unforeseen consequences including earthquakes in Ohio and flammable faucets.[v] This type of ‘unconventional natural gas’ development has grown steadily in the United States. According to the EPA, in 1998, unconventional natural gas techniques comprised 28 percent of total U.S. natural gas production versus 50 percent in 2009.[vi]

Environmentalists and various opposition groups are calling for a halt on hydrofracking until the human health and environmental impacts are completely assessed and discussed seriously before moving forward.[vii] These groups feel that adherence to the precautionary principle is crucial, calling for mitigation techniques and remedies to pollution and other potential problems to be handled at the outset rather than as remedial measures.[viii]

There are a variety of legal issues that come with the advent of hydrofracking – while the practice is not particularly new, the application to directional drilling is new along with the sheer growth of the industry. Environmental effects of hydrofracking include air pollution, groundwater depletion and contamination, surface water pollution, soil erosion and sedimentation, among others.[ix] These diverse issues present a jurisdictional problem: both the environmental hazards and broader effects of the oil and natural gas resources are variously national, statewide, regional, and local.[x] Thus, the pervasive nature of hydrofracking activity presents the unanswered question, which level of authority should regulate – federal, state or local?[xi]

Another area of legal concern is the scope and effectiveness of the Safe Drinking Water Act (“SDWA”) in protecting against contamination due to hydrofracking. The SDWA is set up “to ensure the integrity and safety of public water for human consumption,” focusing mainly on toxic substances.[xii] EPA sought to regulate hydrofracking under the SDWA, and conducted a study of hydrofracking and potential impacts on underground sources of drinking water, concluding that injection of hydrofracking fluids posed a minimal threat, yet said that some chemicals can lead to environmental concerns.[xiii] Since this study, Congress passed the Energy Policy Act of 2005, which essentially left a loophole open so that states only have to obtain permits before drilling when diesel fuel is involved.[xiv]

The only effort so far to remove this loophole is the proposed Fracturing Responsibility and Awareness of Chemicals Act of 2011, which would impose two avenues of federal regulation.[xv] First, it would repeal the hydrofracking exemption mentioned above in the SDWA to include “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities”.[xvi] This would then require EPA to monitor and issue permits, requiring state underground injection control programs that previously did not need a permit to acquire one. This bill died at the end of the 112th Congress, and was reintroduced on June 11th, 2013 in the Senate.[xvii]

The Clean Water Act (“CWA”) was put in place to restore and maintain the physical, chemical and biological integrity of waters of the United States.[xviii] The CWA further prohibits the discharge of “point source” pollution into the “waters of the United States,” without a permit acquired from EPA through the National Pollution Discharge Elimination System (“NPDES”).[xix] Hydrofracking produces tremendous amounts of wastewater which, mentioned above, may contain many different contaminants. The EPA generally defers to the various state permitting authorities, though the issue of permitting again implicates the jurisdictional issues of hydrofracking.[xx]

As hydrofracking is a novel and developing technique to mine oil and natural gas, there are a variety of other legal problems besides those mentioned here. The resolution of these issues depends on many factors, including the economic costs of permitting, environmental remediation efforts, and the interplay of federal, state and local actors. With new legislation pending in the Senate, the future of hydrofracking activities is currently uncertain.

 

- Christina Bonanni is a General Member on MJEAL. She can be reached at cdbon@umich.edu

 


[i] Hydraulic Fracturing (Hydrofracking), Pace Law Library, http://libraryguides.law.pace.edu/content.php?pid=227170&sid=1880060 (last visited April 1, 2014).

[ii] Id.

[iii] Goldfarb, Ben, Hydrofracking Poses Serious Risks to Human Health, PolicyMic, December 22, 2011, http://www.policymic.com/articles/2985/hydrofracking-poses-serious-risks-to-human-health.

[iv] Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources, U.S. Environmental Protection Agency, EPA/600/R-11/122. http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/FINAL-STUDY-PLAN-HF_Web_2.pdf (November 2011).

[v] Supra, note ii.

[vi] Supra, note iv.

[vii] Supra, note iii.

[viii] Id.

[ix] John R. Nolon and Steven E. Gavin, Symposium: The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom, 63 Case W. Res. 995 (2013).

[x] Id.

[xi] Id.

[xii] 42 U.S.C. § § 300f-300j-26.

[xiii] Supra, note iv.

[xiv] Id.

[xv] Id.

[xvi] Id.; H.R. 1084, 112th Congress. (2011).

[xvii] s.1135: FRAC Act, https://www.govtrack.us/congress/bills/113/s1135 (last visited April 1, 2014).

[xviii] 33 U.S.C. § § 1251-1387 (2006).

[xix] Id.

[xx] Supra, note viii.

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China’s “War Against Pollution”

Environmental protection will be a hot topic at this year’s annual session of the National People’s Congress (NPC) of China. Premier Li Keqiang’s government work report, given at the opening of the NPC on March 5, 2014, listed nine “Major Tasks for 2014,” including the goal of “building China into a beautiful homeland with a sound ecological environment.”[1] To that end, Li has “declare[d] war against pollution.”[2] NPC Chairman, Zhang Dejiang, echoed Li’s proclamation, informing delegates, “We will revise the Environmental Protection Law and the Air Pollution and Control Law to improve environmental protection and management so that emissions of all pollutants are strictly supervised.”[3]

Improving the environment is consistent with the goals in China’s 12th Five Year Plan (2011-2015).[4] And legislation is one of the major solutions to China’s environmental problems. As China enters into the fourth year the Plan, the public will be watching the NPC closely to see whether progress toward the goal will be made, particularly in regard to decreasing air pollution.

Air pollution in China has been a major concern, both on a national and international level. China is home to 16 of the world’s twenty most polluted cities and produces a third of the greenhouse gas output on Earth.[5] According to a report by the Asian Development Bank, a mere 1% of China’s 500 largest cities were able to meet the World Health Organization’s air quality standards in 2012.[6]

February 25, 2014 marked the sixth consecutive day that Beijing’s air quality index met the “hazardous” level, according to the U.S. Embassy.[7] Pollution levels reached “501 micrograms per cubic meter, well above the World Health Organization’s safe limit of 25.”[8] Smog consistently engulfed many cities in China due to staggering levels of pollution, leading a professor at China Agricultural University to declare a “nuclear winter,”[9] while others are referencing an “airpocalypse.”[10]

Meanwhile, public discontent within China has been increasing. In a historic move in February 2014, Li Guixin, a resident of Shijiazhuang, the capital of Hebei, became the first citizen to bring suit against the government for “failing to curb air pollution” in accordance with the law.[11] Li claims he was unable to participate in outdoor activities this winter due to the horrendous atmospheric conditions,[12] and seeks $1,600 in damages from the Shijiazhuang Municipal Environmental Protection Bureau.[13] However, while Article 26 of China’s Constitution indicates a governmental interest in protecting the environment, the Constitution does not entitle individual citizens to a specific environmental right.[14] It is therefore uncertain whether the court will even entertain Li’s lawsuit.[15] Nonetheless, the bold action has drawn further attention to the government’s policies and spurred greater scrutiny of existing laws and their execution.

The pollution in China also has a global effect, and regularly contributes to the air quality problems in countries such as the United States. According to a study done in 2006, “On a daily basis, the export-related Chinese pollution contributed, at a maximum, 12-24% of sulfate concentrations over the western United States.”[16] Despite the efforts of countries like the U.S. to curb its own pollution, without reform, and as the world’s largest emitter of greenhouse gases, China has the potential to wreck further havoc not only to its own environment, but to the environments of other countries as well.[17]

However, potential solutions to China’s air pollution do exist. Allowing for and strengthening responses the laws may result in improved air quality. In the U.S., citizen groups have been successful in achieving changes in law and policy. If citizens in China were allowed to bring action against the government, as Li Guixin has done, perhaps the government would be held more responsible for its actions or inactions in the area of environmental protection.

In addition, some have suggested that judicial and executive responses could be held under stricter scrutiny.[18] The judiciary, economically dependent on local government and wrought with corruption and pressures to ignore the law, is not as accountable as it should be in upholding the laws.[19] Moreover, as the allegations by Li Guixin highlight, perhaps the enforcement of environmental laws by local officials could be more stringent and regulated by more oversight.[20]

A major solution is through the amendment of the existing environmental protection law in China. The speeches given on the opening day of the NPC session would appear to indicate the government’s apparent commitment to making this a top priority. This year, the Ministry of Environmental Protection is expected to propose an “Air Pollution Prevention Law” for review.[21] The current draft imposes fines on local governments for failing to meet targets for air pollution reduction.[22] If the threat of harsh sanctions is effective, perhaps citizens such as Li Guixin will not have to resort to taking independent actions against the government to improve the air quality.

In addition, individual citizens of China could be held to higher standards through legislation. Although factories and plants are major contributors to the smog, Chinese citizens each add to the pollution through their energy and consumption habits, as well as their selected methods of transportation. In the absence of established laws and policies, individual citizens have the opportunity to recognize problems and make their own decisions on whether and how to take independent steps toward a solution. But perhaps self-monitoring and individual initiatives to reduce air pollution are not possible without the threat of legal ramifications.

And although the government is responsible for creating and amending China’s environmental laws and regulations, perhaps there are other parties, such as foreign purchasers, who could share responsibility for China’s predicament. Questions have been raised as to what extent China should be held accountable for its air pollution as compared to countries to which China exports goods.[23] For example, a study in 2006 found that “36% of anthropogenic sulfur dioxide, 27% of nitrogen oxides, 22% of carbon monoxide, and 17% of black carbon emitted in China were associated with production of goods for export… About 21% of export-related emissions [of each pollutant] were attributed to China-to-US export.”[24] So even though Chinese factories and plants are at fault for the harmful emissions, other countries and corporations in those foreign countries have in a way encouraged China’s increase in pollution: either indirectly by demanding more products from China or directly by moving their production of goods overseas to China.

Officials have claimed that the “war on pollution” will be waged during this year’s annual session of the NPC. But it remains to be seen whether the Environmental Protection Law and the Air Pollution and Control Law will be amended or if any new laws will be approved. Both in China and abroad, the public will be watching the government’s actions carefully, in the hopes that its effects will drastically reduce, or at least curb, the current condition of air pollution. However, to have the greatest impact on improving its air quality, China must look not only to legislative solutions, but also to improving executive and judicial responses to the laws and policies, as well as potentially holding other parties, such other countries and their corporations, responsible for the problem.

 

-Dayna Chikamoto is a General Member on MJEAL. She can be reached at dchikam@umich.edu.



[1] Didi Kirsten Tatlow, China Declares “War Against Pollution”, N.Y. Times, Mar. 5, 2014, http://sinosphere.blogs.nytimes.com/2014/03/05/china-declares-war-against-pollution/?_php=true&_type=blogs&_php=true&_%20type=blogs%20&ref=environment&_r=1.

[2] Id.

[3] Zhang Hong, Pollution and Food Safety to Top Legal Agenda This Year, Zhang Deijang Tells NPC Delegates, South China Morning Post, http://www.scmp.com/news/china/article/1444270/pollution-and-food-safety-top-legal-agenda-year-zhang-dejiang-tells-npc (last updated Mar. 10, 2014).

[4] David Stanway, Water, CO2 the Priorities for China’s 5-year Plan, Reuters, Mar. 3, 2011, http://www.reuters.com/article/2011/03/03/us-china-environment-idUSTRE72214Y20110303.

[5] Beina Xu, China’s Environmental Crisis, Council on Foreign Relations, http://www.cfr.org/china/chinas-environmental-crisis/p12608 (last visited Mar. 18, 2014).

[6] Id.

[7] Julia Makinen, Toxic Smog Hangs Over Large Swarth of China but Many Ignore Threat, L.A. Times, Feb. 25, 2014, http://www.latimes.com/world/worldnow/la-fg-wn-china-air-pollution-20140225,0,2798618.story?page=%201#axzz2vbxZUMPS.

[8] Sean Breslin, China’s Smog Continues to Worsen; Now Being Called a ‘Nuclear Winter’, The Weather Channel, http://www.weather.com/news/science/environment/beijing-china-dangerous-smog-20140227 (last visited Mar. 18, 2014).

[9] Breslin, supra note 8.

[10] Xu, supra note 5.

[11] Sui-Lee Wee, Chinese Man Becomes First to Sue Government Over Severe Smog, Reuters, Feb. 25, 2014, http://www.reuters.com/article/2014/02/25/us-china-pollution-idUSBREA1J18E20140225.

[12] Id.

[13] Makinen, supra note 7.

[14] Ying Shen, Combating Climate Change: China’s Efforts on Environmental Legislation, The Envtl. L. Rep., http://elr.info/news-analysis/44/10153/combating-climate-change-china’s-efforts-environmental-legislation (last visited Mar. 18, 2014).

[15] Wee, supra note 11.

[16] Jintai Lin et al., China’s International Trade and Air Pollution in the United States, Proceedings of the National Academy of Sciences of the United States of America (Jan. 21, 2014), http://www.pnas.org/content/early/2014/01/16/1312860111.full.pdf.

[17] Xu, supra note 5.

[18] Shen, supra note 14.

[19] Id.

[20] Id.

[21] Michael Standaert, China Outlines Environmental Action in ‘War’ on Air, Water and Soil Pollution, Bloomberg BNA, http://www.bna.com/china-outlines-environmental-n17179882762/ (last visited Mar. 18, 2014).

[22] Id.

[23] Lin et al., supra note 16.

[24] Id.

 

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