Hurricane Sandy Invokes Grave Concern Over Future Storms

In the aftermath of Hurricane Sandy, many people were left stunned, perplexed, and are still asking, “Why did this happen?  What should we expect next?”  It is estimated that the costs of Sandy will reach $6 billion, but future storms could cost $20-$70 billion.1 Scientists, environmentalists, and policymakers are considering which policies and regulations will properly address future storms, but there is stark disagreement over the proper approach.  Two popular approaches include greenhouse gas emission reduction laws and long-term land use plans.  The former focuses on mitigating the effects of climate change to decrease the magnitude of hurricanes; the latter emphasizes the need to better prepare cities for intense storms.

Climate change scientists have long been predicting that warming global temperatures and rising sea levels, alleged consequences of increased greenhouse gas emissions and climate change, will lead to more devastating and costly disasters.  They further predict that the annual number of these intense storms will double over the next century.2 Exactly how climate change influenced Sandy is not definitive; the general assumption is that, as global climate change increases water temperatures, “relatively cooler air condenses vapor rising from water below and the heat released from the condensation gives the hurricane the energy that whips up 75-mile-an-hour (or higher) winds.”3

Many environmentalists and scientists insist that the US strictly enforce current policies and implement new ones to reduce greenhouse gas emissions in order to mitigate these storms.  The Environmental Protection Agency (EPA) has taken a lead in promoting policies and regulations to address climate change.4 For instance, in 2010 the EPA and the National Highway Traffic Safety Administration adopted regulations to reduce fuel emissions from on-road vehicles.  “By 2025, the proposal calls for vehicle manufacturers to meet a CO2 standard projected to be equivalent to 54.5 miles per gallon on an average fleet-wide basis.”5 The EPA has also worked with the states to implement a Clean Air Act permit program, which requires owners and operators of “large stationary sources of air pollution” to obtain a permit to construct or modify its facility.6

Climate change skeptics are dissatisfied with this first approach to address future storms.  Among others, they believe that cities should instead focus attention on developing long-term land use plans to better prepare for and manage the effects of disasters like Sandy.  In addition, they propose a new flood-insurance program that would incentivize coastal residents to move out of these flood-prone areas.

Advocates of this approach are casting doubt on the ability of infrastructure in northeastern US cities to withstand disasters of Sandy’s magnitude.  Improving infrastructure is a complex task that could take 50-100 years to complete, but supporters insist it’s essential to alleviate damage caused by intense storms.7 In order to develop a master plan, major issues must be addressed.  For instance, should a city build a seawall and levee system to protect from storm surges?  If so, how much should the city spend, how tall should they be, and how strong should they be?  Should these policies be incorporated into the Stafford Act, a federal act that assists states affected by major disasters, or should the states implement their own policies to address these issues?

In addition to these long-term land use plans, flood-insurance programs could help to incentivize coastal residents to move out of flood-prone areas.  In essence, property owners would have to choose between pre-funding their own flood-related property losses and moving inland where the risks aren’t as severe.  In 1968, Congress implemented a National Flood-Insurance Program (NFIP), but it is largely subsidized and rates are very affordable.  Thus, the problem is that “NFIP doesn’t collect enough in flood-insurance premiums to cover payouts” and the fund is exhausted quickly.8 In order to maximize its efficiency, an insurance-program must have higher premiums and fewer subsidies.

Although these two approaches do not conflict with one another, the dispute arises as to where immediate attention should be focused.  Advocates of the first approach face a bigger barrier; they must first convince skeptics that climate change is real.  Those who disbelieve in climate change are the primary proponents of the second approach and feel that the first approach would result in wasted resources.

—-Courtney Mercier is a General Member for MJEAL.  She can be reached at cmerc@umich.edu.

 


1Albert Sabate, Sandy:  What’s Climate Change Got to Do Withi It?, ABC NEWS (Oct. 30, 2012), http://abcnews.go.com/ABC_Univision/News/hurricane-sandy-climate-change/story?id=17595201#.UJ0RcKVVqfT.

2Id.

3Id.

4See Hearings on EPA Regulation of Greehouse Gases, U.S. Environmental Protection Agency (June 29, 2012), http://www.epa.gov/ocir/hearings/pdf/2012_GHG_testimony_final.pdf.

5Id. at 6.

6Id. at 9.

7Lauren Morello, Scientists See Extent of Storm’s Damage Linked to Climate Change, Greenwire (Oct. 31, 2012), http://libproxy.law.umich.edu:2217/Greenwire/climate_digest/2012/10/31/2

8Sandy Slaps Uncle Sam’s Handouts, The Wash. Times, Nov. 6, 2012, available at http://www.washingtontimes.com/news/2012/nov/6/sandy-slaps-uncle-sams-handouts/.

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Can We Get Some Help Over Here? Federal Regulators Continue To Struggle To Police Fracking

Fracking is about as household of a name as any energy development practice is likely to become, and yet, the EPA, BLM and DOI have found themselves unable keep up with the booming oil and gas industry.  According to a recent report from the Government Accountability Office (GAO), federal regulators continue to face significant hurdles in regulating the use of hydraulic fracturing in energy development.  The report, Unconventional Oil and Gas Development: Key Environmental and Public Health Requirements, examined applicable regulations, but more importantly the challenges faced by agencies tasked with regulating fracking operations.[1]

Fracking sites on federal lands are required to comply with a range of federal and state laws including the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA). However, one of the major challenges reported by the EPA is the continued exemption of oil and gas wells from relevant regulations.  For example, exploration and production waste is exempt from RCRA’s hazardous waste regulations and storm water discharge regulations under the CWA generally don’t apply to oil and gas development.[2]

Beyond the exemption and exclusions carved out for the industry, regulators face challenges that simply have never been addressed.  The report found that limited information, the dispersed nature of the industry, and rapid development all contribute to prevent successful and effective regulation.  The EPA reported difficulties in prosecuting water contamination cases because often they have neither baseline water quality measurements nor knowledge of what chemicals were used by the companies responsible, due to the lack of disclosure requirements.  Beyond basic regulatory challenges, the BLM is also hindered by the difficulty in retaining employees when the private sector is able to offer more money to qualified agency staff.

Regulatory disparities between states and the unwillingness of the federal government to take the lead role on fracking regulation further complicate matters.  In March of 2011 President Obama’s administration released its Blueprint for a Secure Energy Future.  The policy paper reiterated the President’s position that ultimate regulation of fracking falls to state governments and that the federal government’s main role through the EPA and DOE would be to provide technical assistance to state agencies and regulators.[3]

All of this is not to say that no steps have been taken on the federal level, but many issues remain to be addressed.  For example, on May 4, 2012 the BLM issued a proposed rule that would update BLM fracking regulations for the first time since 1988.[4] The proposed rule would require the disclosure of fluids used in fracking operations on federal and Indian lands will allow for regulators to trace ground water contamination back to specific sites.[5] However, companies will not be required to disclose until after operations have ended, thus preventing the EPA from obtaining baseline water quality measures or from taking measures to manage spills and leaks during operations.  The rule also does not address the other issues raised by the GAO report, and given that it will be the first new rule in over thirty years, the prospects of federal agencies catching up to and fully and effectively policing oil and gas fracking seem slim.

Jeff Jay is a General Member on MJEAL.  He can be reached at jefjay@umich.edu.


[1] U.S. Gov’t Accountability Office, GAO-12-874, Unconventional Oil and Gas Development: Key Environmental and Public Health Requirements (2012).

[2] Id

[3] Blueprint for a Secure Energy Future (Mar. 31, 2011), http://www.whitehouse.gov/sites/default /files/blueprint_secure_energy_future.pdf

[4] Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands, 77 Fed. Reg. 27691 (proposed May 11, 2012) (to be codified at 43 C.F.R. pt. 3160).

[5] Id.

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New Fuel Economy Standards

On August 28, 2012, the Obama Administration finalized new fuel standards for the 2025 model year that nearly double those currently in place for 2016 vehicles[1]. The standards strive for historic fuel efficiency by requiring vehicles to achieve an average rating of 54.5 miles per gallon of fuel by 2025 for new passenger cars, light-duty trucks, and medium-duty passenger cars. Without a method of achieving increased efficiency specified, the rules are designed to encourage manufacturers to develop technology to improve mileage.

The projected effects of the new standards are reported to be significant. Transportation Secretary Ray LaHood explained that the new rule would save Americans $1.7 trillion in fuel costs for an average per vehicle savings of eight thousand dollars. This, LaHood says, will easily make up for the increased cost of the more efficient models. Moreover, LaHood also maintains that the switch to new technology will create jobs and reduce America’s dependence on foreign oil.[2]

The Environmental Protection Agency (EPA) and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) initially proposed the regulations[3] in November of 2011 as part of a Joint Proposal, which is the result of the National Program to improve overall fuel economy and reduce Greenhouse Gas (GHG) Emissions. In May of 2010, President Obama requested that the EPA and the NHTSA work in conjunction to establish the emissions and fuel standards. Under the Clean Air Act (CAA), the EPA is responsible developing GHG emissions standards, and the NHTSA is responsible for setting fuel economy standards[4]. The first rulemaking of the National Program occurred in May 2010 when GHG and fuel economy standards were set for model years 2012-2016.

The 2025 standards for CO2 emissions vary by the model of vehicle model, and the agency claims the new rules do not dictate the increased manufacture of any one kind of car. The larger the vehicle, the higher its permitted CO2 emissions, and carmakers are free to determine the combination of vehicle sizes they wish to manufacture. Thus, the EPA contends, the burden of decreasing emissions is spread throughout all firms in the market[5]

Despite the many benefits touted by the Administration, some members of the automotive industry have vigorously criticized the proposed standards. The National Automobile Dealers Association claims that the proposal will increase the price of the average vehicle by three thousand dollars, which will make it more difficult for Americans to afford. Further, the Association argues that the new rules will make larger cars less available, which they claim is contrary to current consumer preferences as exhibited by recent buying trends.[6] Critics further claim that the overall result will be an enormous loss of jobs in automobile manufacturing and related industries[7].

These contentions are rebutted not only by environmentalists, but also by the United Auto Workers union. In addition to controlling a significant environmental problem, namely global warming, groups in favor of the proposed standards assert that the savings to consumers will outweigh the increased sticker price of new vehicles[8].  The EPA projects a net savings of as much as $4,400 for consumers that purchase a model year 2025 vehicle without a loan when that car is used for the entire duration of its useful life[9]. Further, the legislation incorporates multiple provisions to allow manufacturers some flexibility in compliance, including credits banking and trading, air conditioning improvement credits, off-cycle credits, and credits for hybrid, electric, and fuel cell vehicles. According to the EPA, these flexibility programs will make compliance possible while still encouraging manufacturers to achieve the goal of lowering GHGs[10].

There is little doubt that the new standard, if successful, would be environmentally beneficial and would have the additional advantage of decreasing American dependence on foreign oil. However, as the National Automobile Alliance (Auto Alliance) pointed out in their reaction[11] to the proposed rule, given the national economic downtown and the precarious position of the American automobile industry, it is important that the new fuel standards be carefully tailored for success. The goal of the pending legislation is that the emissions standards will be technology-forcing, a common policy objective in environmental legislation. New technology is “forced” because the stringent regulations cannot be fully achieved, or achieved efficiently, with currently available technology. However, other such statutes, particularly the Clean Water Act (CWA), have set goals so ambitious that little progress is made, even decades after promulgation. If the implementation of these standards results in sticker prices so high that consumers delay purchasing new vehicles, the effects could devastate the already fragile automotive sector. Further, environmental improvements would be thwarted if consumers continue to drive old and inefficient vehicles. While no ideal fuel efficiency standards have been offered from industry, the Auto Alliance and other groups implore the Administration to remember that the success of the legislation and of the automotive sector is predicated on the sale of the new vehicles[12].

Megan Anderson is an editor with MJEAL.


[3] 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 76 Fed. Reg. 74854 (proposed Dec. 1, 2011) (to be codified at 49 C.F.R. pts. 523, 531, 533, 536, and 537).

[4] EPA Regulatory Announcement: http://www.epa.gov/fueleconomy/regulations.htm

[5] EPA Fact Sheet, EPA and NHTSA Propose to Extend the National Program to Reduce Greenhouse Gases and Improve Fuel Economy for Cars and Trucks, available at http://www.epa.gov/otaq/climate/regulations.htm .

[8] Id.

[9] Supra n. 6. Note that these projections assume that the price of gasoline will be similar to what it is today. Additionally, the EPA finds that consumers who purchase vehicles with a traditional 5-year loan will save about $140 a year.

[10] EPA Fact Sheet, EPA and NHTSA Propose to Extend the National Program to Reduce Greenhouse Gases and Improve Fuel Economy for Cars and Trucks, available at http://www.epa.gov/otaq/climate/regulations.htm .

[11] National Automobile Alliance, Statement Of The Alliance Of Automobile Manufacturers In Response To Nhtsa And Epa’s Release Of The Nprm On Fuel Economy/Co2 Standards For 2017-2025, November 16, 2011, Available At: Http://Www.Autoalliance.Org/Index.Cfm?Objectid=9d11fa36-1098-11e1-A783000c296ba163.

[12] Id.

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A Potential Supreme Court Case in the Making: How Safe of a Harbor is the EPA’s Silvicultural Rule?

Logging companies commonly build a series of culverts and ditches to divert storm water and sediments away from the dirt transport roads the companies use for log transport. These logging companies rarely obtain any sort of permit, even though the Clean Water Act (“CWA”) requires companies that artificially introduce pollutants into water ways to obtain a permit. CWA-regulated pollutants include a variety of substances, even natural sediments such as those found in storm runoff–these pollutants actually have very real effects on ecosystems when artificially introduced into the wrong aquatic environments.

For three and a half decades the EPA, which enforces the CWA, has allowed these loggers to divert storm water, and the accompanying mass of sediment, without triggering the CWA’s labyrinthine permitting requirements. The EPA has historically avoided any legal backlash via a  regulation known as the Silvicultural rule[1] which exempts categories of activities from the CWA’s permitting requirements. Although a storm water runoff exemption might seem a small concession, this rule is part of a historical cessation of forest regulations to the states. According to many scholars, the EPA’s “respect” for state sovereignty has had devastating impacts on the environment. Recently, the 9th Circuit pushed back on the EPA’s liberal treatment of state forests by holding that the Silvicultural rule could no longer be the EPA’s safe harbor, forcing the EPA to get involved with environmental regulation in state forests, at least when it comes to artificial storm runoff.

Early last year, in Northwest Environmental Center v. Brown, 640 F.3d 1063 (9th Cir. 2011), an environmental group brought claims against the state of Oregon and several lumber companies alleging violations of the CWA. The plaintiff claimed that the companies were violating the CWA by diverting storm water and sediment from logging roads into rivers and streams, and thus creating an un-permitted point source of pollution.

At first blush, the law seems to clearly favor the environmental group’s position. The CWA requires permitting for point sources that pollute waterways, and the clear language of the statute seems to unambiguously encompass artificially controlled runoff.[2]However, the defendants would appear to be within the safe harbor of the “Silvicultural” rule.In fact, for 35 years, the EPA has left regulating forest runoff to the states, using the Silvicultural rule to define roads like those at issue in Northwest as an unregulated non-point sources.

A brief understanding of the Silvicultural rule’s rocky history is needed to understand the current debate. The first version of the rule was struck down by the D.C. District Court as beyond the EPA’s statutory authority.[3]The court held that the power to exempt point source discharges,categorically, was beyond the authority statutorily granted to the agency. The court looked to the CWA, finding that the statutory language and legislative record foreclosed categorical exceptions under even the great deference afforded agency interpretations: the EPA must require permits for anything that meets the definition of a point source pollutant.

While the district court case was pending appeal with the D.C. Circuit, the EPA enacted a revised rule that narrowed the exception to only those situations in which the runoff is “natural.” In practice, this meant thatif the water came from a natural event such as rain it was still exempt even if it was artificially channeled, but, if an individual caused the water to flow in the first place, the Silvicultural rule would not apply.[4]In the EPA’s view, under the case law and the CWA’s legislative history,not every “ditch” should be classified as a regulated point source.[5]The D.C. Circuit ended up affirming the district court’s holding regarding the original Silvicultural rule, but it declined to address the revised rule. [6]

The Northwest court considered the revised version of the Silvicultural rule. Unfortunately for the loggers, the court found the revisions similarly uncompelling, holding that once runoff is artificially channeled, it becomes a point source incapable of exemption under the CWA. However, the court stopped short of invalidating the revised rule, instead, the court interpreted the EPA’s use of the language “natural runoff” to mean that the runoff’s course must be natural as well–thus, as soon as the runoff is artificially channeled it is no longer “natural.”The court admitted that this is clearly not what the EPA intended, especially in light of the agency’s 35 year history of avoiding this type of regulation. But, the court held that allowing the EPA to exempt artificially channeled runoff under the revised rule was as contrary to law as doing so under the original version:”[t]he definition [of point source] in no way depends on … whether the pollutant arrives as the result of controlled water used by a person or through natural runoff.”

Perhaps most prominently, Northwest’s holding can be seen as a pushback on the historically broad powers the EPA wields. Courts generally give agencies wide discretion in carrying out the details of their delegated duties, and this case might signal a trend of EPA constraint. More specifically, how much control and discretion the EPA has over permitting, and should have, is a highly contentious issue. Starkly reversing a 35-year practice, with potentially enormous impacts, is a bold judicial pronouncement regardless of the grounds.

This case is also important because of the enormous costs faced by both the government and private companies, as well as the environmental stakes. Under Northwest‘s holding, a plethora of private and public entities would have to procure CWA permits anytime water is artificially diverted. This could be an enormous burden.On the other hand, the deleterious effects of artificially diverted runoff are not mere conjecture or rumor mongering: it is in fact a well-documented threat to our environment.[7]

Finally, one other factor that the Supreme Court might consider is a federalism issue. Historically, the states have had a robust role in regulating their forests and waterways. In fact, state forests are one of the last resources the federal government has been careful to only indirectly regulate through statutes such as the CWA and the Endangered Species Act.[8]Arguably, if Northwest is upheld, the federal government will be taking a much more direct hand in forest management. This is likely why the application for Northwest’s certiori was accompanied by amici supporting review from 26 states, including Michigan.

There are other potential administrative law challenges to be made to the case which might be successful, and the applications for certirori explore these in detail. For example, the petitioners argue that the Silvicultural rule should not be subject to challenge because the CWA requires rule challenges within a time period long passed. Northwest quickly dismissed this argument on the grounds that the published rule was ambiguous as to the channeling issue, but there is significant room for argument.

Although the Supreme Court has not yet granted certitori, neither have they denied it. In fact, the Court recently issued an order requesting the Solicitor General to opine on whether review should be granted. Considering that half of the states have submitted amici in support of review, there is a significant possibility that the Court will be hearing this case.

 

—–Joe Regalia is the Online Content/Technology Editor for MJEAL.  He can be reached at regaliaj@umich.edu.


[1]40 C.F.R. § 122.27.

[2] The Northwest case discusses the classification of artificial runoff as a point discharge in depth. Northwest Environmental Center, 640 F.3d at 1073.

[3]Natural Res. Def. Council, Inc. v. Train, 396 F. Supp. 1393 (D.D.C. 1975) aff’d sub nom. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).

[4] See the EPA’s proposed rule. 40 Fed. Reg. 56932.

[5] The Northwest court quotes the relevant sections of the EPA’s rules, noting that the EPA comments to the revised rule state that “a proper interpretation of the FWPCA … is that not every ‘ditch, water bar or culvert’ is ‘mean[t] to be a point source under the Act [FWPCA].’  Nw. Envtl. Def. Ctr.,640 F.3d at 1076.

[6] Nw. Envtl. Def. Ctr., 640 F.3d at 1077.

[7] See the EPA’s webpage exploring the dangers of sediment in waterways at http://water.epa.gov/polwaste/sediments/cs/index.cfm.

[8] See Blake Hudson’s discussion of the potential federalism issues present at http://lawprofessors.typepad.com/environmental_law/2011/12/potential-supreme-court-case-northwest-environmental-defense-center-v-brown-a-cwa-permit-required-fo.html.

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Welcome to MJEAL’s Online Content!

I am happy to announce the launch of the Michigan Journal of Environmental and Administrative Law’s blog, which will complement our published journal content.

At a time when social networking and online media is the norm for information dissemination, the founders of MJEAL recognized that having an online presence is important to facilitate dialogue about important developments in environmental and administrative law scholarship.  We plan for this space to serve as a forum for our editors, faculty, and other contributors to explore a variety of timely topics in environmental and administrative law.  Their entries are intended to provide a brief primer on or thoughtful analysis of issues that may be of interest to students, academics, practitioners, and observers of environmental and administrative law.  Many of these entries grew out of topics explored for possible student notes.  Others represent subject areas about which the authors are passionate.

As a blog, the goal is to publish relatively informal writing that can also be posted in a timely manner.  We invite readers to submit comments or to contact authors to expand the dialogue on the issues written about.  We also envision this space as a place where we will post responses to articles and notes published in MJEAL.  Our hope is for this blog to develop into a forum where readers and authors may further explore and develop novel ideas and themes in environmental and administrative law.

On behalf of the entire editorial board and the contributing editors of MJEAL, I welcome you all to our new blog and look forward to your contributions and feedback.

— Chris Eaton – Managing Notes Editor

Chris can be contacted at cdeaton@umich.edu.

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MJEAL Volume 1, Issue 1 Party!

It’s been a long year, but we’re finally there.  The issue is with the
printer and should be going out to the world shortly.  To celebrate, we’re going to have a little shindig.

More formally, we’d like to invite you to our Volume 1, Issue 1 Launch Party!

The event will be held Wednesday April 4 at 7pm at the Arbor Brewing Company (click here for a printable invitation).

It should be a great time to play a little shuffleboard and indulge in self-congratulation over what we’ve accomplished together.

 

 

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