April 19, 2013
On April 5, EPA proposed a rule changing the effluent limitation guidelines for stormwater discharges from construction and development point sources.
Why is EPA Changing the Standard?
These changes reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group resolving the 7th Circuit lawsuit, Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012). The groups challenged the EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and attempts at compliance with effluent limitations guidelines could cost stakeholders up to $10 billion annually.
Who is Affected by these Changes?
The 2009 C&D Rule applies only to stormwater discharged during construction, which generally includes clearing, grading and excavation. Owners and operators of construction sites with one acre or more of land disturbance are subject to regulation and would be affected by the changes incorporated in the proposed rule.
What are the Changes?
The EPA acknowledged that the numeric turbidity requirements in the 2009 C&D Rule were flawed, and stayed implementation until additional information could be gathered. Pursuant to the Wisconsin Builders Association settlement, the proposed rule entirely eliminates numeric turbidity limits. The proposed rule additionally gives permittees more flexibility in adopting stormwater controls by specifically defining “infeasible” to allow consideration of industry practice as well as cost. EPA has also incorporated common-sense explanations of how the rule should be applied. For example, the requirement to minimize soil compaction is now explicitly inapplicable in areas where the site’s function requires soil compaction, such as foundation pads for buildings or roads; similarly, the requirement to stabilize certain areas does not apply to areas whose function necessitates that they not be stabilized. These changes, and others, reflect the continuing evolution of the standards for stormwater management under the Construction General Permit.
How Does This Affect Construction in New York?
In New York, the Department of Environmental Conservation (DEC) has authority to administer the NPDES program under its SPDES permit system. DEC has already adopted many of the 2009 C&D Rule requirements in its Construction General Permit (GP-0-10-001) and the New York State Stormwater Management Design Manual (2010). Discussion of the effect of the current proposed rule on the DEC Construction General Permit will be forthcoming in another blog post shortly.
EPA is accepting comments on the proposed rule through May 31, 2013.
For more information on stormwater regulation contact Michael Bogin or Maggie Macdonald.
April 1, 2013
On March 20, 2013, the Supreme Court upheld the Environmental Protection Agency’s (“EPA”) exclusion of ditches, channels, culverts, and other stormwater conveyances associated with logging roads from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”) program established by the Clean Water Act (“CWA”). The eight-justice majority deferred to EPA’s interpretation of two CWA regulations, although a dissent by Justice Antonin Scalia argued such deference was misplaced and that the conveyances should have been regulated as “point sources” under the Clean Water Act.
The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits. The defendants – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations. One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others. The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”
NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose. This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself. This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.
The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits. In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.
A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law. Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.
The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.
For more information on stormwater permitting issues, please contact Michael Bogin.
March 12, 2013
A recent decision by the United States Supreme Court has raised questions about the scope of plaintiffs’ standing to bring suit in federal court, a critical issue for environmental litigants.
Federal courts have long recognized that certain types of environmental harms can form the basis of standing under Article III of the United States Constitution, which requires plaintiffs to establish an “actual or imminent” injury that is “fairly traceable” to the challenged conduct and “likely to be redressed” by a favorable decision. In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that “those who by their activities and conduct have exhibited a special interest” in the “aesthetic, conservational, and recreational aspects” of a site have Article III standing, even in the absence of a “personal economic interest” at stake. 354 F.2d 608, 615-616 (1965). Although it has been well established that environmental harms, and not just economic harms, can serve as the basis for a federal lawsuit, courts have struggled to define which types of environmental harms may give rise to standing. In particular, courts have questioned what level of risk, and over what time scale, rises to the level of a cognizable environmental injury.
In a recent 5-4 decision, the Supreme Court held that a coalition of lawyers, human rights activists and journalists lacked standing to challenge government surveillance activities because the threatened harm posed by potential surveillance was, in the view of the majority, too remote. Clapper v. Amnesty International, 2013 WL 673253 (U.S. February 26, 2013). In Clapper, the plaintiffs sought to challenge the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act (FISA), which authorizes federal interception of certain communications between parties located in the United States and parties outside the United States. The Second Circuit found that the plaintiffs had established standing by demonstrating an “objectively reasonable likelihood” that they would eventually be subjected to the surveillance that they claimed was unconstitutional. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011). The Supreme Court overturned this decision, holding that the plaintiffs needed to demonstrate that their future injuries were “certainly impending.”
Many environmental issues involve long-term risk of harm that may not materialize immediately, most notably, but not exclusively, in connection with climate change. In Massachusetts v. EPA, the Supreme Court confronted the question of whether claims by the State of Massachusetts that it would lose parts of its coast due to gradual sea-level rise resulting from climate change were too speculative or too far in the future to establish standing. 549 U.S. 497, 521 (2007). The Court found, in a 5-4 decision, that this injury could serve as a basis for standing, concluding that Massachusetts had already been harmed by the loss of coastal land and “[t]he risk of catastrophic harm, though remote, is nevertheless real.” Id. at 526.
The court also indicated that its finding of Article III standing was informed by a “special solicitude” derived from Massachusetts’ status as a sovereign and by the fact that Massachusetts sought, in the case, to exercise a “procedural right” granted by the Clean Air Act. Id. at 520. Yet the Court did not clarify the precise role that these considerations played in its analysis. In an opinion four years later, an evenly divided Supreme Court upheld the standing of the State of Connecticut to seek injunctive relief for harms caused by climate change, citing Massachusetts v. EPA. American Electric Power v. Connecticut, 131 S.Ct. 2527, 2535 (2011).
The Supreme Court’s recent decision in Clapper may signal a turn towards a higher threshold for standing predicated on claims of risk. While the “certainly impending” definition of “actual or imminent” harm has been cited in prior Supreme Court cases, applied strictly it could greatly limit standing based upon claims of future injury. As the Clapper dissent argued, “[t]he future is inherently uncertain … yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place.”
Some commentators have suggested that the Supreme Court’s decision in Clapper may have been motivated by deference towards the executive branch in matters of national security, and that its precedent may have little effect on litigation in other areas. As the majority opinion observed, “[W]e have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” It remains to be seen if and how plaintiffs, defendants, and the courts will address Clapper in future environmental cases.
November 29, 2012
*** Updated 11/30/12 with link to revised text of proposed hydrofracking rules ***
This week, the New York State Department of Environmental Conservation (“DEC”) formally sought a 90-day extension of its rule making process for its proposed regulations governing the natural gas drilling technique of high-volume hydraulic fracturing (“hydrofracking” or “fracking”).
The 90-day continuation includes a new 30-day public comment period on the revised text of the proposed rules, which were posted to DEC’s web site. DEC will accept comments on the revised draft regulations from December 12, 2012 through January 11, 2013. The 90-day rule making extension will delay any decisions on new hydrofracking permits until 2013 or later.
Governor Cuomo and DEC cited the New York State Department of Health’s (“DOH”) ongoing review of the health impacts of the proposed regulations as the reason for the delay in adopting the rules.
Under Section 202 of the State Administrative Procedures Act (“SAPA”), DEC has one year from the date of the last public hearing announced in its notice of rule making to adopt the proposed rule. That deadline was set to expire this week. In order to keep the rule making process from expiring (and thus avoid having to start the rule making process over again), the agency submitted a notice of revised rule making to the New York Department of State (“DOS”).
The notice of revised rule making involves more than just a simple request for an extension. SAPA requires the notice to include the revised text of the rule, as well as an assessment by DEC of all public comments received on the proposed rule (DEC received more than 66,000 comments on the 2011 draft regulations). DEC is also required to provide an analysis of the issues raised by the comments and significant alternatives suggested therein.
It remains to be seen whether additional regulatory changes may yet result from the pending DOH review. Substantial revisions could require another notice of revised rule making and comment period, pushing the date for final regulations further into 2013.
For more information on DEC’s proposed regulations and other hydrofracking issues, contact Chris Amato or Steven Barshov.
June 27, 2012
The nation’s first limits on greenhouse gas (“GHG”) emissions survived a major legal challenge yesterday, as the District of Columbia Circuit Court of Appeals upheld two Environmental Protection Agency (“EPA”) climate change regulations on the merits and dismissed challenges to two others for lack of standing. The unanimous ruling from a three-judge panel (which included one of the Court’s most conservative members) resolved consolidated lawsuits filed by states, industry trade associations, and other opponents of the embattled climate regulations.
The litigation challenged four separate, but inter-related, rules: (1) EPA’s threshold finding that GHG emissions endanger public health or welfare, and are thus properly subject to regulation under the Clean Air Act (the “endangerment finding”); (2) a rule limiting car and light truck GHG emissions (the “tailpipe rule”); (3) a rule governing the timing of implementation for stationary source GHG limits (the “timing rule”); and (4) a rule increasing the initial regulatory thresholds for stationary source GHG controls, so only the largest emitters are covered first (the “tailoring rule”).
The Court decisively rejected scientific and legal challenges to the endangerment finding and tailpipe rule, relying heavily upon the Supreme Court’s 2007 Massachusetts v. EPA decision affirming EPA’s authority to regulate GHGs under the Clean Air Act. The Court brushed away claims that EPA had improperly relied upon prior studies and surveys by non-EPA scientists in defending its endangerment finding – with a robust endorsement of EPA’s reliance on the scientific method: “This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The Court also observed that EPA could properly make its endangerment finding as a precautionary measure, to protect public health and the environment, despite alleged uncertainty about the predictive accuracy of climate change models.
The Court proceeded to find that, in light of the endangerment finding, the tailpipe rule was compelled by Massachusetts v. EPA, and that implementation of vehicle emission limits required EPA to control stationary source GHG emissions as well under the Clean Air Act. Rejecting three alternate statutory interpretations advanced by the various Petitioners – which would have limited regulation to mobile sources only – the Court held that “EPA’s interpretation of the governing CAA provisions is unambiguously correct.”
Finally, the Court ruled that because the timing and tailoring rules increase flexibility and relieve regulatory burdens, they actually serve to “mitigate Petitioners’ purported injuries.” As a result, none of the Petitioners had standing to challenge these rules. Although the Petitioners invited the Court to create regulatory chaos by subjecting even small businesses to immediate regulation, thereby inviting Congressional reform of the Clean Air Act, the mere possibility that Congress might enact corrective legislation were the tailoring rule to be overturned was considered too speculative to confer standing. This holding may have been the Court’s most significant, as the tailoring rule – which departed from the Clean Air Act’s express regulatory thresholds – was widely viewed as the most vulnerable on the merits.
The challengers could still seek to appeal the panel’s decision to the full D.C. Circuit or the Supreme Court. They are also expected to pursue legislation curtailing or eliminating EPA’s climate change authority. The ruling may also reignite discussions of comprehensive climate legislation, which has languished since the House approved a broad-reaching global warming bill on June 26, 2009 – three years to the day before the Court’s recent climate change decision.
For more information on the Court’s ruling or U.S. climate regulation, contact Jeffrey Gracer or Jonathan Kalmuss-Katz.
June 10, 2012
On May 31, EPA posted a Notice of Data Availability (“NODA”) in advance of forthcoming regulations which may provide a more flexible interpretation of Clean Water Act Section 316(b)’s Best Technology Available (“BTA”) requirement for facilities that operate cooling water intake structures (“CWIS”).
Section 316(b) requires facilities to adopt BTA minimizing adverse environmental impacts from fish being drawn into CWIS (known as entrainment) or trapped against screens at the front of an intake structure (known as impingement), where fish may be harmed or killed.
In a 2011 proposed rule governing existing power plants and manufacturing facilities, EPA recommended case-by-case, site-specific determinations of BTA to prevent entrainment, but appeared to favor the installation of travelling screens as the uniform national BTA standard for preventing impingement. Travelling screens can be costly, if not impossible, to install, depending on the size of the facility and site conditions.
In a move that would provide more options for CWIS operators, the NODA sets forth a number of alternatives to this one-size-fits-all approach to BTA for impingement. Specifically:
- In defining BTA, the new regulations may permit a facility to adopt “any technology it chooses so long as it will achieve the required impingement limitation.” EPA is also considering giving credit for impinged fish survivability and for fish that a facility excludes from becoming impinged in the first place.
- EPA may also establish a “de minimis” impingement category that would effectively eliminate BTA requirements for facilities with very low impingement rates. While most facilities would probably not fall into this category, this exemption would be critical to those that could make this showing.
- EPA is considering whether to allow establishment of impingement controls on a site-specific basis, either in all cases or limited to those circumstances in which the facility demonstrated that the national controls were not feasible. Under such an approach, rather than meeting a specific, pre-determined standard a facility could seek a site-specific BTA for both entrainment and impingement mortality.
- The permit director may be authorized to determine species of concern that would be subject to the impingement mortality standard in the rule. Other species, such as clupeidae, would potentially be excluded from the standard, a critical distinction for certain facilities and industries.
- Perhaps most significantly, EPA is suggesting a new “streamlined” regulatory process for facilities that simply opt to employ modified travelling screens with fish returns, which EPA considers to be pre-approved BTA. Here, as long as the owner or operator of a facility complies with the specified operational conditions, the impingement mortality limitations would be deemed to have been met. Subsequently, the owner or operator would not have to conduct any biological monitoring to show compliance with the impingement mortality limitations. In subsequent permit terms, and in the absence of major changes to the operation of the intake structure or the biology of the source water, EPA expects the permit director would waive any further requirement for a study or compliance monitoring for the facility.
EPA will solicit comment on the NODA, and public input will be considered before the 316(b) regulations are finalized. For more information about EPA’s cooling water intake structure regulations, contact Michael Bogin.
Scott Elliott is a Summer Associate at Sive, Paget & Riesel.
June 5, 2012
On May 31, a federal judge in the District of Columbia issued an order giving the EPA one final week to issue its proposed rule updating standards for particulate matter air pollution. The American Lung Association, the National Parks Conservation Association, and 11 states, including New York and California, had asked the court to compel EPA to review the standards and to propose any revisions based upon the latest scientific data. (American Lung Ass’n v. EPA, D.D.C., No. 1:12-cv-243, 5/31/12). The proposed regulations are more than six months overdue according to the October 2011 statutory deadline, and they must meet requirements set by a federal appeals court in 2009.
Particulate matter is a form of air pollution consisting of small particles suspended in air, such as dust or soot. It is a common byproduct of combustion processes, like those conducted in power plants and factories. Diesel truck exhaust is also a notable source of airborne particulate matter. Inhalation of particulate matter can cause asthma, lung cancer, cardiovascular issues, birth defects, and premature deaths in humans.
The Clean Air Act requires EPA to review and consider revising air quality standards every five years. EPA last revised the particulate matter standards in 2006, which means the new standards were due in 2011. Additionally, in 2009, EPA had been ordered to revisit its 2006 particulate matter standards to provide a better explanation of why particular standards were sufficient to protect the public health while providing an adequate margin of safety for children and other vulnerable subpopulations. Since that court’s finding, the EPA has not produced new standards and has allowed the 2011 statutory deadline to pass by without publication of a proposed rule.
Last week’s order states that EPA must sign a proposed rule by Thursday, June 7, 2012. It also requires that EPA seek expedited publication of the rule in the Federal Register, and that the agency hold a public hearing within two weeks of such publication. This hearing has already been scheduled for June 11. Following the hearing, the agency will accept comments for seven weeks. The court order did not set a deadline for the final rule; the EPA has said it needs until August 2013, while the ALA, Earthjustice, and NPCA are vying for its publication this December. The federal judge who issued the order has encouraged both sides to reach an agreement on a deadline before the June 11 hearing.
Priya Murthy is a Summer Associate at Sive, Paget & Riesel.
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