An EPA Adversary Now Helms the Agency

By Ed Jewell, Energy Fellow

Photo Credit: epa.gov

Last week, Scott Pruitt was confirmed as the Administrator of the Environmental Protection Agency, largely along party lines and despite the impending release of emails ordered by an Oklahoma court regarding Mr. Pruitt’s contacts with the oil and gas industry (because who cares about a few emails?). Unsurprisingly, given President Trump’s overtures to the fossil fuel industry during his campaign and early days in office, his selection of Mr. Pruitt represents a bigly gift for the oil and gas industry.

Scott Pruitt Is More Concerned With Protecting the Oil and Gas Industry Than Protecting the Environment

Unlike some of President Trump’s other nominees for cabinet positions, Mr. Pruitt is familiar with the work of the agency that he has been nominated to lead. In his previous job as the Attorney General (AG) of Oklahoma, Mr. Pruitt sued the EPA over a dozen times in efforts to block implementation of rules to protect clean air and water.

Mr. Pruitt was also instrumental in building a network of Republican AG offices dedicated to fighting EPA efforts under the Obama administration. As chairman of the Rule of Law Defense Fund, Mr. Pruitt and his cohorts sought to slow or thwart implementation of major environmental and public health programs such as the Cross State Air Pollution Rule, Clean Air Mercury Rule, EPA’s update to its national ambient air quality standards for ground-level ozone (smog), the Clean Power Plan, and others. Co-litigants with Mr. Pruitt in these suits against the EPA included the American Fuel & Petrochemical Manufacturers, National Mining Association, Murray Energy, Peabody Energy, Southern Company, American Petroleum Institute, and other representatives of some of the most polluting industries on Earth.

Mr. Pruitt’s actions show greater concern for the interests of the oil and gas industry than for public health and the environment. The New York Times has described Mr. Pruitt’s relationship with oil and gas industry executives as an “unprecedented, secretive alliance.” In 13 out of the 14 challenges to federal environmental regulations that Mr. Pruitt was part of, energy companies that had contributed money to Mr. Pruitt or to Pruitt-affiliated political campaign committees were co-parties. Additionally, Mr. Pruitt copy-and-pasted a letter (with minor, unsubstantial alterations) from an oil and gas company onto Oklahoma AG letterhead, and sent the letter to the EPA representing it as the work of the AG’s office, thereby using the seal of his public office to lend an imprimatur of public interest to the arguments of the oil and gas industry.

One of the core tenets of Mr. Pruitt’s regulatory philosophy is that environmental regulation should be left to the states. However, under his direction, the Oklahoma AG's office cut its environmental enforcement division and redirected resources into a newly created federalism division. Thus, Mr. Pruitt’s actions demonstrate his beliefs that not only should environmental regulation be left to the states (calling into question why he is in charge of the EPA) but that states should then abdicate responsibility for environmental protection as well (calling into question why he is in public service).

Pruitt’s EPA Will Face Legal Roadblocks to Rolling Back Most Obama Era Regulations

While Mr. Pruitt was effective at organizing opposition to the Obama administration’s regulatory efforts, his challenges often failed in court. Courts upheld numerous EPA rules challenged by Mr. Pruitt and his coalition, making them more impervious to challenge from within the agency.

Furthermore, judicial review of administrative actions constrains the ability of the EPA Administrator to make or reverse policies adopted by previous administrations, particularly policies that have already gone into effect. Familiar doctrines such as Chevron deference and arbitrary and capricious review provide outer limits on the Administrator’s discretion. Agencies may be entitled to substantial deference from the courts, but agency actions are far from unfettered.

It is quite common for incoming EPA administrators to take different positions on matters within the agency’s jurisdiction than outgoing administrators. While the agency is allowed considerable latitude in its policy positions, it still must be able to adequately explain why it is changing course and must point to substantial evidence in the record to support its decision. It is not simply enough for the agency to say that there is a new administration in town and so now the agency is going to rescind previous rules. Perhaps most illustrative of this principle is the G.W. Bush administration’s failed efforts to undo the Clinton administration’s Roadless Rule for certain areas of the nation’s national forests.

Therefore, most of the Obama administration’s environmental regulations—which were amply supported by scientific evidence and in many cases have already been upheld against legal challenges (many of them from Mr. Pruitt)—will be tough for Pruitt to undo. Particularly given that numerous federal environmental statutes, existing regulations, and the best available science all contradict his lasseiz faire dressed up as federalism viewpoint.

The early days of the Trump administration are not indicative of an administration that is predisposed to the thoughtful, deliberative process required to compile the necessary administrative record to withstand judicial scrutiny. Additionally, the administration’s actions to undermine the EPA’s work, including efforts to slash the agency’s funding and impugn the role of science in policy making, will likely work against the administration’s anti-regulatory rulemaking efforts by opening the actions to judicial challenges.

Given the current legal structure, Mr. Pruitt's office faces impediments to fulfilling its agenda. Which goes a long way in explaining Steve Bannon's recent statements that efforts are underway to dismantle the regulatory state. So long as Americans continue to push back on the unconstitutional overreach of the Trump administration, and prevent wholesale change of our system of government, the environmental regulations that have protected U.S. water quality, air quality, and public health will likely still be in place when the American political system regains its senses. Just keep pushing back. 

The Path of Unprecedented and Unusual Occurrences: The Clean Power Plan Goes to Court

By Edward Jewell, Energy Fellow

Credit: Energy.gov

On Tuesday, September 27, the U.S. government will defend EPA’s Clean Power Plan (CPP) in front of an en banc panel of judges at the U.S. Court of Appeals for the District of Columbia. The CPP regulates the amount of carbon emissions that a state’s energy generation sector can emit into the atmosphere, and is considered the signature component of President Obama’s domestic efforts to mitigate climate change. It is under legal attack from 27 states and industry representatives (referred to herein as petitioners).

Tuesday will be the first time that a court will hear the merits of the petitioners’ case, West Virginia v. U.S. Envt’l Prot. Agency, but the CPP has already accumulated a lengthy and unique procedural history. This blog post will provide a brief primer on the legal drama thus far.

The first chapter in the CPP’s legal saga took place before EPA had even finalized the rule establishing the CPP. Despite clear statutory text in the Administrative Procedure Act stating that there must be a final agency action before a suit can be brought in federal court to challenge an agency action, 12 states and industry representatives sued on the proposed rule. Petitioners argued that due to the long planning time inherent in the electricity sector, states would have to start taking actions to comply with the proposed rule immediately. Therefore, they argued, they ought to be allowed to sue on the proposed rule. The D.C. Circuit readily denied this longshot (borderline superfluous) argument.

As soon as the final rule was released, petitioners again filed suit. Petitioners asked the D.C. Circuit to halt implementation of the CPP by granting a stay, but the D.C. Circuit denied the motion. However, as Staff Attorney Amelia Schlusser blogged about at the time, the U.S. Supreme Court (SCOTUS) itself stepped in to put a stay on the implementation of the CPP. Chief Justice Roberts and Justices Scalia, Thomas, Alito, and Kennedy voted to enjoin implementation of the rule pending disposition by the Supreme Court or denial of cert. This move was unprecedented and was also one of Justice Scalia’s last judicial actions before his death. His absence from the SCOTUS bench certainly alters the complexion of the case.

After SCOTUS issued the stay, the D.C. Circuit Court of Appeals decided to go straight to an en banc panel rather than the usual three judge panel, meaning that all judges on the D.C. Circuit would hear the case. Staff Attorney Amelia Schlusser covered this development here.

Until just this week (mere days before oral argument) it appeared that two of the twelve D.C. Circuit judges, including SCOTUS nominee Merrick Garland, were not going to hear the case, making the CPP’s en banc panel a nine-judge panel. However, continuing the theme of legal twists and turns that this case has taken before even reaching oral arguments on the merits, Judge Pillard, who did not participate in the court’s announcement of an en banc hearing and was therefore considered unlikely to sit for the case, was added to the panel. Thus, the panel (as it is currently constituted) sits at ten judges.

The three-judge panel initially scheduled to hear the case was considered by most observers to be an advantageous draw for the future of the CPP because two of the three judges were Democratic appointees. With the nine-judge panel, five judges were Democratic appointees and four were Republican appointees, more or less maintaining the ideological balance of the three-judge panel. Judge Pillard, however, is an Obama appointee, and thus the panel now sits at six Democratic and four Republican appointees. If you consider the party that appoints a judge to be a decent proxy for determining a judge’s ideology, then the panel appears favorable to the government.

Regardless of the makeup, the ten-judge en banc panel will certainly change the dynamics of the courtroom and how the case will be argued. With ten judges instead of three, advocates will be less able to target their arguments directly toward the sensibilities of particular judges.

Furthermore, a ten-judge panel obviously creates a much greater potential for a tie at the D.C. Circuit than did the three or nine-judge panels. Normally when an en banc panel in the D.C. Circuit results in a tie, the opinion of the original three-judge panel is upheld. There is no original opinion of a three-judge panel in this case. What happens in the event of a tie in this situation is not altogether apparent. Perhaps the case would be scheduled for rehearing and there would be an eleventh judge eligible to hear the case by that time. Perhaps not.

While the CPP is almost certainly destined for review in front of the U.S. Supreme Court, the ruling of the ten-judge panel at the D.C. Circuit Court of Appeals is nonetheless an important step in the CPP’s tumultuous journey. For starters, the current eight member composition of the U.S. Supreme Court creates the potential for another tie, this time a 4-4 split. Depending on how long the D.C. Circuit takes to issue an opinion, the earliest SCOTUS could hear the case would be next February or March. But more likely, the case would not be scheduled until October. Therefore, it’s possible that there will be a ninth justice when and if SCOTUS hears the case.

In the case of a 4-4 split, the opinion from the D.C. Circuit would be upheld without an opinion from SCOTUS. However, many observers have cautioned that SCOTUS is unlikely to issue a split opinion with no majority on a case of such extensive nationwide consequence. Ideologically speaking, a 4-4 split is by no means out of the question. Justice Kennedy, the ever critical swing vote, and essential piece to the liberal wing of the court being able to gain a 5-3 majority, is known as being sympathetic to states’ rights arguments. If SCOTUS lands on a 4-4 draw, the Chief Justice could then reschedule arguments on a rehearing for a later date and hope that reason prevails on the Hill and Justice Scalia’s vacancy is filled.

The ramifications of the case for the national economy and the global atmosphere are significant (though prone to hyperbole as well as legitimate debate). The substantive legal questions at the heart of the case are likewise significant. The high stakes and tough questions combined with the perplexing political climate and unexpected passing of Justice Scalia have all combined to make quite the buildup.

Tune in Tuesday morning to see how the plot thickens.  

EPA Nears Important Milestone on Portland Superfund

What's contaminating the Portland Harbor and how does EPA plan to clean it up?

By Brandon Kline, Energy Law Fellow

The Portland Harbor Superfund Site in Portland, Oregon, is the result of more than a century of industrial use along the Willamette River. Credit: U.S. Environmental Protection Agency, Region 10 (Pacific Northwest).

Early in its history, Portland's economy was fueled by its riparian location – adjacent to the largest river in the Pacific Northwest, the Columbia River, and its 187-mile long tributary, the Willamette River – which provided easy transportation access to the Pacific Ocean. This position created a dynamic shipping and supply hub, which led to more than a century of intense industrial use along the Portland Harbor, the first 12 miles of the Willamette River.

Following years of industrial use and urban development, the U.S. EPA added the Portland Harbor to its National Priority List (NPL) in December 2000, triggering the Comprehensive Environmental Remediation Cleanup, Liability Act (CERCLA, 42 U.S.C. §§9601-9675). CERCLA also creates a Trust Fund (or “Superfund”) to provide for emergency responses and long term cleanups, generally financed by potentially responsible parties, rather than Congressional appropriations. Portland Harbor is among more than 1,300 hazardous waste sites around the country, which in the EPA Administrator’s judgment, contains substances that may present “substantial danger” to the public health or welfare or the environment. See CERCLA §102. Only sites on the NPL may qualify for long-term remedial actions financed by the Superfund.

Superfund sites are areas where toxic chemicals have been suspected of being released into the environment, and the EPA has determined that an investigation of the type and severity of such releases is needed. The EPA also researches which party or parties may be responsible for the contamination (i.e., Potentially Responsible Parties). See CERCLA §107(a), creating liability framework for responsible parties. Thus, once EPA has named a contaminated property to the NPL, past, present and future property occupants face “strict liability” that is “joint and several” for cleaning up any hazardous substances posing a substantial danger to the public. Here, potentially responsible parties have voluntarily formed the Lower Willamette Group to work with EPA to remediate the Portland Harbor.

The Portland Harbor area under study and planning for the cleanup of contaminated river sediments is roughly 10 miles, extending from the Columbia Slough to the Broadway Bridge. Federal and state authorities have been developing a proposed cleanup plan, which is anticipated to be complete in spring 2016. According to the Portland Tribune, the EPA is hopeful it can approve the plan by December.

Why Does the Portland Harbor Need to Be Cleaned Up?

Studies show contaminants at Portland Harbor pose unacceptable risks to people, fish and wildlife. According to the EPA, water and sediments along Portland Harbor are contaminated with many hazardous substances, including heavy metals, polychlorinated biphenyls (PCBs), polynuclear aromatic hydrocarbons (PAH), dioxin and pesticides. These compounds have been found to be harmful to people and the environment. Because of the contamination, some types of fish found in Portland Harbor, such as bass, carp and catfish currently pose a health risk to those who eat them.

The EPA will draft a proposed plan that recommends a cleanup path for the harbor (expected later in 2016).

The EPA is months away from reaching a final decision about how the Portland Harbor will be cleaned up.

EPA Community Sessions Mark Key Milestone.

On February 23, the Portland Harbor Community Advisory Group reviewed community concerns and questions about the Feasibility Study. The EPA will also continue to hold community information sessions in advance of releasing its Portland Harbor Cleanup Plan this spring. During the community information session, the EPA will provide background on the Portland Harbor and discuss why the cleanup matters to the community. These sessions provide a valuable opportunity for the public to provide input. Because the Portland Harbor is a critical part of the regional ecosystem, all community members should be engaged.

Attend an upcoming EPA Community Meeting: 

·         Thursday, March 3, live webinar, Register now

Online information and discussion session: 7:00-8:00 pm 

·         Thursday, March 17, Gray’s Landing (Community Room), 0650 SW Lowell St., Portland (near Old Spaghetti Factory – southwest waterfront)

Open house: 6:30-7:00 pm; Information and discussion session: 7:00-8:30 pm 

·         Saturday, March 26, Oregon Museum of Science & Industry, 1945 SE Water Ave., Portland, featuring graphic facilitator Martha Bean

Open house: 11:30 am-12:00 pm; Information and discussion session: 12:00-1:30 pm