PELR

The Center for Biological Diversity (CBD) is leading the fight against ocean acidification (OA), in my beautiful home state of Washington, using the Clean Water Act’s (CWA) impaired waterbody listing requirement pursuant to § 303(d)[1] in an attempt to combat this prominent problem.

OA is caused by the world’s oceans taking in more Carbon Dioxide (CO₂) than they can handle subsequently increasing the acidity and decreasing the pH levels of the oceans.[2] Estimates suggest that over twenty two million tons of CO₂ are absorbed by the world’s oceans daily.[3] Oceans are already thirty percent more acidic than they were before the industrial revolution and models suggest that by the end of this century oceans could be 150 percent more acidic.[4] The acidification of the world’s oceans has a direct and dire impact on marine life, particularly to skeleton building organisms such as coral, calcifying algae and mollusks such as mussels and oysters.[5]

On August 15, 2007 the CBD presented data to the Washington Department of Ecology (WDE) showing that the pH levels of Washington State’s coastal waters were not in the range required by state water quality standards and asked that these waters be included on the state’s impaired waters list.[6] In June of 2008 when the list was submitted to the EPA by the WDE waters impaired from OA were not on the list.[7]  The EPA subsequently approved Washington’s list of impaired waters that did not include the waters impaired by OA.[8]

Due to this approval, CBD brought suit against EPA claiming a violation of section 303(d) of the CWA.[9] The complaint alleged that that EPA’s failure to list coastal water bodies damaged by OA harmed the CBD’s member’s rights to enjoy marine animals in the region and that its members suffered from procedural and informational injury.[10] CBD sought to compel declaratory relief for the violation by EPA of the CWA as well as an order requiring the water bodies impaired by OA to be included on the list.[11]

The CBD settled with EPA in 2010.[12] This settlement did not require the states to list waters impaired by ocean acidification on their 303(d) list, nor did it create any enforceable rulemaking procedures concerning the issue. However, as part of this settlement EPA began taking comments on how to deal with ocean acidification and was required under the settlement to issue guidance to the states on how they should evaluate and take action in regard to marine water impairment as regulated by the CWA.[13]

Based on this case the EPA published a Federal Register notice in November of 2010 and began accepting public comment.[14] Pursuant to these comments EPA determined that waters impaired by OA should be included on the 303(d) list.[15] The main issue now is the lack of data that states have in order to actually support these listings. As of now, no state has listed any coastal waters as impaired based on pH levels.

What this case ended up doing was placing the discussion of ocean acidification in to the public eye and piquing the interest to monitor for data in order to support claims of pH impaired water. When states are able to start listing coastal waters as impaired because of pH and thus giving way to CWA law, the regulations will likely be complex and contentious. Listing a water body as impaired based on ocean acidification would require states to quantify and manage the amount of CO₂ going in to a water body.[16] Because CO₂ is a regional and potentially global issue such a program could cause serious problems between states, tribes and the communities being regulated.

This case was a vital step in beginning to solve the problem of ocean acidification. The next step is compiling the data in order to support the claims that these water bodies are, in fact, impaired and should be listed as so. In the future we will need to determine how listing these impaired water bodies might work regionally and what sort of infrastructure can be put in place to guide states in this difficult task. The first step has been taken and although the road ahead may be long and winding, it was certainly a step in the right direction.

For more information on OA in Washington visit: http://www.ecy.wa.gov/water/marine/oceanacidification.html

It should come as no surprise that overfishing and pollution have depleted the ocean’s fish stocks; eighty-five percent of the world’s fisheries are now fully exploited, over-exploited, or have collapsed.[1]  In the world’s oceans, climate change is expected to result in increases in sea surface temperature, global sea level rise, decreases in sea-ice cover, and changes in salinity, wave conditions, and ocean circulation.[2]  These impacts are likely to exacerbate existing stresses on marine fish stocks, notably fishing pressure, diminishing wetlands and nursery areas, pollution, and UV-B radiation.[3]

The increasing effects of climate change are creating a new wrinkle for the implementation of existing international agreements to protect fisheries and foster regional agreements among stakeholder nations.  United Nations Convention on the Law of the Sea (UNCLOS) and its subsequent Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks aims to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of regional agreements,[4] the precautionary principle,[5] and cooperative enforcement[6] and data collection.[7]  However, these approaches are based on pre-climate change oceanographic models which assume some degree of predictability regarding fluctuations in fish stocks.

Studies show that as a result of rising ocean temperatures, many marine species have moved towards the poles and into deeper waters.[8]  For example, in the North Sea, the increased abundance of warmer-water species such as sea bass and red mullet create new fishing opportunities;[9] however, changes in migration and location patterns will ultimately challenge the effectiveness of regional agreements which govern fisheries in specific areas.  Agreements pertaining to fishing on the high seas can be rendered irrelevant as fish may shift from these areas to a given nation’s exclusive economic zone.  Encouragingly, there are proactive steps being taken to address climate change related concerns before they become unmanageable.  On April 29, 2013, Norway, Denmark, Canada, Russia, and the United States are scheduled to negotiate regulations for fisheries and fish stocks now exposed in summertime by the melting Arctic ice cap.[10]

For many developed countries, the incentive is there to continue to press for agreements that would allow for equitable distribution of resources through some sustainable fishing provisions.  However, the stakes are much higher for developing nations.  Though climate change will have an effect on developed and developing countries alike, fish contributes at least fifty percent of total animal protein intake in many small island developing states and least developed countries with ocean access.[11]  Economically, both direct employment in the fishing industry and related industries create export revenues reaching $24.6 billion annually.[12]  Developing countries with smaller shares in regional stock thus have less incentive to comply with regional conservation agreements than their developed neighbors with greater shares, as most of the benefits of conservation go to the larger stakeholders.[13]  Any decrease in fish harvest over the short term poses too much of a risk for countries dependent on fishing industries.

Ultimately, we must follow the precautionary principle when it comes to the uncertainties posed by climate change.  Proactive agreements are a good sign of things to come, but may need to give greater weight to the critical role developing nations have to play in creating a sustainable global fishing industry.

To access resources about sustainable seafood choices, visit the Monterey Bay Aquarium Seafood Watch site, http://www.montereybayaquarium.org/cr/cr_seafoodwatch/sfw_recommendations.aspx?c=ln.

The use of synthetic pheromones as pest control has been of discussion since the 1990s.  Pheromones are molecules released by insects that vaporize so that other insects of the same species can communicate and navigate.[1]  Some pheromones called releasers are responsible for sexual attraction and mating.[2]  Primers, on the other hand, “cause gradual changes in growth and development, especially in social insects, by regulating caste ratios in the colony.”[3]

Currently, there are five different techniques where synthetic pheromones are used:

(1)   Pheromones are released throughout an area, which confuses the male insect and does not allow him to find a mate to reproduce.  This leads to a large decrease in the reproduction of pests;

(2)   Male trapping;

(3)   Movement studies;

(4)   Population monitoring; and

(5)   Detection programs.[4]

The benefit of synthetic pheromones is the ability for manufacturers to target certain species of insects without harming others.  With the current bee crisis known as “colony collapse disorder,”[5] use of synthetic pheromones may become more prevalent.  So far this year, beekeepers have seen more bee deaths than ever in the past, some losing fifty percent of their hives each year as opposed to five to ten percent before 2006.[6]  Researchers blame a pesticide group called neonicotinoids, or “neonics,” which have been found in the hives and affected bees.[7]  Neonics affects a bee by blocking its nerve endings, causing it to become paralyzed and eventually starve to death.[8]  Recently, a coalition of beekeepers and other public interest groups sued the EPA to suspend the registrations for the dangerous pesticide group under the Federal Insecticide, Fungicide, and Rodenticide Act (or better known as “FIFRA”) because of the impact on bees, food, and their businesses.[9]

EPA already allows pheromones to be used as a pest control.  In order to promote the use of synthetic pheromones products, they allow for “flexible confidential statements of formula” for experimental use permits.[10]  This allows manufacturers to alter the active ingredients as needed during testing.[11] Currently there are 125 synthetic pheromones sold and of them sixty are readily available.[12]  With more incentives from EPA and the current lawsuit for protection of bees, we may see an expanded use of synthetic pheromones in the near future to limit pest reproduction.

On Wednesday, March 20, 2013, the United States Supreme Court issued its opinion in Decker v. Northwest Environmental Defense Center (the successor to the Ninth Circuit’s Northwest Environmental Defense Center v. Brown).[1]  Deferring to EPA’s interpretation of its own regulation, the Supreme Court held that the Clean Water Act (CWA) does not require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from logging roads.[2]  The decision reversed the Ninth Circuit’s 2011 holding, which found that such stormwater discharges were point sources under the CWA, and thus required a NPDES permit.[3]

The action arose in 2006, when the Northwest Environmental Defense Center (NEDC), an environmental non-profit organization affiliated with Lewis & Clark Law School, filed a citizen suit against Oregon officials and timber companies.^[4]  NEDC alleged that the defendants “violated [the] Clean Water Act (CWA) by discharging stormwater from ditches alongside logging roads in [the Tillamook State Forest] without NPDES permits.”^[5]  The Tillamook supported multiple logging operations, which had cleared two logging roads that “provided the local silviculture industry access to logging sites and a means to haul timber out of the forest.”^[6]  Systems of ditches and culverts were built alongside the roads, which channeled stormwater runoff into local rivers and streams.^[7]  The stormwater contained sediment and other pollutants that diminished water quality and negatively impacted aquatic life,^[8] particularly salmon and trout, by “smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food.”^[9]

The district court granted the defendants’ motion to dismiss, finding that their activities were within the NPDES silvicultural exemption.^[10]  The silvicultural exemption is an EPA regulation that defines and identifies silvicultural point sources, which require NPDES permits, and silvicultural nonpoint sources, which are excluded from the NPDES program.^[11]  The regulation is colloquially referred to as the Silvicultural Rule.

NEDC appealed and on May 17, 2011, the Ninth Circuit Court of Appeals reversed the district court’s decision, finding that when stormwater runoff from logging roads is collected and discharged through a system of ditches and channels it “is a point source discharge for which an NPDES permit is required.”^[12]  In so ruling, the Ninth Circuit undercut the silvicultural exemption.^[13]  Defendants Georgia-Pacific West Inc. and Doug Decker, the Oregon State Forester (formerly Marvin Brown), separately filed petitions for writs of certiorari to the Supreme Court of the United States.^[14] On June 25, 2012, the Supreme Court granted both petitions and consolidated them under Decker v. Northwest Environmental Defense Center (NEDC).^[15]  The Supreme Court heard oral arguments in Decker v. NEDC on December 3, 2012.^[16]

Hoping to counteract the Ninth Circuit’s ruling, EPA amended the Industrial Stormwater Rule on November 30, 2012, which clarified the Agency’s original intent to exclude silvicultural activities from requiring individual discharge permits.^[17]  The rule also established “that channeled stormwater from roadside culverts falls under the umbrella of ‘natural runoff,’ and therefore does not require permits.”^[18]

The Supreme Court held that the EPA rule of November 2012 did not moot the case because the timber companies could still be found liable for unlawful discharges under the pre-amended version of the Rule.[19]  The Court also afforded Auer deference to EPA’s interpretation of its own regulation, stating that “[w]hen an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.”[20]  The Supreme Court found EPA’s conclusion that logging roads are not “associated with industrial activity” reasonable because the regulation was only meant to apply to “traditional industrial buildings…[and] relatively fixed facilities.”[21]  The majority further showed its support for EPA’s interpretation by noting that EPA’s views and prior practices have consistently asserted that logging road discharges do not require NPDES permits.[22]

Justice Scalia concurred in part and dissented in part. Scalia argued for abandoning the rule of Auer deference.[23]  Auer deference is essentially Chevron deference applied to regulations instead of statutes, Scalia stated.[24]  However, Chevron deference affords agencies the ability to interpret congressional statutes, whereas Auer deference permits agency interpretation of its own regulations.[25]  Auer is thus a violation of separation of powers in that it places “the power to write a law and the power to interpret it…in the same hands.”[26]  Justice Scalia proposed to resolve the case through statutory and textual interpretation in order to ultimately determine the fairest reading of the regulation.[27]  Scalia argued that the fairest reading is a proscription of “the conduct at issue in these cases.”[28]  Scalia stated, “[i]t is time for us to presume…that an agency says in a rule what it means, and means in a rule what it says there.”[29]

Decker v. NEDC is considered an important win for states and the logging industry.[30]

Professor Lisa Heinzerling delivered the 2013 Garrison Lecture on March 12, entitled Inside EPA: A Former Insider’s Reflections on the Relationship between the Obama EPA and the Obama White House.  Professor Heinzerling is a Professor of Law at Georgetown University, where she teaches environmental and administrative law.  Professor Heinzerling served as the Senior Climate Policy Counsel to the Administrator of the EPA from January 2009 to July 2009 and Associate Administrator of EPA’s Office of Policy from July 2009 to December 2010.  Since becoming a professor, she has continued to litigate cases and served as the lead author of the winning briefs in Massachusetts v. EPA, in which the Supreme Court held that the Clean Air Act gives EPA authority to regulate greenhouse gases.

Professor Heinzerling’s Garrison Lecture focused on the question of who runs EPA.  The question is a complicated one because President Reagan passed Executive Order 12291 in 1981, which placed the Office of Management and Budget (“OMB”) in an advisory role over agencies.  Executive Order 12291 specifically required that all major rules be sent to OMB for review and approval.  Economically significant rules must be accompanied by cost/benefit analysis.  In reviewing the Executive Order at the time, the Office of Legal Counsel found it to be legal because it would not displace the authority of the agency, but only guide and limit it.  During these years; however, Professor Heinzerling argued that the White House displaced the authority of agency decisions.

In 1993, President Clinton passed Executive Order 12866.  Professor Heinzerling stated that the purpose of this Executive Order was to re-new the balance between agencies and the White House and reaffirm the primacy of the Federal Agencies.  This Order specifically required more disclosure than Order 12291 under President Reagan.  During President Bush’s terms, although he reaffirmed Executive Order 12866 from President Clinton, he and also passed Executive Orders 13258 and 13422.  The new Orders under President Bush made guidance decisions, which are statements of policy that are short of rules, subject to White House review.  This policy allowed the White House to intervene earlier in the Agency rule making process, allowing more control over final rules.  In addition to an earlier intervention, Professor Heinzerling explained that the White House can elect not to receive a rule from the Agency, which enables them not to review rules from the Agency.  For example, after the Massachusetts v. EPA litigation, EPA’s final rule spent one year sitting in the computer system and was not received by the White House until President Obama came into office.  Although President Bush directed the Agencies to work on a rule in order to comply with the Supreme Court’s decision, the White House did not accept the rule once the Agencies finished their work.

When President Obama came into office, he issued Executive Order 13497, pulling back on the Bush era Executive Orders.  In this Executive Order, President Obama stated that OMB would not have control over guidance issued by the Agencies.  However, shortly after the Order, OMB released a Memorandum stating that they were still reviewing guidance.  Although in direct contradiction to President Obama’s Executive Order, EPA has followed OMB’s Memorandum.

Professor Heinzerling found that these Executive Orders make it difficult to determine who is in control of Agency rules promulgated by EPA, because there is no clear picture of who is reviewing or stopping a rule.  The Office of Information and Regulatory Affairs in the OMB is formally charged with reviewing rules; however, they are not the only group that can review and stop a rule.  White House personnel, the Cabinet, and career staff can also all stop a rule from being promulgated by an Agency.  Who is in charge of reviewing and approving rules is diffuse with many individuals who have the power to stop a rule.  OMB’s review of rules falls disproportionately on EPA, which is the Agency typically with the most rules under review at any given time.

Professor Heinzerling believes that this process is important to review for several reasons.  First, although President Obama has advocated transparency, this process is only partly transparent.  Second, Congress generally gives the authority to issue regulations to the Administrator of EPA; however, it is unclear who is actually reviewing and making the decision of whether these rules are promulgated.  Third, in terms of accountability, we do not know who has the final say and who should be held accountable for the promulgation of rules or the failure to promulgate rules.  Finally, environmental protection gets lost in this process.

At the end of the lecture, Professor Heinzerling took several questions from students and professors.  When asked whether it is misleading that judges defer to EPA expertise when EPA might not be the Agency in charge of rules, she stated that this process does undermine this assumption.  It also undermines the agency’s culture as an expert body charged with making rules based on their expertise.

Another attendant asked if there would ever be an agency Administrator with the political capital and guts to do what was right and to follow the delegation of power specifically described in Statutes.  Professor Heinzerling stated that there have been administrators that have been strong willed and stood up for their ideas.  However, she found that there comes a time when the Administrator must think to herself if she should follow the system or violate the rules of the Executive.

Finally, the discussion turned back to why EPA would follow OMB’s Memorandum that they would continue to review guidance issued by EPA.  Professor Heinzerling stated that it would not have gone over well if EPA did not send their guidance decisions to OMB.  She found that the practical reality to be that OMB could not have issued the Memorandum without the White House’s approval and there was no real possibility for EPA to say no.

Professor Heinzerling illuminated a dynamic between EPA and OMB that is not often seen by individuals outside of these Agencies.

In July 2012 Governor Andrew Cuomo signed the Invasive Species Prevention Act, which creates a statewide regulatory system that will prohibit or limit the transport and sale of known invasive plants and animals.[1]

The Act requires the New York State Department of Environmental Conservation and New York State Department of Agriculture and Markets to develop regulations for the sale, purchase, possession, introduction, importation and transport of invasive species. Additionally these agencies will develop a list, with consultation from stakeholders, of prohibited species unlawful to possess with the intent to sell or introduce, as well as three lower tiers of regulated species that would be legal to possess, sell, buy, propagate and transport with restrictions.[2]

Governor Cuomo stated that this law will provide the Department of Environmental Conservation (“DEC”) and the Department of Agriculture and Markets (“DAM”) the tools that they need to protect New York’s ecology from the harm that invasive species can cause. [3] He also stated that “This legislation ensures that the regulations governing invasive species are appropriate for New York’s farming community and plant nurseries, while also protecting the environment. I commend the bill sponsors for their work on this legislation.”[4]

ISPA amends the Environmental Conservation Law (“ECL”) at § 9-1709 general powers and duties of the department[5] and  at § 71-0703[6] and the Agriculture and Markets Law (“AML”) at § 167[7], in relation to nonnative animal and plant species. The act was signed into law on July 24, 2012 and became effective on January 20, 2013.[8]

One major difference between the now effective legislation and the previously existing material in ECL § 9-1709 is that the new material requires the promulgation of regulations by the DEC the DAM in consultation with the ISC.[9]  The previous statute gave DEC and DAM the authority to “establish, operate and maintain statewide databases and clearinghouses for all taxa of invasive species that incorporate existing data from agencies and organizations in the state, as well as from nearby states, provinces, Canada, and the federal government” for the purpose of carrying out the provisions of Title 17.[10] Although this language appears in the latter part of this section now that the new legislation has become effective, the new language in the section is much more forceful and places a larger burden and responsibility on both DEC and DAM, as well as the ISC.  The new language states that the DEC and the DEM in consultation with the ISC shall, after public hearing, jointly promulgate regulations to develop the following four things:

(a) a permit for prohibited species disposal, control, research and education;

(b) a list of prohibited species, which shall be unlawful to knowingly possess with the intent to sell, import, purchase, transport or introduce;

(c) a list of prohibited species which shall be unlawful to import, sell, purchase, propagate, transport, or introduce except under a permit for disposal, control, research, or education; and

(d) a list of regulated species which shall be legal to possess, sell, buy, propagate and transport but may not be knowingly introduced into a free-living state or introduced by a means that one knew or should have known would lead to the introduction into a free-living state.[11]

Additionally, the statute also provides that the departments and the council shall “consider establishing grace periods for prohibited and regulated species so businesses can plan the management of existing stock”.[12]  The deadline for these regulations to be completed is September 1, 2013. [13]

The regulations, pursuant to the statute, will enact a new permitting system for invasive species.[14] According to the language of the statute, there will be a list of species that will be illegal to import, sell, purchase, propagate, transport, or introduce without a permit under §9-1709 (1)(a).[15]  There will also be a list of species that will be illegal to knowingly possess with the intent to sell, import, purchase, transport, or introduce for which a permit to do so will be unavailable.[16]

The ISPA amends AML § 167 to provide that DAM will work with DEC pursuant to ECL § 9-1709. [17]  In addition to the amendments to  ECL § 9-1709 and AML § 167, the ISPA also amends ECL §71-0703 to provide for penalties for violations of the regulations promulgated under § 9-1709 as follows:

 9. a. Any person who transports, sells, imports or introduces invasive species, in violation of the regulations promulgated pursuant to section 9-1709 of this chapter shall be subject to the following:

For any first violation in lieu of a penalty there may be issued a written warning by the department and there may also be issued education materials at the discretion of the department regarding requirements related to invasive species. Such person shall, however, for any subsequent violation thereafter be subject to a fine of no less than two hundred fifty dollars.

b.  Any nursery grower licensed pursuant to article fourteen of the agriculture and markets law, any person who owns or operates a public vessel as such term is defined in paragraph (a) of subdivision six of section two of the navigation law, or any person who owns or operates a commercial fishing vessel who transports, sells, imports or introduces invasive species in violation of the regulations promulgated pursuant to section 9-1709 of this chapter, shall be subject to a fine of not less than six hundred dollars upon the first penalty. Upon the second penalty such person shall be subject to a fine of not less than two thousand dollars. Upon a subsequent penalty and after a hearing or opportunity to be heard upon due notice the following penalties may apply: (i) such nursery grower may be subject to the revocation procedures of section one hundred sixty-three-c of the agriculture and markets law (ii) such person’s vessel registration may be suspended or (iii) such person’s fishing permit may be revoked by the department.[18]

In regards to penalties, there is a distinction between individuals who transport, sell, import or introduce invasive species in violation of ECL § 9-1709 and licensed nursery growers, public vessel owners[19], and owners or operators of commercial vessels who commit the same violation.[20]  The act provides for stronger, more severe penalties for the latter.[21]

It will be interesting to see what this Act means for New York invasive species prevention. Once the regulations are completed, we will be able to develop a better sense of how this Act is going to address the New York invasive species threats.

On January 29, 2013, Pace Law School had the pleasure of hosting Patricia Salkin, Dean of Touro College Jacob D. Fuchsberg Law Center, at the thirteenth annual Kerlin Lecture on Environmental Law.  She made her first stop at the Land Use Law Center for Sustainable Development where I had the opportunity to meet with Dean Salkin, Professor John R. Nolon, Dean Emeritus Richard L. Ottinger, and a few dedicated Land Use Law students prior to the lecture.  For such a small group, there was an extraordinary amount of scholarly prowess in the field of environmental law.  Dean Salkin shared with us the inspiration for her lecture topic, details about her early career, and her advice for law students.

When initially researching the topic of gubernatorial executive power, Dean Salkin suspected that it had been underexplored, but was surprised to find that no one had written on the topic before.  This gave me comfort in knowing that I was far from alone in my naiveté about the significance of executive power.  In terms of the importance of the topic, she offered a thoughtful comparison between the legislature and the executive.  Dean Salkin described the legislative process as a negotiation among lobbyists, legislators, and the governor—a negotiation that the governor ultimately wields significant influence over because of his veto power.  Restricted access to the Governor, contrasted with comparatively open access to the legislature, makes it a unique role. The Governor is able to make decisions based on the big picture, has the tools of state agencies and public authorities at his disposal, and can act swiftly.  These unique qualities set the executive apart, and gave Dean Salkin’s research on the topic importance.

Dean Salkin’s accomplishments in the field of land use and zoning law are many, but when speaking with our small group, she chose to focus on the beginnings of her career.  Her reason for going to law school was centered on the idea that if she had to live by the laws, then she wanted to be part of the law-making process.  Upon graduating from law school, Dean Salkin’s first job was working at the Department of State in Rural Affairs as Assistant Counsel, where she was introduced to land use law.  Although she found her niche in terms of subject matter, she felt unfulfilled and became bored with the bureaucracy.

Her next job was at the Albany Government Law Center, where she got her first taste of really making an impact on the law.  Her first assignment, a report on impact fees, quickly caught the attention of legislators.  This was her self-described “Aha! moment.”  At twenty-three years old, legislators were seeking out Dean Salkin to review their proposed bills.  While working in government, she had felt ineffective at getting things done, but at the law school, she had the attention of policy makers who sincerely cared about her opinions.  Her first impact on policy came through academia—she was making the law.

In the closing moments of our meeting, Dean Salkin offered advice for law students.  She recommended students identify their preferred type of practice.  She described private practice as serving one client at time, and compared it to public interest practice, serving the bigger picture and shaping policy.  However, she recommended that regardless of what type of practice students choose, they should stay engaged in the public interest, noting that who you know matters.  She also encouraged students to take advantage of opportunities and get experience working in government, noting the advantage in having a familiarity with bureaucracy, one that has helped to make her own career highly successful.  All along the course of her career, Dean Salkin has made innumerable connections that she uses to serve her causes.

In her lecture, Dean Salkin described New York’s environmental movement as vigorous, but often frustrated by the legislature, and she postured that gubernatorial leadership was the key indicator of the vitality of environmental law in the state.  However, she cautioned that a meaningful analysis requires the separation of rhetoric and action.  She described this separation as the difference between real action and action resulting in inaction.  To this effect, Dean Salkin primarily focused on a comparison between the Governor’s annual State of the State Address and executive orders.  She noted that the Governor’s control over government agencies and implementation of policy and programs is often overlooked.

Dean Salkin then reviewed the governorships of Mario Cuomo, George Pataki, Eliot Spitzer, David Paterson, and Andrew Cuomo, the most recent five governors of New York State.  Regardless of political party, each Governor led strong environmental agendas, especially in the common area of energy.  Pataki was determined to be the definitive environmental Governor.  Dean Salkin was keen to include that an alum from Pace Law School served as an advisor to Pataki.

With this deeper understanding of the executive in mind, Dean Salkin gave three pieces of advice to environmental attorneys: first, vote wisely; second, advocate environmental agendas with political candidates; and finally, explore opportunities for exerting influence at the executive level—“capture the Governor’s imagination.”

Last week Pace Law School hosted the 25th annual National Environmental Law Moot Court Competition.  Seventy-two teams from all across the country came to compete and over 200 attorneys donated their time to judge.  Vermont Law School, depicted below, won both Overall Best Brief and the Oral Competition.

The Problem:

This year’s problem revolved around an allegation of wetland filling on privately owned property, which is a potential violation of the Clean Water Act.  The Defendant was bulldozing and filling 1,000 acres of his property without a § 404 permit. A NGO, New Union Wildlife Federation sent the Defendant a notice of violation letter.  Before the NGO could sue, the state permitting authority, New Union Department of Environmental Protection (“NUDEP”), filed their own citizen suit which culminated in a pending consent decree in the lower court which requires the Defendant to only restore around 3 acres and did not seek civil penalties. New Union Wildlife Federation then filed a citizen suit alleging a continuing violation of CWA § 404 seeking greater enforcement.  The defendant filed a summary judgment motion claiming that 1) NUWF does not have standing, 2) the violations are wholly past, 3) they have been diligently prosecuted against, and 4) there was “no addition” as required by the CWA.  NUDEP intervened in the case.

The Final Round Judges:

This year’s competition had four distinguished Judge’s as the panel for the final round: Honorable Catherine McCabe from the Environmental Appeals Board, Honorable Joseph Bellacosa who is retired from the New York Court of Appeals, the highest court in New York, Honorable Edgardo Ramos who currently resides in the Southern District of New York, and Honorable Malachy Mannion, a Pace alumni, who currently resides in the Middle District of Pennsylvania. These judges were a very prepared and active bench for the three finalists on Saturday afternoon.

The Winners:

The three finalists in the Oral Competition were Vermont Law School, Lewis & Clark Law School, and Appalachian School of Law.  Vermont Law School was deemed by the distinguished judges to have the strongest team and won the Oral Competition.  Lewis & Clark has been a team which consistently makes it to the final round and performed very well.  Appalachian School of Law had both their first trip to the finals and their first advancement past the preliminary rounds this year and held their own.  All of these teams did very well and beat some talented teams on their way to the finals including last year’s winner, University of Mississippi.

Some of the other winners include:

Best Oralist Lindsey Lehrmann from Baylor Law School

Best Brief for the Defendant-Appellee Loyola Law School

Best Brief Intervenor-Appellant (NUDEP) Wayne State University Law School

The Semi-Finalists, Quarter Finalists, and Best Oralists Honorable Mentions can be found at the following website: www.law.pace.edu/2013-winners.

Just after the start of the New Year, the 112th Congress came to a close without taking significant action on thousands of legislative proposals.  Among these were H.R. 6154[i] and H.R. 5991,[ii] both of which aimed to address the discrepancies in the regulatory process for energy development on public lands.  Both bills enjoyed bi-partisan support but nonetheless failed to move beyond committee.

The Bureau of Land Management (BLM) manages 245 million surface acres across the United States, much of which is located in the west where solar and wind resources are abundant.  Despite this rich resource, new oil and gas leases vastly outnumber renewable projects on federal lands.[iii]  This is not, however, due to lack of interest, lack of suitable land, or financial infeasibility.  As of June 2008, BLM had received 125 applications for solar projects alone covering almost one million acres with the potential to generate 70 billion watts of electricity.[iv]  By January 2009, this number had increased to 220 applications involving more than 2.3 million acres of land.[v]  Through its Programmatic Environmental Impact Statement (PEIS) for wind development, the BLM identified 160,100 acres that could be economically developed.[vi]  A similar solar PEIS identified 285,000 acres of public land as being well suited to utility-scale solar development.[vii]  At least one source puts the area of federal land with significant solar resources as 23 million acres.[viii]

Some blame these dramatic disparities at least in part on the regulatory process.  All energy development on public lands begins with land use planning by the BLM.  The Federal Land Policy Management Act (FLPMA) requires that BLM develop Resource Management Plans (RMPs), which includes identification of lands available for drilling.[ix]  The development of RMPs also requires compliance with the National Environmental Policy Act (NEPA) by completing an Environmental Impact Statement (EIS).[x]  Since the plans are required regardless of intent to drill or develop the land, many of the RMPs were developed in the 1980s.[xi]  This poses a problem for renewable projects, because most of the RMPs were created or last updated before the viability and desirability of wind and solar development was realized.[xii]  As a result, wind and solar are rarely covered by the existing plan, and a plan amendment is required, which triggers additional NEPA review and prolongs the regulatory process.

Oil and gas development occurs through a competitive commercial leasing process.[xiii]  Companies interested in drilling begin with exploration, followed by full-field development, and ultimately culminating in the Application for a Permit to Drill (APD).  An APD must be submitted for each well and must include information about the location of the drillpad, a surface use plan, and plans for waste disposal and remediation.[xiv]  Site-specific NEPA review to supplement the original EIS completed for the RMP typically takes place at this point in the process.[xv]  Typically, BLM begins by developing a PEIS, which allows the agency to identify areas for development and adopt appropriate procedures for the applicable region.[xvi]  Once a PEIS is in place, the following site-specific EIS can have a much narrower scope by pulling information from the PEIS and reducing the number of alternatives that need to be considered.[xvii]  This process is known as “tiering” saves significant time and money during the site-specific review.

The regulatory process for utility scale solar and wind development is quite different from the process for large-scale oil and gas drilling.  Unlike oil and gas, solar and wind projects do not obtain commercial leases.  Instead, they must follow the procedure required for all other commercial uses and apply for a Right of Way (ROW).[xviii]  Before NEPA review can begin, the project sponsor must submit the application, pay the processing fee, complete a Plan of Development (POD) to verify the project’s technical and financial feasibility, and post a bond.[xix] The highly technical nature of the POD at such an early stage in the process is expensive and difficult for developers to achieve.[xx]  Once the application is filed, the developer is left to wait. BLM does not have the resources to handle the influx of applications, and given the detailed review required, the processing time is lengthy and expensive.[xxi]

H.R. 6154 would have established a commercial leasing program for solar and wind similar to that used for oil and gas.[xxii]  Such a program could allow for NEPA tiering, providing at least some benefit.[xxiii]  In addition, eliminating the ROW process alone could streamline the application process by eliminating the first-come first-served approach to granting ROWs and addressing the backlog of applications.  Unfortunately, as of this writing, no similar legislation has been introduced, and with Congress focused primarily on financial issues, it is unlikely such a measure will be passed anytime soon.

Josh Fox, whose 2010 Gasland was nominated by the Academy for Best Feature Documentary in 2011, has followed up on hydraulic fracturing with The Sky is Pink, an 18-minute documentary addressing attacks on Gasland and New York State’s moratorium on hydraulic fracturing.[1] Despite allegations by the NY Post, oil lobbyists, and the American Petroleum Institute that Gasland and The Sky is Pink are based upon unfounded science and serve as propaganda for a liberal political agenda, HBO has agreed to carry Gasland 2, another feature length documentary by Josh Fox on the subject. Production is underway and although delayed, should be released forthwith.

Although the technology behind hydraulic fracturing is not new, the impacts on ground water from increased hydraulic fracturing to extract natural gas has become one of the largest environmental issues facing the Country. The exemption of hydraulic fracturing from the Safe Drinking Water Act permitting scheme by the 2005 Energy Policy Act only exacerbated the environmental and social-justice issues at stake. See 42 U.S.C. § 15801. An indication of the public sentiment on the issue of hydraulic fracturing is reflected in the fact that the New York Department of Environmental Conservation (DEC) received 66,000 submissions in response to their request for public comments on the issue. State and local regulation of hydraulic fracturing is the only regulatory check on the controversial mining practice at this time in the United States. Josh Fox’s The Sky is Pink singled out New York because the State’s moratorium on hydraulic fracturing is currently being evaluated. In response to DEC’s request for a 90-day extension to make the final decision whether to continue or lift the moratorium to complete a health-impact study, natural-gas developer Lenape Resources Inc. filed suit on November 15, 2012.

The title, “The Sky is Pink,” is a comment, not on climate change and ecological destruction as may be initially presumed, but rather on the dialogue that surrounds the issue of hydraulic fracturing and the place of science in American politics generally. The message is that science has been substantially undermined by bad journalism and the problem has been exacerbated by corruption in the post-Citizens United[2] political theater of America; Pennsylvania Governor Tom Corbett received $1.6 million in campaign funds from oil and gas PACs and Pennsylvania’s former governor now works as a lobbyist for the Marcelus Shale Coalition. As a Pittsburg City Councilman stated in the film, the majority of media coverage on fracturing does not involve investigative journalism, but rather a game of he-said-she-said, meaning a statement unsupported by fact or science stated by one side of a debate is taken as truth and presented as a legitimate position by the media unless rebutted by a party with a counter-veiling interest. In this post-modern subjective reality, if somebody says “the sky is pink,” the sky is pink until somebody responds “no the sky is blue.” And that is essentially what The Sky is Pink is doing: rebutting the statements of oil companies that discredited Gasland. The Sky is Pink does not present new information or arguments about why hydraulic fracturing is dangerous that were not present in Gasland. The Sky is Pink provides a medium for Fox to defend Gasland from attacks by oil and gas companies while applying those previously stated implications of hydraulic fracturing to the State of New York.

In the binary dialogue that exists between Josh Fox and gas companies, only one camp can be right and one camp can be wrong. Someone is lying about the impacts of hydraulic fracturing on ground water resources. To persuade the viewer that he is telling the truth and that it is his detractors who are lying, or at the least purposefully misleading the public, Josh Fox draws a parallel between the state of the media’s coverage of hydraulic fracturing, and the advertising campaigns and Congressional testimony of Tobacco companies in the 1950s, denying that tobacco caused cancer when they had conducted internal studies that indicated the contrary. The parallel is made all the tidier by the fact that both industries – tobacco and hydraulic fracturing – used the PR firm, Hill & Nolton to develop their public relations strategy.

As in Gasland, The Sky is Pink mostly consists of Josh Fox’s dead-serious monotone unveiling internal memos from oil companies admitting that hydraulic fracturing wells inevitably leak petrochemicals into ground water. This format is interspersed with interviews of politicians, scientists, and the Americans affected by the adverse impacts of hydraulic fracturing; comic relief is provided from Tom Ridge’s appearance on The Colbert Report. The Sky is Pink’s rapid-fire facts and presentation of studies, Federal reports, oil company internal memos, and academic research is for the most part incomprehensible due to the flood of information; but as indicated by Al Gore’s An Inconvenient Truth the presentation of science to the general public at a cognizably slow rate may have little impact on changing how people perceive the world. It merely preaches to the choir and alienates the skeptics. People aren’t usually persuaded by facts, but rather fit their notion of reality to conform to a preconceived narrative. If Josh Fox’s post-modernist conception of an irrational reality is onto anything, and it is according to Jonah Lehrer’s popular science New Yorker Blog The Frontal Cortex explaining the concept of cognitive dissonance, The Sky is Pink is an effective study of persuasion through drawing upon the viewer’s pre-conceived narratives of corporate lies and perjury rather than presenting data and results from scientific studies.