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The Pace Environmental Law Program had the pleasure of listening to Wang Xi’s presentation on amending the environmental law in the People’s Republic of China on November 3, 2014. Wang Xi is the Vice Dean of Shanghai Jiao Tong University (the MIT of China) and Director of its Energy and Resources Institute. He has been an instrumental partner in Pace’s work with China over the past dozen years and a leading figure in the International Union for Conservation of Nature (IUCN).

Wang Xi began his presentation by explaining the relationship he has had with Pace University. He also explained the friendship he had created with Professor Nolon. Wang then broke down his presentation into four sections; 1) the history of his research 2) the reason for the amendment 3) the results 4) and then the amendment’s future.

Wang’s first section of the history of his research, which is cleverly titled the “Seeds” section, explained his extensive studies. He studied US environmental laws from 1985-1987 and then in 1992 and 2005. After his research, he wrote a few books focusing on our laws and how they differed from China’s. The largest difference, he noticed, was how China’s law only focused on controlling corporations and never view regulating local governments as an option.

After noticing this significant difference, Wang’s next section of research (the “Growing” stage) focused on case studies and research reports between 2007 and 2010. His research concentrated on the difference between Chinese environmental laws compared to the US and other countries. He noticed the differences were large and there were many international policies that could be adopted to improve China’s environmental law; for example, he noted how China could benefit from the NEPA.

Wang’s last section of his research history was the “Harvest” stage which lasted from 2011-2014. Wang combined his research and case studies in order to draft a legislative proposal for the Congress of Ministry of Environmental Protection in both 2011 and 2014. His first proposal in 2011 was rejected because this was the counsel’s last term and they did not plan on making any drastic changes to the law. The newly appointed counsel in 2012 asked to view the report once more in order to examine it. Finally in April of this year, the counsel accepted almost everyone of Wang’s proposal points; adding 33 new articles into their law. Pace Environmental Law Review has the honor of publishing Wang’s achievements in our upcoming edition.

The report’s main focus consisted of the cooperation of three different actors; the government, enterprises, and the Chinese population. Wang stated that the reason for the amendment was to alter the way the government viewed the environmental. He stated that the Chinese government was focused on having a prosperous economy and never view the environmental as a problem. The problem with China’s history was that the local government was never regulated. There were some laws which regulated corporate pollution but the local government was completely overlooked. Consequently, Wang included the local governments in his research formulas and created a balancing solution that could help China.

The future seems bright for China’s environmental laws. Wang stated these laws strengthen the Chinese Supreme Court and how they view environmental problems. The laws also help stop the corruption of the local governments. In the past, local courts would dismiss environmental cases in order to look like there was no problem, which Wang described as “Local Protectionism.”  Chinese courts follow a Continental Legal System which rarely publishes their rulings (Germany has a similar system). Although now, courts are beginning to publish their rulings and reasoning in order to have a consistent view on legal problems, which can have a positive impact on the environment. Lastly, Wang stated that in the past, farmers were only able to bring tort claims in court when company’s would pollute a river that they use. As this law begins to alter, there is a possibly that citizens will begin to bring suits against their local governments for not regulating corporate misconduct. This could revolutionize Chinese law as we see it today. We can thank Wang Xi for that.

By Kat Fiedler, Associate Pace Environmental Law Review. Class of 2017

This year’s Gilbert and Sarah Kerlin Lecture on Environmental Law was given by Antonio A. Oposa Jr., Pace Law School’s Distinguished International Environmental Scholar-in-Residence. Mr. Oposa is an environmental litigator, organizer, and activist, and arguably one of the most creative minds in the field today. One of Mr. Oposa’s many accomplishments was achieving a holding in the Philippine Supreme Court that children had standing to sue on their behalf and on behalf of future generations – or what is now known as the “Oposa Doctrine.” Mr. Oposa’s work has been widely recognized throughout the world. Mr. Oposa was recognized by the United Nations Environment Programme Global 500 Roll of Honour. He also received the Philippines’ “Outstanding Young Man Award” in 1995 and is the only Asian to receive the International Environmental Law Award from the Center for International Environmental Law.

Mr. Oposa’s lecture was framed around several stories, and this was done with purpose. The act of storytelling itself is part of Mr. Oposa’s message.  He said that “words are paintbrushes,” and in telling stories about how we have treated the environment, we have attempted to validate the destruction we have caused. For example, in “disemboweling the earth,” we claim that we are making “progress.” We have long told ourselves, or have ourselves been told, stories of progress as we watch our homes being destroyed. Mr. Oposa emphasized that in order to change the future, we must change these stories and the meanings of these words we have used, for “we can’t paint the future with the same old paintbrush which we used to paint the past.” Among those words which we need to redefine are “environment” and “development.” Mr. Oposa also explained as land, air, and water are the ingredients for life, a change in perspective on these essential resources can change our actions. If we consider the trees and the forests as the lungs of the Earth, the land and soil as skin or flesh, and the seas and waterways as blood, we can begin to see the connectivity of life. And, more importantly, “once we understand this, we will go crazy to protect it.” Thus, in telling stories throughout his lecture, Mr. Oposa reflected the role storytelling has and will continue to play an intimate role in how we exist on this earth.

To say that Mr. Oposa’s lecture was inspirational would be an understatement. Mr. Oposa exudes courage and positivity in such a way that you can only feel the same. His energy is even more admirable given that he is painfully aware of the severity of the climate crisis and other environmental atrocities. Mr. Oposa has lived through tragedy beyond which many of us can imagine. Yet, he has found a way to transform every conflict and setback into opportunity through his enormous creativity and genuine belief that nothing is impossible. One such example is in the work he has done to combat dynamite-fishing in the Philippines. His efforts led to the arrest of fishermen who were using these practices. But rather than have them jailed, he insisted that they be placed on probation under the condition that they protect the sea that they destroyed through a program that came to be known as “Adversaries to Allies/Advocates Program.”

Amidst this creative and effective work, came great tragedy. Mr. Oposa’s work in limiting these fishing practices was seen as a significant threat to the commercial fishing, a threat that some thought was too great, despite the resulting protection of one of the richest marine ecosystems of the world. A bounty was placed on Mr. Oposa’s head. Under this same bounty, Elipidio “Jojo” de la Victoria, a friend and colleague of Mr. Oposa, was murdered. A second tragedy struck when his home was “erased” in Typhoon Haiyan, reaffirming the immediacy of the climate crisis. Yet, even in the face of these insensible losses, the strength of Mr. Oposa’s soul shines and he continues to view the world with hope and opportunity.

One of the reasons Mr. Oposa must be able to retain this positivity is that his creativity allows him to see solutions that have a sort of poetic beauty. For example, he says that since “extraction-consumption economics” got us into the crises we face today, only the opposite – preservation, will serve as the solution. This requires a transformation into “restorative economics,” which restores the goal of life: happiness. Mr. Oposa spoke of the success of his self-created “fish condominiums” which have helped restore fish habitat. One can now see fish “dancing” in the moonlight. Mr. Oposa said, “if we take care of the seas, they will not only feed us, they will dance for us.” Mr. Oposa also spoke of his “Share-the-Roads Movement,” in which he urged local governments to divide the roads in half, so that half can be used for human-powered transportation (i.e. bicycles and pedestrians). This is a logical action given that only 2% of people in the Philippines own cars. Again, thinking well outside the box, Mr. Oposa is in the brainstorming stages of an upcoming effort to push for intergenerational climate justice in the International Court of Justice.

This short summary only begins to exemplify the lecture of Tony Oposa. I have heard him described as an infectious speaker, but he is an infectious thinker and dreamer. While many say that we shouldn’t believe that anything is impossible, Mr. Oposa walks the walk.

Finally, Mr. Oposa graciously thanked countless colleagues and those who inspired him in such a way that I believe he would be disappointed with my attribution of the aforementioned efforts to his name, without the acknowledgment of others. Therefore, consider this as an acknowledgement of all who have worked and inspired Mr. Oposa. As he stated at the end of his lecture, “there is no limit to what we can achieve when we do not care who gets the credit.”

 

By Ryan Sharp, Associate Pace Environmental Law Review. Class of 2016

Last Friday September 12th, marked an amazing day for climate change awareness in Westchester, New York. In the second half of the day, two Pace law professors made two extraordinary speeches. Professor John Nolon gave the first speech. His speech highlighted the fact that for the first time sustainable development is favored by market and economic forces. Land Use plans in New York have become increasingly important post-Super Storm Sandy. Land Use plans, and specifically “no build zones,” can help ward against the climate change impacts that will eventually affect us. Professor Nolon seemed to be very optimistic about the role of local governments in handling the impending climate change impacts through land use law and plans.

Professor Karl Rabago gave the next speech. The highlight of his speech was about the Reforming the Energy Vision (REV) proceeding, which is happening throughout New York. The REV proceeding is a great way to get involved with the future climate impacts caused by energy production. Everyone should get involved with the REV proceeding. The utilities are charting the future of the NY energy market and it is a statewide concern. Smart grids are another great way to tackle climate change through the energy grid. The smart grid promotes energy efficiency and take advantage of advancements in technology to limit environmental damage.

Dean Richard Ottinger made the closing remarks at the summit. He stressed the fact that everyone needs to take the time and effort to influence our communities, because it will make a difference. “If what we do is small in the national scheme of things, it is still worth doing, because if we don’t act we will suffer the consequences.”

Overall it was a great and informative day. PELR was so very lucky to have a presence at this event.

By Drew Gamils, Associate Pace Environmental Law Review. Class of 2016 

On Friday September 12, 2014, Pace Law School’s Global Center for Environmental Legal Studies and Federated Conservationists of Westchester County hosted a daylong conference to discuss the impacts of climate change in Westchester County, New York State, and the surrounding New York metropolitan region.

The morning keynote speaker, Dr. Cynthia Rosenzweig, presented on “Enhancing Resilience to Climate Change in the New York Metropolitan Region.” Dr. Rosenzweig is a Senior Research Scientist at the NASA Goddard Institute for Space Studies. She is in charge of the Climate Impact Group at the Institute. Her presentation highlighted the threats that climate change will impose on the New York region. Such threats include rising sea levels, fluctuating temperatures, and changing precipitation patterns.  The New York region has experienced an increase in mean average temperature by 4.4°F, an increase in temperature variability, sea level rise of over 1 foot since 1900, and a 75% increase in the heaviest rain events in the Northeast in the last 50 years. Dr. Rosenzweig proposed solutions and strategies available to municipalities and individuals to address these threats, but what can the legal community do to develop solutions to combat climate change?

The New York regional area local climate record shows that there has been an increase in extreme events with increases in higher temperatures, heat waves, heavy rains, and huge snow storms. These extreme events no longer appear at random and have been occurring on a more regular basis. Scientists are working hard to make projections to facilitate risk-based decision making in the metropolitan area. These projects incorporate a range of possible outcomes based on climate model results and different predictions for future greenhouse gas emissions.

As a result, it is critical to community resilience to develop flexible approaches to deal with climate change impacts. These flexible adaption pathways must use both adaptation and mitigation methods at the same time to respond to climate change. These flexible adaptation pathways refer to adaptation approaches that focus on the uncertain and long-term nature of climate change using risk-based decision making. Furthermore, regional responses must incorporate legal and policy solutions that are also flexible to appropriately adapt and respond to a changing future.

These flexible adaptation pathways involve several steps of assessment and implementation to prioritize, plan, monitor, and reassess strategies and solutions. In New York City the flexible adaptation pathway approaches focus on minimizing the risks to critical infrastructure that will result from sea level rise, high temperatures, and changing precipitation patterns. There are lots of players involved in creating resilient communities in the metropolitan area. Successful approaches to resilience action requires consideration of policy, engineering, ecosystem, and social approaches. The legal community needs to also consider adaptation and mitigation solutions to adequately develop appropriate laws and regulations to address the issue of climate change. It is important to consider the scientific literature and model based outcome projections. Decision makers make decisions on uncertainties every day, what is key is to be clear about what the uncertainties are and seriously consider the future projections to take on a probabilistic approach to legal and policy solutions. Overall, it is important to consider these solutions on a regional scale.

Scholars from across the globe have been making inspiring, informative presentation over the course of the conference, but Pace Law School was fortunate to send three of our own incredible scholars to present!

Dean Emeritus Richard Ottinger and John Bowie (recent alum, and–well–you all know him!) presented their recent collaboration, a paper that provides a survey of private financing mechanisms for renewable energy, entitled “Innovative Financing for Renewable Energy.”  Dean Ottinger framed the topic and then allowed John to take the reins! He so eloquently discussed six of the numerous case studies presented in the paper, and the presentation elicited many positive questions and comments from the audience.

In the afternoon, Professor David Cassuto gave a vibrant presentation on the interstate water dispute between Alabama, Georgia, and Florida, specifically the three states’ competing claims for the water of the Chatahoochee River. Florida petitioned the Supreme Court to decide the issue, and we will see what happens!

The afternoon concluded with a presentation by Dr. Ludwig Kramer, University of Bremen, Germany, who delivered a lecture on The Integration of Energy Requirements into Environmental Policy. His presentation united many of the themes thrown around throughout the competition and ultimately demanded that we each “take action!”

PELR definitely heard the call! What an inspiration!

Tarragona Updates!

The IUCN Colloquium officially kicked off Wednesday morning with a keynote speeches from Michael Gerrard and Zen Baruch.  Professor Gerrard, Director of the Columbia Center for Climate Change Law, discussed climate change adaptation in the urban energy utility sector, using the 2013 Consolidated Edison Rate Case as a case study.  Having participated in the proceeding through his work at the Pace Energy and Climate Center, John was very excited to see climate change law discussed with the international academic environmental law community.  Energy and environmental law have truly reached a nexus.

We later attended break out sessions throughout the day.  First, we attended a unique  presentation describing a alternative ideologies and world-views that have the potential to inform the discussion and regulation of energy law.  The workshop included discussion of ancient cosmologies, religious theory, and indigenous ethical regimes.

Our afternoon breakout group discussed energy law and environmental justice, specifically constitutional principles creating stronger environmental rights.  Professor Cassuto argued with presenter and Widener Law Professor, Jimmy Mays, about whether Batman or Superman would win in direct conflict. More importantly, Professor Cassuto’s argument also questioned the enforcement mechanisms and practical and effective application of constitutional rights to the preservation of the natural environment.

The day concluded with an IUCNAEL tradition: wine tasting!  Universitat Roviera i Virgila has a school of oenology and vineyard, and they were quite generous in sharing their craft.    We ended the first full day of the Colloquium watching the International Fireworks Competition over the Mediterranean.  More to come!

I, along with former Managing Editor, John Bowie, have the unique opportunity to represent Pace and the environmental law review at the 12th Annual International Union for Conservation of Nature Academy of Environmental Law (IUCNAEL) conference in Tarragona, Spain.

The conference is hosted by Rovira i Virgili University from June 30 to July 4th, 2014. This year’s conference focuses on “Energy for a Fair Society on a Safe Planet” and throughout the conference, presenters and participants will be asked to “look critically at key issues raised by the energy crisis and the environment.”  The setting in Tarragona is especially relevant as the city embodies the union of the old and the new, the vibrancy of modern Spanish culture and tradition set upon Roman ruins. Though the conference kicks off this morning, several workshops and side events have been provided over the course of the past two days. Yesterday, the conference provided a workshop on the current state of hydrofracking across the globe.  Four panels of practitioners and professors presented technical, environmental, and legal issues related to the expanding hydraulic fracturing economy. Specific issues included application of common law property rights, burdens of proof in enforcement actions, and environmental justice concerns. Our own Dean Emeritus Richard Ottinger made several comments pointing to the presenters’ overly optimistic views on fracking and their failure to discuss the real negative implications resulting from fracking, including drinking water contamination, methane emissions, and general water usage.

Later, we attended a small roundtable discussion about the future of environmental legal publications, specifically ways of transitioning to online publications without losing credibility and finding avenues of inter-journal cooperation. If you have any input on the subject, we welcome your comments, so please reach out!

The day concluded with a Castell demonstration followed by a conference kick-off reception. Castell is the unique Catalonia tradition of building and dismantling a “human tower.” Troupes practice and compete to build towers with only their bodies that can span the height of 6 standing people! It was extremely impressive, and the crowd of conference-goers was excited and thrilled to observe!

Keep following us as we post more about our IUCNAEL experience!

 

**For more information about the conference: http://www.iucnael2014.cat/

 

The 2014 Lloyd K Garrison Lecture on Environmental Law on March 26, began with a heartfelt commemoration of the lives of David Sive and Joseph Sax, two giants of environmental law, whose recent passing is being felt across the nation. Read Professor Nicholas A. Robinson’s inspiring memorial essay here…

J.B Ruhl then delivered his lecture entitled “In Defense of Ecosystem Services” to an auditorium filled with interested students, professors and staff.  Ruhl is an expert in environmental law, land use, and property law. He is presently the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law. Prior to joining the Vanderbilt Law faculty in 2011, he was the Matthews & Hawkins Professor of Property at the Florida State University College of Law, where he had taught since 1999. He began his academic career at the Southern Illinois University School of Law, where he earned his Ph.D in geography and taught from 1994-99. Ruhl is a nationally regarded expert in the fields of climate change, endangered species protection, ecosystem services policy, regulation of wetlands, ecosystem management, federal public lands, and related environmental and land use fields. His influential scholarly articles on these topics have appeared in California Law Review, Duke Law Review, Stanford Law Review, Vanderbilt Law Review among other journals and have been selected by peers as among the best law review articles in the field of environmental law eight times from 1989 to 2013. Before entering the academy, he was a partner with Fulbright & Jaworski in Austin, Texas, where he also taught on the adjunct faculty of the University of Texas Law School.

Ruhl’s Garrison Lecture focused on defending the “valuing” of ecosystem services – the idea that healthy ecosystems provide people with many critical goods and services and that value can be placed on these services.  Although there is newfound excitement and an explosion of interest in ecosystem services, Ruhl explains that it is really a “new/old idea.” References to the importance of natural services to human welfare can be traced as far back as Plato and more recently, the writings of George Perkins Marsh and Aldo Leopold. However, he explains that in 1997 with the publishing of ecologist Gretchen Daily’s book Nature Services followed by other influential publications on the topic, new excitement was sparked in scientists, government officials, and the public.  Questions about what services natural ecosystems provide to society and how to place a monetary value on these services, however, are not always easy to answer.

Ruhl’s lecture was informative and interesting as he described what ecosystem services are, how they are currently being played in U.S. law and policy, and what kind of pushback against the idea has arisen. Ruhl explains that the application of ecosystem services can be seen in different government actions, such as U.S. Department of Agriculture’s 2008 Farm Bill, which authorized the agency to develop scientific methods of measuring and reporting ecosystem services from agriculture. He explains that there has been push back against the idea from groups both defending environmental interests and economic interests because the act of putting a dollar figure on these services is a controversial one. However, putting monetary value on these natural services makes it easier for the public to appreciate how valuable they really are. Ruhl explains that there is importance in the middle ground between conservationists and critics of market-based interventions that would provide alternatives that work better.  Ruhl was also sure to make it clear that there are issues that arise when using ecosystem services and laid out some principles for their responsible use including; making the policies complementary, focusing on the fact that money talks and ecosystem services are anthropocentric, and that there should be equitable baseline rights and distribution impacts. The lecture concluded by focusing on a case study that showed the application of ecosystem services in property law. In a N.J. case, Borough of Harvey Cedars v. Karan, 70 A.3d 524 (N.J. 2013) the Supreme Court of N.J. ultimately found inherent value in sand dunes constructed to protect beachfront property from storm surges. This is a big step for ecosystem services because it showed that although the property owners in this case lost their view of the beach, the protection that the sand dune offered was given a great deal of value. Ecosystem services are a valuable tool that has the potential to help people see value in maintaining healthy ecosystems, which will lead them to see markets and a way to make money; and when money talks, people listen.

By Lauren Baron

            On February 26, Pace gathered four people from different professions, with varying opinions on the influx of genetically modified organisms (GMOs) in our food system for Pace’s Food You Design Bioethics Forum. Nathanael Johnson, Shelley Boris, Pamela Ronald, and Pace Law School’s own Jason Czarnezki were the panelists at the event. Andrew Revkin, a Senior Fellow for Environmental Understanding at Pace Academy for Applied Environmental Studies and a former New York Times journalist moderated. Mr. Revkin continues to write the environmental blog Dot Earth for the Times.

Nathanael Johnson is a journalist for grist.org since June, and specializes in stories on food. His recent work was a research based piece on genetically modified organisms in order to clear up some of the “murkiness” associated with the issue due to biased information sources available to the public. Mr. Johnson’s viewpoints were interesting because he had been exposed to both sides of the GMO debate and argued there is a thirst for non-partisan information on this issue that is less biased.

Shelley Boris is the Executive Chef at Fresh Company and an author of a cookbook for the Garrison Institute. Her connection with food and her use of food in her job every day was the focus of her comments. Her primary concern when cooking for any client is health, and since there is skepticism regarding health risks associated with ingesting GMOs, she tries to make minimize her client’s exposure to such food.

Pamela Ronald is a geneticist and the Director of the Laboratory for Crop Genetics Innovation at the University of California, Davis. She also co-authored a book with her organic farmer husband on farming and the science behind GMOs. Ms. Ronald’s scientific viewpoint was interesting as someone who has worked with genetically modified organisms and has been praised for her work on disease and flood resistant rice for the benefits to developing countries. Her strong belief in the benefits of GMOs came out on the panel, however she was realistic about the need for regulation and the labeling issues associated with GMOs.

Jason Czarnezki is a recent member of the Pace Law School faculty and is a Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law. Professor Czarnezki’s research specializes on the intersection of food security and the law, and he co-authored the book “Food, Agricultural Policy, and the Environment: History, Law and Proposals for Reform.” His skepticism of the safety of GMOs and labeling issues contrasted with Pamela Ronald’s strong support of the benefits.

Three themes emerged throughout the panel: 1. safety of GMOs, 2. regulation of GMOs, and 3. labeling of GMOs. Each panelist had interesting and sometimes contrasting viewpoints on these issues. In regards to the safety of GMO’s, Pam Ronald’s opinions differed the most from the other panelists because of her intimate involvement with the development of certain GMO crops and her belief in the benefits they can provide. Other panelists seemed slightly more skeptical and wary of the development of GMOs.

Nate Johnson’s research indicated that the public is wary of GMO’s because of perceived health concerns; however scientific research indicates the GMO’s we use now and have been using for years do not pose significant health risks to the public. Although the benefits of GMO foods may be great GMO’s are a technological solution to what is primarily a social and political problem, Mr. Johnson stated. For example Golden Rice could positively impact Vitamin A deficiencies around the world, but this technological solution is easier to choose than solving poverty and government corruption. In addition, despite potential benefits from such products, Professor Czarnezki and Shelley Boris agreed that there are potentially unperceived health and environmental consequences associated with widespread GMO use.

Unlike the European regulatory system, the United States does not often employ the precautionary principle in our regulations in order to encourage innovation and economic growth. Both sides of the GMO debate argue that there is either far too much regulation or too little regulation according to Mr. Johnson. The regulation of GMOs is also extremely complex in the U.S. because there are several agencies that essentially co-regulate. The main agencies involved include the Environmental Protection Agency, Food and Drug Administration, and U.S. Department of Agriculture, who work together to form what is known as the coordinated framework. The panelists discussed how the regulation of GMOs is an industry driven process, meaning industries submit the scientific studies on whether the product they want to produce or grow is safe and the appropriate agency approves or disapproves the initial production and perhaps eventually approves mass production.

The regulatory regime discussion during the panel directly related to the discussion on labeling. Ideally, food would be properly labeled using a uniform system because the way that the current system is set up is very misleading. For example, there are several labels for organic food such as “organic” or “all natural” however many of those labels are not regulated by the government. A company could label its product all natural itself and consumers who do not understand the labeling system would be unaware. Professor Czarnezki stressed the importance of the coordinated framework regulatory regime cooperating to create a workable labeling system. He also noted there has been a movement in regulations towards protecting consumers against the type of consumer fraud that is occurring. One interesting aspect of labeling Professor Czarnezki suggested, which Dr. Ronald and the other panelists agreed with, was to incorporate the entire greenhouse gas lifecycle of a particular food product into the labeling system. This means that the greenhouse gas emitted in growing a food product, processing it, and transporting it would be included in the label. This is an alternative way to promote consumer consciousness about the environmental impact a food product may have rather than just labeling a product “organic” or “natural.”

Based on the Bioethics Panel it seems the major problems with GMOs are associated with the general public’s knowledge about them. There are many different sources of information dispelling extremist points of view about GMOs on both sides of the debate. Nate Johnson noted how “the fear of the unknown” can often deter consumers, and promoting transparency through a standardized labeling system would help with this problem. In addition, promoting transparency between regulatory bodies, product producers, and consumers will help eliminate the more sensational information currently available that is misleading consumers, and allow a customer to thoroughly evaluate the possible risks incurred from consuming a genetically modified food product.

By Patrick Carroll

 

Introduction

The U.S. Supreme Court is heard arguments Monday over whether the U.S. Environmental Protection Agency’s (“EPA”) authority to regulate new motor vehicles for greenhouse gas (“GHG”) emissions also provided it with the authority to regulate stationary sources of GHG emissions under the Clean Air Act.[1],[2]  This could dramatically affect EPA’s regulatory agenda and the Obama Administration’s Executive-driven energy policy, by potentially limiting or expanding the authority of the Clean Air Act.

 

Regulatory Background

In Massachusetts v. EPA, 549 U.S. 497 (2007), the U. S. Supreme Court held GHGs were air pollutants that may be regulated under the Clean Air Act (“Act”).[3]  Moreover, the Court instructed EPA that it had a “clear statutory command” to analyze “whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare . . . .’”[4]  Since EPA had not yet exercised this authority for GHGs, the Court declared that EPA must determine “whether sufficient information exists to make an endangerment finding.”[5]  EPA’s authority to make an endangerment finding falls under § 202(a) of the Act.[6]

Subsequently, EPA issued an endangerment finding concluding that “six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2 ), methane (CH4 ), nitrous oxide (N2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6 ),” were  “reasonably . . . anticipated both to endanger public health and to endanger public welfare.”[7]

EPA determined that the transportation sources covered under § 202(a) of the Act, including “passenger cars, light- and heavy-duty trucks, buses, and motorcycles,”[8] add sufficient quantities of these pollutants to the atmosphere, “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.”[9]

EPA must promulgate a regulation prescribing a motor vehicle emission standard for “any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines . . . [that] cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[10]  Consequently, EPA issued the “Tailpipe Rule,” to implement a “coordinated Federal greenhouse gas (GHG) and fuel economy program for passenger cars, light-duty-trucks, and medium-duty passenger vehicles” as part of a joint rulemaking with the National Highway Traffic and Safety Administration.[11]

EPA has consistently interpreted the phrase “any air pollutant” to mean any air pollutant regulated under the Act.[12]  According to EPA, the regulation of GHGs under the Tailpipe Rule, triggered EPA’s regulatory authority under two other provisions.[13]  The first provision is the Prevention of Significant Deterioration of Air Quality (“PSD”) program, which “requires state issued construction permits for certain types of stationary sources . . . if they have the potential to emit over 100 tons per year (tpy) of ‘any air pollutant.’”[14]  All other stationary sources not specifically set forth as a “major emitting facility” that have the potential to emit over 250 tpy of “‘any air pollutant”’ are also covered by this program.[15]  The second provision, Title V of the Act, “requires state-issued operating permits for stationary sources that have the potential to emit at least 100 tpy of ‘any air pollutant.’”[16]

The third EPA action challenged in this suit was its promulgation of the “Timing Rule,” which determined that an air pollutant is “subject to regulation” when an air pollutant becomes subject to a provision of the Act or an EPA regulation promulgated under the Act requiring control of the pollutant.[17] Thus, the Timing Rule clarifies EPA’s interpretation that the PSD permitting will not be triggered regulatory control over that air pollutant’s emissions becomes effective.[18]  Thus, once the Tailpipe Rule came into effect on January 2, 2011, GHGs could be regulated under the PSD program and Title V.[19]

Finally, EPA, foreseeing the regulatory problems of subjecting all GHG sources that could possibly fall under the PSD and Title V tpy thresholds, promulgated the “Tailoring Rule.”[20]  This rule “provided that only the largest sources—those exceeding 75,000 or 100,000 tpy CO2e, depending on the program and project—would initially be subject to greenhouse gas permitting.”[21]

Several Industry and State petitioners (“Industry”) sought to challenge the aforesaid regulatory actions that EPA had engaged: 1) the Endangerment Finding; 2) the Tailpipe Rule; 3) the Timing Rule; and 4) the Tailoring Rule.[22]  Nonetheless, the D.C. Circuit disposed of all such challenges in favor of EPA.[23]  While nine petitions for a writ of certiorari were filed with the U.S. Supreme Court, positing twenty-one individual issues for argument, the Supreme Court only granted certiorari over one issue:[24] whether EPA’s long standing interpretation of the CAA that its authority to regulate new motor vehicles for greenhouse gas emissions also provided it with the authority to regulate stationary sources of greenhouse gas emissions was appropriate.[25]

 

The U.S. Court of Appeals for the District of Columbia Circuit’s Decision on the Relevant Issue Before the Supreme Court

EPA’s Interpretation

The D.C. Circuit found that Congress had provided its unambiguous intent in the phrase “any air pollutant” in favor of EPA’s long-standing position.[26]  The court interpreted the word “any” as providing an “expansive” scope, and that the term “air pollutant,” without dispute, encompasses GHGs.[27] Thus, the court concluded that there was a “strong[] suggest[ion]” that Congress intended the term “any air pollutant” to govern GHG emissions.[28]  Moreover, the D.C. Circuit relied on Massachusetts v. EPA for its expansive reading of the term “air pollutant” as used in § 302(g) of the Act, a section that applies to each and every other section of the Act.[29]  The Court held that “[o]n its fact, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through repeated use of the word ‘any.’”[30]

While the D.C. Circuit acknowledged that EPA’s interpretation of “any air pollutant” is a bit more narrow than its own broad construction, the court believed EPA’s requirement that the air pollutant be a “regulated” air pollutant was the only logical conclusion to be found.[31]  If air pollutants that were not regulated fell under the phrase, then a source deemed a “major emitting facility” that emitted a “physical, chemical, biological, [or] radioactive substance . . . into . . . the ambient air” would fall under PSD requirements even if EPA did not believe that particular air pollutant was harmful to the public health or welfare.[32]  In addition, the D.C. Circuit’s review of the PSD program discerned that it required Best Available Control Technology (“BACT”) to be implemented at “major emitting facilities” “for ‘each pollutant subject to regulation under [the Act].’”[33]  These sources must prove that they “‘will not cause, or contribute to, air pollution in excess of any . . . emission standard . . . under [the Act].’”[34]  Therefore, the court believed EPA’s interpretation that only those air pollutants regulated under the Act fall within the phrase “any air pollutant” was in accord with the statutory intent underlying the PSD program to control those pollutants regulated under “every section of the Act.”[35]  However, for good measure then court refers to the “Declaration of Purpose” section for the PSD program, which indicates that the program was meant to prevent “adverse effects on ‘weather’ and ‘climate’—precisely the types of harm caused by greenhouse gases.”[36]

 

Industry’s Three Alternative Interpretations

Alternative One

Before the D.C. Circuit disposed of Industry’s opposing arguments, it noted that none of Industry’s alternative interpretations applied to the extension of GHG regulation under Title V and thus, Industry forfeited its challenge to EPA’s interpretive extension to that provision of the Act.[37]  The court then turned to the substance of Industry’s arguments. First, while industry posited that the Act was only intended to reach local air pollutants breathed in by persons in confined regions, the court read the Act as unambiguously requiring BACT at all major emitting facilities subject to the PSD program “‘for each pollutant subject to regulation under [the Act].’”[38]  Thus, the Act makes no distinction between air pollutants with local, regional, or global affects.[39]

Although the PSD program sets forth that the State Implementation Plans, necessary for its execution, are to focus on the “‘air quality in each region,’”[40] and that when the PSD program was enacted by Congress it was with a legal understanding of particularized air pollutants whose effects could be realized at ground-level,[41] Massachusetts v. EPA has already disposed of this local versus global argument.[42]  There, the Court held that the Act made no distinction between what Industry considered to be more traditional air pollutants and GHGs, and did not distinguish between the atmospheric layers upon which these pollutants endanger the public health or welfare since the Act merely uses the term “ambient air” to include all atmospheric layers.[43] Moreover, the D.C. Circuit determined that while the PSD program is clearly concerned with local pollution, there is nothing that limits it to local air quality.[44] Indeed, it is meant to protect against any harm to “‘weather’” and “‘climate’” which evinces a broader consideration of air pollution and its consequences.[45]

 

Alternative Two

Industry’s second alternative interpretation would require that the PSD program only apply to those “major emitting facilities” that emit one of the criteria pollutants under the National Ambient Air Quality Standards (“NAAQS”), and that is located in an attainment area for that particular pollutant.[46]  The court regards this interpretation as setting a “pollutant-specific situs requirement.”[47]  Such a reading would curtail the number of facilities subject to PSD requirements because EPA has not designated GHGs as criteria pollutants and thus, there are no attainment areas for them.[48]  Thus, only those facilities that are major sources of a criteria pollutant and are located in an attainment area for that pollutant would still have to apply BACT for “‘each pollutant subject to regulation under the Act,’”[49] such as GHGs, but not to those facilities that are only major emitters of GHGs.[50]

Industry argues that “any air pollutant” is a flexible phrase, and that EPA had already narrowed its scope to regulated pollutants.[51] Similarly, EPA refined the phrase “any pollutant” in the Act’s definition of a “major stationary source,” as applying to “any visibility-impairing pollutant,” when “interpreting Part C, Subpart 2 [of the Act], entitled, Visibility Protection.”[52]  Since the definition of a “major stationary source” in this context is similar to a “major emitting facility” in the PSD program, Industry argues the forgoing proves its more narrowed pollutant-specific situs requirement should have been adopted.[53]  Additionally, Industry cites § 163(b)(4) of the Act, which “provides guidelines for areas designated as in attainment under the program,” but does not provide the “permitting requirements for sources covered under the program,” which is found in § 165(a).[54]  Section 163(b)(4) sets the “‘maximum allowable increase in concentration’” for all NAAQS pollutants, besides sulfur dioxide and particulate matter, that would be allowed without jeopardizing the “attainment” status of the area.[55]  This section uses the phrase “any air pollutant in any area to which this part applies,” such that “‘any air pollutant’ must mean ‘any NAAQS pollutant,’ and ‘in any area to which this part applies’ must mean ‘any area that is in attainment for that NAAQS pollutant.’”[56]  Industry also posited that the same interpretation applies “to CAA § 165(a)(3)(A), which prohibits PSD permittees from ‘caus[ing], or contribut[ing] to, air pollution in excess of any . . . maximum allowable concentration for any air pollutant in any area to which this part applies more than one time per year.’”[57] Indeed, the court agreed with that extension,[58] however the D.C. Circuit did not agree that this reading must therefore, also apply to the definition of a “major emitting facility” within the PSD program.[59]

First, the D.C. Circuit found that the language “any pollutant” found in the definition of “major stationary sources” fell under Part C, Subpart 2, for “Visibility Protection,” and thus, EPA’s regulations under this subpart logically deal with “visibility-impairing pollutants.”[60]  The phrase at issue here, “any air pollutant,” is found in Part C Subpart 1, and is not accompanied with such a specific designation.[61]  Instead, Subpart 1 is labeled “Clean Air,” which offers much greater coverage and scope.[62]  Furthermore, § 163(b)(4) and the PSD permitting trigger diverge in their purpose and form.[63] Whereas § 163(b)(4) maintains the phrases “any air pollutant” and “in any area to which this part applies” in conjunction,  and focuses on the maximum concentration of a pollutant in the area, the PSD permitting trigger focuses on the location of the facility and provide the two aforesaid regulatory phrases in separate subsections.[64]

Secondly, while Part D of the Act, which regulates nonattainment areas, indicates “pollutant-specific” language such “[t]he term ‘nonattainment area’ means, for any air pollutant, an area which is designated ‘nonattainment’ with respect to that pollutant,” Part C of the Act, which implements the PSD program, offers no such limiting language to the “any air pollutant.”[65]  Thus, while Congress conveyed that it knew how to tailor its language narrowly when it intended to use “pollutant-specific” terms, the absence of that language indicates an intent for a broad construction.[66]

Thirdly, Industry argued that Congress would have simply left out the phrase “in any area to which this part applies” if EPA’s “pollutant-indifferent” interpretation was correct.[67]  However, the court found that Industry conflated the notion that the phrase could, at present, have no import, with the idea that it had no value in general.[68]  If, for example, an area was found to be in “nonattainment” for all of the NAAQS pollutants, the phrase at issue would limit PSD coverage because Part D, as described above, would control the regulation of the sources instead.[69]  Such a hypothetical was also not deemed as merely theoretical, but was a possibility at the time the PSD program was enacted.[70]

 

Alternative Three

Lastly, the court disposed of Industry’s third alternative interpretation relatively quickly. This argument was based on § 166, which requires specific steps for EPA to take in setting a new pollutant as a criteria pollutant under the NAAQS program.[71]  However, while it is true that EPA did not follow the processes set forth in § 166, EPA did not designate GHGs as criteria pollutants subject to NAAQS, “it simply determined that under § 165, major emitters of greenhouse gases are subject to the PSD program and all covered sources must install BACT for greenhouse gases.”[72]

 

Conclusion

Thus, the court concluded that the Act required PSD and Title V permits for major emitters of GHGs.[73]  While there were many other issues addressed by the D.C. Circuit,[74] this interpretation as to whether the regulation of GHGs for new motor vehicles and new motor vehicle engines triggered PSD and Title V regulation of major emitting facilities of GHGs is the only issue to be heard by the U.S. Supreme Court.[75]  A significant portion of the D.C. Circuit’s rationalization in this section of its opinion stems from its own statutory interpretation of the structure and function of the PSD permitting program. However, it is notable that both supporting EPA’s interpretation of “any air pollutant” as well as in dismissing the first of Industry’s alternative interpretations, the D.C. Circuit relied on the Supreme Court’s construction of the Act as expounded by Massachusetts v. EPA.[76]  Even in the discharge of Industry’s second alternative reading of the Act, Massachusetts v. EPA was cited as relevant to its the court’s disapproval.[77]  Furthermore, since the Court in Massachusetts v. EPA had already reviewed the term “any air pollutant,” albeit in a different context, as significantly broad and “unambiguous,”[78] it may be indicative that the Court will concur with the D.C. Circuit’s Chevron step one interpretation of the Act in favor of EPA.[79]  While it is not yet clear if EPA’s actions under the Act to expand its jurisdiction into the yet untapped regulatory arenas of GHG emissions will be allowed to continue, it is certain that the Court’s decision will have a significant impact on the future regulation of stationary sources that are major emitters of GHGs as allowed under existing legislation.

 

 


[1] Utility Air Regulatory Group v. Environmental Protection Agency, SCOTUSblog (last visited Feb. 18, 2014),

http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/.

[2] Id.

[3] Massachusetts v. E.P.A., 549 U.S. 497, 532 (2007).

[4] Id. at 532-33 (quoting 42 U.S.C. § 7521(a)(1) (2012)).

[5] Id. at 534.

[6] 42 U.S.C. § 7521(a)(1) (2012); Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66499 (Dec. 15, 2009).

[7] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66497 (Dec. 15, 2009).

[8] Id. at 66499.

[9] Id.

[10] 42 U.S.C. § 7521(a)(1) (2012).

[11] Light–Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25,324, 25,326 (May 7, 2010); Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 115 (D.C. Cir. 2012).

[12] Coal. for Responsible Regulation, Inc., 684 F.3d at 115.

[13] Id.

[14] Id. (referring to 42 U.S.C. §§ 7475, 7479(1) (2012)).

[15] 42 U.S.C. §§ 7475, 7479(1) (2012); Coal. for Responsible Regulation, Inc., 684 F.3d at 115.

[16] Coal. for Responsible Regulation, Inc., 684 F.3d at 115 (referring to 42 U.S.C. § 7602(j) (2012)).

[17] Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17,004, 17,004 (Apr. 2, 2010); Coal. for Responsible Regulation, Inc., 684 F.3d at 115.

[18] Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17,004, 17,004 (Apr. 2, 2010).

[19] Id. at 17,007.

[20] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31514 (June 3, 2010); Coal. for Responsible Regulation, Inc., 684 F.3d at 115-16.

[21] Coal. for Responsible Regulation, Inc., 684 F.3d at 116.

[22] Id.

[23] Id.

[24] David Buente, Grant of Certiorari in Greenhouse Gas Regulation Litigation: Limited But Important, American College of Environmental Lawyers (Oct. 30, 2013), http://www.acoel.org/post/2013/10/30/Grant-of-Certiorari-in-Greenhouse-Gas-Regulation-Litigation-Limited-But-Important-.aspx.

[25] Utility Air Regulatory Group v. Environmental Protection Agency, SCOTUSblog (last visited Feb. 18, 2014),

http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/.

[26] Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 134 (D.C. Cir. 2012) (referring to Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 (1984)).

[27] Id. (referring to Massachusetts v. E.P.A., 549 U.S. 497, 528-29 (2007)).

[28] Id.

[29] Id.

[30] Massachusetts v. E.P.A., 549 U.S. at 529 (emphasis added).

[31] Coal. for Responsible Regulation, Inc., 684 F.3d at 134.

[32] Id. at 135.

[33] Id. (quoting 42 U.S.C. § 7475(a)(4) (2012)).

[34] Id. at 136 (quoting 42 U.S.C. § 7475(a)(3) (2012) (emphasis added)).

[35] Id.

[36] Id. (citing to 42 U.S.C. § 7470(1) (2012)).

[37] Id.

[38] Id. at 136-37 (quoting 42 U.S.C. § 7475(a)(4) (2012)).

[39] Id. at 137-38.

[40] Id. at 138 (quoting 42 U.S.C. § 7471 (2012)).

[41] Id. at 137.

[42] Id. at 137-38.

[43] Id. at 138 (internal quotations omitted).

[44] Id.

[45] Id. (quoting 42 U.S.C. § 7602(h) (2012)).

[46] Id. at 138-39.

[47] Id. at 138.

[48] Id. at 139.

[49] Id. (quoting 42 U.S.C. § 7475(a)(4) (2012)).

[50] Id. (emphasis added).

[51] Id. (internal citations omitted).

[52] Id. (internal citations omitted).

[53] Id. at 139-40.

[54] Id. at 140 (internal quotations omitted).

[55] Id. (referring to 42 U.S.C. § 7473(b)(1)-(4) (2012)).

[56] Id. (referring to 42 U.S.C. § 7473(b)(4) (2012)).

[57] Id. at 141 (quoting 42 U.S.C. § 7475(a)(3)(A) (2012) (emphasis added)).

[58] Id.

[59] Id.

[60] Id. (internal quotations omitted).

[61] Id.

[62] Id. (internal quotations omitted).

[63] Id. at 142.

[64] Id.

[65] Id. (quoting 42 U.S.C. § 7501(2) (2012) (emphasis added)).

[66] Id. (citing Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal citations omitted)).

[67] Id.

[68] Id. at 143.

[69] Id.

[70] Id.

[71] Id.; 42 U.S.C. § 7476(a) (2012).

[72] Coal. for Responsible Regulation, Inc., 684 F.3d at 143.

[73] Id. at 144.

[74] See Id. at 116.

[75]Utility Air Regulatory Group v. Environmental Protection Agency, SCOTUSblog (last visited Feb. 18, 2014),

http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/.

[76] Coal. for Responsible Regulation, Inc., 684 F.3d at 134-38.

[77] Id. at 140.

[78] Massachusetts v. E.P.A., 549 U.S. 497, 528-29 (2007).

[79] Coal. for Responsible Regulation, Inc., 684 F.3d at 133-36.

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