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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.

The final day of the competition, Saturday February 22nd, came and went like the blink of an eye! The day started with the Semifinal Round; 9 teams competed for the opportunity to move on the FINAL ROUND. The Semifinal Round comprised three different rooms with three teams in each. The judges would choose one winner from the room to move on to the Final Round.

The judges stated that the decision was extremely difficult and in most of the rooms, the winning team beat out the other teams by the tiniest margin. Nevertheless, the final three teams were chosen.

Drumroll, please…

The Finalists for NELMCC 2014, in no particular order, are: Louisiana State University Paul M. Hebert Law Center, The University of Mississippi School of Law, and  the University of Utah S.J. Quinney College of Law. 

All the Semifinal Teams were serious contenders, but these three teams stood out and truly excelled. After the announcement of the finalists and their party assignments for the Final Round, the teams had just over an hour to practice and prepare themselves for the final!

During this time, the three Final Round judges arrived at Pace. We are so appreciative that each of these distinguished judges was able to devote their Saturday to NELMCC 2014. We were fortunate to have the following judges:

  • The Honorable Lynn Adelman, Judge for the United States District Court, Eastern District of Wisconsin,
  • The Honorable Malachy E. Mannion, Judge for the United States District Court, Middle District of Pennsylvania (Pace Law alum!), and
  • The Honorable Randolph (Randy) Hill, Judge for the Environmental Appeals Board, United States Environmental Protection Agency

At 1:30pm, the judges, teams, board members, and observers made their way to the regal Judicial Institute Lecture Hall  for the main event, the Final Round. The bench was hot and the oralists were calm, well-prepared, and able to take any questions fired at them. As most probably assumed, the Problem this year dealt with the Clean Water Act (“CWA”). Just a few of the issues that the six Final Round oralists had to argue include  whether a foreign national was a person of interest and could, therefore, file a citizen suit under the CWA and whether a specific ditches, channels, intermittent streams, marshlands (the list goes on) constituted a point source or a navigable water for the purposes of the CWA. The problem was extremely complex, and the Final Round teams faced the task of arguing all the issues within 30 minutes head-on!

The round concluded with a critique from the Final Round Judges, which included both constructive criticism and great praise for the Final Round Teams’ performance.

Finally, the moment that you all have been waiting for….

The winner of the 2014 Jeffrey G. Miller National Environmental Law Moot Court Competition is The University of Mississippi School of Law, Caroline Q. Shepard and  Irving W. Jones, Jr..

Congratulations to the winner as well as the Final Round Teams! Congratulations to ALL 75 teams that competed in this year’s competition! It truly was a success; the competitors continue to impress and inspire us every year!

For more information about this year’s competition, including the names of all the teams that competed, advanced to the Quarter and Semifinal rounds, as well as the best brief and best oralist awards, visit http://www.law.pace.edu/sites/default/files/NELMCC/2014_NELMCC_Winners.pdf. Also, to see the video recording of the Final Round, http://law.pace.edu/live-webcast-final-round.

–Cayleigh Eckhardt, NELMCC Chair 2014


The Jeffrey G. Miller National Environmental Law Moot Court Competition continued today!

All 75 teams competed in the third preliminary round, which was held this morning. The scores they received from judges for this round and the preceding two preliminary rounds were calculated and aggregated in combination with the scores that each team received for its written brief. The best of these 27 scores were then identified and those teams were chosen to move on to the Quarter Final Round! (again, the competition requires anonymity, therefore, the teams that advanced to the Quarterfinals will remain nameless for the time being).

The teams then immediately began preparing for the Quarter Final, scheduled to begin later in the afternoon.

Amid the calculation of scores and preparation for the coming Quarter Final Round, NELMCC also held a Professor’s Workshop entitled 40 Years of the ESA: Our Nation’s Pioneering Wildlife Law, Still under Siege. The workshop included a presentation conducted by Victor Flatt and Zyg Plater. The presentation focused on the history of the Endangered Species Act and the current challenged that the legislation faces.  The ESA has a buffeted political history, surviving merely on yearly continuing resolutions since 1995, and now it’s in the cross-hairs of the Tea Party–Rand Paul’s S. 1731 and H.R. 3533 are only the latest assaults. But the ESA story is not just about wildlife. It’s a small window on a much larger political landscape of environmental law and beyond … and a diminutive snail darter swims through it.”

According to individuals in attendance, the workshop was a great success!

The Quarter Final Round then commenced, and 9 different rooms with 27 teams argues and fought for a position in the Semi-Final Round set to take place tomorrow (Saturday, February 22). Judges selected the best team in their round to continue on the Semi-Final Round. Many judges commented on what a tough decision they faced with such dedicated, tenacious oralists on almost every team!

Finally, by 6:30pm, we announced the 9 teams that would advance to the Semi-Final Round! (again, anonymity prevents disclosure of the schools and competitor names). We also announced the best oralist and the runner up!

Congratulations to the best oralists and to the semi-finalists! We are waiting impatiently to see the coming rounds, which will decide the winner of NELMCC 2014!!

Check in with the PELR blog tomorrow to learn who wins the competition and the names of the best brief winners, the Quarter-Finalists, and the Semi-Finalists!!

–Cayleigh Eckhardt, NELMCC Chair 2014

Every year, Pace Law School hosts the National Environmental Law Moot Court Competition (NELMCC). This year’s competition began today with a bang!

75 teams competed today in the first two preliminary rounds. Over 75 attorneys ventured to Pace to serve as judges for these rounds. The campus was crazy and teeming with people!

Competitors will participate in one more preliminary round tomorrow before the eliminations begin. Then, the top 27 teams will advance to the quarter-finals tomorrow afternoon.

Though no eliminations occurred today, the competitors worked endlessly to prepare and to showcase their oral argument skills.

Most notably, the day concluded with a special reception that recognized the teams that composed the best briefs (we cannot yet identify them as all teams are anonymous). However, the focus of the ceremony was dedicated to Professor Jeffrey G. Miller and his tireless efforts and contributions to NELMCC over the past few decades. Without him, this type of competition, focusing on environmental legal issues, may never have arisen, never mind arisen at Pace Law School.

The competition will now be called the Jeffrey G. Miller National Environmental Law Moot Court Competition. What a mouthful!

Stay tuned for more updates about the competition in the days to come!

–Cayleigh Eckhardt, NELMCC Chair 2014

Patrick F. Carroll

INTRODUCTION

The United States Department of State just released its Final Supplemental Environmental Impact Statement (“FSEIS”) for the Keystone XL Pipeline project on January 31, 2014.  The pipeline is proposed to span eight hundred seventy-five miles from Morgan, Montana to Steele City, Nebraska, with the capacity to deliver up to eight hundred thirty thousand barrels of crude oil each day.[1]  Of this capacity, about eighty-eight percent will originate from the Western Canadian Sedimentary Basin (“WCSB”), which produces “heavy” crude oil, or “oil sands,”[2] while the remaining amount will originate from “light” crude oil deposits in North Dakota and Montana.[3]  To cross the Canadian border at Montana, the project requires a presidential permit,[4] which will be granted if the State Department finds the project “serve[s] the national interests.”[5]

 

The FSEIS examined a different route than was reviewed in the first Final Environmental Impact Statement (“FEIS”).[6]  The contemplated project now avoids what the Nebraska Department of Environmental Quality identified as an “environmentally sensitive area,” the Sand Hills region, and does not include a southern portion connecting Oklahoma to the Gulf Coast.[7]  However, the oil is still intended to reach Gulf Coast refineries, but by route of existing pipelines.[8]  In part, the rationale for removing the southern portion was because TransCanada Keystone Pipeline, LP (“Keystone”) deemed it to be of “independent economic utility,” and since it did not cross an international boundary, this lower portion did not require a presidential permit.[9]

Dividing projects into segments to lessen the apparent magnitude of their environmental impacts, or to gain traction in a multiphase project with the hope that the sunk costs of the first project will help propel a more dangerous project with the forward momentum it needs for an easier review, relate to a problem known as “segmentation.”[10]  Some courts will use what is known as an “independent utility test” to determine if “each . . . project[] would have taken place with or without the other[s] and thus had independent utility.”[11]  While it cannot be said that the “segmentation” rationale was a motivating factor in separating the two pipeline facilities, it certainly could have been a strategic consideration.  However, the new route for the upper portion of the pipeline does avoid other regions similar to the Sand Hills area as well as wellhead protection areas for two municipalities.[12]

The State Department determined the construction of the pipeline will not “significantly affect the rate of extraction in oil sands areas.”[13]  It also concluded that while domestic production of light crude in the Montana and North Dakota region has been on the rise, the Gulf Coast refineries desire an increased supply of the heavy crude because that is the type of crude for which their processes are best suited to utilize.[14]  The completed project would retain a permanent fifty foot right-of-way for which Keystone would have access, but farmers may still farm and perform “other limited activities.”[15]  The U.S. component of the project is anticipated to cost about $3.3 billion.[16]

 

THE ENVIRONMENTAL IMPACT ANALYSIS

The FSEIS first evaluated how the pipeline project could contribute to, and be affected by, climate change through the emission of greenhouse gases (“GHGs”).[17]  The FSEIS considered the emissions from construction, finding the project would emit 0.24 million metric tons of carbon dioxide equivalent (“MMTCO2e”) per year through fuel consumption, land clearing, and electricity use.[18]  In operation, the pipeline is projected to emit 1.44 MMTCO2e per year stemming from fuel use, electricity for pump stations, and rogue methane emissions.[19]  As a means for comparison, this is approximately equivalent to the emissions from three hundred thousand passenger cars, or seventy-one thousand nine hundred twenty-eight homes.[20]

 

The FSEIS also analyzed the lifecycle emissions from extracting, processing, refining, transporting, and consuming the oil sands crude, and included emissions expected from co-products generated during these stages.[21]  The lifecycle GHGs of the oil sand crude was compared to the projected GHGs from the lifecycles of four reference crudes that would be replaced by the project’s fuel sources in some amount.[22]  The comparison indicated that depending on the fuel replaced, assuming the full use of the eight hundred thirty thousand barrels per day capacity as WCSB oil sands crude, lifecycle GHGs would increase by 1.3 to 27.4 MMTCO2e annually.[23]  The FSEIS discounted this finding because its market analysis indicated that approval or denial of the pipeline was unlikely to significantly affect the rate of extraction in oil sand or the demand in heavy crude in U.S. refineries.[24]  This was a very important assumption and could very well be flawed in its premise.  While it may be true that U.S. refineries will still desire heavy crude at a constant or even at an increasing rate, regardless of whether this pipeline is constructed, it is also very likely that this project will make this fuel source a more attractive option for all parties involved.  Even if the current U.S. refineries that the project intends to service are optimized to refine this type of heavy crude,[25] the associated costs of obtaining this fuel are still part of the entire equation.  Increasing the availability of heavy crude oil sands, likely at a decreased price than would otherwise be required if alternative transportation was used, would incentivize these refineries to continue to seek oil sands crude instead of investing in design changes to innovate their systems to be just as efficient at refining cleaner sources of oil.  When the Surface Transportation Board, housed within the U.S. Department of Transportation, approved a railroad’s proposal to construct two hundred eighty miles of new rail and to upgrade six hundred miles of existing rail to reach Wyoming coal mines to offer a shorter and less expensive method to transport coal to power plants, this was challenged in the Eighth Circuit under the National Environmental Policy Act (“NEPA”).[26]  The Eighth Circuit, and even the railroad, did not accept the Board’s proposition that a simpler, shorter route and increased availability at a decreased price would not have the significant effect of making the coal a more attractive option to future entrants into the utilities market when compared to other sources.[27]  In evaluating the sufficiency of the EIS in its review of the direct and indirect effects of the proposed action, the Eighth Circuit held that even though the railroad argued that the extent of the effect was speculative in that it did not know where new plants may be built and how much coal may be used, “the nature of the effect is reasonably foreseeable . . . as it is almost certainly true . . . that the proposed project will increase the long-term demand for coal and any adverse effects of burning coal.”[28]  It is also reasonably foreseeable that the nature of the Keystone project will have a similar effect on the long-term demand and adverse effects of extracting, processing, refining, transporting, and consuming oil sand crude.

 

The FSEIS also found that the project would both contribute to climate change, and be affected by climate change in subsequent years, based on projections of flooding, droughts, expansion and contraction of the soil, and longer, hotter summers.[29]  Some of these effects may increase the risk of a spill, but again this appears to be discounted as the report indicated it believed this risk to be much less than that posed by third-party damage to the pipeline.[30]  Is discounting one risk because of the threat of another risk sound decision-making?  To its credit, the FSEIS did indicate that the project would have procedures “to prevent, detect, and mitigate potential oil spills,” and that it had evaluated potential impacts of such spills on natural resources.[31]  Of the spills reported to the Pipeline and Hazardous Material Safety Administration (“PHMSA”) between 2002 and 2012, 79% were small, less than 2,100 gallons, 17% were medium, between 2,100 and 42,000 gallons, and just 4% were large, greater than 42,000 gallons.[32]

 

Keystone has agreed to additional mitigation measures beyond what is normally required, such as those recommended by the PHMSA as well as numerous others.[33]  Many of these “mitigation” measures are actually methods to reduce the risk of a spill from occurring, and include the implementation of a Spill Prevention, Control, and Countermeasure Plan; a Construction, Mitigation, and Reclamation Plan; and an Emergency Response Plan.[34]  However, NEPA does not mandate a substantive result and is virtually just a procedural mechanism to include environmental considerations into the decision-making process.[35]  This raises a substantial problem to the mitigation of significant impacts on the environment.  Agencies have used the assurance of mitigation proposals to reduce the significance of such impacts, but then later fail to actually impose the mitigation measures during the implementation of the proposed action.[36]  Due to the absence of real substantive force under NEPA, the courts cannot force agencies to fulfill the mitigation guarantees they made in their environmental impact analyses.[37]

 

How convincing then are the promised mitigation measures in this project?  In fact, many of the evaluated environmental impacts of the proposed action are premised on the use of mitigation.[38]  For example, the pipeline will cross about one thousand seventy-three surface waters, including twenty-four miles of mapped floodplains.[39]  It was ascertained that the impacts associated from the surface water crossings include: 1) stream sedimentation; 2) changes in stream channel morphology and stability; 3) temporary reduction in stream flow; and 4) a potential for hazardous material spills.[40]  Keystone agreed to drill under many of these surface waterbodies to alleviate these issues, as well as to install bank protection measures to mitigate erosion.[41] Another instance involves the Endangered Species Act (“ESA”). The project may impact eleven listed threatened or endangered species, one proposed endangered species, and two candidate species under the ESA.[42]  The U.S. Fish and Wildlife Service provided a Biological Opinion, which included conservation measures and compensatory mitigation measures for unavoidable impacts.[43]  In particular, however, the American Burying Beetle’s habitat will be adversely affected even with the imposition of mitigation, causing an incidental taking to occur from the construction or operation of the project.[44]  Still, a monitoring program alongside a Reclamation Performance Bond will assure that any habitat disturbances will be restored, and thus, the Biological Opinion concluded that the project is not expected to jeopardize the continued existence of the species.[45]

 

These are just a couple of the examples of the impacts of this project. Others include damage to terrestrial vegetation, such as “biologically unique landscapes and vegetated communities of conservation concern,” harm to fisheries, habitat fragmentation as well as direct and indirect mortality to wildlife, a total disturbance of about fifteen thousand nine hundred twenty-seven acres of land comprising primarily of agricultural and range lands, reduced productivity of soil resources, wetlands disturbance, air and noise impacts, and possible effects on cultural resources.[46]  Most, if not all, of these impacts have been described with the promise of some mitigation, monitoring, or preventive mechanism to avoid the harm.[47]  It would be laudable if all such protective actions are undertaken and properly implemented, and certainly some are required by other federal, state, or local laws.[48]  However, NEPA itself, through the discussion and consideration of these mitigation measures, cannot compel their use absent some other source of substantive authority.[49]

 

CONCLUSION

This review of the FSEIS is not intended to be comprehensive.  The Keystone XL pipeline project is a complex, multi-faceted endeavor that involves the consideration of numerous political, legal, and economic issues.  However, this review does intend to shed some light on the possible impacts of the project and some of the legal aspects of the environmental impact analysis process.  While some news commentators have described the outcome of the FSEIS as a sign that the project is “[i]inch[ing] [t]oward [the] [g]reen [l]ight,”[50] President Obama’s approval, it remains to be seen just how significant some of the impacts will be and if the FSEIS put forth an adequate and sufficient discussion of their relevant consequences.  In fact, there is some evidence that the environmental impact predictions of many EISs fail to correctly predict the scope and intensity of the actual harm incurred.[51]  Furthermore, it is yet undetermined whether President Obama believes approving this project is incompatible with the White House’s energy policy, or whether the age-old, and largely flawed, debate between jobs and the environment carries weight in his decision-making.


[1] U.S. Dep’t of State, Bureau of Oceans & Int’l Envtl. & Scientific Affairs, Final Supplemental Environmental Impact Statement for the Keystone XL Project, Executive Summary ES-1 (2014) [hereinafter FSEIS], available at http://keystonepipeline-xl.state.gov/documents/organization/221135.pdf.

[2] Id. at ES-12.

[3] Id. at ES-1.

[4] Id.

[5] Id.; See Exec. Order No. 13337, Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the Inter-national Boundaries of the United States  69 Fed. Reg. 25299, 25300 (Apr. 30, 2004).

[6] FSEIS, supra note 1, at ES-3.

[7] Id.

[8] Id.

[9] Id.

[10] Plater et al., Environmental Law and Policy: Nature, Law, and Society 326 (Vicki Been et al. eds., 4th ed. 2010).

[11] Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1229 (10th Cir. 2008) (citing Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006)).

[12] FSEIS, supra note 1, at ES-3.

[13] Id. at ES-9.

[14] Id.

[15] Id. at ES-7.

[16] Id. at ES-9.

[17] Id. at ES-14.

[18] Id. at ES-15.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at ES-15-6.

[24] Id. at ES-16.

[25] Id. at ES-9.

[26] Mid-States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 532 (8th Cir. 2003).

[27] Id. at 549.

[28] Id.

[29] FSEIS, supra note 1, at ES-17.

[30] Id.

[31] Id.

[32] Id. at ES-17-8.

[33] Id. at ES-19.

[34] Id.

[35] Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1980) (“[O]nce an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences.”).

[36] Plater et al., supra note 10, at 327; See Council on Envtl. Quality, Exec. Office of the President, The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-Five Years (1997).

[37] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989) (“There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.”).

[38] FSEIS, supra note 1, at ES-21-26.

[39] Id. at ES-21.

[40] Id.

[41] Id.

[42] Id. at ES-23.

[43] Id.

[44] Id. at ES-24.

[45] Id.

[46] Id. at ES-22, ES-24-6.

[47] Id. at ES-22, ES-24-6.

[48] Id. at ES-22-6.

[49] See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

[50] Ben Geman, Keystone Inches Toward Green Light With Crucial Climate Finding, National Journal (Jan. 31, 2014), http://www.nationaljournal.com/energy/keystone-pipeline-inches-toward-green-light-with-crucial-climate-finding-20140131.

[51] Plater et al., supra note 10, at 346; See Paul J. Culhane et al., Forecasts and Environmental Decisionmaking: The Content and Predictive Accuracy of Environmental Impact Statements 111-12 (1987).

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