Are Legal Exemptions Good for the Environment?

By Johanna R. Thibault, Esq.
April 30, 2012

Environmental laws and regulations that were put into place in the U.S. in the 1970's have done wonders for the environment. Over the last 40 years, both Congress and regulatory agencies have created exemptions within the structure of those laws to help streamline processes. Are these exemptions helping or hurting the environment?

I came across an article by Eric Biber from Legal Plant where he suggests key principles for reasons why what is "good" for the environment is difficult to ascertain. He purports that "what is 'good for the environment' is often eminently contestable." Beauty is in the eye of the beholder, right? The two most contrary views being one, that the environment need be protected for human consumption, and two, that natural resources be protected for non-consumptive or intrinsic reasons. Environmental laws are written from both of these perspectives, and they can often come into conflict.

Also, environmental quality is difficult to quantify. Such measures involve extrapolation and inference, which generally translates into educated people forming intellectual debates over what is or is not "good" for the environment. "In other words, there is a tremendous amount of ambiguity as to what is environmentally beneficial." It is that ambiguity (coupled with numerous other political factors) that drive the public process for implementation of environmental laws. Input from the public is needed to keep legislatures from skewing an environmental issue a certain way.

Back to the original inquiry of whether exemptions then hurt or help the environment. These exemptions were born out of industry. Take the Clean Water Act, for example, and the U.S. Army Corps of Engineers review of projects that result in dredge or fill material in wetlands. The process can be cumbersome and arduous (see prior post on the Mingo Logan Coal Company case), and also painfully time-consuming. In many instances that process is exceptionally important to ensure that environmental protections are in place before a project can move forward. Sometimes, however, the permitting process can be seemingly excessive.

Regulations were therefore adopted by the Corps to streamline this process to avoid the necessity of going through a long and detailed review under the Individual Permit Program. The Nationwide Permit Program provides over 50 instances where a more streamlined permitting process is permissible for a project. Are all of these "exemptions," if you will, beneficial for the environment? Perhaps not, but what they do allow is motivation from the development sector to design projects in a more environmentally friendly way. For example, as a consultant I often spent much of my time working with clients to design projects in a manner to avoid the environmental impacts triggering extensive permitting requirements. The end results would be a project with potentially significant reductions in environmental impacts to wetlands, endangered species, or air quality, etc.

Contrast this type of "exemption" with one that might not have a resulting benefit, but could instead cause the potential breakdown of critical environmental review legislation. For example, the State of California has often been known for its difficult environmental processes. Development in the state can take years, if not a decade, to progress through the regulatory requirements. One of the biggest culprits of this developmental challenge is the California Environmental Quality Act (CEQA). Similar to the National Environmental Policy Act (NEPA), CEQA was put in place to assist regulators and government decision-makers take all factors into account prior to approving a project. CEQA is farther reaching than NEPA, however, because unlike NEPA, which only comes into affect when a major federal action is initiated, CEQA is triggered when any local, regional, or state action is required. This could mean requiring a descretionary permit for building a structure in a county, for example.

CEQA is often a roadblock for many projects. The California legislature therefore adopted CEQA exemptions as a current attempt to boost the economy by creating jobs and encouraging the development of "good for the environment" projects within the state. Things like renewable energy facilities would fall under this "good for the environment" category. Being a huge advocate for these types of projects, I would be in full support of this exemption.

The exemption makes me wary, however, because the legislation does not define "good." As such I find myself falling into the same minority view expressed by Eric Biber in that without providing a regulatory definition, "good" can be made into whatever the decision-maker wants it to be. As Biber points out, California is a state with strong lobbying by special interests groups. Being that "good" is in the eye of the beholder, interest groups with a goal of weakening CEQA regulations could create relatively strong arguments to debate that a project is "good," and thereby substantially reduce the effectiveness of the legal oversight. It is more often that those subject to the regulation lobby for a position and not those that are benefiting from the environmental protection.

Overall, exemptions can be a vasty effective means to keep industry in check and the environment relatively protected. The truth of the matter is, development is going to occur regardless, so finding a means to work with both sides so that the development happens in the least impacting manner might be the most effective approach to sustaining the intrinsic value of our environment for use by future generations. At the very least, these processes require a look by government officials and agencies so that all impacts are hopefully considered. What we can hope for is a public interest strong enough to guide such development along a greener path.

How do you feel about exemptions in environmental laws? Do you think they weaken the protections provided by that legislation or do you think they are a necessary ill to ensure that the processes work effectively?

Electric Vehicle Emissions: Another Argument for Clean Energy Production

By Johanna R. Thibault, Esq.
April 19, 2012

Electric vehicles (EV) produce zero emissions from the tailpipe, but how much these vehicles contribute towards green house gas emissions depends entirely on the source used for powering the vehicle. The Union for Concerned Scientists released a report on Monday analyzing the green house gas emissions for electric vehicles. According to the report, as predicted, the amount of green house gas emissions depends entirely on where the EV is charged. The unanticipated part of the results is just how significant the difference can be from one region to another.

In the report, the greenhouse gas emissions incident to electric production for each locality are converted to EV emissions (based on the power needed to charge a vehicle) and then compared to the same emissions from a standard vehicle in miles per gallon (mpg). For example, the charging of an EV in Texas would emit the same amount of greenhouse gases as a vehicle with a rating of 47 mpg. Where the numbers really tell the whole story is when comparing a region that relies heavily on coal-fired plants for electric generation versus those regions that emplore more alternative means, such as hydro-power, wind, solar, or nuclear for power. The numbers demonstrate that an EV in Denver, Colorado, rates at 33 mpg versus an EV in Juneau, Alaska, rates at 112 mpg. That is a staggering difference.

Taking into account how the energy is produced, the country was divided into three separate regions defined as "Good," "Better," and "Best." The good news is that "nearly half of Americans live in BEST regions where charging an EV on the electric grid emits less global warming pollution than driving even the best hybrids." Contrary to what some might believe, the report was not discouraging the use of EV's in regions defined as "good," where mpg ratings were in the low 30's in contrast to those in the "best" regions where EV's emissions were equivalent to vehicles averaging 70 mpg or greater. Instead, the report is rather a tool that policymakers can use to support decisions for alternative energy production. The Union for Concerned Scientists took a snapshot of the global emissions picture of today with the full understanding that conditions are anticipated to keep getting better.

Global emissions from coal-fired power plants are nearly twice that of natural gas-fired power plants. Renewable energy sources such as wind, solar, and hydro emit no operational green house gas emissions. Accordingly, the total contribution of these emissions from an EV is affected by the mix of energy sources. As a result of state and federal emissions policies and other regulatory controls, these emissions standards are predicted to improve by nearly 30 percent by 2020. Such an improvement also means that if you buy an EV today, the global emissions will continue to improve over the lifetime of that vehicle; something that you could never be promised from the other standard vehicles we are driving today.

Will reports like this one increase support for alternative energy? Will the increased demand for electricity from a large fleet of electric vehicles justify potentially huge capital investment required to make the grid more efficient?

The Nuclear Series: State of the Nuclear Renaissance

By Johanna R. Thibault, Esq.
April 13, 2012

The New York Times published an article this week discussing the state of the nuclear renaissance characterizing the death of nuclear being "somewhat exaggerated." Blaming the Fukushima disaster, the low cost of natural gas, and the aftershocks of the 2008 recession for any downturn in the support for nuclear power.

Of these factors, the Fukushima incident is by far the largest culprit in nuclear power's apparent demise. After the earthquake and ensuing tsunami caused a near catastrophic nuclear meltdown in March of 2011, the so-called nuclear renaissance has been all but put on hold as we are reminded yet again of the dangers associated with nuclear power. A year later, Japan's nuclear industry remains largely shuttered, and in response to Fukushima, Germany has implemented the rapid termination of its nuclear power program.
However, despite this hesitation for new nuclear facilities, the Nuclear Regulatory Commission did grant permission for development of two nuclear reactors at the Vogtle facility in Augusta, Georgia, which is the first license granted for a new nuclear reactor in over thirty years.

Unlike other countries, the U.S. has been determined to continue utilizing nuclear power as a significant source of power, yet has not supported the addition of new facilities since the late 1970's. Whether or not supportive of nuclear power, most are able to agree that this has created somewhat of a conundrum for the nuclear industry and the safety of our nation. For example, Vermont Yankee was authorized by the NRC to uprate its output to meet increased demand, and more recently its federal license was extended for another 20 years, while at the same time the physical plant has shown its age - most notably in the collapse of a secondary cooling structure.
After the Three Mile Island incident 33 years ago, the nuclear industry watched its support diminish. The unfortunate byproduct of this downturn and shift in perspective has been the continued operation of facilities throughout the country beyond the anticipated lifespan of their reactors. The Nuclear Regulatory Commission, and the industry itself, has been under scrutiny for allowing the continuation of these "second generation" facilities creating and reinforcing a widespread public view of unsafe conditions and the potential for catastrophic failures.

The new "third generation" and "third generation plus" facilities are, to the contrary, designed to be much safer. While the development of new reactors in the U.S. stalled for years, Westinghouse, GE, and other reactor designers have continued developing new designs for France, Japan, and more recently China. The Vogtle license approves the installation of two new AP1000 reactors, which are otherwise described as having an "advanced passive" design. Effectively, if the reactors at Fukushima had been of this design, the catastrophe would not have occurred. The design uses a system employing gravity and convection instead of power-operated pumps for its emergency cooling, which eliminates the need for power sources in the event of a natural disaster.

If the U.S. is going to continue its use of nuclear power as a source for its electrical power grid, it begs the question, should we be averse to the installation of these new facilities? Should government subsidies be permitted for use in supporting the industry by allowing it to replace the "second generation" facilities with the new and advanced designs like the AP 1000? Can the promise of new, safer technology overcome the stigma that nuclear has earned in light of Three Mile Island, Chernobyl, and Fukushima?

The Nuclear Series: An Introduction

By Johanna R. Thibault, Esq.
April 11, 2012

I am starting a new blog series regarding nuclear power. This is a controversial subject at best that is wrought with legal overtones as well as environmental impacts and benefits. It's the crossroads between the immediate gains and the potential for significant impacts that makes this a good topic for environmental discussion and legal debate.

Having worked for the Nuclear Regulatory Commission for several years, I was consumed by the breadth of knowledge behind the regulatory side of the nuclear controversy. My job was decidedly unbiased as I clerked for the administrative law judges and was put in a position of viewing the issues relatively equal from all sides.

To this day, I remain uncertain how I feel about nuclear power. My goal is to provide an eminently fair view of the issues facing nuclear power and invite discussions from all angles. I invite you to convince me that nuclear power is the answer to climate change or that it should be abolished.

I hope you enjoy the series and I welcome your comments and suggestions on any future blog posts.

Wilderness and the American Mind

By Johanna R. Thibault, Esq.
April 11, 2012

On my run this morning, I got slightly ambitious and took a detour along old farm roads and forest trails. I had a general idea of where I was and where I was going, yet there were a few moments of panic as I climbed over trees and felt that my feet were the first to touch the ground on the trail in quite some time. Instinctively I turned my attention to my surroundings and watched and listened...

My mind started acknowledging that this would be a dangerous thing to do back home in Vermont or the foothills in California. On more than one occasion I stumbled upon a black bear and there are one too many stories of hikers and other athletes being confronted and often attacked by mountain lions in populated areas in California.

Here in rural Bavaria, though, this is less of a concern. In fact, there is very little of that type of "wild"-life to be seen here. Despite this realization, it was difficult to calm my mind and relax until I found myself back on open road.

In "Wilderness and the American Mind," Robert Nash talks about how the European settlers tamed the wilderness when they came to American. The word "wilderness" itself implied that things were "of the wild" and were therefore untamed and to be feared. I read this book in college, as I'm sure many environmental studies scholars did and still do, and I recall being appalled at such destruction of untouched beauty. My young environmental mind could not fathom the idea that someone could conquer wilderness in such a violent manner. I suppose my more mature mind grapples with this as well.

As I was running along a barely beaten path in the wilderness today though, I found myself pondering the minds of those earlier settlers and possibly finding a sense of empathy. They came from a world where wild animals were to be feared. The Romans used them for sport and food for hundreds of years, and coming across a wild animal while on foot often meant your demise.

So much of the old world had been settled for hundreds, and in some cases, thousands, of years. To enter into uninhabited territory covered in forests and filled with the natural beauty that accompanies unchartered territory must have been frightening. The Native Americans learned to live as one with this so-called wilderness, yet the Greeks, Romans, and our other European ancestors found a different approach to a means to live. Then again, that part of the world was at war for hundreds of years and a fortress was much safer when set apart from the wild.

Perhaps this is what makes certain environmental ideologies so difficult for conservatives to grasp or accept. The fear of knowing that our actions are at the root of our planet's potential demise. We are forcing the extinction of species and the imbalance of the earth's harmonious rhythms.

Even I have to admit that initially accepting the concept of global warming and climate change was too daunting for me to believe. Imagining that humans are endangering the viability of the planet and contributing to the inevitable death of thousands of species is an overwhelming idea. Thus, it is not impossible to understand why this idea, despite the copious amounts of science that supports climate change, is one that a majority of the population cannot and will not accept.

Wilderness and the American Mind. Perhaps the most efficient approach to politically assist the protection of the environment is to eliminate the fear that humans possess for the wilderness and replace it with responsibility and acceptance of the damage we have done. Maybe then environmental laws and legislation will be less political and more of a necessity. The unlikelihood of this is at the root of my fears. My job and my dreams would be much easier without the need to explain the importance of our planet's resources and the reasons for protecting it.

EPA, the Courts Are Watching You

By Johanna R. Thibault, Esq.
April 9, 2012

The Environmental Protection Agency (EPA) is getting bamboozled by the courts this year. Within a week of the Supreme Court making its decision against the EPA in Sacket, Judge Amy Berman Jackson delivered an additional smack to the EPA in her decision in Mingo Logan Coal Company, Inc. v. EPA. Although this was only at the federal district court level, the decision does not lack significance, especially to the EPA.

Not terribly dissimilar from the type of over-reaching EPA was doing in Sacket, Judge Jackson also felt the EPA was a little too high-handed with its application of authority used to withdraw a wetlands fill permit issued under Clean Water Act Sec. 404. Not that avid environmental protectors aren't in support of preventing gross pollution to our waterways, but when the agencies, such as the EPA did here, arbitrarily decide that a permit should be invalidated, it undermines the very programs put in place to protect those resources.

Here is the cliff notes version of what happened in the Mingo Logan case.

Mingo Logan received a permit from the Army Corps of Engineers to allow dredge and fill materials into adjacent waterways from the Spruce No. 1 coal mine on January 22, 2007. This was after a grueling and arduous permit authorization process that was initiated in 1999. The seven years witnessed a very detailed history between the Army Corps of Engineers and Mingo Logan including initial authorization under the Nationwide Permit Program and subsequent withdrawal of that approval; the submittal of an Individual Permit under Section 404(a) of the Clean Water Act; and the publication and environmental review process required under the National Enviromental Policy Act for an Environmental Impact Statement.

This lengthy process included review by not only the public, but also input from several administrative agencies, not least of whom the EPA. Although somewhat hesitant throughout the process, the EPA did provide its final "ok" with the express consideration that it "intended to 'work together' with the Army Corps of Engineers to address any concerns." The reason this is important is because the Clean Water Act requires that the Corps receive a thumbs up from the EPA prior to issuing any dredge or fill permits. The Corps issued the permit to Mingo Logan after receiving an email from the EPA stating, "we have no intention of taking our Spruce Mine concerns any further from a Section 404 standpoint."

The EPA was taken to court because just two years after providing this approval, it requested that the Corps suspend, modify or revoke the permit. When the Corps rejected EPA's request, the EPA formally withdrew its "specifications" of the dredge and fill locations - something, EPA argues, nullifies the 404 permit.

How did the Judge respond to this plenary act of authority? She made the alarm in her response crystal clear:

EPA’s position is that section 404(c) grants it plenary authority to unilaterally modify orrevoke a permit that has been duly issued by the Corps – the only permitting agency identified inthe statute – and to do so at any time. This is a stunning power for an agency to arrogate to itselfwhen there is absolutely no mention of it in the statute. It is not conferred by section 404(c), andit [sic] contrary to the language, structure, and legislative history of section 404 as a whole.

The Judge's decision is a complicated exercise in administrative law, but in a nutshell, she determined that EPA was outside of its authority when it withdrew its specification consquently making the permit invalid. The court did acknowledge, however, that "it is undeniable that the provision in question [under the Clean Water Act] is ackwardly written and extremely unclear."

The court was not required to go into such a lengthy analysis on the merits because the issue before it was a summary judgment motion, yet it did here probably to explain how it found its way through the complicated and sometimes ambiguous language in the Clean Water Act. Although the Supreme Court took a much different approach in Sacket leaving the merits issues for the lower courts to decide, it whole-heartedly agreed with Judge Berman Jackson here that the Clean Water Act is not a user-friendly statute.

So, there you have it. The EPA has found itself yet again caught in the torrents of the Clean Water Act. We want EPA authority to be effective, but not in a high-handed way. Coal mining can be an extremely unfriendly to the environment, there is no argument there. However, Mingo Logan spent the better part of a decade working with the Corps and other agencies to achieve the authorizations it required to operate its mine. That is what Congress has asked for in the Clean Water Act, and as a result, the mine should be able to operate as authorized as long as it stays within the confines of its permitting activities.

Health Care Act and Environmental Law

By Johanna R. Thibault, Esq.
April 2, 2012

Last week was a big one in the legal world. Lawyers, politicians, law professors, students, and reporters all crowded the United States Supreme Court building hoping to catch a glimpse of oral arguments scheduled regarding the Patient Protection and Affordable Care Act, otherwise known as the "Health Care Act," or my personal favorite from the Act's opponents, "Obamacare." Everyone in the United States was closely watching. SCOTUS (Supreme Court of the United States) blog received a record number of blog "hits" during its coverage of the oral arguments with over 800,000 views in a single day. If this tells us anything, it's that we are all listening and anxiously awaiting the outcome of this critical case and wondering whether the Act will survive.

On the table is the Act's constitutionality, and the Supreme Court scheduled three days of arguments to address the following questions: (1) whether the Tax Code allows the Supreme Court to have jurisdiction to hear the substantive questions regarding the Act; (2) whether the Act itself was unconstitutional in regards to the individual mandate; and finally, (3) if the individual mandate section of the Act is unconstitutional, whether the rest of the Act can survive.

The Supreme Court decision on these questions is clearly important in a political realm. As nearly every landmark case before the Supreme Court has effects well beyond its subject matter, the environmental lawyer in me is curious to know: Will the decision have implications to environmental laws and legislation as well?

My discussions with others in the environmental law field lean toward, "no." The structure of environmental legislation in the United States does not appear to mirror that of the Affordable Care Act, although a creative academic exercise could undoubtedly result in some instance where the Supreme Court decision on this case might apply.

So, does this important case and potentially monarch Opinion from the Supreme Court provide anything critical for us environmental lawyers? It just might, in the form, at least, of giving us another window into how the Supreme Court Justices might review environmental law cases that come before it in the next several years.

If the Supreme Court upholds the mandate and sides with the Government, it could be a sign that the current Court prefers to follow pre-existing precedent. In contrast, if the Supreme Court decides against the constitutionality of the Act, we could be looking at a Court of extreme conservatism with an unfriendly eye on future environmental cases.

Is the outcome of this case critical to our country? Absolutely. But we might not need worry much with how the outcome of this case affects environmental law and legislation. Then again, we have been surprised before...