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?

Did Property Owners Really Win Big Against the EPA?

By Johanna R. Thibault, Esq.
March 25, 2012

This was a big week for environmental law, or was it? The U.S. Supreme Court issued its opinion in the closely watched Sacket v. U.S. Environmental Protection Agency case. Thought to have potential implications on environmental and non-environmental enforcement programs administered by federal agencies. Instead, the Supreme Court kept its decision appropriately narrow addressing only the administrative issues at hand leaving the constitutional due process issues aside.

The facts of the case were simple and alarming to most U.S. citizens, including the nine members of the Supreme Court. After filling and grading their residential lot near Priest Lake, Idaho, the Sackets received an Administrative Compliance Order from the EPA, stating, among other things, that they had unlawfully filled wetlands located on their property and they were to restore the wetlands to their original state or face civil penalties up to $75,000 per day in fines. The Sackets immediately sought a hearing with the EPA to argue that they did not in fact have wetlands on their property, only to be denied.

In response to not receiving a hearing, the Sackets filed (through the Pacific Legal Foundation) a petition in federal district court asserting that EPA's Administrative Compliance Order was subject to judicial review and EPA's characterization of their property as having wetlands was erroneous. Denying them of this judicial review, the Sackets argued was a violation of their constitutional right to due process.

The district court avoided the legal questions and instead dismissed the petition for lack of subject matter jurisdiction stating the Administrative Compliance Order did not constitute a final agency action subject to judicial review. Upon appeal, the Ninth Circuit affirmed siding with many other circuits that had made the same decision on this issue.

Despite requesting the parties to brief the due process issue, the Supreme Court, in a rather terse and narrow opinion written by Justice Scalia, overturned the decision strictly on administrative law grounds. Specifically, Justice Scalia focused on the legal question of whether the Administrative Compliance Order was in fact a final agency action, which of course, the Court unanimously decided it was.

Being that this was the first wetlands case to cross the Supreme Court in over five years, the case has seen the hype and attention the Sackets had hoped they deserved. If you believe the hype, you'd say that the Sackets kicked this one out of the ball field, and they really showed the EPA. Truth is, really all the Sackets received from the Supreme Court was a ticket to start over and actually argue the factual issue in court; a task they initiated over five years ago.

Unlike the SWANCC v. Army Corps of Engineers (2001) case that eliminated the "Migratory Bird connection" to include isolated wetlands under federal jurisdiction, or the Ripanos v. United States (2006) case that further defined jurisdictional wetlands as only those immediately adjacent to a navigable, waterway, the Sackets' victory merely answered an administrative law question that was made ambiguous in the Clean Water Act. A question that for all intents and purposes is bound to give EPA a huge headache with regard to its enforcement procedures. That is because a majority of the EPA's enforcement procedures take the form of Administrative Compliance Orders instead of enforcement hearings or litigation proceedings, which can be more costly, time-consuming, and resource intensive.

My environmentalist side wants to say that Mr. Sacket, as an excavation contractor, should have known better and have sought proper authorizations before proceeding to fill his property. That said, I know that the facts are far more complicated than that and that this is less a case about a property owner avoiding hefty permitting fees and major delays and more about keeping the EPA in check. The Clean Water Act affords the EPA other options to handle enforcement matters, yet it choses to take this route, which Justice Scalia very poignantly describes as "strong-arming [ ] regulated parties into 'voluntary compliance' without the opportunity for judicial review." Something the Court stated the Clean Water Act was not "uniquely designed to enable."

The Supreme Court had the opportunity here with Justice Scalia to author a colorful opinion going at great lengths about due process and the lack of unambiguous definitions of jurisdictional wetlands in the regulations. Instead, I find myself actually agreeing with Justice Scalia, a position I have to admit is not common for me, that the issue before the court was narrow and the opinion was decidedly kept the same.

There is no doubt the reprecussions of this decision will be felt throughout the enforcement section of the EPA, and it may also be possible that wetland protection could be somewhat hindered as well. Overall though, it appears the Supreme Court has rightly reigned in an administrative procedure that had gone somewhat amuck and was beginning to threaten the constitutional rights of regulated parties.