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...

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.

Mandatory Recycling: Is it Garbage?

By Johanna R. Thibault, Esq.
February 26, 2012

Many states have faced waste management challenges and have struggled with whether recycling is an effective means to reduce the amount of solid waste disposal.  State governments rarely tackle these issues as a whole and instead leave the garbage for local waste management districts to contend with.  This results in a vast array of recycling standards, techniques, and methods.  As a small state, with a garbage problem, Vermont has decided to tackle the issue head on and could be the first state to mandate recycling, keeping with its reputation for progressive governance. 

Vermont's recent effort is being fueled by a rapid decrease in the amount of available landfill space in the State's two remaining landfills, particularly after cleanup efforts from Hurricane Irene pushed landfill contributions last year beyond forecasted limits.  Several bills have been proposed in the Vermont legislature including potentially controversial regulations that would mandate recycling within the State's borders as early as 2015.  A cursory review of these proposed regulations demonstrates that Vermont has clearly done its homework. 

Recycling mandates are often considered taboo in our country.  Much of the American public is against recycling because the figures do not support that it is economically sensible (that is, the time, effort, and expense to recycle does not justify its ostensible environmental benefit).  As the Chair of Political Science at Duke University poignantly stated, "[i]f someone will pay you for the item, it’s a resource. Or, if you can use the item to make something else people want, and do it at lower price or higher quality than you could without that item, then the item is also a resource. But if you have to pay someone to take the item away, or if other things made with that item cost more or have lower quality, then the item is garbage."  The bottom line is most mandated recycling hurts, not helps, the environment.  A comparative analysis of common approaches used here in the U.S. versus those deployed in other developed and progressive nations reveals that recycling can be environmentally-friendly and economical.   
    
A quick sweep of the internet will easily demonstrate that the United States is painfully behind in its recycling efforts.  According to the U.S. Environmental Protection Agency (EPA), the U.S. recycled 34.1 percent of our garbage in the U.S. in 2010. This might not sound shabby, but, contrast that with Germany's 48 percent recycle rate in 2009 (the most recent year data is available) and the gap is clear.  What is even more astonishing is that in 2009, Germany managed to compost, incinerate, or recycle 100 percent of its waste sending not a single kilogram to a landfill.  

Armed with this information, policy-makers with an agenda of reducing the amount of solid waste disposed of in landfills should look beyond the borders of our country to the German example; something the Vermont legislature might very well have done while constructing the proposed regulations.  In addition to proposing a recycling mandate under H.485, the Vermont legislature is also considering proposed H.696, which would replace Vermont's thirty year old bottle bill (i.e., the 5 cent deposit) with the "expanded producer responsibility" bill, or EPR program.  The EPR program places the financial burden for recycling on the manufacturers of packaging and printed materials, in addition to the the beverage containers already covered under the bottle bill.  

How does EPR work?  It forces manufacturers to pay a fee based on the volume of product packaging, and how easily it can be recycled, which encourages adoption of the most environmentally friendly means.  The funds collected are fed into a pool that is then utilized to cover the cost of reclaiming and reusing or disposing of the product.  The idea sounds foreign to Americans because it is:  Germany has successfully employed such a system since implementation of its Recycling and Waste Act in 1996.  Germany guides its recycling program with the "polluter pays" mentality.  Under the Recycling and Waste Act, businesses are required to eliminate waste production by considering waste avoidance, waste recovery, and environmentally compatible disposal. This law effectuates intuitive thinking forcing all engineering to be completed with recycling and waste elimination of waste in mind. 

If the question then becomes will this work for Vermont, the answer is that it should. By doing its homework, the bill’s sponsors have likely noted how other, mainly European Union, countries have  implemented these types of programs successfully.  One of the most effective methods is by delegating the "producer-responsibility" to a third party organization funded by the industry itself.  Germany uses the "Green Dot" system in which manufacturers and retailers pay to place a "Green Dot" on its products; the more packaging there is, the higher the fee.  

The Green Dot, or Der Grüne Punkt, is run by a non-profit organization called Duales System Deutschland (DSD).  Companies that sell items in Germany can pay a fee to become a member of DSD, which then allows them to place the Green Dot on their packaging. DSD then takes over responsibility of recapturing all of the materials to recycle them as required under the Recycling and Waste Act.  The Green Dot is not a requirement in Germany, however, it is nearly impossible to market within the country without it.  Currently, the Green Dot system is used by more the 130,000 companies in 25 European countries. In 2007, the Green Dot recovered greater than 88% of all packaging materials produced in Germany that year.     
  
One legal hurdle not faced by recycling policies in other countries, such as Germany, is the potential limitation placed by the U.S. Constitution on such regulatory controls through the "Dormant Commerce Clause."  The Dormant Commerce Clause essentially prevents a state from adopting regulations that improperly burden or discriminate against interstate commerce.  If a state creates a regulation that results in differential treatment of in-state versus out-of-state economic interests by benefiting the former and creating burdens on the latter, then federal courts are empowered to invalidate the rule.

By adopting a regulation that creates restrictions on manufacturers selling products within the State, Vermont’s efforts may be construed as attempting to regulate interstate commerce in such a manner that discriminates against out-of-state manufacturers.  Although the EPR program is not necessarily facially discriminatory, it could have the effect of favoring in-state economic interests over out-of-state ones, subjecting itself to invalidation.  In regulations such as the EPR program, however, where the law is "directed to legitimate local concerns, with effects upon interstate commerce that are only incidental", courts allow for a bit more flexibility.    City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).

Specifically, the Supreme Court has held that where a State regulation has only "incidental" effects on interstate commerce, the regulation "will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Translation:  the Court will likely uphold a state regulation that is designed to implement public health and safety, or serve other legitimate state interests.  Vermont appears to have carefully crafted its proposed EPR regulation to do just that.  H.696 specifically states that its purpose is for the protection of health, safety, and welfare of its citizens, and to maintain and enhance the quality of the environment.  Well done, Vermont.
As clean as this may seem through a legal lens, will an EPR program have the desired effect in Vermont?  The burden might not only lie with out-of-state manufactures trying to sell their goods in Vermont, but might instead greatly, and perhaps disastrously, burden the wide range of small Vermont businesses as well.  Think for a moment about the maple syrup industry.  Much of this industry in Vermont is run by locally owned mom and pop companies.  Will such a regulation unfairly burden these actors as well?  Will the potential added cost of packaging and compliance put Vermont businesses at a disadvantage?  

One of the primary reasons the Recycling and Waste Act and the Green Dot program work so well in Germany is because it is a Federal mandate.  Applied at the federal level, all players are on an even playing field and generally there are no unfair burdens.  Everyone is required to do it, so the end result works. However, under the U.S. model of federalism there is the risk that if every state develops a different standard or program businesses will be left to operate in an unduly complex and costly situation when seeking to market their products among the several states.  These are questions Vermont will need to grapple with before the Governor signs any bill into law.

What if Vermont decides not to take the risk in adopting the EPR program, will a recycling mandate be successful?  Many states have avoided such mandates because they are rarely economically worth the effort.  Looking again to the German example, the incentives need to be properly placed to fuel a successful mandatory recycling rule.  In Germany, the less waste households put out for incineration, the less they pay.  Instead of putting a price on recycling, the government makes throwing out garbage expensive.  Trash bins are often only collected every other week, and the bins are less than half the size of what we are accustomed to here in the U.S.  Systems are then put in place to create conveniences and incentives on recycling and reusing, such as bottle deposits and no bag rules, which are becoming more common in U.S. municipalities.  The harsh viewpoints we often hear or read on recycling do not need to be discouraging; they can also provide us the key to a successful recycling program:  economic incentives must be created to encourage the public at large to recycle.
Vermont can even look locally for an answer to this question because recycling has been mandatory in Chittenden County since 1993. The rule has been relatively successful as it reported a 45% recycling rate in 2010.  Something is working, but there are definitely means of making it better. 

If there is a state in our nation that is willing to take a risk to adopt a recycling mandate or a "polluter pays" regulation, it is Vermont.  I hope the Vermont legislature continues doing its homework and provides itself the proper framework it needs to make these latest efforts a huge success.  Our country could use some intuitive thinking when it comes to handling all our garbage.