Supreme Court asked to weigh in on EPA's power to veto wetlands fill permits

A coal mining company fighting a decision by the U.S. Environmental Protection Agency to effectively veto a permit allowing disposal of mining waste in the streams of Appalachia has asked the Supreme Court to review the case.

The petition for certiorari in Mingo Logan Coal Co. v. United States Environmental Protection Agency was filed Nov. 13.

"Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits," the petition argues.

The issue is of high importance to advocates working to prevent mountaintop removal mining.

Scientific studies show that the practice, which involves extensive deforestation in a region that contains a high degree of terrestrial biodiversity, also causes damage to aquatic ecosystems that is practically irreparable.

Human health impacts, including increased risk of cancer and heart, lung, and kidney disease, have been documented in areas where mountaintop removal mining occurs. A relatively higher frequency of birth defects in areas impacted by the practice has also been confirmed.

In 2007 the U.S. Army Corps of Engineers issued Mingo a permit to fill waterways with overburden from its Spruce Mine No. 1 in Logan County, W. Va.

In 2011 EPA demanded changes to the permit that were extensive enough to amount to an outright rejection of it.

The U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by Judge Karen L. Henderson - an appointee of former President George H.W. Bush - unanimously upheld EPA's action. The other two judges that signed on to the panel's opinion were Thomas B. Griffith and Brett Kavanagh, both appointed by George W. Bush.

The focus of the legal dispute is section 404(c) of the Clean Water Act. That provision of the CWA appears to give EPA authority to revoke a permit to fill a stream with mining debris (or any wetland with any other sort of fill material), even if the polluting activity has already commenced:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Referring to this section of the CWA, upon which EPA relied in forcing changes to the Mingo permit, the D.C. Circuit wrote:

Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps' specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. . . [T]he Congress made plain its intent to grant the the Administrator authority to  prohibit/deny/restrict/withdraw a specification at any time.

Mingo Logan Coal Co. is represented by former  U.S. solicitor general Paul D. Clement in its effort to obtain Supreme Court review of the D.C. Circuit decision.

Fish and Wildlife Service crushes ivory

Six tons of confiscated ivory were destroyed in a rock-crusher near Denver on Thursday as the U.S. Fish and Wildlife Service signaled a renewed focus on stopping the ongoing slaughter of African elephants.

The operation, which involved the nation's entire stock of confiscated ivory, occurred at Rocky Mountain Arsenal National Wildlife Refuge and was witnessed by representatives of African nations.

"Rising demand for ivory is fueling a renewed and horrific slaughter of elephants in Africa, threatening remaining populations across the continent,” secretary of the Interior Sally Jewell said. “We will continue to work aggressively with the Department of Justice and law enforcement agencies around the world to investigate, arrest and prosecute criminals who traffic in ivory. We encourage other nations to join us in destroying confiscated ivory stockpiles and taking other actions to combat wildlife crime.”

The Obama administration's move follows the establishment of the White House Advisory Council on Wildlife Trafficking. President Barack Obama included the creation of the panel in a July 1 executive order focused on increasing federal efforts to stop the trade in imperiled wildlife species.

The ivory that was crushed on Thursday represented the remains of thousands of elephants, according to a Department of Interior press release.

U.S. Fish and Wildlife Service director Dan Ashe explained that rising demand for ivory around the world, especially in Asia, threatens a return to "devastating declines" in elephant populations experienced in earlier decades.

"The United States is part of the problem, because much of the world’s trade in wild animal and plant species – both legal and illegal – is driven by U.S. consumers or passes through our ports on the way to other nations. We have to be part of the solution,” Ashe said.

An estimated 35,000 elephants per year are killed to support the ivory trade.

Loxodonta africana was once ubiquitous in Africa, ranging across as many as 37 of the continent's countries. Numbering 3-5 million during the 19th century, the species is now estimated to total about 700,000 individuals and their distribution is increasingly fragmented.

The population is growing in eastern and southern Africa, but falling fast in central and western Africa.

The International Union for the Conservation of Nature lists the African elephant as a vulnerable species.

Image courtesy U.S. Fish and Wildlife Service

Obama nominates Kornze to lead BLM

President Barack Obama has nominated a senior Bureau of Land Management administrator to become the next director of the agency.

Neil G. Kornze, a native Nevadan, got the nod Nov. 7.

"Neil has helped implement forward-looking reforms at the BLM to promote energy development in areas of minimal conflict, drive landscape-level planning efforts, and dramatically expand the agency’s use of technology to speed up the process for energy permitting,” Interior secretary Sally Jewell said.

Kornze, 34, has been at BLM since 2011, when he joined the agency as a senior advisor to the director. He has been serving as acting director since March of this year.

BLM has not had a permanent director since March 2012, when Bob Abbey retired.

Before joining the agency Kornze worked for Senate majority leader Harry Reid, D-Nev.

He has a masters degree in international relations from the London School of Economics, in addition to a B.A. in politics from Whitman College.

Kornze's family has a long history of work in the mining industry in the Elko, Nev. region.

Notwithstanding the possibility that the nominee will be sympathetic to mining interests, which rely on BLM lands throughout the West, environmental organizations generally welcomed the nomination.

"As a westerner, he knows first-hand the importance of careful stewardship of our public lands," Alex Taurel, the deputy legislative director of the League of Conservation Voters, said. "He's the right choice for the job, and the Senate should act quickly on his nomination."

Trout Unlimited touted Kornze's consensus-building skills.

"During his time on Capitol Hill and in recent years at the BLM, Neil has demonstrated a pragmatic, solutions-oriented approach to public lands challenges,” TU president and chief executive officer Chris Wood said.

Photo courtesy U.S. Department of Interior

California court upholds cap-and-trade program against industry attack

California's pioneering cap-and-trade greenhouse gas reduction program got a long-awaited and vital legal thumbs-up from a state judge this week.

Judge Timothy M. Frawley of the state's superior court in Sacramento County rejected arguments that the state legislature did not authorize the sale of emission allowances in California's 2006 comprehensive climate change legislation, AB 32.

Frawley also held that the revenues raised by the California Air Resources Board as a result of the allowance sales are not taxes subject to the super-majority requirement of the state constitution.

"The court sent a strong signal today, thoroughly affirming California’s innovative climate protection program—including the vital safeguards to ensure that polluters are held accountable for their harmful emissions” Erica Morehouse, an attorney with the Environmental Defense Fund, said in a statement.

Frawley's opinion explained that the language of AB 32 gave CARB the authority to develop and implement a system for distributing emission allowances:

Although AB 32 does not explicitly authorize the sale of allowances, it specifically delegates to [the California Air Resources Board] the discretion to adopt a cap-and-trade program and to 'design' a system of distribution of emissions allowances. The breadth of the delegation of authority to ARB supports, rather than undermines, ARB's construction of AB 32.

The court noted that a statutory phrase referring to "distribution of emissions allowances" was likely understood by legislators to include an auction system because a state research panel had provided the legislature with a report that recommended it.

On the tax issue, the plaintiffs - the California Chamber of Commerce, Morning Star Packing Company, and the National Association of Manufacturers - strenuously argued that the sale of emissions allowances is covered by California's 35-year old tax limitation law, Proposition 13.

Frawley decided the revenues amount to a fee, not a tax, and are therefore not required to have been adopted by a two-thirds majority of each legislative chamber.

"[T]he charges have some traditional attributes of a tax and some traditional attributes of a regulatory fee, but, on balance, the court finds the charges to be more like a regulatory fee/charge than a traditional tax," Frawley wrote.

Based on that holding, Frawley analyzed whether the revenues collected by CARB fit within the state's framework for "police power" fees and held that Proposition 13 is not "subverted" when the fees assessed for the privilege of polluting the atmosphere are imposed as a means of lessening that environmental damage. 

He also rejected an argument that a fee should be treated as a tax if it aims to change the fee payer's behavior.

"[A] fee is not any less a fee because it raises revenue, and a tax is not any less a tax because it has a regulatory effect," Frawley wrote. 

He went on to rule that the revenues paid to CARB are regulatory fees related to the program's goal of cutting greenhouse gas emissions and that a requisite reasonable relationship exists between the "covered entities' (collective) responsibility for the harmful effects of [greenhouse gas] emissions" and the charge for emissions allowances.

Pacific Legal Foundation, the property-rights advocacy law firm that represented the plaintiffs, said Thursday that it will appeal Frawley's decision.

Image courtesy Wikimedia.

Ninth Circuit considering whether to grant en banc review in Drakes Bay Oyster case

The San Francisco-based federal appeals court that upheld an Obama administration decision not to renew a permit allowing oyster farming at Point Reyes National Seashore is considering whether to re-hear the case.

In an order released Tuesday, the judges who wrote the Sept. 3 opinion asked the U.S. Department of Justice to inform the court whether it thinks en banc review is appropriate. The court set a Dec. 2 deadline for the Obama administration's brief.

The case involves a clash between a 1970s decision by Congress to designate an estuary called Drakes Estero, the likely site of the first landing by Europeans in California in 1579, as a potential addition to the National Wilderness Preservation System and a shellfish farm that has been in operation for about eight decades. 

Former secretary of the interior Ken Salazar announced in Nov. 2012 that a 40-year lease allowing use of about 1,100 acres located in the western half of the estuary for shellfish harvesting would not be renewed.

If the Interior Department's decision not to renew the lease and accompanying special use permit is upheld, then the Drakes Estero acreage used by Drakes Bay Oyster Co., as well as about 1,600 additional acres, will become part of the first marine wilderness area on the west coast.

En banc review, or reconsideration of a three-judge panel's opinion by a larger group of judges, is conducted in the U.S. Court of Appeals for the Ninth Circuit by 11 judges. According to the court's rules, the judges who would sit on such a panel are chosen at random by a member of the clerk of court's staff.

Federal law authorizes appeals courts to grant en banc review if the case is of "exceptional importance" or if the decision by the panel of three circuit judges is in conflict with a decision by another three-judge panel.

In the Drakes Bay case, the permit holder argues that an amendment to a 2009 law authorizes perpetual operation of the oyster farm, despite the 1976 statute.

The case is Drakes Bay Oyster Co. v. Jewell, No. 13-15227.

Booker gets seat on environment committee

U.S. Sen. Cory A. Booker, elected last month to represent New Jersey, has joined the chamber's Environment and Public Works Committee.

The announcement was made on Oct. 31.

Booker, 44, defeated Republican Steve Lonegan on Oct. 16 in the race to complete the term of the late Frank Lautenberg, D-N.J. He previously served as the mayor of Newark.

The newest senator will also serve on the Committee on Commerce, Science, and Transportation and  the Committee on Small Business and Entrepreneurship.

Booker will have to face the voters again in Nov. 2014 if he decides to seek a full term in the Senate.

Ninth Circuit says enviros have no standing to compel state regulation of GHG emissions from oil refineries

A panel of Republican-appointed judges on the U.S. Court of Appeals for the Ninth Circuit ruled Oct. 17 that environmentalists lack standing to challenge a state's failure to invoke the Clean Air Act to regulate oil refinery greenhouse gas emissions.

The case involves an effort by environmentalists to force Washington to develop and implement technology standards that would result in the reduced GHG pollution. Washington's state implementation plan, the program for air pollution control required by the Clean Air Act, does not reach greenhouse gases.

The environmentalists won in the federal district court.

The appeals court panel's holding rests on an assertion that the plaintiffs were unable to show a link between the harm they suffer from the emissions and the industrial activities, and consequent emissions, by the regulated entities. In other words, the panel decided that there is no legally recognizable connection between the conceded emissions and the generally accepted environmental damage they do.

"[A]ttempting to establish a causal nexus in this case may be a particularly challenging task," wrote the opinion's author, Judge Milan D. Smith.

This is so because there is a natural disjunction between [p]laintiffs’ localized injuries and the greenhouse effect. Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources. But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.

Smith cited a May 2008 memorandum from the director of the U.S. Geological Survey to the U.S. Fish and Wildlife Service for this conclusion.

Richard Frank, a professor of law at the University of California at Davis and an expert on environmental law, said that Smith’s point is a departure from the traditional way in which courts approach pollution problems.

“The courts have pretty easily and readily dismissed the notion that one of the polluters should not be held responsible and the party could not go after one bad actor in court because of the idea that everyone is doing it,” he explained.

Janette Brimmer, an Earthjustice lawyer who represented the environmental group plaintiffs in the case, said she thought the opinion will make it harder for public interest plaintiffs to challenge regulatory inaction in court.

“There’s no doubt this decision raises the bar, and raises it pretty darn high,” she said.

Smith’s opinion relied on a narrow reading of a 2007 holding of the U.S. Supreme Court. In that case, called Massachusetts v. Environmental Protection Agency, the justices held that Massachusetts had standing to challenge EPA's failure to regulate greenhouse gases.

Smith wrote that the ability of the states in the Massachusetts v. Environmental Protection Agency case to secure standing in a challenge focused on failure to regulate rested solely on those states' status as sovereigns, a status environmentalists do not have.

This reading of the Massachusetts case, Frank said, is too narrow.

“There were a lot of people that, when the Massachusetts decision was issued in 2007, thought this opened the courthouse door at least a little bit to a lot of different parties who sought to bring climate change actions,” he said.

The Supreme Court’s opinion in Massachusetts v. Environmental Protection Agency may not have even been solely premised on a state’s status as a sovereign entity within the union. The court did not hold in that case that Massachusetts’ co-plaintiffs lacked standing to challenge the Bush administration’s refusal to use the tools provided by the Clean Air Act to limit greenhouse gas emissions.

In fact, the court said that Congress’ decision to include a citizen suit provision in the Clean Air Act meant that sovereign entities are not the only parties who can sue under the law.

“ When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant," he wrote.

Nor is the other pillar of Smith’s rejection of standing for the environmental plaintiffs necessarily well-grounded in the guidance offered by the justices. Smith’s opinion for the Ninth Circuit panel also asserted that, in contrast to the higher percentage of worldwide greenhouse gas emissions at issue in the Massachusetts case, the Washington refineries account for only five percent of warming pollution emanating from the sources just in that single state.

Stevens’ opinion in the Massachusetts case dismissed a similar argument against standing.

“[The] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum," Stevens wrote. "Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

In fact, Frank said, another federal appeals court has applied the Massachusetts decision to a question of standing very similar to that in the Washington case and come out exactly opposite to the Ninth Circuit panel.

“There’s a decision in the Second Circuit, based in New York, in American Electric Power v. Connecticut that I think is pretty diametrically opposed to this,” he said.

One explanation for the Ninth Circuit decision may be judicial discomfort with the notion that courts should help fashion a societal response to climate change.

At oral argument in the Washington case, one of the judges on the panel indicated that he believed that the courts should discourage litigation as a method for dealing with it.

"Perhaps carbon dioxide causes harm, we know poverty causes harm, so why shouldn't it be a policy question decided Congressionally rather than an inch-by-inch incremental series of injunctions by district courts, each of which has no practical effect, but in your theory incrementally adds up to an effect?," Judge Andrew Kleinfeld, an Alaska-based member of the panel that decided the case, asked at oral argument July 10.

Frank explained that this response may be based on a view that climate change is too complex for courts.

“You’re talking about a global problem,” he said. “One unit of pollution emitted in Anacortes, Washington does not have more or less effect than a unit of pollution discharged in Beijing, Paris, or Johannesburg.”

The federal appeals court also held that, even if the plaintiffs had shown causality between the refinery emissions and environmental damage to Washington lands and waters and the atmosphere, a RACT requirement would not make any difference.

"Because the effect of collective emissions from the [o]il [r]efineries on global climate change is 'scientifically indiscernible,' [p]laintiffs' injuries are likely to continue unabated even if the [o]il [r]efineries have RACT controls," Smith wrote.

Smith's opinion was joined by Kleinfeld and circuit judge N. Randy Smith.

Smith was appointed to the bench by former President George W. Bush in 2006, while Smith was appointed by Bush in 2007. Kleinfeld was appointed by President George H.W. Bush in 1991.

The case is Washington Environmental Council v. Bellon, No. 12-35323.