The Nickel Report

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?

On August 10, the Federal Energy Regulatory Commission (FERC) officially regained its quorum when Robert Powelson was formally sworn in as a commissioner. Mr. Powelson joins  fellow Republican Neil Chatterjee and Democrat Cheryl LaFleur at the agency. It was also announced that Mr. Chatterjee would be FERC’s new chairman pending the expected Senate confirmation of Republican nominee Kevin McIntyre as chairman in the fall.

At full strength, FERC has five members, but three are the minimum legally required to conduct much agency business. FERC lost its quorum in early February when former Chairman Norman Bay resigned after Commissioner Cheryl LaFleur was elevated to chairman. In addition, former Commissioner Colette Honorable stepped down at the end of June, leaving LaFleur as the sole Commissioner. For the last six months, FERC staff has handled various routine matters under delegated authority, but FERC has been unable to act in contested proceedings.

Ladies and Gentleman.

Start Your Engines.

Wait! According to California, you can only use engines that are certified to meet air-emission standards, have a current “Executive Order,” and have not been tampered with, OR engines that are used solely for competition (but not every competition) and are not used on public highways (is a dirt road a public highway?).

Sound complicated? The Clean Air Act provides racing vehicles a broad exemption from federal air emission standards and also provides for broad preemption of state motor vehicle standards, with specific exceptions for California. In addition, California has its own broad racing vehicle exemption which can be found in the California Health and Safety Code. The exemption for racing vehicles seemed straightforward enough—they are not subject to federal or state emissions standards. This exemption makes sense, of course, because when you are racing, you need enhanced engine capabilities to win and because racing engines are a small percentage of the engines we see on the road for everyday use, such as commuting to school/work, running errands, etc.

In recent years, plaintiffs’ attorneys and public-interest groups have brought common law actions seeking injunctive relief or damages for air emissions they claim cause climate change. Because climate change is a global phenomenon, these actions have targeted both in-state and out-of-state sources. Does state common law reach this far?

A state’s common law is founded in its police powers, which are among the powers that the Constitution generally reserved to the states. By contrast, the Constitution specifically delegates to Congress the power to regulate interstate commerce. A state’s police powers therefore do not extend beyond its borders. For this reason, the Supreme Court in the last century discovered a limited “federal” common law to address interstate pollution at a time when there were no federal laws regulating such interstate concerns. Missouri v. Illinois, 180 U.S. 208, 241 (1901). As the Court observed, “[i]f state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.” City of Milwaukee v. Illinois, 451 U.S. 304, 314 n.7 (1981) (Milwaukee II).

The good news about the Process Safety Management (PSM) standard is that it is a performance-based standard. The bad news about PSM, well, is that it is a performance-based standard. While it provides the operator some flexibility on complying, it can often lead to being second-guessed by an agency. Not only does the operator have to comply with the regulations, the operator must  comply with and document compliance with relevant codes and standards or Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). These include widely adopted codes such as the National Fire Protection Association (NFPA), consensus documents such as the American Society of Mechanical Engineers (ASME), non-consensus documents such as the Chlorine Institute (CI) and in most cases Internal Standards.

The Superfund program is much criticized for good reason on many grounds. It takes too long to investigate sites and decide on the appropriate cleanup. The costs for investigation and cleanup actions are excessive. The process is seemingly never-ending as contaminated sites languish on the National Priorities List for decades.

Streamlining the process is a worthwhile goal, but equally important would be reforms to promote remedy decisions that take account of the fact the resources are not unlimited. Money spent on cleanup is not available for another purpose. Unfortunately, because of its single-minded focus on often remote human health and ecological risks associated with exposures to chemical contaminants (usually based on highly conservative exposure assumptions), the Superfund program drives a lot of resources to cleanup that likely would be better allocated to another use.

In August 2014, residents of Toledo lost the use of tap water for two days because of a toxic algal bloom in the western basin of Lake Erie, which is their water source. In subsequent summers, the lake’s algal blooms have been smaller, but they remain a persistent phenomenon. In fact, the National Oceanic and Atmospheric Administration (NOAA) is predicting a significant cyanobacteria algal bloom in western Lake Erie this summer.

Numerous definitions of “harmful algal blooms” exist, but they generally can be understood as excessive growths of various species of phytoplankton, protists, cyanobacteria, or macro and benthic algae that negatively impact water quality, aquatic ecosystem stability, or animal and human health. The blooms may be toxic or nontoxic. Even nontoxic blooms can have repercussions for drinking water treatment, recreational use of the waterbody, and the overall economy.

Since President Trump’s inauguration and the beginning of Scott Pruitt’s tenure as administrator of the U.S. Environmental Protection Agency (EPA), much of the focus of Clean Air Act activity in the new administration has been on global climate change issues. As more time passes, however, EPA is beginning to address other areas of Clean Air Act regulatory policy, and, in some respects at least, charting a new course that departs from the record of the Obama administration. One of the areas to which EPA has started to give renewed attention is the regional haze program.

Throughout the Obama administration, federal officials from the President on down touted an “all of the above” approach to energy policy.  At the same time, they pressed forward with environmental regulations—climate change rules in particular—that would have made a seismic shift in the role fossil fuels play in the nation’s energy mix.

We all know the Trump administration is poised to make major changes.  A shakeup for the EPA was a consistent theme of the Trump campaign. The President made things official in March when he signed an executive order that, among other things, called for a “review” of the Clean Power Plan (CPP), the EPA’s program to regulate greenhouse gas emissions from existing power plants, and a proposed rule regarding the CPP is now under review at the White House Office of Management and Budget. The administration has also announced plans to cut the EPA’s budget, to take a new “red team-blue team” approach to climate change science, and to pull the U.S. out of the Paris climate accord. That’s quite a lot of activity for an administration that is often accused of moving too slowly.

George Clemon Freeman Jr. – founding father of Hunton & Williams’ environmental law practice passed away on June 26, 2017, at age 88.  Some of the tributes to George have mentioned a presentation George made to members of a client group in the mid 1970’s.  As remembered by Henry Nickel, George had the unenviable task of speaking to group members right after lunch.  George’s less-than-exciting assigned topic was the regulation of priority pollutants under section 307 of the Clean Water Act.  Seeing his audience about to doze off, George – perhaps drawing on his Yale glee club experience – deviated from his prepared remarks (as he was known to do) and launched into an impromptu version of the Lord High Executioner’s “I Have A Little List” song from Gilbert & Sullivan’s The Mikado.  In the Gilbert & Sullivan version of the song, the list was of those to be beheaded:

“As some day it may happen that a victim must be found
I’ve got a little list – I’ve got a little list
Of society’s offenders who might well be underground
And who never would be missed – who never would be missed.”