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Since the beginning of the fracking boom, the potential impact of fracking operations upon groundwater has been a hotly contested area.   The most recent addition to the public debate is a new EPA report, entitled “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States”. The report sets forth the results of EPA’s latest investigation on this subject, which relied on independent research as well as published materials.

The agency concludes that fracking can affect drinking water resources under some circumstances, with impacts ranging in severity from temporary changes in water quality to contamination so severe that it renders water from private wells undrinkable. But the report also concluded that there are too many gaps and uncertainties in the available data to determine the frequency with which Americans’ drinking water is impacted by fracking operations.  Similarly, EPA could not fully characterize the severity of the impacts of fracking on drinking water nationwide.

Unsurprisingly, the report found that among the factors and activities that make impacts likely to be more severe or frequent are (1) withdrawals of water for fracking in areas of declining groundwater resources; (2) spills of hydraulic fracturing fluids; (3) wells with inadequate mechanical integrity; (4) injection of fracking fluids directly into groundwater; (5) discharge of inadequately treated fracking fluid wastewater; and (6) disposal of fracking fluid wastewater in unlined pits.

This relatively inconclusive report is receiving criticism from fracking supporters for failing to more forcefully endorse the safety of the practice.  They are highlighting the statement included in the draft version of the report, but removed from the final one, that EPA “did not find evidence that [fracking related activities] have led to widespread, systematic impacts on drinking water resources in the United States.”

The report puts a spotlight on an interesting choice facing the Trump administration, which has been clear about its desire to promote domestic oil and gas production. At Environmental Law Next, we will be watching to see whether incoming EPA Administrator Scott Pruitt pursues further studies with the aim of providing fracking with the government’s imprimatur of safety, or if he decides to just keep his agency away from the debate.

Last week the Environmental Law and Policy Center, (ELPC) a Midwest-focused public interest environmental legal advocacy organization, held a post-election briefing outlining its plan for action during the Trump presidency.   Featuring prominently in the presentation was the launch of ELPC’s High Impact Environmental Litigation Program, or HELP.   The organization envisions a platoon of pro-bono attorneys bringing civil suits against polluters to make up for what it expects will be a reduction in the amount of federal environmental enforcement.

ELPC will likely not be alone among environmental non-profits in marshaling resources for citizen suits. In Environmental Law Next’s take on the likely implications of the election, we predicted that there will be a drop in the amount of EPA enforcement actions and a rise in private litigation in response.  Most federal environmental statutes allow anyone to bring a suit for injunctive relief to address ongoing violations, and even for civil penalties, if the government forgoes its right to act as the plaintiff.

What does this mean for the regulated community? No matter the resources organizations like ELPC can muster for this kind of litigation, it cannot fully assume the place of EPA and other federal enforcement agencies.  Citizen suit provisions give private organizations standing, but not many of the other legal rights that make an efficient, comprehensive enforcement regime possible.  The ability to conduct inspections on private property, for example, is central to EPA’s ability to identify violations and gather evidence.

Nevertheless, a citizen suit can be big problem for a company that finds itself defending one. ELPC is not hiding its intentions with this program, stating its hopes of bringing high impact lawsuits; it is not looking to give slaps on the wrist.  The cost of defending and resolving citizen suits brought by sophisticated non-profits could be as high if not higher than for government enforcement actions.

 

 

Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated.  Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.

An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support.  Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible.  According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period.  Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations.  For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.

It is too early to know whether Mr. Trump will strike the right balance.  His campaign was short on the relevant details.  There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned.  One way or another, the Clean Power Plan is dead.  At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit.  But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.

Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change.  Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020.  He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.

The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form.  Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities.  And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it.  He will now be able to do that.  Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.

The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations.  Many regulations do not actually impose costs and burdens themselves.  To the contrary, they give clarity and predictability to otherwise ambiguous statutes.  The Clean Water Rule was intended to establish when Clean Water Act permits are required.  Without it, costly and time consuming case-by-case evaluations will be necessary.  If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.

Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025.  A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity.  This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.

There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry.  Several likely policies could provide an indirect boon to business, however.  Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal.  Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.

As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.

Donald Trump is set to assume the presidency on January 20, 2017.  At Environmental Law Next we are taking a look at what that will mean for American environmental law.  We will be providing our own perspective as well as directing our readers to the insights of others that are keeping an eye on what appears likely to be a distinctly new era in the field.

Mr. Trump indicated that he would diverge drastically from his predecessor’s approach to environmental protection.  On the stump he promised time and again that he would significantly roll back environmental regulations, and even eliminate the EPA altogether.

It is unlikely Mr. Trump will be able to dump the EPA outright, even if he actually wants to.  It would take an act of Congress and might be too much to stomach even for some Republicans.  And unless the “nuclear option” is invoked in the Senate, the Democrats there will retain the ability to filibuster even a united Republican effort.  Similarly, regulations on the books cannot just be erased with the stroke of a pen.  But by substantially reducing enforcement activities and re-writing some key regulations, Mr. Trump could go a long way towards neutralizing the agency for the duration of his presidency.

What would a retreat of the federal government from this space mean for the environment?  Certainly it would suffer, and probably not insignificantly.  But a crippled EPA would not lead to a wholesale abandonment of environmental standards.  Rather, meaningful environmental regulation would be transferred to the states – at least those states with progressive environmental agendas – and result in a patchwork of substantive standards and enforcement procedures.  The authority is already there.  Most states have been delegated the power to administer some of the major federal environmental regulatory regimes, such as Clean Air Act and Clean Water Act permitting, in addition to their own environmental protection laws.  There are also citizen suit provisions in many statutes that allow environmental groups and others to compel compliance through the courts.

Regulatory gaps might also revive, to some extent, the role of tort law in controlling the degree to which industrial pollution is permitted to harm individuals.  But the effectiveness of tort remedies for protecting common environmental resources – surface and ground waters, clean air and toxic-free land – is rather limited.  Tort claims, which require proof of causation tied to specific damages, are ill-suited to combating complex, multiple-source environmental degradation.  Acid rain, dangerous levels ground level ozone, and the pollution of major water bodies, for example, are typically caused by the collective emissions from hundreds or thousands of facilities; none of them on their own might be problematic or actionable in tort.

Even with the proper authority to intervene, courts lack the expertise to fashion efficient and effective environmental remedies.  Most states rely on the EPA to determine proper technical requirements and health-based standards.  Questions such as what is the acceptable level of lead in drinking water? How much particulate matter in the air is too much? And what are the proper procedures for cleaning up an oil spill? demand resources and experience to answer well.  These questions are also inextricable from policy decisions more properly made by a political branch of government.

Moreover, tort law is generally reactive.  There is often no cause of action until it is too late and the damage is done.  No court order can revive an endangered species after it becomes extinct.

Mr. Trump claims he will bring a business friendly efficiency to environmental protection while also “ensuring clean air and clean, safe drinking water for all Americans.”  Accomplishing both will require that EPA maintain its leading role.

A group of waste industry trade associations and waste management and recycling companies is challenging the EPA’s recently finalized Clean Air Act rule that revises Emission Guidelines for existing municipal solid waste (MSW) landfills. The National Waste & Recycling Association is among those that petitioned the United States Court of Appeals for the District of Columbia to review the agency’s action, which would set a lower emission threshold at which owners and operations of MSW landfills must install a landfill gas collection and control system (GCCS).  The petition does not cover the separate, contemporaneously published rule that revised the New Source Performance Standards (NSPS) for new and modified MSW landfills, which became effective on October 28, 2016.

The substantive basis for the challenge to the rule is not laid out in the initial petition.  Some of the arguments petitioners are likely to make, however, can be anticipated from comments submitted to EPA during the rulemaking process.   The National Waste & Recycling Association and Solid Waste Management of North America, another petitioner, criticized a draft of the rule for proposing a GCCS installation trigger of emissions of 34 Megagrams per year (Mg/yr) of non-methane organic compounds (NMOC), rather than the previously contemplated 40 Mg/yr.  They claimed that EPA’s own calculations show that it will achieve no overall reduction in emissions of NMOC and only a marginal drop for methane.  Petitioners are also likely to take issue with EPA’s decision to maintain an operational standard for wellhead temperature, which it had considered removing in a prior proposed rule (80 FR 52100).

We will be tracking this litigation as it develops and providing updates on this blog.

If the United States is going to meet its greenhouse gas emission reduction commitments under the Paris Agreement, it is going to have to significantly overhaul its waste management practices. At least that is the conclusion of Shift Energy Holdings CTO Adrian Tylim.  Writing in Waste Dive, he notes that landfills account for 20% of the country’s emissions of methane, a gas with a global warming potential 25 times higher than carbon dioxide.   According to Mr. Tylim, Americans must increase recycling rates, which have fallen in recent years, and should borrow strategies from the European Union and Japan for putting municipal solid waste to better use, such as generating energy.

Beginning on October 28, 2016, new and modified municipal solid waste (MSW) landfills are now subject to updated New Source Performance Standards under the Clean Air Act 81 FR 59331. The U.S. EPA has also issued new rules for existing MSW landfills, but they must be implemented through state or federal implementation plans before they become operative.

The rules are in part a reaction to President Obama’s Climate Action Plan, which instructed the U.S. EPA and other federal agencies to assess ways of reducing methane emissions. The most significant new element of both sets of regulations is a reduction in the threshold at which the requirement to install a regulatory landfill gas collection and control system (GCCS) is triggered. U.S. EPA is, however, also providing owners and operators with additional flexibility in this area. Under the new Tier 4 option they can put off installing a regulatory GCCS by demonstrating through surface emission monitoring methane emissions below 500 ppm.

There is a lot more in the new rules that the industry must be aware of, including mandatory electronic reporting requirements. For more details, see our Client Alert on the topic.

California is taking action to mitigate the climate change impacts of “super pollutants” – compounds such as methane, black carbon and HFC gasses that have a short lived but significant warming effect on the planet. Among the objectives of the new law concerning short-lived climate pollutants is a 40 percent reduction in the state’s methane emissions from 2013 levels by 2030.

Sources of methane to be targeted include the State’s cows, and the idea of doing so has given the news media an opportunity to have a little fun with their headlines. The bill also mandates a reduction in landfill gas emissions, another significant source of the nation’s methane output, by cutting back on the amount of organic waste that ends up in the state’s landfills.

The bill does not dictate exactly how the ultimate goals will be achieved. Rather, consistent with the Global Warming Solutions Act of 2006, the legislature has tasked the California Air Resources Board (ARB) and other agencies with adopting appropriate regulations. The deadline for beginning to implement a comprehensive plan to meet the law’s objectives is January 1, 2018. Regulations that apply to livestock and dairy manure management cannot, however, become effective before 2024.

We will be watching to see what ARB does and whether any other states – or the federal government – pick up on any of its strategies. California’s experimentation with methane reduction techniques for livestock and livestock waste in particular could have ripple effects through the agricultural sector.

A federal district court for the Central District of Illinois issued an opinion interpreting the scope of the maintenance exemption to the Clean Water Act’s (CWA) prohibition of the discharge of dredge and fill material into waters of the United States. The case, Quad Cities Waterkeeper Inc. v. Ballegeer, Case No. 4:12-cv-4075, raised the question of whether the structure being maintained must be permitted under the CWA for the exemption to apply.

The defendants in Quad Cities Waterkeeper had deposited concrete and rebar next to a levee along the banks of the Green River in an effort to fortify the structure. The parties agreed that the levee was not permitted by the Army Corp of Engineers when it was first constructed, it was not old enough to be grandfathered under the CWA, and that defendants’ work had caused otherwise prohibited discharges. The outcome turned on the applicability of Section 404(f)(1)(B) of the CWA, 33 U.S.C. §1344(f)(1)(B), which provides that “the discharge of dredge or fill materials for the purposes of maintenance…of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures…is not prohibited by or otherwise subject to regulation under this section….”

Granting summary judgment for the plaintiffs, the Court found that defendants’ discharges did not fall within Section 404(f)(1)(B). Despite the plain language of the section, the Court decided, there is an implied condition that the structure on which the maintenance is being done is not one for which a CWA permit was required when it was built, but never obtained. It relied on the absurdity doctrine, reasoning that it is “unthinkable” that Congress would have wanted to shield polluting activities merely because they could be considered maintenance of a structure that itself flagrantly violated the CWA.

The opinion did not, however, limit the exemption as far as it could have. The plaintiffs argued that that it applies only to structures that (1) were required to and (2) did obtain CWA permits. By ruling as it did, the Court did not express a opinion on the availability of the exemption for maintenance of infrastructure that did not obtain a CWA permit during construction, but only because it did not at the time it was built affect jurisdictional waters. Jurisdictional waters are, however, changing – because of both EPA’s new interpretation of the definition of waters of the United States and because rising sea levels are expected to continue to alter the nation’s coastlines. As they do, more courts are likely to be confronted with questions about what exactly the CWA’s maintenance exemption means.