However, I don’t think either EPA or the states and NGOs that intervened on EPA’s side should get too excited about this decision.  It’s important to remember that this litigation only challenged California’s ability to set standards through model year 2025.  In addition, it is noteworthy that, on the petitioner’s core claims, the Court found the petitioners did not have standing, and the keys to the standing decision were two sets of facts that may not be present in future cases.

First, because the rule at issue only runs through model year 2025, the record before the court showed that striking down California’s authority would have no impact on the cars sold or the prices charged for those cars in the narrow time window between the time of decision and the end of model year 2025.  Second, and relatedly, several auto manufacturers intervened on EPA’s behalf and stated that, presumably because of market conditions, they were already selling fleets that over-complied.  Therefore, under traditional standing jurisprudence, the petitioners could not demonstrate that it was likely a decision in their favor would “redress” their injury.

One could imagine a scenario in which similarly situated petitioners take to heart the lessons of Ohio v. EPA, and put together a record that would support, at least to the satisfaction of five members of the Supreme Court, a finding of redressability. I should note that, if a future court presented with a future challenge to a future waiver were to decide that red states and/or fossil fuel suppliers do have standing, I’ve already gone on record as saying that EPA should win that challenge.  However, I’m not a member of the Supreme Court.

Which only leaves me to note the irony in the arguments about standing.  In order to bolster their standing arguments, the state petitioners cited “the ‘special solicitude’ to which states are entitled when they seek to protect their “quasi-sovereign interests.”  Of course, that “special solicitude” was given to Massachusetts in Massachusetts v. EPA, a decision reviled by the red state petitioners in Ohio v. EPA. On the flip side, Massachusetts, which was the beneficiary of special solicitude in Massachusetts v. EPA, was one of the states intervening on EPA’s behalf in Ohio v. EPA.

I guess where you stand depends on where you sit.

The post The D.C. Circuit Affirms EPA’s Reinstatement of California’s Authority to Set Auto Emissions Limits; Don’t Get Too Excited About It first appeared on Law and the Environment.

Massachusetts has become the first state to require analysis of cumulative impacts for certain air quality permits in or near communities with environmental justice (EJ) populations. On March 29, 2024, the Massachusetts Department of Environmental Protection (MassDEP) released highly anticipated amendments to its air pollution regulations as required by the environmental justice provisions of the 2021 Climate Roadmap Act. The changes require certain facilities located in or near EJ populations to perform a cumulative impact analysis (CIA) prior to the issuance of certain air emissions permits. These regulations are now in effect and apply to permit applications filed with MassDEP on or after July 1, 2024.

The new regulations apply to air permit applicants seeking a comprehensive plan approval for a new facility or emission unit located in an EJ population or within:

• one mile of an EJ population if the facility or emission unit will not be a major source of air pollutants, or
• five miles of an EJ population if the facility or emission unit will be a major source of air pollutants.

The same requirements also apply to projects with existing comprehensive plan approvals if the applicant proposes a new comprehensive plan application that increases facility-wide potential emissions above MassDEP’s defined threshold. Covered applicants must evaluate 33 environmental, health, and socio-economic indicators to assess existing community conditions. Other key requirements include:

• Enhanced public outreach to and involvement of EJ populations;
• Facility-wide air quality dispersion modeling, including significant added criteria assessing pollutants from motor vehicles owned or leased by the facility;
• Air toxics risk characterization; and
• Detailed evaluation of cumulative project impacts, including potentially inequitable environmental burdens on EJ populations and planned mitigation measures to minimize cumulative impacts.

MassDEP plans to review the program within two years of the effective date of the regulations, including by soliciting input and feedback from the public regarding potential updates. The new regulations were released alongside MassDEP-developed CIA guidance and tools for use by permit applicants and EJ populations. Descriptions and links to these guidance materials, including a detailed guidance document, CIA mapping and air toxics screening tools, and CIA indicator data, can be found on MassDEP’s website.

The post Massachusetts Launches Cumulative Impact Analysis Regulations for Air Quality Permits Near Environmental Justice Populations first appeared on Law and the Environment.

Can we just face facts and acknowledge that Superfund as presently constituted simply doesn’t work?  It wouldn’t even be fair to say that Superfund is broken, because it’s never worked; there was nothing to break.  While the issues mentioned in Inside EPA may be the straw that breaks the camel’s back, they are not the cause of Superfund’s woes.

Superfund has always suffered from two core weaknesses.  The first is a grossly unfair liability system that pretends to make the polluter pay, but has in fact simply been a grab for the deepest available pocket.  The second is an almost complete failure to tie Superfund cleanups in any meaningful way to the risks actually posed by any given Superfund site.  I could go on, but I will only note that programs such as Superfund contribute to a loss of faith in government, which helps explain the current mess we call our national political scene today.

The problems faced by the Massachusetts Superfund program more than 30 years ago were slightly different, but the solution adopted then may still offer promise to the federal system.  And by that, I mean implementation of a privatized approach to Superfund cleanups.  Government sets risk-based standards and then pretty much gets out of the way.  Such an approach would test whether Democrats really want cleanups to happen or whether they prefer that Superfund provide a handy platform to pontificate about the evils of large corporations.  And it would test whether the GOP really believes in regulatory reform or whether they just want to burn down the house.

And, yes, I know it’s not going to happen.  But can we at least stop pretending that Superfund can be fixed?  It’s built on a dysfunctional foundation.  Tweaks around the edges are never going to make Superfund work.

The post Superfund Is Short of Money. Can It Be Fixed By Tinkering Around the Edges? first appeared on Law and the Environment.

Later that year, various parties—including power producers, coal mine owners, and labor unions (collectively, the “Petitioners”)—filed a lawsuit in the state’s Commonwealth Court alleging that Pennsylvania’s participation in RGGI was unconstitutional.

The Petitioners had asserted that the RGGI rulemaking was “unconstitutional because it usurps the authority of the General Assembly to levy taxes under the Pennsylvania Constitution and is not otherwise statutorily authorized.” Respondents, the Pennsylvania Department of Environmental Protection (“DEP”) and the Pennsylvania Environmental Quality Board (“EQB”), argued that the allowance auction payments do not constitute a tax, but rather a fee, and that such fees are within the scope of DEP’s and EQB’s existing regulatory authority.

The Commonwealth Court issued an Order on Nov. 1, 2023, declaring the RGGI rulemaking void. The court held that the RGGI regulation “constitutes a tax that has been imposed by the DEP and EQB in violation of the Pennsylvania Constitution,” and further stated that “participation in RGGI may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through the Rulemaking promulgated by DEP and EQB.”

In December 2023, the DEP initiated an appeal of the decision to the state’s Supreme Court by filing a notice of appeal. Constellation Energy Corporation, Constellation Energy Generation LLC, Citizens for Pennsylvania’s Future, Sierra Club, the Clean Air Council, and the Environmental Defense Fund have also filed notices of appeal as amici curiae.

We anticipate that the issue before the Supreme Court is fundamentally the same as that decided by the Commonwealth Court: whether the RGGI rulemaking established a fee or an unconstitutional tax. Each party that filed notices of appeal described the questions on appeal slightly differently, though all of them focused on the tax vs. fee distinction. Several of the parties also raised questions of standing that, while important to those parties, do not bear on the merits of the decision.

The Supreme Court has not yet scheduled a date for oral arguments.

On March 13, 2024, Pennsylvania Governor Josh Shapiro unveiled a proposal to adopt an RGGI-like carbon-pricing program in the state. According to the Associated Press, Shapiro said “he will back legislation to make power plant owners in the nation’s third-biggest energy-producing state pay for their greenhouse gas emissions and require utilities to buy more electricity from renewable sources.” The Pittsburgh Post-Gazette reports that the governor said he would pull Pennsylvania out of RGGI if the legislature enacted his proposal.

We’ll continue to monitor updates regarding Pennsylvania’s participation in RGGI and the newly unveiled carbon-pricing program.

The post Update on RGGI in Pennsylvania first appeared on Law and the Environment.

must make factual findings about adverse effects resulting from the SIP’s deficiencies—for example, by identifying instances in which the SSM provisions at issue prevented or will prevent attainment of the national ambient air quality standards (NAAQS).

Navigating the distinction between what EPA need not do – make specific factual findings about the harm caused by SIPs containing SSM exemptions or defenses – and what it must do – i.e., include “emissions limitations” in a SIP only upon a finding that it is necessary or appropriate to meet the [CAA’s applicability requirements” – is what keeps Clean Air Act lawyers employed.

Aside from reminding readers of the subtleties involved in CAA interpretation, it’s also worth noting here that, while the Court vacated most of EPA’s SIP Call, it left open the possibility that EPA could resuscitate it:

If EPA in the future were to determine that, for states to meet the CAA’s applicable requirements, it is “necessary or appropriate” for their emission reduction measures to meet the statutory definition of “emission limitations” and operate during SSM periods, the agency could explain and implement that rationale and its action would be subject to judicial review. Here, however, the agency merely reasoned that every emission restriction in a SIP needs to be continuous to qualify as an “emission limitation” per the statutory definition, without explaining why that continuity is “necessary or appropriate” to meet any of the CAA’s requirements (beyond the definition itself). That rationale cannot be sustained.

It will be interesting to see whether EPA takes up the Court’s invitation. There are definitely environmental and public health NGOs who will want EPA to do so.  My guess is that EPA will delay a decision on that question until after the 2024 elections, but my guesses have been wrong before.  Stay tuned on this one.

The post The D.C. Circuit Vacates Most of EPA’s SSM SIP Call; Generators Breath a Sigh of Relief first appeared on Law and the Environment.

The purpose of the Anti-SLAPP statute is, in brief, to prevent large corporations from stifling petitioning activities by citizen groups.  Unfortunately, the statute is both vague and overbroad, resulting in it becoming “a frequent subject of [SJC] jurisprudence since” it was enacted.  The SJC’s effort to reform jurisprudence under the Anti-SLAPP statute is a reaction to the difficulties the statute has created.  It also likely resulted in part from a dissent in the Appeals Court decision in Bristol Asphalt from Justice Englander, which I think can best be described as a cri de coeur, practically begging the SJC to fix the statute.

Unfortunately, the problems with the SJC’s jurisprudence stem from the statute itself and not simply from prior SJC or Appeals Court decisions.  As the SJC acknowledged, there are several structural flaws in the statute that are pretty much immune to judicial cure.  First, both parties can assert that they are acting in order to protect their rights to petition.  Second, the statute protects petitioning activities that are solely devoted to protecting a petitioner’s commercial interests, which is not exactly what the drafters had in mind and, as reflected in Bristol Asphalt, has led to numerous suits between competitors.

Indeed, the very existence of the Anti-SLAPP Statute has undoubtedly encouraged competitors to challenge projects on flimsy grounds, knowing that the competitor would think twice before bringing an abuse of process or similar claim, because such claims would be subject to the special motion to dismiss process under the Anti-SLAPP statute.

In short, while I appreciate the SJC’s efforts to fix the statute, the proper metaphor in this case is that of putting lipstick on a pig.  Justice Englander’s cri de coeur would have been better directed at the legislature.  Unfortunately, I’m not holding my breath regarding a legislative remedy.

The post The SJC Provides New Guidance to Litigants in Anti-SLAPP Cases; I’m not Optimistic first appeared on Law and the Environment.

And what does that mean?  I defined it pretty simply in the title of our blog post about the brownfield adder:  “It’s good to be a brownfield site – as long as it’s not too brown.”  In other words – and you should read the original post to get all of the gory details – if hazardous substances (or pollutants or contaminants) are present or potentially present at a site, then it’s a brownfield, but only if there aren’t so much of the hazardous substances that the site is a Superfund site, or a RCRA site, or a TSCA site, or … you get the idea.

Since enactment, the IRS has issued three guidance documents concerning the definition of an “energy community”, IRS Notice 2023-29, IRS Notice 2023-45, and IRS Notice 2023-47.  While these guidance documents included a range of useful information, most importantly they provided a number of “safe harbors”.  There are three for brownfield sites (all of which remain subject to the statutory exclusions):

• Sites included on federal or state lists of brownfield sites;
• Projects for which an ASTM Phase II assessment has been performed, where the Phase II assessment confirmed the presence of a hazardous substance or a pollutant or contaminant; and
• Projects with nameplate capacity of not greater than 5MW (AC), for which an ASTM Phase I assessment has been performed, where the Phase I assessment identified the presence or potential presence of a hazardous substance or a pollutant or contaminant.

So, what’s the state of the market 18 months after enactment?  The process is still evolving, but there are a number of points worth noting.

1. First, and most importantly, it’s important to emphasize that the IRA provisions are working. They are clearly driving renewable energy developers towards projects that utilize brownfield sites.  I’ve been doing this type of work for more than 35 years and EPA has been encouraging use of contaminated land for renewable energy development for more than 20 of those years, but the level of activity post-IRA has increased markedly.

2. For many projects, it is more difficult to determine if any of the exclusions apply than it is to determine whether a hazardous substance is present, such that a site would qualify – as long as no exclusions apply. Thus, it is a disappointment that the IRS has not provided any guidance to date on the applicability of the exclusions.

3. The Safe Harbors were intended by the IRS to be essentially a sure way to qualify for the ITC adder; as logicians would say, a sufficient condition to qualifying for the adder. However, the market has turned the Safe Harbor into something of a necessary condition.  In at least some cases, parties providing project financing have been reluctant to do so, even where the facts clearly supported the applicability of brownfield adder provision, because the project did not qualify for one of the safe harbors.  Beware unintended consequences.

4. Somewhat relatedly, the practice of ASTM Phase I and Phase II site assessments is changing to reflect the new reality created by the brownfield adder and the IRS safe harbor guidance. It used to be that developers wanted a clean Phase I report.  Now, at least for renewable energy projects, developers want a dirty report – as long as it’s not too dirty.  Also, more developers are finding it prudent to request Phase II reports where there may be minor red flags raised by a Phase I report, but where, prior to the IRA, developers would skip the Phase II and deal with any minor contamination as part of site development work.

5. Finally, it’s also worth noting that insurance companies appear to be stepping up to the plate, bridging the gap between project developers and financial partners, and offering to ensure against the risk that the IRS might take the position that the brownfield adder is not available.

Overall, as noted above, the IRA appears to be achieving its related goals of encouraging renewable energy development and driving such development toward brownfield sites.  However, there’s still some work to do to smooth out some of the rough spots and answer some of the unanswered questions about what’s a brownfield and what isn’t.

The post How Brown is Brown Enough? An Update on the IRA ITC Adder for Brownfield Sites first appeared on Law and the Environment.

There is substantial evidence supporting the reduction, both in the legal and the common sense understanding of this term.  The evidence in support of a lower standard has been piling up for some time.  The 9.00 ug/m³ limit is within the range recommended by the Clean Air Science Advisory Committee, historically a solid harbinger of a rule’s prospects for surviving judicial review.

Notwithstanding howls of outrage by some members of Congress regarding the costs that the more stringent NAAQS will ultimately impose, it’s worth remembering that the Supreme Court ruled in Whitman v. American Trucking Associations that EPA may not consider costs in setting NAAQS.  The opinion in Whitman was written by Justice Scalia and the holding that EPA may not consider costs was unanimous.  Moreover, Justice Scalia’s opinion makes clear that the statutory language is unambiguous, so this is not a ruling that would be at risk should the Supreme Court overturn Chevron.

As I’ve noted previously, I’m willing to go out on a limb and predict that this rule will survive judicial review.  EPA has indeed found the Goldilocks PM2.5 NAAQS.

Significant emitters of PM2.5 would be wise to start preparing for State Implementation Plans requiring reductions in PM2.5 emissions.

The post EPA Lowers the PM2.5 NAAQS: Goldilocks Can Sleep Soundly first appeared on Law and the Environment.

While the Act certainly looks much like a tax, I failed to point out that the Act omits what is typically the biggest selling point of a carbon tax – its impact on prices and consumption behavior.  Putting a tax on the future consumption of fossil fuels raises their price and decreases consumption.  However, the Climate Superfund Act taxes production that’s already occurred.  It thus fails to send the price signal necessary to decrease fossil fuel consumption going forward.

It appears that lawmakers are still wary of trying to get consumers to recognize the social cost carbon in their own purchasing decisions.

The post One More Problem with the Climate Superfund Act first appeared on Law and the Environment.

I am so taken aback by these proposals as to be almost – but not quite – speechless.  And lest you think that advocates could take the concepts of Superfund while implementing them in a more logical way, let me assure you that I have read several versions of these acts several times and I still can’t really make sense of them.

Fundamentally, the legislation is reasonably straightforward.  Large producers of carbon-based fuels will be required to pay “damages” that reflect each producer’s percentage share of carbon emissions from 2000 through 2018 or 2019 divided by a denominator intended to reflect that state’s expected climate damages.  For example, in Massachusetts, a “responsible party” would have to pay the percentage of $75 billion equal to that party’s share of emissions during the relevant period.

Aside from my general concern about the idea of replicating Superfund to address climate damages, there is at least one major issue that needs to be clarified.  Is the intent of the statute to replicate the tax on chemical producers that was part of Superfund before its expiration and that actually funded the “Superfund”?  Or is it a liability mechanism intended to require carbon emitters to pay damages for the carbon that they have emitted.  The statutes use the language of damages, but the statute does not provide much of a trial and there is no attempt to link the payments to specific harms.

In fact, the payments really do appear closer to the tax on chemicals used to fund the Superfund.  Indeed, it’s hard to avoid the conclusion that the payments are in fact a retroactive tax on the production of carbon-based fuels.

In fairness, imposition of some kind of tax would just be another way to put a price on carbon, even if it were somewhat awkwardly constructed.  In any case, the problem with calling the payments a tax is that the legislation as introduced seems very intentionally to avoid use of the word “tax”, and legislation imposing a retroactive tax of this sort might face all sorts of problems, both political and legal.

However, if it walks like and duck and talks like a duck, let’s have the courage of our convictions and call it putting a price on carbon.  I can say from experience, calling it the “Climate Superfund Act” would just be asking for trouble.

The post The Original Superfund Worked So Well; Let’s Replicate It to Deal with Climate Change! first appeared on Law and the Environment.