Unlocking Nature's Potential: A Guide to Navigating Federal Permits and Environmental Reviews to Facilitate Use of Nature-Based Solutions
Author
Regina Buono
Jarryd Page
Date Released
December 2023
Unlocking Natures Potential ELI Report Cover

Natural and nature-based infrastructure (NNBI) projects have been shown to be helpful in addressing environmental problems across various landscapes and to provide co-benefits not offered by traditional infrastructure solutions. However, as they are increasingly considered for implementation, project proponents face the necessity of securing regulatory approval from the appropriate federal or state authorities.

USACE Project Partnership Agreements: Problematic Provisions for Non-Federal Sponsors
Author
Zoe Vogel
Amy Reed
Date Released
December 2023
USACE PPAs ELI Report Cover

Cost-shared water resource development projects led by the U.S. Army Corps of Engineers require an agreement in writing between the Corps and the project’s nonfederal sponsor. Such an agreement, known as a Project Partnership Agreement (PPA), is crucial to the successful construction and operation of proposed water resource development projects across the country. The PPA serves as a framework for the nature of the partnership throughout the course of the project’s life.

Will EPA, FTC Adopt Mandatory Actions to Curb Plastic Pollution?
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
July-August 2023
Issue
4
David P. Clarke

The Environmental Protection Agency and the Federal Trade Commission are collecting public comments on proposals for voluntary efforts to cut waste in the environment from single-use bags, wraps, bottles, and other plastic products. But, given the problem’s breadth, both agencies are facing pressure to adopt stronger measures.

Over more than sixty years, plastics have become such a pervasive domestic and global problem that all stakeholders must become involved in solutions, says EPA’s Draft National Strategy to Prevent Plastic Pollution. Congress in the 2020 Save Our Seas 2.0 Act directed EPA to develop its plastics strategy to cut post-consumer plastic and other wastes in waterways and oceans.

Although voluntary, EPA’s strategy is “aligned” with U.S. recommendations submitted to a United Nations International Negotiating Committee working on a legally binding global instrument aimed at eliminating plastics in the environment by 2040. Without concerted actions, plastic waste entering aquatic ecosystems could nearly triple from an estimated 9-14 million tons a year in 2016 to between 23-37 million tons a year by 2040, INC says. The U.S. submission to the INC calls for legally binding obligations, commitments, and voluntary approaches that the United States recognizes could “drive down the demand for plastic,” thus eliminating jobs, but are nevertheless required in a “coordinated global response” to end plastic pollution.

During a May 11 webinar to review EPA’s draft strategy and key issues the agency was seeking comments on, Tameka Taylor, the strategy lead, stated that addressing all stages of plastics’ life cycle—production, consumption, and end-of-life management—“is absolutely necessary” for mitigating the problem. Taylor noted that in the United States plastics have been a continually growing municipal solid waste segment, rising from 0.4 percent in 1960 to 12.2 percent in 2018.

During EPA’s webinar, a questioner asked why the plastics strategy is only voluntary. Kimberly Cochran, EPA’s Sustainable Materials Branch chief, commented that Congress requested a “strategy,” not regulations, but that doesn’t preclude EPA, other agencies, or state and local governments from adopting mandatory policies. But, for now, the strategy identifies 13 needed actions under three broad objectives covering the lifecycle from plastics production to waste.

Interlocking with EPA’s plastics strategy is FTC’s proposal to update its Guides for the Use of Environmental Marketing Claims. They apply to any business potentially engaging in deceptive marketing practices, and encompass carbon offsets, renewable energy, organic and “natural” foods, and other claims about “environmentally friendly” products. But for EPA, the timing of the commission’s update is “particularly important” in light of growing attention to global plastics pollution, the agency wrote in 27 pages of comments to the FTC focused on plastics and recycling issues.

The FTC’s Green Guides update aligns with EPA’s focus on “improving plastic product circularity,” which requires improving the labeling for recyclable products, EPA says, and urges a “very high bar” for companies making “recyclable” claims. For example, products and packaging should only be marketed as “recyclable” if a “strong end market” exists to actually use collected materials.

Responding to a question about whether the FTC should issue a rulemaking under the FTC Act to deter deceptive environmental claims, EPA says it supports a rule. Although the Green Guides were first published in 1992, “misleading and false claims” remain pervasive and should be addressed in a comprehensive rulemaking, EPA says.

Likewise, environmentalists and consumer groups in their comments say the FTC must codify key Green Guides components into regulations along with more progressive requirements “to make them enforceable and binding.”

Predictably, however, some business sectors oppose calls for mandatory Green Guide regulations. The Flexible Packaging Association’s comments state the guides shouldn’t be “swapped out” for regulations. Even if the FTC “in the long run” might need to adopt sharper regulatory tools, the guides are meant to improve consumer understanding and would be inappropriate for regulatory involvement, FPA argues, noting the economic and “political cost” of converting the guides into regulations, as well as foreseeable legal challenges. The National Retail Federation warns that “overly prescriptive guidance” or regulations could discourage responsible retailers from sharing “important sustainability information.”

But as single-use plastic production continues rising, along with consumer interest in environmentally friendly products, the EPA and FTC efforts could soon be headed from voluntary to compulsory.

Will EPA, FTC Adopt Mandatory Actions to Curb Plastic Pollution?

Agencies Have Immense Scientific Knowledge but Still Are Attacked
Author
Craig M. Pease - Former Law School Professor
Former Law School Professor
Current Issue
March-April 2023
Issue
2
Craig M. Pease

Two new publications are concerned with ensuring quality science in federal environmental agencies. They could not be more different. Comparing them is instructive.

Last year, the National Academy of Sciences published “Attributes of a First-in-Class Environmental Program,” a report prepared for the Bureau of Ocean Energy Management, an agency that astonishingly manages off-shore acreage roughly equal to the entire U.S. terrestrial land area. It states: “This framework takes a systems approach to program evaluation that looks across a program in all its operational phases . . . and the relationship to . . . external entities.”

Last December Democracy Journal published Ruth Greenspan Bell’s article “Lessons for the Next Resistance.” It describes the Environmental Protection Network’s efforts to counter Trump attacks on EPA, including a prominent section titled “Defending Science at EPA.” It reads, “It was time to revive a Reagan-era effort called ‘Save EPA' . . . we play[ed] a significant role in illuminating the Trump administration wrecking-ball approach to environmental protection.”

Former agency employees were at the core of the Network—a revolving door of sorts. It was a clearinghouse for information about agency science. It also “fact checked” Trump administration statements about environmental science; in quotes because “fact checking” is nowadays a political endeavor, hardly ever being a dispassionate review of scientific data, models, and conclusions.

The two institutions behind these two publications contrast starkly. The federal bureaucracy wrote the first report, whilst a guerrilla operation was at the core of the Network. Those two institutional structures each has its own strengths and weaknesses, and complement one another.

Statutes, rules, and guidance—the very basis of environmental law—are creatures of large institutions, here the federal bureaucracy. Consequently, even without science, one would still need a large institution to administer environmental law.

Yet environmental law is riddled with science. And the scientific literature is itself immense; Pub Med, Google Scholar, SSRN, and arXiv list millions of scientific publications. To grapple with the sprawling and idiosyncratic nature of how science enters environmental law, and the gargantuan scientific literature, one really needs large bureaucracies like BOEM.

Digging deeper, the agency report draws on and is grounded in a “Strategic Framework,” a more svelt and readable 12-page document, communicating the breadth and importance of BOEM’s scientific research program. It ranges across the seabed, underwater sound, air emissions, hydrocarbons, and emerging technology. Digging even deeper, the bureau’s website summarizes some of the ongoing scientific studies BOEM sponsors, making clear the high quality, scope, and substance of their scientific research program.

Small institutions like the Network have an important role too. They can criticize. They can defend. But they cannot administer. Beyond that, scientific research these days almost inevitably has high cost and high difficulty, and typically requires large teams, often interdisciplinary. Consequently, large institutions are pretty much a mandatory part of any current scientific research program. Small institutions cannot undertake de novo science research.

All that said, the BOEM report is deficient in that it is entirely oblivious to the possibility—indeed inevitable and prominent reality—that federal agency science will come under attack. Rather, it implicitly assumes all concerned will work cooperatively toward quality science.

However, agency science has long been a battleground. Politicians like Trump are obvious overt threats to agency science. Yet over time, the more insidious tactics of grinding away at funding, agency organization, rules, policy, and guidance are a more serious threat; witness how the Supreme Court has, over decades, tightened standing doctrine for environmental cases, making it increasingly difficult for those defending science to even get into court.

Though one might rightly celebrate how the Network is defending agency science, note well that the very same guerrilla tactics it employs can, and are, used to attack agency science. Tactics and strategies themselves have no political affiliation or agenda. Climate skeptic nonprofits like the Heartland Institute operate much like the Network.

Almost always, the better understanding of our natural world that flows from more and better science will be a strong argument for more environmental regulation and protection.

A first-in-class environmental science program will inevitably need defense. Agency programs should be more explicit in acknowledging the many ways science can come under attack, and proactively take countermeasure before those attacks ever occur.

Agencies Have Immense Scientific Knowledge but Still Are Attacked.

Seeing Green: Can EPA Effectively Manage Its Billions for Grants?
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
March-April 2023
Issue
2
David P. Clarke

During the Biden presidency, Congress has appropriated billions of dollars for EPA to award as grants supporting clean water, environmental justice, climate action, and other priorities. While many are elated at the funding, some observers suggest the agency will be highly challenged to spend it all effectively.

Last November, EPA released a “Year One Anniversary Report” describing its activities so far under the 2021 Bipartisan Infrastructure Law, which provides the agency’s largest-ever appropriation: $60B over five years to support environmental projects. The BIL expanded EPA’s traditional role from conducting scientific research and writing regulations to now serving as “a large-scale funder of critical infrastructure,” the agency says.

In its first year, EPA awarded only $6.4B in grants of the $14.1B that Congress appropriated for fiscal year 2022. But states, tribes, or territories can receive distributions from the FY22 appropriation “on a rolling basis” until the end of FY23 in line with their Clean Water State Revolving Fund timeline, an agency spokesperson says. Since November an additional $7.1B has been distributed.

The BIL appropriation, while far-reaching in itself, was followed by the 2022 Inflation Reduction Act, which created a $27B Greenhouse Gas Reduction Fund as a new Clear Air Act section. Until the end of FY24, EPA can award GHGRF grants, including $7B for zero-emission technologies in disadvantaged communities, and the rest for “green banks” that will invest in clean technologies for reducing GHGs and other pollution, especially (once again) in “low-income and disadvantaged communities.” With the 2024 deadline, EPA will have about a year “to dole out $27B,” notes one observer.

After IRA passage, the massive new funding led EPA Administrator Michael Regan to write, “This is a moment unlike any other in our history.” Also, after years of shrinking budgets, the agency’s 2023 appropriations included $575 million in new funding. The EPA spokesperson adds that the agency “is committed to distributing the funds equitably, responsibly, and impactfully,” working closely with regions, states, tribes, and territories. EPA’s new technical assistance programs will identify infrastructure needs and help applicants navigate federal funding processes to give everyone “their fair share” and unlock the IRA’s possibilities.

According to the Natural Resources Defense Council—which responded to EPA’s request for public comments on how it should design and implement the GHGRF—the $20B reserved for green banks and other “nonprofit lenders” could produce up to 80,000 investments. While recognizing the $27B total as a “critical down payment” on an equitable, low-carbon future, NRDC notes that the agency faces “a clear challenge” in designing a program that can efficiently and equitably deploy the money. A key decision will be to accurately define “low-income and disadvantaged communities” whose benefit the law emphasizes, NRDC and others note. The definition will shape how grant recipients spend funds to achieve the law’s goals.

A second core question concerns which technologies to direct funds toward. NRDC suggests that the law’s goals would be best met by funding “distributed” technologies to cut carbon, such as decarbonizing buildings, moving to electric vehicles, and the like. Another commenter, the Center for Biological Diversity, urges EPA to devote “a large portion” of its GHG grants to support EV charging stations to enable widespread adoption.

The American Water Works Association—representing more than 4,300 drinking water utilities—points to numerous GHG-reduction opportunities at water facilities and makes a case that its members should be eligible to receive GHGRF funds. Likewise, the American Chemistry Council, representing 190 chemical manufacturing companies located in communities nationwide, calls on EPA to allow fund leveraging for public-private partnerships involving communities, businesses, manufacturers, and industrial facilities.

The nonprofit Coalition for Green Capital, a green-bank leader, notes that its members, along with private-sector investors, have funded more than $9B in clean energy projects. Citing a letter from congressional GHGRF authors calling for that fund to capitalize a single “national climate bank,” the coalition comments to EPA that it intends to seek GHGRF funds to capitalize a national green bank.

To achieve President Biden’s goal of reducing GHG emissions 50-52 percent by 2030, the coalition writes, in the coming decade “at least $1 trillion” must be invested, with disadvantaged communities needing at least one fifth of that amount.

Clearly, EPA has an opportunity to turbocharge decarbonization across the economy. With so much at stake, and so many watching critically, transparency and accountability will be crucial.

Seeing Green: Can EPA Effectively Manage Its Billions for Grants?

What’s Next? Looking Back on the Environmental Era
Author
G. Tracy Mehan III - Scalia Law School and American Water Works Association
Scalia Law School and American Water Works Association
Current Issue
March-April 2023
Issue
2

The nation is observing and reflecting on the serial golden anniversaries of the significant environmental laws passed from 1969 through 1986, from the National Environmental Policy Act to the Emergency Planning and Community Right-to-Know Act. The Clean Water Act’s 50th anniversary was just celebrated in the year past. In 2023 it is the Endangered Species Act, and on deck next year is the Safe Drinking Water Act.

There was nothing quite like this wave of legislation, which permanently transformed American culture and society, mostly for the better, while allowing the economy to flourish. That said, the future of this environmental regime is uncertain, given the plateau on which federal programs seem to have arrived. William D. Ruckelshaus, the very first administrator of the new U.S. Environmental Protection Agency, has reportedly said, on environmental matters the American people are philosophically liberal but operationally conservative. But that two-minded attitude has hardened into political deadlock.

Another challenge to the current system of environmental protection, largely federalized, is that “only two in ten Americans say they trust the government in Washington to do what is right ‘just about always’ (2 percent) or ‘most of the time’ (19 percent),” according to the Pew Research Center last spring. In 1958, “about three-quarters of Americans trusted the federal government to do the right thing almost always or most of the time.”

Environmental regulation now reaches down to individual citizens and their livelihoods more directly than, say, in the 1980s, when the focus was on big industrial facilities, wastewater treatment plants, and legacy waste sites. Today, for instance, ESA regulations reducing water for irrigation or introducing wolves into ranching country; rules protecting wetlands that puts limits on developers, many of them small operators; and, of course, the cost to drivers at the gas pump—all are caused, in part, by environmental regulation.

We now have several thoughtful commentaries by experts who have actively participated in the passing era and hope to envision the new one to come.

In Melville’s Mistake: Essays in Defense of the Natural World, Michael J. Bean relates a story, both personal and professional, of his life dedicated to protecting the living things of this world. Growing up near the Mississippi River, he developed a love for small, crawling and flying things, a love that stayed with him his whole life. He is passionate about biodiversity, a term not mentioned in the ESA but, operationally, its primary focus. I have discussed this idea in a previous review, “Biodiversity: A Passion for Science, Politics, or Both” (May/June 2008). According to Timothy J. Farnham, the concept was first formally defined in 1980 by Robert McManus and Elliott Norse in a publication for the White House Council on Environmental Quality. Biodiversity now encompasses genetic, species, and ecosystem diversity.

Bean’s book title refers to the writer Herman Melville’s thought that whales were never going to go extinct because of their mobility and ability to retreat to “polar citadels.” These are “two firm fortresses, which, in all human probability, will forever remain impregnable.”

Bean is a realist regarding the ESA: “I am willing to frankly acknowledge the shortcomings in the manner in which the Endangered Species Act pursues that goal,” meaning biodiversity. Many of these “shortcomings” are explored in another review of mine, “The Ark Reposes in Dry Dock,” (January/February 2012), reviewing possible reforms of the ESA in a volume edited by Jonathan Adler. Rectifying these problems is the focus of the latter part of Melville’s Mistake.

Bean’s is a story of how his avocation became a vocation, from a big law firm to the Environmental Defense Fund and a lifetime of supporting and adapting the ESA to the benefit of endangered and threatened species and the private property owners who own most of the nation’s land. These folks must be incentivized to protect such species, as argued by Aldo Leopold decades ago. Bean fully comprehends the law of unintended consequences, of the ESA driving property owners to manage their lands to avoid the advent of a listed species.

The author combines a narrative in real time with many of his past articles reproduced on a variety of always controversial but important topics related to the ESA. Several originated in The Environmental Forum, including his famous essay on Newt Gingrich’s role in saving the ESA from extinction.

Bean was a strong advocate for innovations like habitat conservation plans and safe harbor agreements, which give landowners a sense of security that, under agreed-upon conditions, they will not lose the economic value of their lands if they take steps to enhance habitat or conditions for the benefit of endangered species. He also presents a fair, but conflicted, analysis of the potential and pitfalls of “conservation banking,” which presents difficulties of scale and non-fungibility.

Scholars A. James Barnes, John D. Graham, and David Konisky of the Paul H. O’Neill School of Public and Environmental Affairs at Indiana University have edited a magnum opus on Fifty Years at the US Environmental Protection Agency: Progress, Retrenchment, and Opportunities, compiling essays by 15 leading practitioners and professors, many of whom worked at EPA. The editors themselves, collectively, “share a belief in both the historical and future role of the EPA in leading the U.S. efforts to provide environmental protection.” Like Michael Bean, they are committed to the decades-old regime but seek to reform it and make it more relevant, effective, and efficient. A good example is the chapter on “Clean Air: Regulation of Stationary Sources,” by William F. Pedersen.

Bill Pedersen served from 1972-85 as deputy general counsel and associate general counsel for air at EPA, “the government’s chief Clean Air Act lawyer.” He was there at the creation and was a supporter of market-based approaches to pollution control. He provides a very useful summary of air regulation, starting with the old “smoke ordinances” up to the Trump administration.

He then assesses the successes of the law as well as the debatable and problematic. Basically, since 1970, the CAA benefit-cost ratio is fifty to one, given the tremendous health improvements it yielded. Conventional pollutant emissions declined 73 percent. However, the law’s traditional command-and-control tools have been “intrusive, slow, expensive to implement, and unlikely to provide least-cost solutions” notwithstanding the success of the acid rain trading program established by the 1990 amendments.

Pedersen believes greenhouse gas initiatives are a precondition for reform of the entire CAA, leading to more reductions in conventional pollutants. Generally, cap-and-trade, at scale, should replace the old scheme of criteria pollutants and state implementation plans. He writes:

“A national cap-and-trade system for large fuel-burning sources might well eliminate most to all of the multi-state problems for air pollution, such as health damage from regionally distributed PM2.5 or large-scale visibility impairment,” argues Pedersen. “Since most of the remaining problems would be confined within a single state, what justification would remain for the pressure that the CAA puts on states to conform to federal directives?”

Two more EPA alumni, E. Donald Elliott and Daniel C. Esty, have written an elegant, compact Advanced Introduction to U.S. Environmental Law. It summarizes major themes along with particulars on each statute. It is an excellent, accessible reference but also an essay of sorts laced with great insights. The authors offer their assessments of the performance of each statute, both successes and limitations. Both are lawyers. Esty is also an economist.

They trace the current political gridlock over environmental issues to the 1992 presidential election in which Clinton was supported by all the national environmental organizations despite a problematic record in Arkansas and George H. W. Bush’s environmental platform. “As a result, the Republican party gave up and stopped supporting ambitious new legislation. Environmental policy thus became a wedge issue in American politics—and has continued to be so through the 2020 election.”

Elliott and Esty believe state law has become more important on some issues such as climate change, and that corporate America is responding to consumer and social demands conditioning their license to operate:

“With expectations for corporate legitimacy moving toward do no harm or no externalities standard, the baseline for sustainability performance continues to rise [citations omitted]. We believe that this shift will render outdated the idea of corporate social responsibility, a framework that credited companies for good deeds (such as contributions to the hospitals, ballet, museums, or local youth sports teams in their communities) as a way to make up for the pollution or other harms for which they might otherwise be held responsible.”

One still hopes to have both hospitals, the ballet, and museums, along with a healthy environment, over the next 50 years. The books reviewed here will help achieve the latter, if not the former, good things in life.

G. Tracy Mehan III was assistant administrator for water at EPA from 2001-03 and is an adjunct professor at Scalia Law School, George Mason University. He is also director for government affairs at the American Water Works Association and can be contacted at tmehan@awwa.org.

"What's Next?" in Regulation.

Preparing for Climate Hellscape—Federal Agencies Advance Resilience
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
January-February 2023
Issue
1
David P. Clarke

Are we “on a highway to climate hell with our foot on the accelerator,” as the UN secretary-general declared last November at COP27, the annual meeting of the parties to the climate convention? While the U.S. Department of Defense’s recent Climate Adaptation Plan 2022 Progress Report wasn’t quite so dramatic, it did state, “No country can find lasting security without tackling the climate crisis.”

DOD was one of 20 agencies that published first-ever climate “adaptation-and-resilience plans” in 2021. In comprehensive comments on the plans, the Union of Concerned Scientists lauded the department’s recognition that “no entity” has the luxury of “opting out” of climate change’s impacts, and singled out DOD’s statement as “perhaps the strongest language” on the subject of any federal agency’s climate plan.

In describing the significance of the agency plans overall, Shana Udvardy, UCS’s senior climate resilience policy analyst, says it’s important for the federal government and agencies “to walk the talk,” offering “a model for the nation” as climate-related disasters increase. Moreover, adaptation-and-resilience investments are money well spent, Udvardy says, citing a 2019 report from the congressionally chartered National Institute of Building Sciences. Since 1995 federal mitigation grants have cost taxpayers $27 billion but will ultimately save $160 billion. An even greater 16:1 benefit-cost ratio would be provided by Gulf Coast building upgrades to protect against severe weather.

The federal progress reports came shortly before the COP27 meeting in Egypt, making them especially timely, Udvardy says. At the meeting, delegates overcame longstanding U.S. and E.U. objections to placing “loss and damage” on the agenda—a demand that richer nations responsible for planet-warming emissions should fund poorer countries’ efforts to achieve greater resilience—as flooding, drought, and other disasters are worsening. CNN reported that money quickly surfaced as COP27’s “key issue” and “the most difficult to resolve.”

Showcasing how adaptation and resilience can be done is important internationally, as well as for the United States at the national, state, and local levels, Udvardy adds.

The fact that DOD’s 2021 adaptation-and-resilience plan and 2022 progress report stand out is not surprising. After all, as early as 2010 DOD’s Quadrennial Defense Review cited the U.S. Global Change Research Program’s findings that heavy downpours, rising temperatures, and other “climate-related changes” were already being seen worldwide, including in this country.

Then in 2018, Hurricane Michael slammed Tyndall Air Force Base, inflicting “catastrophic” damages and prompting the Air Force to invest an estimated $5 billion to build Tyndall as an “installation of the future” that will meet strong reliability and sustainability standards. Across Florida the hurricane’s total damages were $18.4 billion, which were far exceeded by last September’s Hurricane Ian, which inflicted damages of more than $50 billion from Florida to the Carolinas.

In its progress report, DOD describes five “lines of efforts,” starting with LO1, “climate-informed decision-making,” and concluding with LO5, “enhance adaptation and resilience through collaboration.” In 2021, according to LO1, the department published a climate adaptation plan and created a climate working group to track the department’s implementation of its climate directives and progress.

In critiquing the progress reports, Udvardy says agencies should provide more quantitative metrics of progress toward “closing the resilience gap,” or reducing the degree to which a community or nation is unprepared for climate effects. She applauds metrics associated with DOD’s Climate Assessment Tool for evaluating the exposure to eight climate hazards, including flooding, heat, drought, wildfire, and historic extreme weather events. The tool has been used to assess all major domestic defense installations and is being expanded to all major international installations, which will help prioritize resources.

The reports are of uneven quality. Generally, DOD clearly took time to detail its engagement with climate change as a national security threat. In contrast, the Department of Homeland Security’s report has a slapped-together quality. All of the reports could use more metrics, Udvardy comments.

Although resilience planning lacks the punch of greenhouse gas regulatory mandates, concerns have begun shaping some agency policies in important ways, Udvardy notes. For example, the Federal Emergency Management Agency updated its National Flood Insurance Program’s risk-rating method for the first time in 50 years.

And there’s money for resilience—at least $50 billion in the 2021 Bipartisan Infrastructure Law and more than $37 billion in the Inflation Reduction Act. Consider the funds down-payments as we brace for climate hell.

David P. Clarke is a writer and editor who has served as a journalist, in industry, and in government. Email him at davidpaulclarke@gmail.com.

Preparing for Climate Hellscape—Federal Agencies Advance Resilience

Agencies Can Avoid Major Questions Risks
Author
Bethany Davis Noll - NYU School of Law
NYU School of Law
Current Issue
November-December 2022
Issue
6
Parent Article
How Will West Virginia v. EPA: Impact the Future of Climate Policy?

The decision in West Virginia v. EPA required the Supreme Court to take two analytical steps that pose threats to future environmental regulation—but they should not be insurmountable.

In the case, the court decided the legality of the Clean Power Plan, an Obama-era regulation under section 111(d) of the Clean Air Act, designed by EPA to cut greenhouse gas emissions at existing power plants. EPA had set targets based on “generation-shifting” measures, meaning investing in renewable energy or shifting a plant’s fuel source to cleaner sources. But the Court held that EPA was not authorized to use generation shifting to set those targets.

To get there, the Court had to jettison traditional doctrines that demand deference for agencies when they are interpreting statutes that are ambiguous. It held instead that the issue was a “major questions case” that required a clear statement from Congress authorizing the agency to adopt that particular provision. According to the Court, the clear statement doctrine applied for two reasons: (1) EPA had intended to and claimed the power to remake the energy market, and (2) EPA had invoked this power under the “vague language of an ‘ancillary provision’” of the Clean Air Act.

The question everyone is asking is whether and how this doctrine will apply to the next climate-focused regulation.

The first step to answering that question is: What is the agency’s intent? That intent analysis may encompass literally anything that the agency heads have said. To find that EPA intended to remake the electricity system rather than simply cut pollution, the Court relied on snippets of evidence that were outside of the final agency rule—including a quote from an oversight hearing that was held a year before the rule was finalized and a funding request from EPA. Though the Clean Power Plan very carefully explained the agency’s intent to limit greenhouse gas emissions, there were enough quotes in the broader public record to support West Virginia’s reframing of the regulation as one that sought to phase out coal as an energy source. Lesson learned.

The second step is to look at the statutory authority the agency invoked. In West Virginia, the Court demoted section 111(d) to “ancillary” status because it had not been used very often by the agency and was a “gap filler.” Of course, as the dissent explained, just because a provision is a “backstop” does not make it a “backwater.” But EPA had another problem: Congress had debated and had been unable to pass laws that would have achieved something similar to generation shifting.

What are the lessons here? One might be that agencies should blitz the Federal Register with regulations, so as not to leave any provision in a state of disuse. Another obvious one (though obviously difficult) is to reenergize Congress. For example, the Inflation Reduction Act may help clarify regulations under the Clean Air Act. The new statute added a definition for greenhouse gas to the Clean Air Act, defining it as “the air pollutants carbon dioxide, 16 hydrofluorocarbons, methane, nitrous oxide, 17 perfluorocarbons, and sulfur hexafluoride.”

At the end of the day, each of these two analytical steps is likely to be malleable for a results-oriented court. The Court has opened the door to arguments that reframe and reimagine what an agency is doing. And Kevin Poloncarz is right to foretell that many big and important questions are likely to be subject to a major questions challenge. An attorneys general coalition recently argued that EPA’s proposal to ban chrysotile asbestos under the Toxic Substances Control Act triggered the doctrine. The Heritage Foundation cited the doctrine in relation to a Commodity Futures Trading Commission proceeding about climate-related financial risk. And AGs opposing a Securities and Exchange Commission rule that would clarify climate disclosures have argued that the major questions doctrine applies to that rule too.

But the Court did characterize West Virginia as “extraordinary.” It will likely be difficult to recharacterize too many statutory provisions as “ancillary,” and too many questions as “major.” In addition, it is possible that overuse of the doctrine is not in anyone’s long-term interest. Presidents on both sides of the political divide have used agencies to make policy—especially politically important policy—for some time. When he was in office, President Trump attempted to aggressively reimagine what agencies were authorized to do. For example, after Congress refused to appropriate money to build a wall along the southern border, the Department of Defense appropriated funds to construct the wall anyway. It is still too early to know where the guardrails are, but not all authority has been lost for agencies regulating in their lane.

Bethany Davis Noll is executive director of the State Energy & Environmental Impact Center at the NYU School of Law and an adjunct professor at NYU.

Equal Justice Under Law
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2022
Issue
6
Todd Kim, Assistant Attorney General, Environmental and Natural Resources Division

As an assistant attorney general, Todd Kim works on some of the country’s most consequential conservation and pollution issues. His unit, the Environment and Natural Resources Division at the Department of Justice, is responsible for bringing charges against violators, defending federal agency actions, and enforcing over 150 laws. Yet even for the environment enthusiast, the division’s work is often not well understood. As former head of ENRD, John Cruden, puts it, “The division is much broader than most people—even most practitioners and academics—think.”

Todd Sunhwae Kim was sworn in as assistant attorney general of the division on July 28, 2021. Just shy a week of his first full year, I spoke with him over video call to hear his reflections on his team’s upcoming priorities, and learn more about the division’s vital work.

Through my Zoom portal, Kim’s office radiated with rich mahogany, a large U.S. flag hanging prominently on the back wall. He speaks with a swift and measured cadence, using almost no fillers—perhaps reflecting the many hours he has spent litigating before judges.

“I certainly think for the layperson, the work of the Environmental Protection Agency is understood and remembered more than the work of ENRD,” Kim admits. One reason may be the sheer breadth of the division’s work. ENRD encompasses 10 sections, working on well-known appellate cases, environmental crimes, defense, and enforcement—but also Indian resources, land acquisition, and wildlife and marine resources. The division’s top five clients are EPA and the departments of Interior, Agriculture, Defense, and Transportation. Yet what exactly ENRD does for these federal agencies is not straightforward.

“What I imagine most people think of when they think about environmental lawyers at the Department of Justice is environmental enforcement,” Kim says. That means attorneys bringing cases against those who violate the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and other statutes—typically through the division’s environmental enforcement section in civil cases, or through the environmental crimes section in criminal matters.

“And they wouldn’t be wrong,” he says. “Our environmental enforcement section is one of the largest litigating sections in the whole Department of Justice.” The division’s website notes that almost half of ENRD lawyers bring cases against polluters. But as for the rest, “The defensive work we do is not as well understood.”

Lawyers at the division also defend against challenges to statutes and federal agency actions, many of which have significant implications for climate and other policy issues. Policies defended by ENRD relate to siting renewable energy projects, ensuring healthy forests, regulating proper use of public lands, establishing national monuments, and much more. The landmark West Virginia v. EPA climate case this last Supreme Court term serves as just one example of the team’s critical defensive work. The Court retained EPA’s authority to regulate carbon under a provision of the CAA but held that the agency could not use “generation-shifting”—phasing out coal—to set emissions targets.

Attorneys also work to protect rights and resources of tribes in the Indian resources section. Their cases include decades-long water rights adjudications and other complex natural resource matters. The work is “foundational, and speaks to good government and what it means to be a trustee for Indian tribes and their members,” Kim says.

ENRD also tackles worker safety violations in its environmental crime section, using criminal law to “ensure appropriate deterrence so that America’s workers are not subjected to illegal and improper conditions,” Kim says. The division even works on animal welfare. A July enforcement action against a facility owned by the company Envigo RMS in Cumberland, Virginia, resulted in the rescue of thousands of beagles that had been housed in illegal and inhumane conditions.

But despite the seemingly disparate subjects handled by the division, many cases do not fit neatly in one box. In a single case, “The environmental defense section could be dealing with a Clean Water Act issue, while the wildlife and marine resources section deals with an Endangered Species Act issue, while the Natural Resources section tackles a National Environmental Policy Act issue,” Kim explains.

The division’s sections are corded together by a team of five deputy assistant attorneys general, who each lead two sections and coordinate among each other. Put together, ENRD takes on a staggering 6,000 pending matters at a time, according to Kim. These include cases, referred matters, and other work that does not show up in court. For example, the division’s law and policy section comments on other agencies’ draft rules and helps with potential legislation and amicus briefs.

Like his division, there’s more to the assistant attorney general than meets the eye. Kim’s legal career actually began in the division he leads today, as a lawyer in the Attorney General’s Honors Program. In 2004, just six years into his work at ENRD, Kim sat opposite celebrity host Regis Philbin and won $500,000 on the premier of “Who Wants to Be a Super Millionaire?” He is also a lover of music, having grown up playing the violin and piano. In later years he sang with the Choral Arts Society of Washington—“as part of a chorus, not a soloist. No one wants to hear me solo,” he jokes.

Kim discovered a passion for the environment at a young age. “When I was 11 years old, my parents piled me and my sister into an RV, and we took a classic RV trip out to the American West to see some national parks: Yellowstone, Grand Teton, Arches, Mesa Verde,” he recounts. “I think we were only gone for two or three weeks, but it felt like months. The beauty and the grandeur, getting to do things like fish, hike—it was amazing. I think that was a big part of why I became so interested in preserving America’s beauty.”

He soon identified law as a natural avenue to channel his enthusiasm. “I grew up a pretty idealistic kid. A lot of that had to do with my parents—they immigrated to the States in the 1960s and they were full of admiration for American people and American ideals,” he says. “From a very early age, a career as a lawyer appealed to me as a way to strive for social justice.”

But he quips that “I also had an elementary school teacher who said that I was really good at arguing. So maybe that had something to do with it too.”

Not much has changed about Kim’s outlook since his childhood in New Jersey. “I’m still quite idealistic, frankly,” Kim says. “I’m proud to work at the Department of Justice, where securing equal justice under law is our mission.”

Upon graduating from Harvard Law School, he clerked for Judith Rogers of the D.C. Circuit Court. He then joined ENRD and stayed at the division for seven and a half years. The experience was “a dream beginning to my career,” Kim says today. As a young lawyer, he flew across the country to argue in all the courts of appeal, arguing memorable cases including United States v. Shell Oil Company in 2002. The case dealt with the McColl Superfund site in Fullerton, California, concerning who would bear responsibility for over a hundred million dollars in cleanup costs. “Being able to take a fairly voluminous record, master it, and then get a favorable decision on a case of great import—both financially, but also for the people affected by the Superfund site—was especially meaningful to me,” says Kim. “It really cemented my inclination to be a public interest lawyer.”

After making his rounds through the courts, Kim then became the first solicitor general for the District of Columbia. For over eleven years, he represented the district in high-level cases, including at the Supreme Court. A brief stint in the private sector later, Kim returned to the federal government as deputy general counsel for litigation, regulation, and enforcement at the Department of Energy.

Kim's first year heading ENRD has been a busy one. In May, Attorney General Merrick Garland announced a new comprehensive environmental justice enforcement strategy and launched the department-wide Office of Environmental Justice, consistent with directives outlined in an executive order by the Biden administration.

The new Office of Environmental Justice, situated within ENRD, aims to streamline and support DOJ’s work on EJ matters. As Kim puts it, “Part of the goal is just making sure that everyone keeps front of mind that environmental justice is a key aspect of DOJ’s mission.” That means “creating habits, processes, and ways of doing work that lend themselves to people centering environmental justice, now and going forward.”

EJ issues, which occur in many different contexts and potentially implicate many different statutes, “demand coordination across different components of the department,” Kim says. On the ground, that means DOJ needs to “establish a protocol for talking amongst ourselves to use all the tools we can to alleviate the burdens a community is facing.”

“These burdens may not be strictly limited to issues under the Superfund law, for instance,” he explains. “As an example, we are developing resources so that when the civil rights division has a particular matter that could implicate statutes ENRD enforces, they know that they can bring us in—and vice versa.”

Kim emphasizes that these strategies should not only maximize effective coordination, but also lead to DOJ initiating more EJ-related cases. In fact, the department’s comprehensive enforcement strategy lists as its first principle, prioritizing “cases that will reduce public health and environmental harms to overburdened and underserved communities.”

The Office of Environmental Justice is still in the process of hiring staff. But Kim notes encouraging progress already. “According to the comprehensive environmental justice enforcement strategy, every U.S. Attorney’s office is supposed to appoint an environmental justice coordinator within their district. And I’m glad to say every single one has; we have a hundred percent compliance.” The team is now moving ahead to conduct trainings and provide other resources to districts, with an eye toward ensuring lasting change in DOJ’s work to remedy burdens on low-income communities, communities of color, and Indigenous communities.

Throughout our conversation, Kim was quick to praise his colleagues, frequently expressing appreciation for their work. It was, in real time, a chance for me to observe the top guiding principle in his work: respect. When interacting with colleagues and clients, as well as opposing counsel and the courts, Kim emphasizes the importance of “working with integrity,” as he puts it. “Work with empathy, and work with an understanding of where they’re coming from. If you do those things, and you do it with competence, then good things will happen.”

The value is deeply tied to his commitment to public service, illustrated by a legal career almost entirely spent in government. “Meaning in my professional life is derived from doing things for others. Being able to do that with the talented, dedicated, and mission-driven people at ENRD makes it easy to be motivated every day—even the hard days,” he says.

Having climbed the ranks, Kim now directs this energy in leadership. Upon assuming his posts as D.C. solicitor general and as ENRD’s assistant attorney general, “One of the first things I did was sit down with every single person I’d be supervising and ask what I could do to help them be effective in their positions,” he says. To Kim, conveying respect as a leader requires “taking actions consistent with an understanding that they know their job better than I do.”

It’s no wonder that he names staff morale as one of his team’s biggest accomplishments this year. In the Partnership for Public Service’s 2021 Best Places to Work in the Federal Government, an annual list viewed as a benchmark for federal workplace satisfaction, ENRD landed within the top 10 percent. The boost is especially significant given recent political scandals at the division—the preceding head of ENRD, Jeffrey Clark, faced allegations of pursuing claims of election fraud following the 2020 presidential election. While reluctant to compare directly between administrations, Kim was forthright in sharing his team’s efforts to lift morale.

“My chief of staff, Mike Martinez, and I work hard to try to ensure that morale is high, because for the mission of the division to be accomplished as well as it can be, it’s all about the staff,” Kim says. In addition to an open-door policy for feedback, the team has reinvigorated a speaker series, inviting luminaries within and outside the government to speak to staff on relevant law and policy topics.

Looking toward the next year and beyond, Kim names combating the climate crisis and advancing environmental justice as his biggest priorities, both personally and in alignment with the Biden administration’s objectives. The Office of Environmental Justice and comprehensive EJ enforcement strategy, in particular, will require substantial attention. “I want to make sure those get off the ground and succeed, and become integrated into the department’s DNA,” Kim says.

And true to his leadership philosophy, Kim names supporting a healthy career staff as an equally important goal. “The attorneys and professional staff we have—they’re excellent. I want to keep them, and I want to motivate them to keep on doing a great job.” TEF

PROFILE For federal actions on climate change and environmental justice to succeed, the government needs a robust team of lawyers to back it up. Todd Kim, the Justice Department’s top defender of public health and natural resources, takes the lead.

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