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This Month's News & Analysis

Volume 44, Issue 9 — September 2014

Dialogue

Methods of Crude Oil Transport: Relative Risks and Benefits

by Kris Barney, John J. Jablonski, George "Casey" Hopkins, Michaela E. Noble, Connie S. Roseberry, and Anthony Swift

As America’s oil and natural gas boom spreads across the country, producers are finding it difficult to get oil from the wells to market. Pipeline capacity is limited, and shipping crude by rail has raised concerns in the media. What are the relative risks and merits of different methods of shipping crude oil long distance? Rail, ship, and pipeline each have pros and cons, risks and benefits. On May 7, 2014, the Environmental Law Institute convened a panel of experts to explore the regulatory realm of each option. Without demonizing any form of transport, the session raised awareness about the complex trade offs between these options, when they are options. This dialogue presents a transcript of the event, which has been edited for style, clarity, and space considerations.

Comment(s)

Emerging Clarity on Climate Change Law: EPA Empowered and State Common Law Remedies Enabled

by Howard A. Learner

The emerging law of climate change is becoming clearer. The U.S. Supreme Court’s series of climate change and other Clean Air Act (CAA) decisions authorize the U.S. Environmental Protection Agency (EPA) to advance its standards-setting process, and provide general deference to EPA’s  implementation of the CAA and other statutory programs. The Court is sending a clear message to the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit, which reviews most of EPA’s final standards, and to other courts, to restrain judicial activism. Likewise, federal and state courts are opening the door for plaintiffs to assert state common law tort remedies.

Measuring Environmental Enforcement Success: The Elusive Search for Objectivity

by Joel A. Mintz

How best to measure the effectiveness of environmental enforcement is a long-standing question. Recently, EPA stirred renewed interest in how to measure enforcement success. Its Draft FY 2014-2018 Strategic Plan suggested a new set of “Next Generation Compliance” metrics. Those “Next Gen” measurements include the number of regulated sources using advanced monitoring technologies to measure their own emissions, the number of enforcement settlements that resulted from or that incorporate advanced monitoring, the number of sectors for which measurable compliance rate strategies have been adopted, and the percentage of facilities that electronically report Clean Water Act (CWA) compliance data to EPA and to authorized states and tribal governments. Although the Agency deleted those measurements from its final FY 2014-2018 Strategic Plan, the questions they raised remain. In this Article, I will attempt to take a fresh look at the enforcement measurement issue.

Negotiating EPA Penalties: EPA’s Penalty Policies and the 2013 Civil Monetary Penalty Inflation Adjustment Rule

by Matthew Thurlow and Douglas Bushey

On December 6, 2013, the U.S. Environmental Protection Agency (EPA) increased the statutory maximums for 20 of the 88 civil penalties it administers. At the same time, EPA also revised its civil penalty policies and increased the gravity-based component of all penalties by 4.87% for violations occurring after December 6, 2013. These recent increases are an important reminder that EPA has the statutory authority to pursue significant, and in some cases enterprise-threatening, penalties for environmental violations. But in assessing civil penalties in environmental enforcement cases, EPA case managers and attorneys do not simply apply statutory maximums; instead, they are guided by EPA’s well-established penalty policies, which require the Agency to assess a number of aggravating and mitigating factors before determining an initial penalty demand.

EPA’s 2013 All Appropriate Inquiries Rulemaking Raises Litigation and Administrative Law Risks

by Thomas A. Utzinger and Robert L. Glicksman

On December 30, 2013, the U.S. Environmental Protection Agency (EPA) published a final rule temporarily recognizing two different “Phase I” environmental site assessment (ESA) standards for commercial real estate and brownfield due diligence investigations. In a somewhat unusual administrative maneuver, the Final Rule amended EPA’s All Appropriate Inquiries regulations (AAI Rule) to reference two industry standards that may be used to comply with AAI requirements established under CERCLA, namely, ASTM E1527-05, issued in 2005 (the 2005 Standard), and ASTM E1527-13, issued in 2013 (the 2013 Standard). The Final Rule also indicated that reference to the 2005 Standard in the AAI Rule would eventually be deleted by way of a subsequent rulemaking. EPA published a proposal to accomplish that result in the Federal Register on June 17, 2014. During this interim period, users of Phase I ESAs had an option as to due diligence standards. As discussed, however, EPA’s failure to proceed in accordance with optimal administrative law principles may someday result in unexpected liabilities for parties who otherwise used the 2005 Standard in good faith.

Articles

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Addition” Element of the Clean Water Act Offense

by Jeffrey G. Miller

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the §404 program protecting wetlands. This Article examines the interpretation of “addition” within the CWA. It suggests a definition that would not unduly expand the provision nor emasculate EPA regulatory programs. It rejects EPA’s unitary water theory in favor of a more workable solution.

“Scarcely a Vestige of Antiquity Remains”: Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture

by Jess R. Phelps

Preservation of historic religious architecture has been one of the most controversial areas of regulatory preservation activity. Although regulatory options remain constitutionally permissible, efforts to protect historic religious properties have been limited by legislation and lack of political will. One alternative source of preservation intervention, however, has largely escaped notice—a quiet expansion in the use of preservation easements to protect significant historic religious architecture. This Article evaluates this expansion, providing the first meaningful analysis of how preservation easements protecting historic religious structures have attempted to balance preservation and religious freedom concerns, and assessing the relative success of these efforts to date.