In crafting a regulatory framework to protect public health and the environment, two equally important aspects must be considered. The rules must be clear, concise, and simple. And the regulator must be able to assure compliance. Environmental agencies often spend years crafting rules, constantly balancing the best available science, feasibility, stakeholder input, and the cost of compliance. The notion of assuring compliance is often an afterthought, and solely placed on the inspector.

In our state, there are over 60,000 active oil and natural gas wells. Yet, the New Mexico Environment Department has seven air inspectors — one for every 8,500 wells. There is no way to meaningfully assure compliance with permits and regulations unless we rethink how we write such rules. Meanwhile, our ozone levels are rising quickly. Ozone often disproportionately impacts environmental justice communities. Non-attainment with National Ambient Air Quality Standards could soon be a reality for our state.

Last July, following over a year of unprecedented public outreach and stakeholder collaboration, NMED released a draft version of the state’s oil and natural gas rules for public review and comment. The draft regulations are focused on limiting volatile organic compound and nitrous oxide emissions, the chemical ingredients of ozone. And in May, NMED is releasing an updated version and will be petitioning its rulemaking board to adopt the measures.

In rethinking how we regulate the industry, NMED considered a number of innovative ideas to solve our growing ozone problem while ensuring the department can assure compliance — and that industry can achieve it.

Our first goal is to incent the desired outcome. A significant source of emissions from oil and natural gas operations occurs from equipment leaks. When it comes to identifying them, we are embracing technology. Real-time and remote monitoring should have the least regulatory burden in environmental rules. Conversely, periodic monitoring for leaks should have a greater regulatory burden.

Second, incent game-changing ideas. Flares are the traditional means of destroying emissions from oil and natural gas operations. While simple in design, flares can be unreliable, resulting in incomplete combustion or uncontrolled emissions when the pilot light or auto-igniter fails. NMED’s rules propose the use of fuel cells in lieu of flares as a control device. Fuel cells chemically convert hydrocarbons (i.e., methane and VOCs) to electricity, which can then be used to power equipment at the well.

Third, require monitoring. It would take more than four years for one NMED inspector at five sites per day to visit their share of 60,000 wells. As proposed, our rules require an owner or operator to visit each regulated piece of equipment on a monthly basis. Again, real-time and remote monitoring can assist industry efforts to ensure any compliance issue is mitigated in less than 30 days.

Fourth, require audits. In the oil and natural gas industry, history tells us that mergers and acquisitions are common and likely remain so in the future. The draft rule provides that, prior to transferring the ownership of any equipment, the current owner-operator must conduct and document a full compliance evaluation of all equipment subject to the rule. This ensures one more safeguard to prevent undiscovered leaks.

Finally, shift the burden. The draft regulations state that failing to comply with any provision of the rule is a violation for the duration of the performance period. It is up to industry to present the regulator with credible evidence to the contrary, as opposed to requiring NMED to establish when the violation started or stopped.

Without considering compliance assurance, environmental regulations will not achieve the desired outcome of protecting public health and the environment. When environmental regulations and compliance assurance efforts are developed in tandem, it can result in a more level playing field between industry and government.

Nearly everyone involved in environmental regulations believes that compliance with environmental rules is pretty good and that it is enforcement’s job to take care of the rest. You hear this all the time — from regulators, companies, legislators, academics, and environmental advocates.

Both assumptions, that compliance overall is strong, and the work of ensuring compliance should be left to enforcement, are wrong. The data reveal that the rate of serious noncompliance — not just any noncompliance, but violations EPA defines as the most important — is typically 25 percent or more, according to the agency’s data of self-reported and government-identified violations. For many important rules with big health consequences, the serious noncompliance rates for large facilities are 50 percent to 70 percent or even higher. And those are just the ones we know about; for many rules EPA has no idea what the rates of noncompliance are because the regulations don’t include any way to figure that out.

We have also learned that the most important driver of compliance isn’t enforcement, but the design of the regulation. If a rule is structured to set compliance as the default, it can get impressive on-the-ground results without the need for much enforcement. Rules that instead include many opportunities to evade, obfuscate, or ignore will have dismal performance records that no amount of enforcement will ever fix. Robust enforcement is absolutely necessary for any strong compliance program, but enforcement alone will never close the compliance gap created by a poorly designed rule.

Next Generation Compliance, which I launched at EPA during the Obama administration, is a new paradigm for environmental rules. It argues that rules need to be tightly structured to make compliance the path of least resistance. Next Gen rule design acknowledges that in the messy real world where we actually live, equipment fails, people make mistakes, multiple priorities compete for attention and funding, and companies make close — and sometimes nowhere near close — calls in their own favor. And sometimes they just cheat. There is a mountain of evidence that rules only work if they find a way to align private incentives with the public good. These essential truths are the difference between a rule that is great in theory — and one that delivers in real life.

One common misconception about Next Gen is that it is about making rules enforceable. It isn’t. Yes, rules should be enforceable, because that’s a baseline condition that differentiates a rule from good advice. But Next Gen goes way beyond that. It is about creating a structure where the default setting is good compliance — where implementation is strong even if enforcement never comes knocking.

Compliance isn’t a nice-to-have regulatory extra. It’s the part that matters. That’s true for every rule. Standards are fine, but we only get public health benefits from regulations when the regulated companies do what the rules require. When they take steps to control pollution, or conduct the required monitoring, or implement process controls to reduce the risk of catastrophic releases, the standards in the rules translate to real protection. If facilities are doing what they are supposed to do, we have a good chance of achieving clean air and water and reducing our risk of exposure. If they aren’t, we don’t.

Rampant violations have consequences: millions of people living in areas of the country that are not achieving air pollution standards, impaired water quality for half of the nation’s rivers and streams, contaminated drinking water, public exposure to dangerous chemicals, and avoidable environmental catastrophes with health, ecological, and economic damages.

Serious violations aren’t limited to some rules or sectors or company sizes. Widespread noncompliance is the norm across the board: just about every large city has been in consistent and serious violation of Clean Water Act limits on discharge of raw sewage and contaminated stormwater, companies responsible for over 95 percent of the nation’s petroleum refining capacity and almost 50 percent of ethylene oxide manufacturers violated Clean Air Act pollution requirements, over 70 percent of the largest coal-fired power companies violated the obligation to upgrade pollution controls, and over 60 percent of phosphoric acid manufacturing sites were in serious violation of hazardous waste handling requirements.

For many other sectors, the full extent of violation isn’t known, but it doesn’t look good: oil and gas wells with excess emissions of benzene and volatile organic compounds, animal agriculture operations’ compliance with clean water limits on the handling of animal feces that is more than three times the sewage produced by the entire U.S. human population, widespread contamination of surface waters from stormwater runoff, agricultural workers exposed to pesticides through violations of the Worker Protection Standard, noncompliance by small-quantity generators of hazardous waste, and cars and trucks spewing pollution from aftermarket defeat devices. Some of the claimed-to-be-better compliance rates — like drinking water standards and stationary sources of air pollution — are based on data that are demonstrably wrong. For millions of facilities covered by rules about chemical safety, oil spill prevention, asbestos remediation, PCBs, or lead paint handling requirements, EPA has no idea how widespread serious violations are.

The harm from pervasive violations isn’t equally shared. It falls most heavily on already overburdened communities. Contrary to popular myth, it is almost never feasible to remedy through enforcement the ubiquitous violations that result from bad regulatory design. And, as we have recently observed to our dismay, some governments aren’t interested in enforcement anyway. Incorporating compliance drivers in environmental rules is one of the most important things we can do to protect environmental justice communities; it shields them from the harm caused by high rates of violation and is less dependent on the unreliable commitment of regulators.

There is no one-size-fits-all Next Gen strategy for regulations that ensure strong compliance. What works for sophisticated power plant operators isn’t likely to be effective for small and dispersed sources of stormwater runoff. Problems that are measurable and discrete, like emissions from stacks and discharges from pipes, are completely different from tough-to-spot violations of regulations to assure approved chemicals are safe, drinking water is clean, or pesticides are properly applied.

But there are some things we know. Exemptions and exceptions create confusion and off ramps that lead to more violations. Things that aren’t measured produce worse outcomes. The less visible violations are, the more there will be. Standards that require lots of fact-specific determinations or have a big gray zone of applicability provide lots of places to hide, and experience shows companies will use them.

In contrast, simple and clear rules — possible even when the underlying situation is complex — are more likely to be effective. Automatic consequences can work better than requiring government to ferret out problems and impose penalties. Monitoring, measurement, and targeted transparency are the single largest drivers of strong implementation. Innovative use of modern technologies and data analytics hold promise for leap-ahead compliance advances. The standard model in wide use today — creating complex requirements with multiple fact-specific exemptions and exceptions, allowing estimates rather than actual measurement or skipping measurement altogether, relying on trust rather than verification, and requiring government to find the violators and track them down one at a time — is why serious violations are widespread.

Sometimes Next Gen ideas can greatly improve outcomes without changing the overall regulatory approach. But sometimes a Next Gen analysis will make it obvious that the preferred regulatory strategy cannot work. In these cases, there is no plug-in solution; the near certainty of implementation collapse means that regulators have to find another way.

Both roles of Next Gen are illustrated in the following two examples for climate change: methane regulation of oil and gas, where Next Gen ideas could help fix big implementation problems, and energy efficiency as part of a clean energy standard, which Next Gen shows is likely to end up undermining the push for carbon reductions.

Methane released from oil and gas production is a huge source of climate-forcing emissions. Methane in the atmosphere traps over 80 times as much heat as carbon dioxide over its first 20 years, so it packs a big climate punch in the near term. The largest source of anthropogenic methane in the United States is fossil fuel production and its transportation, so any climate strategy needs to control those releases. The Obama EPA promulgated methane rules, the Trump EPA repealed them, and the Biden EPA is now set to move out quickly to address this troublesome problem.

Methane, the main component of natural gas, is brought to the surface during oil and gas production. The gas can vent into the air at the wellhead. It can be released by malfunctioning flares. It can leak from storage tanks, valves, and hatches left open. And it does; the amount of wasted methane released from oil and gas production is depressingly large.

The good news is that we know what to do to dramatically reduce methane releases and cut back wasteful flaring. The technology is available and in use today. The costs are reasonable. As climate challenges go, this is one of the easier ones.

While the technological solutions are comparatively simple, the compliance challenges are not. Oil and gas has all the indicia of a sector where compliance with rules to limit emissions is likely to be bad. There are over a million wells in the country, often in out of the way places. Once a well is completed there are no people routinely on site to keep an eye on failing or leaking equipment. Methane is invisible, so leaks can’t be spotted without specialized equipment. By far the biggest share of leaking methane comes from a comparatively small number of sites: at any given moment 90 percent of the emissions come from just 10 percent of emitters. That concentration of super emitters might normally make the compliance job easier, but not in this case ­— the worst emitters vary over time and are unpredictable. That’s the Next Gen nightmare scenario: huge numbers of sources in out of the way places, with violations that are unpredictable and hard to find. Violations are already common at oil and gas wells. That will get much worse as requirements for methane control are ramped up.

The mismatch between the scope and scale of the compliance problem and government’s ability to either find or fix violations is all too obvious. A handful of regulators for the millions of potentially violating locations makes the standard assumptions that most will comply, and enforcers can take care of the rest, self-evidently untenable here. In this situation — a gigantic number of potential sources at which emissions are collectively huge but individually sporadic, unpredictable, and hard to spot — how can we ensure robust adoption of important strategies for cutting emissions?

One under-appreciated compliance powerhouse in the regulatory toolbox is simplicity. The more special conditions and fact-specific nuance the rule allows, the greater the opportunity to avoid or delay implementation. Repeated experience shows that compliance is less likely for rules with a wide band of compliance gray. Exempting low-producing wells from methane rules, as the owners of those wells propose, risks the same thing. Apart from the reality that low-producing wells are not for that reason less likely to be serious emitters, regulatory exemptions motivate companies to claim to be on the exempt side of the line. If determining the accuracy of such claims requires effort and investigation, a lot of violations — and their accompanying emissions — will slide under the bar.

Innovation is part of the answer for many complex compliance problems. Robust alternative monitoring strategies for oil and gas are being developed at a fast pace and could well be the answer in the long term. A rule can encourage that by motivating everyone to use them. One strategy that might provide an incentive is shifting the burden of proof. If government — or academic experts or NGOs — can provide credible evidence through remote monitoring that a site is a significant emitter, why shouldn’t the company now have to prove it isn’t? And take immediate action if it is? Nothing will motivate leak control more than knowing that an army of experts are looking.

The more automatic things are, the more likely it is that the desired action will happen. Hatches accidently left open are a big source of emissions; why not require hatches that automatically close? The same idea can work to motivate reliable emissions reporting. If the monitoring equipment is not working or a site visit is missed, how about requiring companies to assume that the results were bad, so firms, not the public, bear the burden of misfires? Penalties can likewise be automatic for key violations. The better job rule writers do of making the rule reliably self-implementing, the better the compliance record will be.

There are a host of other promising and low-cost ways to improve methane rule implementation in the real world. All of these ideas come to the fore once we abandon the fiction that compliance magically occurs because standards are written in a rule, or that rule writers can ignore obvious implementation disasters waiting to happen because compliance is someone else’s job.

The second example, a Next Gen analysis of energy efficiency as a part of a clean energy standard, is on one level discouraging, because it reveals that a popular idea for funding needed energy efficiency investments will lead to greater carbon emissions. But the good news is because we know that in advance, we can make another choice. Next Gen isn’t about saying no, it’s about understanding the strategies that won’t work, so we can design ones that will.

Electricity generation is one of the largest sources of climate-forcing pollution in the United States. Every strategy for tackling climate change depends on converting large portions of the economy to electric power, while reducing emissions from power generation. States have shown the way; renewable portfolio standards have been the motivating force behind a big share of the increase in clean generation. A national standard that pushes in the same direction can be the foundation for achieving President Biden’s drive toward 100 percent clean electricity by 2035.

The great news from a Next Gen perspective is that widespread compliance with the national equivalent of a renewable portfolio standard is readily achievable. We already accurately measure the amount of power generated by every source, there are a discrete and limited number of regulated entities, and they are all sophisticated in measurement and data. This situation presents close to ideal circumstances for regulations that achieve near universal compliance.

But here’s the rub: what else counts as “clean,” and will those alternatives actually achieve the promised emissions reductions? Next Gen doesn’t focus on the ideological sides in these debates. It asks just one question: will it work?

One of the most popular entrants in the clean energy sweepstakes is energy efficiency. It promises reduced demand for power by accomplishing the same thing with less power. It creates clean energy jobs. The issue isn’t the importance of energy efficiency. That’s clear. Energy efficiency is an essential part of our work to cut carbon emissions. We need as much of it as possible as fast as we can get it.

The Next Gen issue is the impact on power generation’s carbon emissions if energy efficiency is included in a clean energy standard or in any other regulatory program intended to reduce carbon in electricity generation. Design features can vary but the basic idea of such programs is limiting fossil-fired power generation to a fixed and declining amount of carbon emissions per unit of power. Utilities are allowed to comply with that limit by purchasing qualifying credits. When those credits are from solar or wind power, for example, we know exactly how much electricity utilities are buying and can be 100 percent confident that it is zero carbon.

If they buy an energy efficiency credit, on the other hand, we actually don’t know how much electricity savings, and therefore carbon reduction, utilities are getting. That’s because the nature of energy efficiency and the structural incentives of efficiency programs make determining how much energy is saved extremely difficult. What we do know is that far less energy is being saved than current estimates predict. That’s why including energy efficiency credits in a clean energy standard results in more carbon. The fossil-fuel-fired power plant emits more actual we-know-it-is-happening carbon — in exchange for the hoped for but most likely far smaller carbon savings promised by energy efficiency. Why is energy efficiency such a wild card in carbon accounting?

First is that the impact of energy efficiency is inherently uncertain. The theory of energy efficiency is that the same activity, like heating or lighting a home, is accomplished using less power. How much energy was saved? That’s calculated by comparing what actually happens to the hypothetical world of what would have happened without the efficiency project. If a utility pays me to add two inches of insulation to my attic, what’s the energy savings benefit? The answer isn’t as simple as my energy use before and after. There are hosts of variables that make the comparison highly uncertain: the weather is different; I might turn up the heat because I have more insulation; maybe I also bought an electric car or an energy sucking TV; maybe I would have put that insulation in anyway, without the incentive payment. Actual energy use can be measured, but the hypothetical alternative universe cannot. Even with unlimited measurement resources and the best of intentions, this is irreducibly complex, and it isn’t possible to be certain.

Second, the evidence suggests that the estimates we use to calculate energy efficiency savings are way off the mark. Just about everyone today uses estimates of the benefits of energy efficiency called deemed savings. Such metrics provide a guide for estimating how much energy is saved from installing, say, weatherization measures. Rigorously designed studies have found that actual energy savings fall substantially short of the deemed estimate, in some cases possibly delivering only 25 percent of the promised savings. As is true in so many programs, careful measurement reveals the sometimes gross error of estimates.

Third is another problem that is ubiquitous in Next Gen analysis: the incentive structure for energy efficiency encourages overclaiming of benefits while making it nearly impossible to figure out the truth. Utilities that get more money for programs with greater energy reductions have a built-in motivation to overstate the value of efficiency projects. And they do; a 2012 in-depth study of California utilities found that actual savings were 30 percent to 40 percent less than had been projected and that utilities were systematically overstating the savings. Nearly every participant in energy efficiency has an incentive to overclaim benefits.

And that’s before we even get to the fraud that is inevitable when implementation occurs at millions of locations, companies can make money by cutting corners, and government has virtually no visibility into what’s actually happening.

All of these factors combine to tell us that an energy efficiency credit is both highly uncertain and very likely to greatly overstate its value. So what? Energy efficiency is good, right? Who cares if we can’t be certain about exactly how much energy it saves? We care because by including efficiency credits in a program to cut carbon from electricity generation we set ourselves up for more carbon. We allow a ton of real we-are-certain carbon from a fossil fuel utility in exchange for less than a ton — possibly a lot less — of efficiency offsets. And the more energy efficiency credits utilities buy, the greater their actual net carbon emissions will be. That’s not what we are trying to do.

Lots of market-type ideas for climate suffer from the same implementation shortcoming: by allowing shaky offset credits that will not achieve the desired results in the real world, they undermine the integrity of the emissions-reduction goal. That doesn’t mean we shouldn’t do these projects; it means that we shouldn’t fund them through offset credits that will end up increasing carbon emissions. Other strategies — like an energy efficiency resource standard to prompt investment — can promote the desired funding without undermining carbon reduction.

Regulations must be designed to produce better results in the real world, which is the only place that counts. Next Gen is particularly essential for climate rules, where we cannot afford to fall substantially short of the goal because of widespread, and entirely predictable, implementation fails. For climate, that can make the difference between we have a chance, or we don’t. There are many exceedingly difficult problems to tackle in climate change; we can’t be fumbling on the comparatively simple ones like cutting climate-forcing emissions from oil and gas operations and electric-power generation. We know there are ways to get to a far better outcome. We just have to decide to use them. TEF

The ideas in this article are drawn from the author’s in-depth series “Next Generation Compliance: Environmental Regulation for the Modern Era” posted on the Harvard EELP website — C.G.

Soon after President Biden took office, the Department of Justice’s Environment and Natural Resources Division rescinded nine enforcement policies issued by Trump appointees as “inconsistent with longstanding division policy and practice.” Additionally, the policies “may impede the full exercise of enforcement discretion in the division’s cases.” With the stroke of a pen, ENRD lifted the prohibition on Supplemental Environmental Projects in civil cases and jettisoned a 2020 memorandum limiting federal overfilling in state enforcement actions.

The move signaled a new chapter at ENRD. Practitioners anticipate renewed activity in three main areas: a funneling of resources to civil and criminal enforcement, particularly under the Clean Air and Clean Water acts; leveraging the division’s resources to support the administration’s efforts to combat climate change; and a refocusing on underserved and disproportionately impacted communities.

For the division’s career attorneys, the last four years have been a roller coaster. Commentators point to data indicating that enforcement activity slowed, while resources shifted to other priorities. ENRD, for example, reported collection of criminal and civil fines declining from an average of $1.7 billion per year (2015-16) to an average of $560 million per year (2018-19). And according to some analysts, during Trump’s first two years, the country witnessed a significant decrease in federal criminal prosecutions for air and water violations. Meanwhile, ENRD’s defensive docket ballooned from 466 cases in 2014 to 648 four years later. But despite this busier case load, the division’s roster of attorneys declined.

DOJ is now poised for a reset. Former Judge Merrick Garland has taken the helm as attorney general. As a widely respected jurist on the D.C. Circuit — the second most important court for environmental law — Garland has more familiarity with environmental statutes than any other AG.

Commentators have described him as a centrist among Democratic appointees, with a willingness to defer to agency legal and scientific expertise. Early in his career, for example, he joined a dissent from the denial of rehearing en banc by all the judges on the D.C. Circuit in a case invalidating Clean Air Act regulations under the non-delegation doctrine — his position was later vindicated by the Supreme Court. He later authored an opinion upholding the constitutionality of the Endangered Species Act, and joined colleagues in upholding Obama-era standards for mercury and air toxics from utilities.

While the AG typically plays a fairly limited role in environmental cases on a day-to-day basis, he is critical for refereeing interagency disputes and managing interactions with the White House. Moreover, Garland will share responsibility for implementing the Biden administration’s overarching agenda on climate and environmental justice. A key Biden executive order, for example, requires the AG to consider renaming ENRD the “Environmental Justice and Natural Resources Division”; to direct that division to develop a comprehensive EJ enforcement strategy; and to consider creating a new office (but not necessarily a new litigating division, as had originally been suggested) to coordinate EJ efforts across all DOJ components, especially the Civil Rights Division and U.S. attorneys offices.

In setting ENRD on a new course, the next assistant attorney general for the division will have a full plate. In addition to bolstering ENRD’s staff and overseeing a resurgence in enforcement activity, with initiatives expected in multiple sectors, the AAG will be busy guiding agencies in reconsidering the prior administration’s deregulatory measures, and proactively participating in the design of new agency initiatives to enhance their legal defensibility. The AAG will also be asked to lead the division’s efforts in vindicating the rights and resources of Indian tribes, which has historically been an important feature of the division’s work.

None of this will come easy. A federal judge, for example, recently denied ENRD’s request to stay a case challenging Trump’s overhaul of the National Environmental Policy Act’s implementing regulations. DOJ requested to put the case on ice until after the new administration’s key appointees, including the head of the Council on Environmental Quality, are Senate-confirmed. Environmental groups opposed the stay, and the court agreed to hold ENRD’s feet to the fire. The administration may have to make decisions on which aspects of the NEPA regulations to modify or rescind sooner than expected. The uncertainty in the rules will only complicate ENRD’s role in defending the decisions of land management agencies under NEPA, particularly as the new administration makes a major push on infrastructure.

In observing the Environmental Protection Agency’s 50th anniversary, I have a few early-days reflections. I had my first brush with EPA while in law school, when I drafted South Carolina’s Resource Conservation and Recovery Act Interim Status and Part B regulations. “Drafting” is somewhat generous, as my work was primarily cutting and pasting the EPA rules that were set up to apply in the absence of state program authorization and conforming them, and their corresponding preambles, to the South Carolina context. But it was a meaningful baptism into the complexity of EPA’s work within the labyrinth that is the Federal Register. In my last year of law school, I was accepted under the honors program at the Department of Justice, and was soon off to work as a trial attorney in their Environmental Enforcement Section. My primary client? EPA.

It quickly became clear to me that the EPA beat was not for the fainthearted. Within my first six weeks of arriving in 1982, I was visited by FBI agents investigating DOJ’s refusal to turn over case materials to oversight committees on Capitol Hill concerned about backroom dealmaking in some of the early Superfund cases. They wanted to look at case files I had inherited to determine whether DOJ was conspiring with EPA political leaders to obstruct the congressional inquiry. This was the inquiry that in fairly short order took down an EPA administrator (Anne Gorsuch Burford) and landed the assistant administrator of what is now the Office of Land and Emergency Management (Rita Lavelle) in the clink on perjury charges. EPA was and remains a fairly high stakes game.

Agency historians will recall that the Burford-Lavelle meltdown led to the return of the great Bill Ruckelshaus, whose second time as leader ushered in the heyday of environmental enforcement. And, as DOJ’s EES served as EPA’s representative in court, we were at the center of that work.

While even during those days there was periodic sniping at the agency by internal whistleblowers and oversight committees for not being aggressive enough, for the most part it was pedal to the metal. The so-called Enforcement First Policy under the Superfund program sealed the deal, driving an enormous amount of work through the DOJ turnstile. Working in tandem with our EPA colleagues, we had relatively free rein in terms of whom to sue, were given license to make fairly expansive legal arguments in court on such fundamental questions as causation and strict, joint, and several liability, and experienced remarkably good success with those arguments. When the statute was updated in 1986, much of the law making done in the Superfund Amendments and Reauthorization Act was in the nature of codifying the jurisprudence that had emerged though enforcement litigation.

Behind the curtain, an empowered EPA was not the simplest client. The folks at the agency thought DOJ was too slow in getting cases filed; we thought the agency was too rigid in settling cases. This and other dynamics produced a good deal of friction. In 1987, I became an assistant chief at DOJ’s EES with responsibility for EPA Region V, which at that time made up about a third of the country’s enforcement docket. I’ll never forget my first trip to meet with the Region V leadership. Dale Bryson, head of the Water Division at the time, started my meeting with him and his team by plopping a rather large windup toy on the conference table and setting it in motion. I believe it was a gorilla on wheels with cymbals, something like that, which slowly and loudly made its way around the table. “This is how we think of DOJ,” he said. “Makes a lot of noise, but moves very slowly.”

There was a harder edge to the interagency friction, with EPA pushing through various channels for its own litigating authority, akin to what had been given to the Securities and Exchange Commission. This would have effectively cut DOJ out of the equation. We were of course not keen on that, partly out of institutional self-interest, but also because we believed in our heart of hearts that, given the atmospherics that surround EPA’s work, the agency needed the sober presence of DOJ to be successful and to stay out of trouble. Making and keeping peace between DOJ and EPA became a central feature of leadership on both sides. Thankfully, those efforts in the late 1980s managed to tamp down the passions and set the EPA-DOJ relationship on the more cooperative course that defined the decades that followed, perhaps aided somewhat by the arrival at EPA of a few DOJ transplants in the early 1990s (including me). But that’s a story for another day.

Senator, we do not have a non-enforcement policy. That is a fallacy,” insisted EPA Administrator Andrew Wheeler in response to questions from a member of the Environment and Public Works Committee. Critics of the administration contend that the agency’s pandemic-related policies will result in lax enforcement and increased pollution. Raising the stakes, some scientists have suggested that populations with greater exposure to certain pollutants may be more vulnerable to health effects associated with the COVID-19 virus.

But EPA has staunchly defended its announcements as merely providing a reasonable level of flexibility in the face of an unprecedented crisis, and in no way opening the floodgates. Meanwhile, environmental practitioners have been cautiously assisting their clients in navigating these challenges, while attempting to interpret the signals sent by EPA and state regulators.

On March 26, EPA Assistant Administrator Susan Bodine issued a “temporary” enforcement policy, which applies retroactively to March 13. Under that policy, EPA will exercise enforcement discretion not to pursue violations of “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting, and certification” caused by the pandemic, where best efforts are made to comply as soon as possible. Regulated parties must document the basis for any such claim and present it to EPA upon request. EPA has made clear that its policy does not excuse exceedances of pollutant limitations in permits, regulations, and statutes.

EPA has further clarified that in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, the agency’s willingness to consider the pandemic in determining its response is conditioned on the facility’s contacting state or tribal regulators, so that EPA and those authorities may work with the facility to mitigate such risks. The agency has also made clear that it expects operators of public water systems to continue normal operations, maintenance, and sampling to ensure safe drinking water.

Many states have issued virus-related policies of their own (See bit.ly/covid19enviro). For example, Michigan’s environmental agency announced that facilities that face “unavoidable noncompliance directly due to the COVID-19 emergency” may submit a request for regulatory flexibility. Each request is a matter of public record on the state agency’s website. The agency will consider whether to exercise enforcement discretion on a case-by-case basis.

On April 1, a coalition of environmental groups filed a petition for emergency rulemaking with EPA. The petition requested that the federal agency promulgate emergency rules forcing companies wishing to invoke the virus as a defense for noncompliance to formally notify EPA, and for that information to be publicly available. Later that month, the groups filed suit.

Two weeks later, attorneys general from nine states (California, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, Vermont, and Virginia) brought suit in the same court over what they characterized as EPA’s decision to cease requiring companies to monitor and report air and water pollution during the coronavirus pandemic, as well as its lack of transparency. They contended this action forces states to “fill EPA’s enforcement shoes at a time when they are increasingly strapped for resources, or risk the health of our residents.” They also alleged that EPA failed to consider the policy’s impact on people of color and low-income communities who are disproportionately suffering from COVID-19.

Whether anything will be resolved by these lawsuits is questionable. The Justice Department can be expected to defend the cases on numerous jurisdictional grounds, and “temporary” policies may expire long before the court has a chance to rule. In the meantime, EPA continues to issue important
virus-related policies and regulations. For example, it promulgated interim guidance to its regions regarding decisions about new or ongoing cleanup activities at sites across the country. Decisions to potentially pause field work are to be made on a case-by-case basis, prioritizing the health and safety of the public, communities, state and tribal partners, EPA staff, and contractors. And EPA released an interim final rule temporarily amending the data substitution provisions of emissions monitoring and reporting regulations for the Acid Rain Program, Cross-State Air Pollution Rule, and the NOx SIP Call.

Most recently, President Trump issued an executive order directing federal agencies to address the “economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” Whether that will have any impact on enforcement or other regulatory requirements is too early to tell.

Enforcement Conference ELI as global secretariat brings together professionals from 30 countries to up compliance

Today, there are environmental laws in almost all countries, but there are still major gaps in their implementation and compliance and enforcement. There is an increasing need for collaboration around the world to ensure cooperative and impactful solutions to environmental problems cutting across all issues, regions, and sectors.

ELI is the secretariat for the International Network for Environmental Compliance and Enforcement. At the Institute’s behest, the Australasian Environmental Law Enforcement and Regulators neTwork, known as AELERT, joined forces with ELI to meet the need to share experience, knowledge, and expertise to strengthen alliances among practitioners, regulators, and organizations working on compliance and enforcement across the globe.

In March, the two networks held a unique conference in Adelaide, Australia, with the purpose of opening up numerous opportunities to cooperate and build capacity across regions, jurisdictions, and organizations in ways that are rarely possible for environmental regulators.

The conference worked to strike a balance between technical and operational topics, as well as broader policy and strategic discussions, and was designed to cater to a variety of practice areas such as biodiversity and conservation, waste, pollution, marine environment, biosecurity, and climate change.

The four-day conference drew over 300 participants from more than 30 countries. The convening included representatives from all inhabited continents. Participants and panelists came from international organizations, national and local governments, academia, nonprofit institutions, and the private sector.

The wide range of representatives allowed for fruitful collaboration and sharing of best practice and innovation from all regions and levels of government.

Participants could choose from over 40 different sessions over the three days, and the conference also offered capacity-building workshops, keynote presentations, and networking opportunities.

ELI Visiting Scholar Lee Paddock moderated a session on “Forging Collaborative Networks Between Academics and Practitioners to Help Shape the Future of Regulation, Compliance, and Enforcement.”

The opening plenary of the workshop, moderated by Lawrence Starfield, EPA principal deputy assistant administrator of the Office of Enforcement and Compliance Assurance, featured a discussion among representatives of the Australian, Asian, East African, European Union, Latin American, and Maghreb networks of environmental compliance and enforcement.

Other highlighted panels included one on “Preventing Environmental Crime Through Transboundary Cooperation,” with speakers from UN Environment, the world body’s criminal division, and INTERPOL.

A panel on “Women in Environmental Regulation” featured Anne Brosnan, chief prosecutor at the Environmental Agency of England, and Hanna Kogelman regional manager at WetlandCare Australia.

The conference also presented INECE achievement awards for leadership and innovation in environmental regulation.

The Scholarly Contributions to Environmental Enforcement award went to Neil Gunningham, professor at the Fenner School of Environment and Society and the Regulatory Institutions Network at the Australian National University, and Darren Sinclair, associate professor at the University of Canberra in Australia. The Innovation in Environmental Enforcement award was presented to Anne Brosnan.

Institute joins with GWU Media Lab in climate communication

Climate science is increasingly becoming a vital element of environmental litigation. Decisions in these cases have the potential to shape how the law addresses pressing issues.

Programs such as ELI’s Climate Judiciary Project have begun to address this need, as the courts tackle climate science and associated issues of justice. Early on, the Institute realized that communication of climate litigation can be an effective avenue for greater public awareness.

In February, ELI and the Climate Media Lab at the Milken Institute of Public Health at George Washington University hosted a panel on how to ensure justice in court cases involving climate science, while communicating the cases to the public in order to broaden the discussion. The panel, moderated by ELI Associate Vice President of Research and Policy Sandra Nichols Thiam, explored strategies to successfully communicate the issues in climate litigation.

GWU law school Professor Robert Glicksman explored the cases where courts engaged with climate science, such as the landmark decision in Massachusetts v. EPA, which allowed the agency to regulate carbon if it found it endangered public health and welfare. He noted that these cases illustrate how judges are capable of understanding and incorporating fundamental principles of climate science in their decisions.

ELI Visiting Scholar Lee Paddock examined how the cases Juliana v. United States and the Dutch suit known as Urgenda have changed the dynamic around climate litigation.

“No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists,” said Paddock. “But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief.” In referring to Julliana, which has been dismissed as a matter for the political branches, he said, “The mere fact that this suit alone cannot halt climate change does not mean that it presents no claim suitable for judicial resolution.”

These cases provide stories that can serve as compelling accounts to engage the public. Panelists Sabrina McCormick, associate professor at George Washington University, and Christi Cooper, producer/director of the YOUTH v GOV documentary, emphasized, “Climate cases have succeeded in capturing the public attention,” according to McCormick. “There is a continued need to tell their stories to the public in order to compel them to listen to the climate discussion.”

A toolkit for parliamentarians to improve fisheries management

ELI and Parliamentarians for Global Action are working together to provide a toolkit for governments to manage small-scale fisheries, or SSF, including legal reforms supported by both research and regulatory practice.

The project aims to make available detailed model legal language as well as a comprehensive road map for implementing policy reforms that strengthen sustainability, with an emphasis on community participation in fisheries stewardship.

The Institute held a workshop in February for a consultative committee of experts to review and provide feedback on the legal toolkit recently developed by ELI.

The convening was attended by a group of experts ranging from academics, representatives from the Food and Agriculture Organization and World Bank, scientists, and independent consultants who have experience working on SSF governance and on legal reform.

With top experts in fisheries governance gathered in one room, the meeting resulted in productive discussions on best practices in SSF governance across a range of topic areas while identifying future needs based on stakeholder experience.

Xiao Recio-Blanco, director of ELI’s Ocean Program and lead on the SSF regulatory toolkit project, said, “One of the highlights of the meeting was the chance to talk about SSF governance and see how we need to reframe the way we share the information to make it more accessible,” he said.

Communicating the regulatory roadmap needed for improved SFF governance is challenging, especially among a large variety of stakeholders. The attendees agreed on the importance of presenting information in multiple ways that cater to different stakeholder needs.

Recio-Blanco hopes to work on outreach and education surrounding the importance of SSF governance in the months ahead. He notes that the language of SSF governance can be unclear, and that needed legal reforms are not necessarily a topic in which parliamentarians have expertise.

Based on the recommendations made by the workshop participants, ELI plans to revise its toolkit and develop tailored recommendations for SSF management.

Field Notes: Building capacity in Colombia on illegal logging

With support from the Swedish Postcode Foundation, ELI and the Global Green Growth Institute and other partners are undertaking a three-year project to transform illegal logging in Colombia by building the capacity of the judiciary to hear cases. The project will build awareness and technical capacity among the judges and magistrates in the four departments of Colombia most affected by illegal logging. The project will also train the appellate judges in Bogotá who hear appeals from these departments.

In February, the Institute’s Carl Bruch, director of international programs, and Meredith Wright, distinguished judicial scholar, traveled to Colombia for the project launch meeting in the capital, as well as for the first two public consultations in Bogotá and Villavicencio. These consultations engaged Colombian judges and magistrates, prosecutors, agency staff, international institutions, and nongovernmental organizations.

The consultations identified priority topics for inclusion in the training sessions, as well as local champions who can assist in implementing the project while coordinating with other efforts to fight illegal logging. The project team also started to identify priority tasks to complement the judicial training.

The ELI team also met with members of the Superior Council of the Judiciary, the Constitutional Court, and the State Council.

Over the coming months, the partners anticipate holding three additional public consultations and developing the training materials.

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In February, ELI and Vanderbilt Law School hosted a panel in Nashville as part of the Environmental Law and Policy Annual Review 2020 conference series. The panel featured Shana Jones (University of Georgia), Thomas Ruppert (Florida Sea Grant), and Jason Evans (Stetson University) to discuss their recent article “Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise.”

Through their analysis of localities’ efforts to protect property and infrastructure as flooding increases, the authors discussed whether climate adaptation challenges faced by localities merit the reconsideration of the duties, immunities, and authorities of state and local governments.

The event also featured commentary from Jenny Howard of the Tennessee Department of Environment and Conservation, Kym Hunter of Southern Environmental Law Center, and Benjamin McFarlane of the Hampton Roads Planning District Commission.

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ELI held the 16th annual Western Boot Camp last winter. Held virtually, the course was one of the largest Western Boot Camps to date. The three-day course covered the Clean Water Act, climate change, environmental liabilities in business transactions, Superfund, and ethics in environmental law.

Faculty included experts from various ELI professional partner and associate law firms. Experts from the public, corporate, and nonprofit sectors also participated.

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In response to the administration’s proposed changes to the National Environmental Policy Act’s regulations, in January ELI hosted a podcast to help listeners understand how the revisions will change the manner in which agencies identify, analyze, and mitigate for the anticipated environmental impacts of proposed major federal actions.

ELI Senior Attorney James McElfish sat down with Nicholas Yost, retired partner at Dentons LLC, to discuss the potential impacts of the administration’s proposed changes. Yost was responsible for the current regulations as former general counsel of the White House Council on Environmental Quality in the Carter administration.

Yost noted how the proposed rules’ removal of the concept of “cumulative” effects would have repercussions on the determination of whether to prepare an environmental impact statement, as well as the content of any EIS that results. The podcast, as well as McElfish’s Practitioners’ Guide to the Proposed NEPA Regulations, can be found on ELI’s website.

L>ast October, President Trump issued Executive Order 13892, asserting that some agencies’ enforcement actions and adjudications “undermine” the Administrative Procedure Act’s accountability and fairness goals. In January, the Office of Management and Budget followed up with a Federal Register notice alluding to unconstitutional arbitrary government actions and soliciting public feedback on “improving” or “reforming” regulatory enforcement and adjudication.

That would be fine if in fact federal enforcers were violating citizens’ rights. But member scholars with the left-leaning Center for Progressive Reform in their joint comments to OMB “entirely disagree” with the premise that “due process shortfalls” exist in current federal enforcement. A lack of court decisions finding any enforcement due process violations is evidence that “no such problem exists.”

CRP members also endorse comments by George Washington University law professor Richard Pierce, described by the conservative Federalist Society as “the most frequently cited scholar in the country in the field of administrative law and government regulation.” In his comments, Pierce defends the current system as “fair and unbiased in all respects,” although, he adds, it is currently threatened by President Trump, the Justice Department, and recent Supreme Court opinions.

Arguments that the government’s actions are unconstitutional “are right out of the playbook of conservative lawyers” serving large industry clients, says Joel Mintz, a CPR scholar and emeritus law professor at Florida’s Nova Southeastern University Law Center. The OMB notice is of a piece with long-standing conservative and industry lawsuits challenging almost every environmental law passed by Congress as unconstitutional, but “it never amounts to anything,” Mintz adds. Companies are not “forced into settlements” but enter into them because they perceive that decision to be in their best interest, he says.

Basically, if the administration were to adopt any of the reforms implicit in the 11 “topics of interest” OMB’s notice describes, EPA and other agencies would find it harder to bring administrative actions against companies violating either regulations or the authorizing statutes, says Mintz.

Countering each of OMB’s topics, CPR says that the “tacit premises” of OMB’s notice “lack a factual foundation” and, instead, appear aimed at creating “a distorted, one-sided record” that the Trump administration will use to hamstring the enforcement of regulatory safeguards.

But environmental lawyer Michael Showalter, a partner with the law firm Schiff Hardin, says the problems are real. Concerns about transparency and fairness have guided not just the Trump administration but conservative, business-oriented thinking for some time, he notes. Citing a “classic example” of a complaint, Showalter says there have been situations in which the Department of Justice would for the first time adopt a “convenient litigation position” in a brief to win a case, an action that “strikes people as being profoundly unfair.” Early Trump reform efforts latched onto that kind of complaint.

As a specific example of the problem, Showalter cites a 2019 case, Kisor v. Wilkie, which included the Supreme Court’s ruling that an agency’s regulatory interpretation “must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc statement not reflecting the agency’s views.”

Showalter notes that OMB’s notice divides into two distinct sections. The first sets forth the problem motivating OMB, describing “big picture” complaints that have long provoked critics. The second lists questions relating to the 11 specific topics of interest and appears to be an effort to “frame out an agenda for the future,” in Showalter’s words.

It is difficult to say whether OMB is engaging in “something profound in terms of agency reform” or merely creating “political talking points,” Showalter says. OMB seems to be “spit balling,” floating questions one might hear in law school to get respondents to “put their ideas out there,” perhaps to support OMB in developing big picture problem frameworks, he says.

Showalter agrees that if any measures were adopted based on OMB’s 11 topics, it is “probably true” environmental violations would be harder to address. For example, one OMB question asks if agencies should “be required to produce all evidence favorable to the respondent.” If EPA had to do that, people whose conduct was being challenged would certainly have a much greater ability “to push back on the agency.”

OMB’s notice is inherently not a reform proposal, Showalter concludes. It is an attempt to understand the scope of problems people have with enforcement and adjudication procedures. In the meantime, the significance of the notice will be hard to determine until the issue resolves.

In the summer of 1970, while I worked for Community Legal Services in a unit focused on litigation to reform the Philadelphia police department, I got a phone call from the attorney general of the commonwealth of Pennsylvania. Fred Speaker and I proceeded to have a long conversation about the lack of enforcement of environmental law. As the conversation progressed I realized he was offering me a job.

In retrospect I was pretty sure that the only reason Speaker had called me was that I randomly appeared first on his list of young lawyers who might know something about environmental law. This was because I had recently been one of several attorneys who had filed a lawsuit on behalf of the Sierra Club to protect Tinicum Marsh from the construction of I-95 through the city. I also had recently been active in the founding of the Philadelphia Free Law School, where I taught a course in environmental law.

Speaker was then 40 years old and had just been appointed AG for what could only be a six-month run till the end of Governor Raymond Shafer’s term. But he was determined to make an impact. One area of interest was enforcement of new environmental laws. Pennsylvania had been at the forefront over the previous few years in passing new environmental legislation, but the General Assembly and others had become concerned that state government was doing little to gain compliance with the new laws. Special legislative committees had held hearings and issued reports to that effect. There was also growing interest in adding an environmental protection provision to the state constitution, which was eventually accomplished, and reorganizing state agencies to have a stronger focus on integrated environmental management and enforcement.

Against this background Speaker and I agreed that we would create an Environmental Strike Force made up of five or six attorneys who would take aggressive enforcement actions through civil and criminal lawsuits and other measures. Since we only had six months to make a dramatic impact, speed and public awareness were critical.

I had concerns about the time limit, but if certain conditions could be met, I would undertake to leave CLS and lead this new effort. First, I would have to be able to find at least three other attorneys within one week. Second, I could hire anyone that I wanted to without regard to political concerns. Finally, we could sue any entity that was in violation of applicable state legal requirements. Speaker readily agreed and I set about to find a few lawyers who would join me. By early August the Environmental Strike Force was staffed and quickly housed in makeshift space provided by the general counsel’s office of the then Department of Health, which had responsibility for administering most of the state’s pollution statutes.

Speaker too had three conditions. He wanted the Strike Force “to develop new legal mechanisms that would make the legal process of the courtroom more amenable to the rapid resolution of pollution problems.” He desired “lawsuits which, if successful, will result in an industry- or state-wide reduction in a particular source of pollution.” His last condition was for us to “eliminate the pollution caused by chronic violators of state laws and regulations.”

The members of the Strike Force were all special assistant attorneys general and thus part of the state’s Department of Justice but as I have indicated we were located with legal staff of the Health Department in order to facilitate the quick development of enforcement actions. The department had responsibility for administering statutes addressing clean air and water, solid waste and related environmental pollution issues. The requirements of these statutes were applied to specific sources through a system of regulatory standards and permits. Compliance was determined through a system of field inspections. In theory compliance with the regulatory and permit requirements could be enforced through a combination of administrative orders or civil or criminal litigation. Often civil penalties were available.

In order to initiate enforcement actions that would come to quick and important results, the Strike Force worked closely with the department’s technical staff to learn which sources were the most serious or long-standing violators. In the first weeks we reviewed extensive files, talked with inspectors, sought the advice of the lawyers in the general counsel’s office, and in a relatively short period began to file a variety of enforcement actions.

To our great chagrin in those first months we found that the courts were reluctant to impose the compliance actions or penalties that we sought. This was especially true in the Commonwealth Court, which was where many of our initial actions were filed. It was a new court, with seven members located in Harrisburg and having special jurisdiction over matters involving the interests of the state. Thus, as a court of original jurisdiction it was available to the state and was expected to become a less parochial venue than was often the case with the courts of common pleas of the 67 counties.

In theory this would have appeared to be ideal for enforcing state environmental statutes. Unfortunately, the court was created, and its first judges appointed, during the Republican administration of Governor Raymond Shafer and were, not surprisingly, rather conservative and especially dubious about this new body of enforcement actions that were suddenly being brought before it by young lawyers. My recollection is that of the first 60 civil actions filed before the Commonwealth Court we did not prevail in a single request for either ex parte or preliminary relief.

The reality was that these seasoned judges were simply not prepared to apply a relatively unfamiliar body of law to even more esoteric sets of technical facts and thereby force financially costly action by defendants based on the arguments of a relatively young group of state lawyers who must have appeared to come out of nowhere. I well remember one case in November 1970 involving a massive three-million-gallon oil spill into the Schuylkill River by Berks Associates, a waste oil reprocessing firm. When I appeared before a Commonwealth Court judge on a Friday morning asking that he order ex parte that the company take immediate emergency action to stop further oil from spilling as a result of rain anticipated over the weekend, the motion was denied. My only solace following my rare appearance in court was learning later that the judge admitted he did not sleep all weekend for fear of what might happen in the event of rain.

This judicial hesitancy did not last. Eventually, by bringing cases before the court, trying the facts with expert testimony from the state agencies, and repeatedly arguing the law, we were able to build a level of confidence with these and other judges that compliance with state statutes was not only in the public interest but was mandated by the law and could be more easily assured if appropriate penalties were assessed when violations happened. During the period after Earth Day it also did not hurt that popular support for clean water and air was emerging as a major issue not only in Pennsylvania but across the nation. The Strike Force did not hesitate to help build this public support by reaching out to citizens groups and the media.

An example is the underground mining practices of the Barnes and Tucker Coal Company, which broke into abandoned coal mines, thereby releasing millions of gallons of acid mine drainage into the West Branch of the Susquehanna River. The volume of this new and continuing release of acid to the Susquehanna threatened the entire length of the river down to its entry into Chesapeake Bay. Acid drainage would essentially sterilize the river, and while the West Branch still had problems at the time of the breakout, the main stem had been substantially cleaned up and was a biologically rich aquatic environment. The scale of possible environmental damage was almost inconceivable and the state sought to mitigate possible damage through a variety of emergency measures. And, in a move that would not have happened before the arrival of the Strike Force, quick legal action was taken to establish Barnes and Tucker’s responsibility for the damage and to ultimately pay for all efforts to mitigate it. The vigor and ultimate success with which we pursued remedies against the company went a long way toward burnishing the reputation of the enforcement office.

The Strike Force’s eventual successes would prove important as the incoming administration of Democratic Governor Milton J. Shapp considered environmental issues facing it. Foremost, a new Department of Environmental Resources represented an effort to establish an integrated approach to protection and management of the state’s natural resources and the public’s health through a merger of the pollution control functions of the Department of Health with the resource management function of the Departments of Mines and Minerals and Forests and Waters.

As this legislation was argued over in the General Assembly, I played a role on several issues not least of which had to do with enforcement and related matters. As a result, Section 28 of the act provided: “There shall be established in the Department of Environmental Resources a unit responsible for the enforcement of all laws within the jurisdiction of the department. The head of such unit shall be a deputy secretary who shall report directly to the secretary of environmental resources.”

The obvious candidate for secretary was Maurice K. Goddard, the longstanding and highly respected secretary of forests and waters. I was selected as the deputy secretary for enforcement. The stage was set for the old Strike Force to move to the fore as the chief legal advisors to the new department as well as the focal point for its quickly expanding enforcement agenda. A first step was to bring all the lawyers of the several departments into one single unit, the Office of Enforcement and General Counsel, and then to organize that unit on a functional basis.

Eventually, the Strike Force evolved into the Office of Litigation Enforcement, whose prime responsibility was to work with DER’s regional offices to determine the status of violations and implement appropriate enforcement action. This office had branches located in Philadelphia, Harrisburg, Pittsburgh, and Scranton. A second unit was the Office of Administrative Enforcement, located in Harrisburg and primarily responsible for working at the policy level with the technical staff in DER to improve the legislative, regulatory, and administrative basis of the state’s environmental protection and management programs. Lawyers in this unit were also responsible for handling unusual litigation that was considered to be on the frontier of legal developments. Finally, the Bureau of Legal Services was established in late 1971 with the merger of the various legal counsel’s offices of the former departments. It provided the legal support necessary to the day-to-day operation of DER, as well as the operation of the parks and forest system of the commonwealth.

A major task in 1971 was to establish the core functions of the Office of Enforcement. A broad reading of the statutory language might suggest that those responsibilities could include permit writing and routine inspections. However, it seemed clear that assuming such significant tasks would inevitably detract from the compliance and enforcement role of the office. At the same time, the statute made it clear that attorneys in the office would have full authority to take legal actions necessary for strong enforcement. This gave those attorneys powers usually reserved to the Department of Justice.

Sorting through these roles engaged much of my time and involved both Secretary Goddard and then Attorney General J. Shane Creamer. Ultimately a sensible middle course was arrived at, whereby the Office of Enforcement was assured of full legal authority to initiate all necessary enforcement actions (with appropriate communication with the Department of Justice), and the environmental permitting and inspection authority remained with another deputy secretary within DER, where the great bulk of the department’s technical expertise resided. Relatively detailed guidelines regarding how these relationships would function were developed and ultimately approved by Shapp.

The governor’s support for the enforcement work of the office would continue through his two terms. In a wide-ranging interview with the Philadelphia Inquirer late in 1972 he “claimed success for the environmental strike force set up early in his first year, in cleaning up the air, streams, and rivers in the state.”

While hiring additional lawyers and working to organize them in effective structures would seem boring, the eventual impact of this activity was not. A newspaper article appeared during this period describing how the Office of Enforcement “has been energetic and efficient. Led by the charismatic Special Assistant Attorney General William Eichbaum, the Strike Force has recruited a staff of modish young attorneys and received the assistance of a forensic and enforcement oriented technical staff, fashionable secretaries, and even an aggressive and concerned state trooper who issues summonses and criminal complaints.”

Going beyond appearances, these lawyers and their professional colleagues in DER were busy! In the two-year period 1971-72, we filed 200 equity lawsuits and initiated five contempt proceedings. We also filed over 200 criminal actions and conducted over 150 administrative hearings. In addition, the attorneys assisted in over 300 successful compliance negotiations and collected nearly $500,000 in civil penalties. In January 1973, Air and Water News wrote: “Eichbaum sees real evidence of the success of Pennsylvania’s approach [to enforcement, which results in] greater willingness of polluters to agree to compliance. ‘They know we will sue, and they know we’ll win,’ he says.”

Specific discussion of the many legal matters initiated through the Office of Enforcement over the period 1971 to 1976 would be long and often tedious. But brief sketches of some of the most significant areas of work are worth recalling.

The aforementioned cases Commonwealth v. Barnes and Tucker Company and another, Commonwealth v. Harmar Coal Company, were decided by the Pennsylvania Supreme Court in 1974 and 1973 respectively and settled important legal issues in favor of the commonwealth. In the first the court reaffirmed and revitalized public nuisance doctrine as a tool for control of water pollution and in the latter case the court affirmed a coal mine operator’s responsibility for treating all mine waste regardless of whether it originated in its active mine. In both cases the Supreme Court also noted favorably the importance of Pennsylvania’s environmental amendment as providing a guide in interpreting statutes. It is worth noting that over forty years later the state Supreme Court has recently relied on the amendment as grounds for striking down a state statute limiting local communities’ ability to control the environmental effects of fracking.

The Harmer and Barnes & Tucker litigation demanded huge legal and technical resources from the state over several years. In the end these efforts paid off with important landmark decisions marking the end of an era where extractive industries operated with near impunity. Although fracking seemed to signal a return to that era, the recent decision in Gorslin v. Board of Supervisors of Fairfield Twp. v. Inflection Energy, LLC. rested, in part, on the work of the Strike Force.

Pennsylvania’s iron and steel giants, such as US Steel, Bethlehem Steel, Jones & Laughlin, and many others, constituted a network of pollution sources destroying water quality and impairing public health in virtually every corner of the state. Over the decade of the 1970s, a significant portion of the enforcement efforts of the Strike Force were directed at this industry. Since many of the mills’ violations were inherent in antiquated production processes, they provided good opportunities for organizing a strategic approach to enforcement aimed at modernizing steelmaking. In the case of air pollution from the coke ovens, this is the approach the Strike Force would design in concert with the air pollution engineers of DER. After much consultation the two teams of experts developed a model administrative enforcement order that set emission standards and timetables for the cleanup of all coke ovens operated in the state but did not specify technology. In 1972, senior representatives of each of the seven companies operating coke ovens were invited to a meeting in Harrisburg, where the draft order was presented to them with an invitation to begin negotiations on specific details with each company immediately. The shock and indignation of the industry representatives was extreme.

Surprisingly, however, negotiations with every company were successfully concluded over the following months. But over the succeeding years in virtually every case the companies failed to comply with the undertakings they had agreed to. This resulted in a long-lasting series of varying enforcement actions against all the companies. One particularly notable moment in this ongoing struggle was a hearing in the Allegheny County Court of Common Pleas in the summer of 1975, where the commonwealth moved that the presiding judge recuse himself from sitting in a criminal contempt case filed by the state against officers of US Steel on the grounds that his re-election campaign manager was a partner in the law firm representing US Steel. The recusal request failed but the president judge of the Allegheny County Court of Common Pleas removed him from the case and personally took responsibility for it.

The contempt proceeding was filed because of continuing violations of a consent decree covering air pollution abatement at the Clairton Coke Works of US Steel. This was then probably the single largest source of air pollution in the then so-called Free World. The nearly continuous legal battles to clean up Clairton were punctuated with other tactics by the company. At one point in 1975 US Steel went so far as to take out a series of full-page ads in the Pittsburgh newspapers challenging the state’s requirements that it clean up its air pollution and suggesting that it might have made a mistake in choosing to keep its corporate headquarters in the city.

These tactics had an impact but eventually the state, along with Allegheny County and U.S. EPA, was able to force a cleanup at Clairton through a new decree entered into in December 1976. Today the only coke ovens operating in Pennsylvania are a small number at Clairton.

Often companies would grasp at any excuse to wriggle out from the requirements of an agreement they had reached only months earlier. Spring floods had had a serious impact on Bethlehem’s steel works in Johnstown, so the company sought a relaxation of the terms of a recent pollution abatement consent order. The commonwealth resisted and Bethlehem brought its request to the attention of the White House. As a consequence, Governor Shapp and I found ourselves in the state airplane headed to D.C. for a high-level meeting with White House staff along with the administrator of EPA and company officials. In my professional career this was my only meeting at the White House and it took place in the famous Situation Room deep in the basement of the West Wing. Following the meeting, at which concerns about employment and national security were expressed on behalf of the president, those of us at the working level adjourned to the EPA offices of Assistant Administrator for Enforcement Marvin Durning to hammer out some relief for Bethlehem, which we eventually did.

Inadequate operation of sewage treatment facilities and poor handling of solid waste by local government were among the most serious environmental problems facing the commonwealth. As an example of one comprehensive approach to resolving these problems, the Office of Enforcement in April 1972 initiated 72 enforcement actions against municipalities on the Monongahela River. These actions included the filing of contempt and mandamus actions and the issuance of departmental orders. The goal was to take sufficiently robust action to cause all municipalities on the watershed to simultaneously abate their sewage discharges, particularly by being prepared to take advantage of new funding which it was anticipated would be available through the recently passed Clean Water Act.

As the decade progressed it was inevitable that the direction of my career would evolve, and in 1977 I left Pennsylvania and joined the Solicitor’s Office in the Department of the Interior. My new job was to lead the legal team that would help give life to the Surface Mining Control and Reclamation Act, signed by President Jimmy Carter in September. Several of the old Strike Force lawyers joined me and we were able to bring nearly a decade of legal experience regulating the coal mining industry to bear on this new national program. Lawyers in the Pennsylvania Office of Enforcement continued to carry on strong and effective legal work, while some moved into senior executive positions in the department or elsewhere.

The strategic thinking that Strike Force lawyers gave to the development of environmental law and the steady pursuit of a vision through administrative and judicial legal avenues was unparalleled. The coherence and robustness of the resulting body of work means that even decades later those working in the environmental law field understand references to “The Pennsylvania Environmental Mafia.” TEF

50th Anniversary | Technology, even more than regulation, will lead the next half century of environmental improvement

Beginning with passage of the National Environmental Policy Act, followed a few months later by establishment of the Environmental Protection Agency, the last 50 years have reflected the growing need for regulation to protect human lives and livelihoods as well as the planetary ecosystem that supports them. However, it seems that each success, and there have been many, has been followed by news of other challenges that are often even more dire.

The Environmental Law Institute, established in December 1969 alongside these events, has grown to become a leader in analyzing — and shaping — developments in the burgeoning field that grew following passage of NEPA and the other foundational statutes. Over the last 50 years, the Institute has fostered innovative, just, and practical law and policy solutions to ensure environmental legislation and regulation adequately defends the earth’s natural resources at a price society can afford.

The experience of a half century makes it apparent that regulation alone will no longer drive environmental protection. Technology has grown to become a powerful tool in implementing the rapid changes that are needed to avoid the worst effects of climate change and biodiversity collapse.

And technology has also significantly changed the landscape of methods addressing environmental issues. Drones, artificial intelligence, and advanced sensor networks are changing the way pollution and natural resources are monitored and assessed. Emerging technologies are now managing and reducing the environmental impacts of the manufacturing, energy consumption, and services sectors. Bioengineering and biotechnology could change the way that food is produced, such as lab-grown meat or seafood.

In early October, ELI and innovative companies such as Intel, Amazon, BNSF Railway, First Solar, Google, Microsoft, Apple, bp, Exelon, and Bayeco as well as law firms, nonprofits, and law schools held the inaugural GreenTech Conference in Seattle, Washington. The conference explored innovative and transformative technologies influencing environmental sectors, and discussed the unique opportunities and challenges they present for protecting the planetary ecosystem.

Experts from diverse business sectors spoke on the role of law and public policy in facilitating the development and deployment of emerging technologies, their societal benefits and costs, and public reaction to some of these technologies and the management of change. Speakers also shared their experiences and successes through case studies and demonstrations. Additionally, the discussions highlighted opportunities for cross-cutting technological applications, particularly with advancing a circular economy that eliminates waste and reduces resource extraction.

ELI President Scott Fulton gave opening remarks to the conference, followed by keynote speaker William K. Reilly, a former EPA administrator. The workshop spanned three days, with six panel discussions on eliminating waste from the manufacturing economy, the food industry, and energy systems.

A panel titled “The Evolution of e-Services” explored technology as an integral part of the service sector. The service sector accounts for around 80 percent of the United States’ GDP and comprises around 70 percent of the U.S. workforce, thus has large implications for the environment.

The panelists debated how the service sector can harness data services such as cloud computing and blockchain, as well as make effective efforts in reducing their energy and environmental footprints. The panel, moderated by Kathryn B. Thomson of Amazon, also included IBM Lead Counsel on Blockchain Ecosytems Joan Burns Brown, Google Staff Software Engineer Eddie Pettis, and Amazon Director of Energy and Web Services Nat Sahlstrom.

The workshop concluded with a group discussion on legal models for change in tandem with the growth of technology, as well as a colloquium moderated by Fulton on planning for the future.

New Zealand workshop schools ocean protection professionals

Area-based management and Marine Spatial Planning are important ocean resources management techniques. They are essential to separate marine uses, find opportunities for compatible uses, and establish protected areas. Many countries have expressed interest in developing MSP through legal reform. There is also a growing international community of legal experts that work on drafting laws to implement MSP. However, as far as we know, there are no guidance documents to help these professionals do their work.

In continuing a partnership with the Waitt Institute on supporting legal guidance for drafting MSPs, in early September, ELI, Waitt Institute, and IUCN conducted a four-day MSP workshop in Auckland, New Zealand. The workshop brought together legal drafters for MSPs and identified best practices and guidance for developing MSPs within the region and beyond.

The workshop was attended by 24 representatives from 14 different nations, mostly small island nations in the Pacific region. The workshop also hosted participants from ocean resources management organizations such as Conservation International and The Pacific Community, as well as a number of scholars who focus on MSP issues.

The workshop covered an overview of global MSP legislation. Participants also discussed how MSP fits into a nation’s legal landscape.

Topics discussed included the use of legal provisions addressing preliminary matter and definitions for MSP legislation, the scope of an MSP law and ocean jurisdiction, ocean spatial planning and zoning processes, public participation and access to information for MSP, and sustainable funding mechanisms for ocean management.

The Blue Prosperity Coalition led the final day of the workshop on maritime security and implementation of Maritime Domain Awareness, as well as provided updates and news from the National Maritime Intelligence Integration Office.

Session explores tech solutions to Colorado basin water needs

The Colorado River basin, a historically stressed riparian system, is facing a critical water shortage. California, Arizona, Nevada, Utah, Colorado, New Mexico, and Wyoming depend on its water supplies, generating $1.4 trillion in annual economic activity and 16 million jobs, equivalent to 1/12 of the total U.S. domestic product. With an anticipated shortage looming by 2020, the states have been tasked until January 31 to develop a plan before federal intervention. Given the wide geographic, financial, and political contexts within this region, tackling this issue is complicated and requires cooperation among many stakeholders.

One promising potential solution for managing water scarcity in the region is the use of transformative digital technology solutions, such as blockchain or artificial intelligence.

In late October, ELI and Water Foundry held a workshop in Denver, Colorado, that brought together public, private, and nonprofit actors to work together on developing and mapping feasible technological solutions for the basin. Ultimately, the goal of the workshop was to ensure the more efficient, effective, and resilient stewardship of water in the region through technological innovation.

The workshop and associated research builds upon a recent report by the World Economic Forum, which explored a number of technologies that could address challenges in the water sector. The workshop featured technologies of blockchain, sensor nets, and AI, delving into the nuances for each for participants to capture a deeper understanding of their implications for public policy in the context of the region, in addition to identifying the barriers and potential solutions for commercialization and scaling.

AI and blockchain are useful in targeting the traceability of water from the watershed to users such as cities, agriculture, and consumers. Moreover, AI-enabled technologies have great potential to manage water supply and demand.

Areas explored during the workshop included the use of blockchain tokens to reward water conservation efforts at a household or business level, combined blockchain and sensor technologies to monitor and report water quality in municipal water systems, or sensor and AI networks to better measure and predict seasonal fluctuations in water availability.

By pinpointing the current water use and supply challenges and the dynamics of water management in the Colorado River Basin, the workshop participants worked to prioritize two digital technology pilot projects to implement in the region, as well as established a long-term collaboration for the pilot projects.

Field Notes: Ex EPA Chief Reilly keynotes ELI Press book launch

“It’s an extraordinarily consequential piece of work,” said former EPA Administrator William Reilly to kick off the book launch of Legal Pathways to Deep Decarbonization in the United States, published by ELI Press.

“The kinds of approaches that the book describes are attractive, practical, and cost effective and can be undertaken well before we reach a climate crisis,” said Reilly.

The Institute also presented a panel to discuss proposed legal methods to rapidly reduce greenhouse gas emissions, as well as efforts already underway to put these recommendations into action.

The panel included book editors Michael B. Gerrard of Columbia Law School and John C. Dernbach of Widener University Commonwealth Law School. Commentary came from NRDC’s Kit Kennedy, Earthjustice’s Peter Lehner, and Charles Sensiba of Troutman Sanders LLP.

59 authors contributed to the book, and with 35 chapters of over 1,000 legal tools and recommendations to choose from, the report is instrumental in providing policymakers and lawyers the best legal tools for reducing carbon emissions within the federal, state, tribal, local, and private sectors.

Although the goal of an 80 percent reduction in carbon emissions by 2050 is indeed a challenge, Dernbach contended that the concrete recommendations show that the goal is technically feasible and would only cost 1 percent of national income.

The panelists dove into debates about pathways to carbon=neutral agriculture, clean energy technologies, and lower-emission transportation options.

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With the generous support of the Hewlett Foundation, ELI and the China Environmental Protection Foundation have published Environmental Public Interest Litigation: Selected Cases. This casebook, published in Chinese with an English version following, features 120 environmental public interest litigation cases decided by Chinese courts in recent years. The cases include those filed by NGOs and prosecutors and cover a broad range of issues.

The book conducts a systematic examination of the legal issues arising out of environmental public interest litigation in China, and couples the primary sources with in-depth legal analysis.

This new enforcement tool came into broad use only in recent years, specifically due to the implementation of the new Environmental Protection Law in 2015. The publication will be a valuable resource for environmental lawyers at both enforcement agencies and private practice, environmental judges, and NGO workers who are interested in environmental public interest litigation.

ELI expects this book will help to build the capacity of Chinese environmental law communities and promote a more transparent, fair, and predictable environmental rule of law system in China.

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In April, ELI hosted a public webinar featuring the article Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions, included in this year’s ELR Environmental Law and Policy Annual Review. The article, written by NYU Law Professor Richard L. Revesz and Burcin Unel of NYU Institute of Policy Integrity, challenges the conventional wisdom that utilization of energy storage systems will reduce greenhouse gas emissions, and proposes that state and federal regulators adopt policy reforms that internalize emission externalities, eliminate entry barriers, and modify market rules to guarantee accurate price signals that value the benefits of clean energy storage.

The webinar hosted an interesting discussion among the authors and industry experts as they weighed the feasibility and direction of Revesz and Unel’s proposal.

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ELI hosted a special seminar in May to explore the implications of Rapanos v. U.S. and the proposed new jurisdictional rule for the future of wetlands. The panel was moderated by Amanda Waters of the National Association of Clean Water Agencies and featured National Wetlands Awards winners Greg Sutter, Joel Gerwein, and Angela Waupochick.

In a period of less than a month, everything good seemed possible for America. First came the Moon landing, on July 20, 1969. Billions watched out astronauts live from the lunar surface and took pride in humanity’s achievement. In the United States, the concept of collective will to conquer a huge national challenge got a big boost. Project Apollo joined the Manhattan Project as paradigms of government-led Yankee ingenuity licking a technological problem — and on a tight timetable to boot, expenses be damned because of the extreme nature of the threat.

Then, on August 15, “half a million strong,” in Joni Mitchell’s lyric, gathered for the Woodstock Music & Arts Fair, a mega-event never previously attempted and never duplicated in the half century since for its sense of common destiny and generational purpose. In covering her tune a few months later, Crosby Stills & Nash riffed a rejoinder that shows the synchronicity between Apollo and Woodstock: “We are stardust, we are golden. We are billion-year- old carbon. And we got to get ourselves back to the garden.”

Years later, Mitchell lobserved that at the 1969 festival, the kids “saw that they were part of a greater organism.” Indeed, by the time the voting age came down to 18 months later, the Boomers had established themselves as a political force. And while the war in Vietnam continued to divide the country, the can-do spirit of collective action for common good embodied in Project Apollo and Woodstock Nation found a favored outlet with back-to-the-garden environmental lawmaking.

Exploring the Moon “has altered our view of Earth, its ecosystems, and the evolution of a habitable world,” according to David Kring, a geologist at the Lunar and Planetary Institute. “Earth Day’s origins can be traced to the Apollo missions. It is only fitting to recognize the significant contributions lunar exploration has made to better understand planet Earth.”

Analysis of the rocks returned by astronauts as well as photographs of the cratered surface made from orbit led scientists to create the impact theory of extinction on Earth, and even to postulate that the conditions for our biosphere arising in the first place on what was a barren planet were the result of constant hits by large celestial bodies.

Indeed, the lunar rocks proved that Earth’s water, critical to life, was not present on our globe originally but was the later gift of billions of colliding comets, composed of ice and dust, over the eons. The human body is 60 percent comet water and some comet carbon as well, and most of the remaining elements were produced in the center of supernovae near the dawn of the universe. We are indeed, as the astronauts helped prove, made up of stardust and billion-year-old carbon.

Apollo’s greatest gift to human understanding of the Earth’s environment would come three years after the initial landing, when the voyagers returning from the final lunar mission took the first photograph giving a view of our species’ home planet in full phase. The “Big Blue Marble” picture, azure seas and green-brown continents beneath swirling white clouds, went viral, maybe the first such image to do so, appearing on book covers and tote bags with a message that maintaining “the ecology” on Spaceship Earth is like ensuring breathable air is for astronauts.

Meanwhile, back at the time of Apollo 11 and Woodstock, legislators were drafting a law making it the policy of the United States to support Mitchell’s garden, our planetary life-support system, for future generations. “I have come to lose the smog,” she sang, “and I feel myself a cog in somethin’ turning.”

Indeed, in those few weeks in the summer of 1969, it became “the time of man” for all that is harmful about our species’ impact to “turn into butterflies across our nation.”

Notice & Comment represents the opinions of the editor.

Green “Implementation Gap” Costs EU €55 Billion Annually

Failure to effectively implement environmental laws cost the EU economy around €55bn in 2018, according to a new report that quantifies the costs and foregone benefits of not abiding by the environmental targets and rules set out in EU legislation.

The report, authored by engineering consultancy COWI in partnership with environmental consultancy Eunomia, calculates the size of the green policy “implementation gap” in seven key areas: air quality; nature and biodiversity; water; waste; chemicals; industrial emissions and major accident hazards; and horizontal instruments. It does so by measuring the difference between estimates of the environmental status of each area last year and the respective environmental targets EU member states should have met.

The report acknowledges that difficulties quantifying precise costs associated with the implementation gap mean its calculations are only an estimate. But its conclusions are stark and highlight the significant economic impacts that result from the failure to deliver the cleaner air and water and improved environmental performance that member states had promised. The estimated €55bn cost lies in the middle of a broad range of possible totals, running from €29bn to €79bn.

“It is crucial to understand the effects that failing to meet environmental targets has on the EU economy,” said Eunomia lead author Tanzir Chowdhury. The report identifies a range of negative outcomes responsible for this economic impact, including damage to public health, reduced biodiversity, and unrealised market opportunities.

— BusinessGreen

"You often hear that reversing climate change will mean fewer jobs, especially for the poor and working. . . .

"But it’s not true. Clean energy — powered by wind, or solar cells, or water — is growing fast, even as the old fossil-fuel industries decline, and generate fewer jobs.

"More than three times as many people are already employed generating electricity from solar and wind than from coal, oil, and gas combined.”

— Robert Reich in Salon.com

See No Evil Say No Evil

The good news is that fewer Americans are going to die as a result of air pollution. The bad news is that the reduction is due to an accounting trick, not improvements in air quality.

A year go, the Trump EPA “had originally forecast that eliminating [President Obama’s] Clean Power Plan and replacing it with a new measure would have resulted in an additional 1,400 premature deaths per year,” according to the New York Times. Apparently that fact — which professionals will recall embarrassed the White House when it came out at the time the agency announced its replacement rule for greenhouse gas emissions from power plants — is no longer true.

A “new analytical model” in the Times’s wording would adjust how EPA accounts for premature mortality from air pollution. Henceforth, the paper revealed, regulators will assume little benefit in making the air cleaner than legally required, regardless of what the science and economics tell them.

Agency experts promulgating the original rule in the Obama EPA had found significant benefits in lowering greenhouse gas emissions from power plants beyond those due to lower impacts from climate change alone. That is because reducing GHGs from fossil fuels would also result in pushing down emissions of fine particles.

As a cause of heart disease, strokes, and cancer, fine particles are already regulated as a criteria pollutant. The regulatory impact analysis of Trump’s Affordable Clean Energy rule ended up finding higher premature mortality than the rule it would replace because it did not count such “co-benefits” as a policy matter.

William H. Wehrum, EPA’s chief air quality official, told the newspaper that the publication of that number last year was “unfortunate.” The assistant administrator also said, “How in the world can you get $30 or $40 billion of benefit to public health when most of that is attributable to reductions in areas that already meet a health-based standard. That doesn’t make any sense.”

Actually, it makes a lot of sense, because there is no safe level for most air pollutants. “It’s not a hard stop where we can say, ‘Below that, air is safe,’” the Times quotes Jonathan M. Samet, dean of the Colorado School of Public Health and a pulmonary physician. “That would not be supported by the scientific evidence,” Dr. Samet says.

In fact, the Clean Air Act anticipated the need for tightening emissions controls as the result of new science by requiring EPA to revisit health standards every five years. Indeed, as the Times sourced Samet in noting, “The most recent studies showed negative health effects well below” the existing standard for fine particles.

Science’s lack of a safe threshold for most air pollutants means that there will almost always be some benefit in further reductions. In implementing programs that may surpass the health standards, as in the case of co-benefits from GHG reductions by power plants, regulators would usually figure out at what point the total benefits no longer exceed the total costs of the cuts. Not counting co-benefits in such cases is like not counting your employer’s annual IRA match when calculating whether your net worth is sufficient for retirement.

The Times said the change in policy “is the latest example of the Trump administration downgrading the estimates of environmental harm from pollution in regulations.” Meanwhile, the Proceedings of the National Academy of Sciences announced in March that more than 100,000 Americans die each year from fine particle pollution from human sources. That means that there is still plenty of room for additional benefits from reducing this total, even if you call them co-benefits and they are not legally required.