Trends July/August 2013 Table of · PDF fileABA Section of Environment, Energy, and Resources...

ABA Section of Environment, Energy, and Resources Trends July/August 2013

Trends July/August 2013 Table of Contents

Features

A Canadian perspective on the Keystone XL pipeline ..................................................................... 2 Duff Harper and Sarah Nykolaishen

Conservation easements go fishing: The Nature Conservancy’s new legal toolbox for fisheries conservation....................................................................................................................................... 6 Sharon Wasserman, Kate Labrum, Michael Bell, and Joe Sullivan

Decker v. NEDC: A new dispute over judicial deference to an agency’s interpretation of its own regulation........................................................................................................................................... 9 Quin M. Sorenson

EPA finalizes reconsideration rules for boilers and solid waste incinerators but issues remain ...................................................................................................................................................................... 12 Shannon S. Broome and Darrin D. Gambelin

Preempting the Port of Los Angeles’ efforts to improve air quality.........................................17 Justin Pidot and Johna Varty

The growing importance of sustainability to lawyers and the ABA.........................................21 John C. Dernbach, Lee A. DeHihns, and Ira R. Feldman

In Brief ..................................................................................................................................................................... 24 Theodore L. Garrett

Section News

Water, wind, waste, and more: 21st Fall Conference...................................................................... 27 Amy L. Edwards

Views from the Chair: The intersection of cybersecurity and environment, energy, and resources practice.................................................................................................................................... 28 Alexandra Dapolito Dunn

People on the Move .......................................................................................................................................... 30 Steven T. Miano

Published in Trends, Volume 44, Number 6, ©2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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A Canadian perspective on the Keystone XL pipeline

Duff Harper and Sarah Nykolaishen

Duff Harper is a partner in the Calgary, Alberta office of Blake, Cassels & Graydon LLP. Sarah Nykolaishen is an articling student at that same office.

Editor’s Note: An earlier issue of Trends covered the debate over the Keystone XL pipeline from the U.S. perspective. The reader can review Joe Dawley’s earlier comments about the then-proposed pro-ject by selecting the hyperlink here.

TransCanada Corporation’s proposed Keystone XL pipeline (Keystone XL) would enable the transport of an additional 830,000 barrels per day (bpd) of crude oil from the oil sands region of Alberta, across the border, to the U.S. Gulf Coast area. The proposed project would involve the construction of a 36-inch-diameter crude oil pipeline that extends from Alberta, through Saskatchewan, Montana, South Dakota, and into Nebraska.

Canadians are now watching and waiting to see whether Keystone XL will be granted a Presidential Permit, which is required due to the fact that the pipeline will cross the Canadian-U.S. border. Many Canadians have been following the maelstrom of controversy raised by the proposed project in the United States, amongst politicians—and the general public—particularly regarding the premise that oil sands crude is “dirty oil” and should not be allowed into the United States. What is perplexing about the debate is the fact that Canada already transports significant amounts of oil sands crude into the United States through other pipelines. Indeed, approximately half of all Canadian crude oil exports to the United States are already derived from the oil sands. This amounts to about 650,000 bpd. Keystone XL therefore does not involve the transport of a new product into the United States. Rather, it merely represents another pipeline transporting more of the same product.

Canadian politicians are for the most part strongly supportive of Keystone XL. Provincially, Alison Redford, the premier of Alberta, is a staunch supporter. At the federal level, Conservative Party Prime Minister Stephen Harper and Canada’s minister of Natural Resources, Joe Oliver, have invested consid-erable time and effort into promoting the project. While Canada’s official opposition party, the New Democratic Party, opposes the project, its criticism has focused less on environmental issues than on the economic benefits of alternative ways of bringing Canadian oil to market. Finally, the newly elected leader of the Liberal Party, Justin Trudeau, has recently come out strongly in favor of the pro-ject.


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Americans should consider three points as they continue to debate the environmental and economic merits of Keystone XL. First, Keystone XL is only one of several pipeline options that Canada is consid-ering to increase exports of oil sands crude. Second, Alberta has recently taken a number of steps to address and monitor the environmental impacts of oil sands development. Third, Canadian oil sands crude compares well, in terms of greenhouse gas (GHG) emissions, to other sources of U.S. oil imports and to coal.

Canada’s pipeline options Alberta is currently experiencing an oil sands bubble. There is too much product for the existing pipeline infrastructure. Keystone XL is simply one option to enable the transport of additional oil sands crude. Other pipeline options include two proposed projects that would move oil sands crude west and one that would ship it in an easterly direction.

The western pipeline options currently include Enbridge Inc.’s Northern Gateway Project (Northern Gateway) and Kinder Morgan Energy Partners LP’s Trans Mountain Expansion (TM Expansion). The eastern pipeline option currently includes TransCanada’s East Coast Pipeline proposal (East Coast Pro-ject).

Northern Gateway would involve the construction of two new pipelines between central Alberta and the town of Kitimat, on the coast of British Columbia. One line would carry an average 525,000 bpd of petroleum products west from Alberta to the Pacific Coast. The other line would carry on average 193,000 bpd of condensate east. (Condensate is a low-density mixture of hydrocarbon liquids used to thin petroleum products for pipeline transport.)

Northern Gateway is presently undergoing environmental assessment hearings before a Joint Review Panel (JRP). The JRP is required to release its recommendation report by December 31, 2013. There-after, the government of Canada will decide whether the project should receive final approval.

The TM Expansion would involve the expansion of the existing Trans Mountain line, which stretches between Edmonton, Alberta, and Burnaby, British Columbia. The proposed expansion would create a twinned pipeline and increase the capacity of the system from 300,000 bpd to 890,000 bpd. As with Northern Gateway, the TM Expansion must receive regulatory approval before work can begin. If approved, it could also potentially open up Asian markets.

The East Coast Project would involve the conversion of TransCanada’s mainline natural gas pipeline system from natural gas to oil, to enable the shipment of oil sands crude to eastern markets in Canada and beyond. TransCanada’s mainline extends from the Alberta-Saskatchewan border east to the Québec-Vermont border and connects with other natural gas pipelines in Canada and the United States. The East Coast Project would require the conversion of significant existing pipeline infrastruc-ture, which is currently underutilized for the transport of natural gas, and the building of a new pipeline from Quebec to Saint John, New Brunswick, home to Canada’s largest (300,000 bpd) refinery. The East Coast Project is considered as a way to bolster Canada’s own energy security. Ironically,


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notwithstanding that in 2012 Canada was home to the world’s third largest crude-oil reserves (proved reserve of 173.6 billion barrels), Canada imported more than 600,000 bpd to supply its eastern refiner-ies.

With these other pipeline options on the table, Canada is set to expand development of the oil sands regardless of whether Keystone XL is approved. This point is highlighted by the U.S. Department of State’s Draft Supplementary Environmental Impact Statement (SEIS), which notes that even if Key-stone XL is denied, in light of the other pipeline proposals within Canada, oil sands production is unlikely to be significantly impacted. Accordingly, if Keystone XL is rejected and Canada proceeds with other pipeline options, the United States may have missed a significant opportunity to further secure its energy supply.

Alberta’s recent efforts regarding environmental impacts Alberta has made efforts to be proactive in its approach to the regulation of GHG emissions and other environmental issues. In 2007, Alberta became the first jurisdiction in North America to legislate GHG emissions reductions for large industrial facilities by passing the Specified Gas Emitters Regulation, which requires all facilities in Alberta emitting over 100,000 metric tons of carbon dioxide equivalents (CO2e) per year to reduce their emissions intensity by 12 percent below their base line intensities. Facilities that fail to meet these production efficiency targets have the option of buying Alberta-based emissions offset credits or emissions performance credits, or paying $15/metric ton of CO2e over their reduction targets into a fund that supports projects and technologies aimed at reducing GHG emissions in the province. Alberta’s minister of Environment and Sustainable Resource Development, Diana McQueen, has recently indicated that the province is contemplating a new target that would require oil sands emissions reductions of 40 percent below base line intensities and involve a cost of $40/metric ton of CO2e on those companies that do not comply.

Alberta is also focusing on water contamination and water use issues, including the reduction of tail-ings ponds associated with certain oil sands mining projects. It also recently introduced a regional plan that governs development within the oil sands region. The plan is predicated upon cumulative effects management. Mandatory government actions will occur if emissions meet or exceed specified regional thresholds. These management actions can range from the imposition of additional operating condi-tions and restrictions, to actual reductions or capping of emissions output. Finally, in response to criti-cisms that existing monitoring data for the oil sands region is difficult to obtain and compare, Alberta and Canada have recently entered into a joint monitoring program. The monitoring results will be available to the public in an open, transparent, and consistent manner so that everyone can better understand the environmental impacts associated with oil sands development.

Environmental impacts of oil sands crude From a Canadian perspective, the GHG emissions of oil sands crude often appear to be subject to unfair criticism and skewed statistical analyses. On average, oil sands crude production does release more GHGs than many other forms of oil extraction, but the difference is exaggerated if comparisons are restricted to the extraction and processing aspects only (“well-to-tank” basis). Based solely on “well-to-tank” calculations, oil sands development is said to be four, or even five, times more GHG intensive


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than conventional oil. An alternative means of comparison is on a “well-to-wheel” basis. Calculations on a “well-to-wheel” basis compare the amount of GHG emissions released throughout the life-cycle of oil, including emissions associated with its extraction, processing, transport, and ultimate consump-tion in vehicle engines. The last category is important because the combustion of gasoline emerging from vehicle tailpipes accounts for more than 70 percent of life-cycle GHG emissions on a “well-to-wheel” basis. These vehicle emissions are the same, regardless of the crude oil from which the gasoline is derived. A recent Congressional Research Service report that summarizes several GHG emissions studies indicates that on a “well-to-wheel” basis, oil sands crude is 14–20 percent more GHG emissions intensive (as opposed to four to five times more) than the weighted average of U.S. transportation fuels.

The consulting firm Cambridge Energy Research Associates, in a recent letter written to the U.S. Department of State regarding the SEIS, stated that its findings indicate that the life-cycle GHG emis-sions from oil sands crude imported into the United States were only 12 percent higher than the aver-age crude oil consumed and were actually in the same range as, and potentially lower than, Venezuelan crude oil. Those findings are significant for at least two reasons: (1) because Venezuelan crude cur-rently accounts for the majority of heavy crude being refined at U.S. Gulf Coast refineries; and (2) because a 20 percent increase in vehicle engine efficiency (20% x 70% = 14%) would more than offset all of the excess GHG emissions associated with oil sands crude.

The GHG emissions associated with oil sands development also compares quite favourably to the GHG emissions associated with coal. Data from the U.S. Energy Information Administration shows that coal-fired power plants make up about a quarter of U.S. GHG emissions. In 2010, emissions associated with U.S. coal-fired power plants were nearly 40 times greater than emissions from the oil sands. Further, Greenpeace recently released a report that predicts and compares the GHG emissions that will be pro-duced by 14 major resource development projects around the world. The report, which is critical of oil sands development, notes that the oil sands could be emitting 420 million metric tons of CO2e per year by 2020, from both production and consumption. However, these emissions seem insignificant com-pared with China. Booming coal production in China will likely create 1,400 million metric tons of additional CO2e per year by 2015.

Considering the likelihood that oil sands will be developed in some fashion, the increased environmen-tal scrutiny of its actual extraction at the source, and the less attractive alternative of America’s con-tinued reliance on coal, oil sands crude may not be as “dirty” as many environmental critics have argued.


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Conservation easements go fishing: The Nature Conservancy’s new legal toolbox for fisheries conservation

Sharon Wasserman, Kate Labrum, Michael Bell, and Joe Sullivan

Sharon Wasserman is the managing attorney for California at The Nature Conservancy. Kate Labrum is the Marine Conservation coordinator at The Nature Conservancy of California. Michael Bell is the senior Marine Project director at The Nature Conservancy of California. Joe Sullivan is a partner at Sullivan & Richards LLP.

Historically, groundfish served as the economic backbone of fisheries along the Central Coast of Cali-fornia. Consequently, the decline of the groundfish fishery through the 1980s and 1990s resulted in significant negative economic impacts along the Central Coast, as local port businesses and processors started to close due to significant reductions in landings and revenue. Gleason, M., E. Feller, M. Merri-field, S. Copps, R. Fujita, M. Bell, S. Rienecke, C. Cook, A transactional and collaborative approach to reducing effects of bottom trawling. 27 CONSERVATION BIOLOGY 470–479 (June 2013). In 2000, the collapse of the groundfish fishery exposed weaknesses in fishery management that restricted harvest opportu-nities and encouraged overreliance on certain fishing practices.

In California, The Nature Conservancy (TNC) responded to the collapse of the west coast groundfish fishery by establishing its Central Coast Groundfish Project in 2004. The project addresses both over-fishing and inappropriate fishing practices by working with fishermen and coastal communities to develop sustainable ways to catch groundfish and to support the local economy and the ocean simulta-neously. TNC’s team adapted legal tools developed and refined over 60 years of working in the terres-trial realm of conservation and applied these tools to the marine realm to achieve major advancements.

TNC has traditionally focused its conservation efforts on acquiring either the fee title to or a conserva-tion easement on real property in a private transaction with a landowner. A conservation easement is in part an interest in land and in part a legal agreement that restricts the activities of landowners in perpetuity to protect conservation interests. California law (as well as the law of most states and the Internal Revenue Code) recognizes the validity of perpetual conservation easements held by specific permitted easement holders (usually nonprofit organizations or government agencies). SeeCAL. CIV. CODE § 815 (West 2013) and 26 U.S.C. § 170(h) (2013). While many of the TNC’s easement acquisitions


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are funded by government grants, the easements themselves are private, consensual arrangements between the parties. In 2003, TNC found an opportunity to adapt these conservation strategies and apply them in the ocean to the declining central coast bottom trawl fishery.

Bottom trawling is a fishing technique that typically drags large weighted nets along the seafloor. In a mixed stock fishery, using this gear can result in bycatch (i.e., catch of non-target species) and modifi-cation of seafloor habitat. Overreliance on this fishing method has resulted in high bycatch rates, dis-ruption of sensitive habitat, and depletion of certain fish stocks. In the mid 1990s, fishery managers reacted to this trend by imposing tighter restrictions on where and when fishing could occur, which, in turn, led to a drastic decline in the west coast groundfish fishery’s economic performance (Gleason et al. 2013).

When it initially undertook the Central Coast Groundfish Project, TNC sought to identify common interests and goals with industry, government, and individual fishermen. It then looked to its existing conservation toolkit, but no legal equivalents of conservation easements existed for the oceans. At that time, the National Marine Fisheries Service (NMFS) managed the west coast groundfish fishery under a “limited entry permit” system. These permits are transferable fishing licenses, permitting fishing using specific gear when seasonal closures are not in place. While permits can be bought and sold, there is no system for imposing recorded, permanent use restrictions on a permit.

TNC as a participant in the fishery Borrowing from its experience on the land, in 2005 TNC embarked on a new legal strategy for conser-vation in the ocean. As a first step, TNC purchased trawl fishing permits and vessels from fishermen and, in exchange, those fishermen agreed to support the design and establishment of a number of no-trawl zones off California’s central coast totaling 3.8 million acres. The fishermen entered into Option Agreements, which provided that TNC would buy their vessel and/or permit at the time that the NMFS established the no-trawl zones. In addition TNC required the fishermen selling their permits or vessels to enter into non-competition agreements for a period of five years to foreclose the ability to engage in bottom trawling anywhere in U.S. waters. In total, TNC purchased six vessels and half of the permits available on the Central Coast—a total of 13 permits.

While the concept of “retiring” permits borrowed on the conservation easement concept, issues spe-cific to fishery management posed new challenges for that approach. For example, fishing permits pro-vide an opportunity to catch a portion of the total fishery’s total allowable catch (TAC). However, if a fishing permit is not used, the portion of the TAC that would have been harvested under that permit becomes available to the active fleet. TNC realized there was more potential conservation gain in rede-ploying the permits it had acquired under appropriate terms instead of shelving them. Borrowing from the conservation easement approach, in 2007, TNC leased a permit back to a trawl fisherman and required that the fisherman comply with geographic restrictions developed in collaboration with TNC scientists, as well as a suite of monitoring and reporting terms designed to verify the bycatch perfor-mance of the fishing vessel.


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Experiments with gear switching Prior to 2011, west coast groundfish fishery permits were designated by gear type, meaning that a trawl permit could only be used to deploy trawl gear. This prevented fishermen with trawl permits from experimenting with gears such as hook and line or traps. In 2007, TNC along with its unique coalition forged in the central coast, convinced the Pacific Fishery Management Council to grant TNC experi-mental fishing permits to test the benefits of switching from trawl gear to non-trawl gear. TNC then entered into leases with six fishermen that required the fishermen to: (1) use alternative gear such as traps, pots, hook and line, or long line gear; (2) work with TNC to develop and implement fishing plans; (3) comply with geographic and species restrictions in those fishing plans; and (4) carry human observers onboard every trip. The gear-switching experiment resulted in the significant reduction of bycatch of five of the six most vulnerable and overfished species and proved that a harvest model tar-geting lower volumes of high value, high quality fish was a viable option for the fishery.

The latest effort: “Risk pools” In 2011, the NMFS implemented an “Individual Fishing Quota” (IFQ) system in the west coast ground-fish fishery. Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Amendments 20 and 21; Trawl Rationalization Program, Final Rule, 75 FED. REG. 78,343–78,427 (Dec. 15, 2010). Under the IFQ system, trawl permit holders (including TNC) were allocated transferable “quota shares,” which generate an exclusive right to harvest or transfer a certain amount of annual “quota pounds” based on the TAC for the fishery. The IFQ program also included a blanket gear switching authorization, providing fishermen with flexibility in how they harvest their quota pounds. Instead of operating under seasonal closures or trip limits, fishermen are able to plan their harvest activities across the entire year and can wait for good weather or when fish prices are high. Addition-ally, fishermen benefit from rebounding fish stocks because as stocks increase, they will receive larger amounts of quota pounds under their quota shares. NMFS has issued quota shares for 30 species. There are caps on the amount of quota shares any single person can own or control to prevent excessive con-solidation in the fishery.

A key challenge for the entire fishery under the IFQ system is the extremely limited supply of “over-fished species” quota that constrains the harvest of more abundant species and the economics of the fishery. There are eight federally designated “overfished species” in the west coast groundfish fishery. In order to rebuild these species, fishery managers have set very low annual TACs for them, resulting in very small amounts of quota pounds being allocated across the fishery. Fishermen are at high risk of exceeding their quota for these overfished species while attempting to harvest more abundant target species. If they do, they must either purchase additional quota for overfished species (which can be very expensive) or stop fishing for the season.

TNC has been working with two local fishing associations (the Fort Bragg Groundfish Association and the Central California Seafood Marketing Association) to adapt the concept of insurance risk pools to address these circumstances. The two associations formed a “risk pool” for all the members of their associations pursuant to an annual agreement. The agreement requires members to pool their over-fished species quota pounds and create fishing plans (in collaboration with TNC) that minimize the harvest of overfished species through gear diversification, spatial planning, and other fishing prescrip-


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tions. In return for adaptively managing and complying with those fishing plans, the fishermen are “covered” for their incidental catch of any overfished species instead of having to go to the open mar-ket where overfished species quota can be prohibitively expensive or unavailable. If incidental catches do occur, the risk pool agreement ensures that spatial information is shared across the membership using an application developed by TNC called eCatch that allows fishermen to enter logbook informa-tion using iPads and see maps of overfished species harvests by all members of the risk pool. The fish-ing associations, in coordination with TNC, use the eCatch information to update and adapt the fishing plans. TNC, in addition to leasing its quota pounds for target species to individual fishermen, is also leasing all its quota pounds of overfished species to the members of the risk pool.

The results of the first two years of operation of the risk pool have exceeded initial expectations. In order to measure the risk pool’s performance, the manager of the risk pool collects and tracks impor-tant fisheries-dependent data on quota holdings and landings. In 2011 and 2012, the members of the risk pool privately managed the annual fishing rights for over 10 million quota pounds and kept their annual usage of overfished species quota to a much lower level than the rest of the groundfish fleet. For example, in 2012 risk pool members kept their bycatch ratio of overfished species to target species to 0.48 percent (i.e., 4.8 pounds of overfished species were caught for every thousand pounds of target species), while the rest of the non-whiting groundfish fleet had a bycatch ratio of 1.25 percent (i.e., 12.5 pounds of overfished species per thousand pounds of target species). The concept of risk pooling has caught on in the west coast groundfish fishery and there are now four separate risk pools operating under similar agreements.

Through the Central Coast Groundfish Project, TNC has pioneered a new role in marine conservation using a portfolio of legal tools traditionally employed for land-based conservation. TNC believes there is opportunity to replicate and apply similar solutions to fisheries’ problems around the world where overharvesting, destructive fishing practices and inefficient management are costing the world econ-omy more than $50 billion each year. See The World Bank, The Sunken Billions: The Economic Justifica-tion for Fisheries Reform (2009),available at http://go.worldbank.org/MGUTHSY7U0. Fishery reform breakthroughs can be achieved by identifying common ground with resource users and building collab-orations to find innovative solutions among individual fisherman, local communities, industry, state and federal agencies, and nonprofits.

Decker v. NEDC: A new dispute over judicial deference to an agency’s interpretation of its own regulation

Quin M. Sorenson


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http://go.worldbank.org/MGUTHSY7U0


Quin M. Sorenson is a partner at Sidley Austin LLP, and regularly represents clients in environmental appeals.

Editor’s Note: For an earlier preview of the background and environmental regulations involved in this case, please see Decker v. NEDC: The Supreme Court may not be the end of the (unregulated) forest road.

The question addressed by the Supreme Court in Decker v. Northwest Environmental Defense Center (NEDC), 133 S. Ct. 1326 (2013), was a narrow one: whether stormwater runoff from logging access roads qualifies as a “point source” discharge subject to the permitting requirements of the Clean Water Act. The decision, however, may have significant downstream effects on a basic principle of adminis-trative law that was previously thought settled. That principle, initially recognized more than fifty years ago in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and commonly known as the “Auer doctrine” (after Auer v. Robbins, 519 U.S. 452 (1997)), holds that an agency’s interpretation of its own regulation is entitled to deference by the federal judiciary. The decision in Decker, and most specifically Justice Scalia’s dissent, now calls that doctrine into doubt.

The litigation and appeal process There was little to suggest, from the start of the litigation through argument before the Supreme Court, that Decker would be anything other than a relatively standard Clean Water Act citizen suit action. NEDC filed a complaint under the citizen-suit provision of the act, alleging that companies engaged in timber harvesting were allowing stormwater runoff to flow from logging access roads into local waterways without obtaining a required permit under the National Pollutant Discharge Elimina-tion System (NPDES). The act provides that stormwater runoff qualifies as a “point source” discharge subject to NPDES permitting requirements if the runoff is “associated with industrial activity,” 33 U.S.C. § 1342(p). The U.S. Environmental Protection Agency (EPA) had by regulation defined the latter phrase as any runoff “directly related to manufacturing, processing or raw materials storage areas at an industrial plant . . . includ[ing] . . . storm water discharges from . . . immediate access roads,” 40 C.F.R. § 122.26(b)(14) (2006). Notwithstanding the facial breadth of this regulatory definition, EPA had con-sistently interpreted it as encompassing only runoff from “fixed” industrial facilities, such as sawmills or log-sorting facilities, and not stormwater runoff (rain) from temporary, outdoor logging operations of the type at issue. 133 S. Ct. at 1336.

The district court accepted EPA’s interpretation, citing the principle from Auer that “[a]n agency’s interpretation of its own ambiguous regulation is controlling unless the interpretation is ‘plainly erro-neous or inconsistent with the regulation,’” and on that basis dismissed the complaint. Nw. Envtl. Def. Ctr. v. Brown, 476 F. Supp. 2d 1188, 1197 (D. Ore. 2007). The Ninth Circuit reversed. 640 F.3d 1063 (9th Cir. 2011). It agreed that courts must generally “defer to an agency’s interpretation of its own regula-tions,” but held that in this case the agency’s construction—holding that runoff from logging access roads is not “associated with industrial activity”—could not be squared with the broad regulatory defi-nition of the phrase, particularly that language describing runoff from “immediate access roads” as an example of runoff “associated with industrial activity.” Id.


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The Supreme Court granted review on June 25, 2012. Notably, on the Friday before the Monday oral argument, EPA issued a revised regulation redefining the phrase “associated with industrial activity” to expressly exclude stormwater runoff from logging roads. 77 Fed. Reg. 72,970 (Dec. 7, 2012). That regu-lation, however, did not render the case moot, insofar as the complaint requested relief for alleged past violations, when the prior regulation was in effect. 133 S. Ct. at 1335. But, EPA’s eleventh-hour revi-sion to its regulation, did prompt some sharp questions by the Chief Justice to the Solicitor General’s office about the lack of notice to the Court during oral argument.

Supreme Court decision The Supreme Court issued its decision on March 20, 2013. While the majority opinion had the immedi-ate effect of reversing the Ninth Circuit’s judgment, the separate opinions of Justice Scalia and the Chief Justice (joined by Justice Alito) may provide the most long-term interest and impact.

The majority opinion, authored by Justice Kennedy and joined by six other Justices (with Justice Breyer, whose brother presided over the district court litigation, not participating), reflects a straight-forward and essentially unquestioning application of the Auer doctrine. It explained that an agency is entitled to “interpret its own regulation” and that, when it does so, “the Court, as a general rule, defers to [that interpretation].” 133 S. Ct. at 1337. Without disagreeing that the regulatory definition of “associated with industrial activity” could reasonably be construed to include runoff from logging access roads, as the Ninth Circuit had held, the majority concluded that the phrase was not unambigu-ous and that EPA was therefore entitled to adopt its own interpretation. Id. Even if EPA’s construction was not “the only possible reading of [the] regulation”—“or even the best one”—it was entitled to def-erence. Id.

Justice Scalia’s dissenting opinion was unequivocal in tone, starting with a critical observation of the agency’s efforts to rewrite its own regulations even during the briefing of this very case. Stating that “[e]nough is enough,” Justice Scalia challenged the jurisprudential foundation of the Auer doctrine itself. He argued that there is no reason and no basis for courts to accord agencies deference in their interpretation of their own regulations. Id. at 1339. Whatever expertise an agency may possess, and whatever its underlying intent in promulgating a regulation, a regulation—once adopted—constitutes a rule of law binding on the public and, as such, it falls to the judiciary to “say what the law is.” Id. at 1340. While true that an agency has some discretion in interpreting the meaning of an ambiguous statute, under Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984), it cannot be granted the same authority to construe its own regulations. 133 S. Ct. at 1340–41. That is because, in that instance, “the power to write a law and the power to interpret it [would] rest in the same hands.” Id. at 1341. Notwithstanding any pragmatic benefits the Auer doctrine may offer, including some reduction in uncertainty over the interpretation of agency regulations, “beneficial effect cannot justify a rule that not only has no princi-pled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.” Id. at 1342.

The Chief Justice, in a separate concurring opinion joined by Justice Alito, agreed that Justice Scalia had “raise[d] serious questions about the [Auer] principle,” and stated further that “[i]t may be appro-priate to reconsider that principle in an appropriate case.” Id. at 1338–39. “But this is not that case,”


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he concluded, because the issue had not been “brief or argued” by the parties. Id. He suggested, though, that an “appropriate” case should arise in short order, given that “[q]uestions of . . . Auer def-erence arise as a matter of course on a regular basis,” and ended his opinion with the less than subtle hint that “[t]he bar is now aware that there is some interest in reconsidering those cases.” Id.

An invitation—and perhaps more There is no doubt, in light of the separate opinions in Decker, that a challenge to the Auer doctrine may be viable in the Supreme Court. Three Justices of the Court have affirmatively expressed an interest in reconsidering the doctrine, and it appears quite possible—if not likely—that at least one other Justice would join in voting for certiorari in such a case. For that reason, counsel in any administrative law case—in the environmental field or otherwise—in which the Auer doctrine may play a role would be well-advised to preserve and press that challenge throughout the proceedings, to ensure that their case, if it reaches the Court, qualifies as one in which (to quote the Chief Justice) “the issue is properly raised and argued.” 133 S. Ct. at 1339.

But, while Decker certainly suggests an increased likelihood of review, it does not necessarily portend any greater chance of success. The fact remains that seven Justices, including Justice Thomas, joined the majority opinion approving and applying traditional Auer deference. While those Justices may nev-ertheless harbor some of the same doubts as Justice Scalia, none of them expressed those reservations, despite the seemingly easy opportunity to do so afforded by the Chief Justice’s concurring opinion. Whether the Chief Justice’s invitation in Decker will lead to more than mere academic commentary may, in the end, depend on the facts of the case in which the question is ultimately presented, includ-ing how directly those facts illustrate and highlight the concerns highlighted by Justice Scalia.

It also remains to be seen whether and when these same concerns, raised here to challenge Auer defer-ence, are raised in later cases to strike at the underlying concept of Chevron deference itself, calling into question another of the pillars of the modern administrative state. Only time, and further argu-ments and opinions, will tell whether Decker marks a milestone in administrative law, or simply another Clean Water Act case.

EPA finalizes reconsideration rules for boilers and solid waste incinerators but issues remain

Shannon S. Broome and Darrin D. Gambelin


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Shannon S. Broome is a partner in Katten Muchin Rosenman LLP’s Environmental Practice Group, heading its Air Quality and Climate Change Practice. Darrin D. Gambelin is an associate in the firm’s Environmental Practice Group.

In just over a week’s time earlier this year, the U.S. Environmental Protection Agency (EPA) published three important rules resolving petitions for reconsideration of its heavily litigated, long-awaited com-bustion regulations for hazardous air pollutants under Clean Air Act (CAA) sections 112 and 129 (42 U.S.C. §§ 7412 and 7429). The three revised rules are:

• Maximum Achievable Control Technology (MACT) for Industrial, Commercial, and Institutional Boilers at Major Sources (Major Source Boiler Reconsideration Rule) (Jan. 31, 2013);

• Generally Available Control Technology (GACT) for Industrial, Commercial, and Institutional Boil-ers at Area Sources (Area Source Boiler Reconsideration Rule) (Feb. 1, 2013);

• Commercial and Industrial Solid Waste Incineration Units (CISWI Reconsideration Rule) and Non-Hazardous Secondary Materials that are Solid Waste (NHSM Reconsideration Rule) (Feb. 7, 2013).

These rules produced mixed reactions from stakeholders and some have filed new petitions for recon-sideration with EPA. While courts will ultimately resolve the legality of the new rules, companies must proceed to comply. An article in the March/April 2013 Trends addressed the NHSM Reconsideration Rule. This article focuses on issues companies should think about for compliance with the Boiler and CISWI Reconsideration Rules.

EPA’s Boiler Reconsideration Rules Under CAA section 112, EPA must issue MACT standards for major sources of hazardous air pollutants (i.e., those sources with potential emissions of any single hazardous air pollutant of at least 10 tons per year or emissions of combined hazardous air pollutants of at least 25 tons per year). Section 112 also requires GACT for “area sources”—those with emissions below “major source” levels. Industrial boilers are subject to both major and area source standards.

EPA initially issued its Major Source Boiler MACT in 2004. That initial rule was challenged by environ-mental groups, and then vacated by the D.C. Circuit in 2007 in Natural Resources Defense Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007). EPA proposed new rules in 2010, but due to their complexity, delayed the final rules. Frustrated with the lack of progress, environmental groups obtained a court order, which led to final rules in March 2011. Upon issuing the new rules, EPA took quite a unique step. It announced its immediate reconsideration of the rules and stayed their effectiveness. The reconsider-ation process resulted in a December 2011 EPA proposal to revise several aspects of the regulations, and EPA issued the “reconsidered” rules in early 2013.


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Emissions limits and limited use definitions in the Boiler Reconsideration Rules Emission limits for coal-, liquid fuel-, and biomass-fired boilers at major and area sources remain con-tentious issues for all stakeholders. There are now 21 subcategories for major source boilers that, among other things, split the liquid fuel subcategory into “heavy” and “light” liquid and add a separate subcategory for coal fluidized-bed units with fluidized-bed heat exchangers (so-called “refuse units”). The Major Source Boiler Reconsideration Rule adjusted some emission limits, including raising the car-bon monoxide limit for major source existing biomass wet stoker boilers from 490 to 1,500 parts per million (ppm) and lowering the existing coal stoker boiler limit from 270 to 160 ppm. But, industry groups remain concerned that these boilers require costly controls to meet limits.

Environmental groups, on the other hand, claim the limits fail to satisfy statutory requirements, argu-ing that EPA improperly based subcategories on fuel choice. They claim limits must be set based on the lowest emitting fuel, such as natural gas and implicitly argue that EPA should borrow from the recent proposed greenhouse gas CAA section 111 New Source Performance Standards for electric utilities, which included a “fuel neutral” standard. Environmental groups also object to EPA’s exclusion of gas-fired boilers at area sources from regulation.

EPA expanded the limited-use subcategory of boilers by changing the prior strict definition of not more than 876 annual hours’ limitation to a flexible definition using a 10 percent capacity factor. This revised definition gives owners greater operational flexibility for boilers that are generally back-up energy sources, while maintaining equivalent emissions. Again, environmental groups object, arguing that the hours-based limited-use exemption was tied to infeasibility of stack testing, which they claim is inapplicable with the 10 percent capacity factor approach.

In the March 2011 rules, EPA determined that so-called “work practice” standards (instead of numeri-cal limits) were appropriate for certain categories of boilers, including natural gas fired units at major sources and small and limited-use boilers. These work practice standards consisted of tune-ups and an energy assessment. Additionally, for emissions of dioxin/furan from major sources and during startup and shutdown periods, EPA explained that it was setting only work practice standards. In the 2013 reconsidered rules, EPA rejected environmental group requests to set more stringent numeric emis-sions limits for these two hazardous air pollutants and operation periods.

Energy assessments and sources in the Boiler Reconsideration Rules Regulated entities continue to question the legality of the energy assessment requirement, which is a one-time obligation to assess a boiler and the equipment that utilizes its energy or steam and deter-mine ways to reduce energy or steam demand. In the reconsideration process, some entities requested elimination of the requirement while others sought a narrower scope. EPA responded by limiting the energy assessment to those energy use systems located on-site and associated with the affected boil-ers. EPA also created a series of caps for on-site technical hours for the assessment, depending on boiler size, from 8 to 160 hours. The scope of the assessment is also bounded, such that facilities with very large boilers need only evaluate those operations using at least 20 percent of the boiler’s output.


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The energy assessment is unusual in part because it requires a regulated entity to review and assess equipment outside the regulated source category. Moreover, because EPA arguably cannot require implementation of the steps identified in the energy assessment because there has been no evaluation of those steps under the statutory MACT criteria, many believe it is beyond EPA’s authority. EPA asserts this requirement is a cost-effective “beyond-the-floor” MACT requirement, claiming it will result in emission reductions based on the assumption that operators will be likely to implement any cost-effective energy savings measures identified in the assessment. EPA’s authority thus remains in question pending litigation.

The Major Source Boiler Reconsideration Rule imposes work practices for natural gas-fired units and numerical limits for units fired with oil or coal; area source gas-fired boilers are excluded from regula-tion. Due to potential natural gas curtailments, particularly in colder climates, gas-fired units must be able to burn oil as a “back-up” fuel. Thus, it is important to identify how much or how often a boiler may burn back-up oil and still be considered a “gas-fired” unit subject only to work practices. In the March 2011 rule, EPA considered a unit to be “gas-fired” as long as it only burned liquid fuel during curtailment periods and for 48 hours of periodic testing. While industry petitioners argued for more than 48 hours of testing, EPA did not increase the allowance in the reconsidered rule.

As shown on EPA’s website, the agency has long promoted beneficial use of landfill gas, calling it a “win/win opportunity.” As a result, many companies purchase gas from nearby landfills and use it in plant boilers to generate power and steam. Otherwise, the landfill gas would simply be flared to the atmosphere. Industry reconsideration petitions sought changes that would treat landfill gas just as natural gas is treated under the rule. In response, EPA has removed the requirement to test landfill gas for hydrogen sulfide content and reduced the monthly sampling frequency for mercury to semi-annual testing if initial testing shows the landfill gas is less than 75 percent of the standard. Mercury testing is eliminated if initial sampling shows mercury is less than half the standard.

EPA’s approach to startup and shutdown periods EPA’s changes to the definitions of “startup” and “shutdown” promise to complicate operations for some units. The distinction between periods of startup/shutdown and normal operations is critical for operators of coal-, oil-, and biomass-fired boilers because numerical emission limits apply during nor-mal operation and work practices apply during startup and shutdown. The 2011 rules defined startup as beginning with the start of combustion and ending when 25 percent load is achieved. Shutdown would begin when the unit drops below 25 percent load and continue until combustion ceases. Now, the 25 percent load criterion has been dropped, so startup ends when steam/heat is first supplied for heating, producing electricity, or any other purpose, and shutdown begins when steam or heat is no longer supplied to processes or no fuel is being fired in the boiler.

Another change in the most recent revisions is a new requirement that to avoid stringent limits during startup, boilers fired with coal, biomass, and heavy oil may only operate on a limited number of “clean fuels,” which industry challengers consider too narrow in that they exclude fuels like dry biomass and


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biodiesel. They also argue that many emission control devices cannot be engaged until the exhaust is up to a certain temperature. Accordingly, they are concerned that this requirement may force expen-sive retrofits for coal – and biomass-fired boilers.

The Major Source Boiler MACT Reconsideration Rule includes a new requirement for electronic sub-mittal of compliance reports. This change, which has gone relatively unnoticed, would require all major sources to submit compliance reports electronically to EPA and would exist independent of state reporting requirements. Sources in states that have not converted to electronic reporting will need to submit both paper reports to the state and electronic reports to EPA. Even in states accepting elec-tronic reporting, EPA’s system may not be compatible with the states’ such that separate electronic reports may be required.

Issues and significant changes in the CISWI Reconsideration Rule Like the Boiler Rules, EPA’s CISWI Rules have a long history of issuance, litigation, reconsideration, and reissuance. CISWI units are regulated under CAA section 129, imposing similar standards to sec-tion 112 MACT requirements. Section 129 has no size thresholds and regulates nine specific pollutants emitted from units burning “solid waste.” The CISWI and Boiler Rules complement one another in that boilers burning fuel are subject to the Boiler Rules and boilers burning solid waste are subject to CISWI Rule.

In response to CISWI Rule reconsideration petitions, EPA adjusted emission limits for coal and bio-mass energy recovery units, providing separate standards for all nine pollutants. For existing units, CISWI requirements are implemented through state plans, subject to EPA approval. Existing units have three years after state plan approval or five years after CISWI Rule issuance, whichever is earlier, to comply. New units comply upon startup or by August 7, 2013, whichever is later. EPA also adjusted monitoring requirements for carbon monoxide and particulate matter and reinstated a definition of contained gaseous material.

An interesting aspect of the CISWI Reconsideration Rule is its inclusion of “rule-switching” provisions, whereby boilers must comply with CISWI requirements immediately upon burning solid waste and continue to comply for six months after ceasing to burn such waste. At this point, a boiler owner may opt to continue to comply with CISWI or switch to the Boiler Rules.

Petitions for further reconsideration of the new CISWI requirements have already been submitted and like the Boiler Rules, ultimate resolution will await further litigation.

EPA’s efforts to address uncertainty EPA recognizes that numerous “nuts and bolts” implementation questions exist and has already posted a “Q&A” document on its website addressing several questions that have arisen to date. Nonetheless, given both the complexity and intricacy of the new Boiler and CISWI rules and the ongo-ing legal challenges, the regulated industry must expect a continued period of uncertainty even with the new reconsidered rules.


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Preempting the Port of Los Angeles’ efforts to improve air quality

Justin Pidot and Johna Varty

Justin Pidot is an assistant professor at the University of Denver Sturm College of Law. Johna Varty is a graduate of the University of Denver Sturm College of Law.

Editor’s Note: The Supreme Court issued its unanimous opinion while this article was in the process of final publication. As the authors predicted, the Court issued a relatively narrow opinion, finding that certain placard and parking requirements imposed by the Port of Los Angeles on truckers were expressly preempted. The Court also concluded that the Port could exclude from its facilities those trucks in violation of financial and truck maintenance requirements, but declined to consider in a pre-enforcement posture whether implied preemption under Castle prevents the Port from “punishing past, cured violations of the requirements challenged” in this case.

Efforts to curtail California air pollution have found their way to the U.S. Supreme Court. In American Trucking Associations, Inc. v. City of Los Angeles, 133 S. Ct. 2096 (2013), the Court considered whether federal law preempts efforts by the Port of Los Angeles (Port) to reduce the environmental effects of commercial trucks operating within its facility. The Port pursued this goal by requiring each truck com-pany to sign a “concession agreement” restricting their operations. The American Trucking Associa-tions (ATA) filed suit arguing that aspects of the concession agreements are expressly preempted under the Federal Aviation Administration Authorization Act (FAAAA). ATA also argued that the con-cession agreements were impliedly preempted because they conflicted with the Motor Carrier Act.

The Court appears poised to hold the concession agreements preempted, but may do so on narrow grounds. If it takes that course, the decision will be a setback for California air quality but may have few repercussions for environmental law generally.

Preemption under the FAAAA and the Motor Carrier Act The Motor Carrier Act was the first federal law regulating the trucking industry, requiring, among other things, that interstate trucking companies obtain a “certificate of public convenience and neces-sity” from the federal government. The Motor Carrier Act has no provision expressly preempting state law. The Supreme Court’s 1954 decision in Castle v. Hayes Freight Lines, 348 U.S. 61 (1954), however, applied principles of implied or conflict preemption to hold that a state must allow federally certified companies access to the state’s highways because denial of such access would constitute a “suspension or revocation of an interstate carrier’s . . . right to operate.”


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Congress enacted the FAAAA in 1994 as part of ongoing deregulation of commercial transportation. Section 14501(c) of the FAAAA preempts state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transporta-tion of property.” 49 U.S.C. § 14501(c)(1). That section also limits its effect, providing that it does not apply to “the safety regulatory authority of a State with respect to motor vehicles.” Id. § 14501(c)(2)(A). Section 14506(a) further provides that no state may take action “having the force and effect of law that requires a motor carrier . . . to display any form of identification on or in a commercial motor vehicle . . . other than the forms of identification required by the Secretary of Transportation.” 49 U.S.C. § 14506(a).

The concession agreements The Port of Los Angeles is the nation’s largest port. More than 16,000 trucks provide “drayage services” within the Port, hauling cargo from container ships to off-port facilities. The Port lies within Califor-nia’s South Coast Air Quality Management Basin, which perpetually suffers from poor air quality. In 2008, the basin had the nation’s worst air quality for ozone and fine particulate matter.

The Port has perennially attempted to expand, but its efforts have met stiff opposition focused, in part, on concerns that expansion will require more drayage trucks, which will release more exhaust and affect parking in the area. To allay these concerns, the Port developed a concession agreement to gov-ern drayage companies, requiring each to sign an agreement to operate within the Port. Those conces-sion agreements include requirements that drayage companies, which both operate and contract with individual trucks: (1) submit for approval an off-street parking plan, (2) maintain all trucks in accor-dance with manufacturer instructions, (3) display a placard on all trucks providing a phone number for the public to report environmental or safety concerns, and (4) demonstrate financial capability to per-form their required duties.

The litigation below After the Port mandated the concession agreements, ATA brought suit challenging the agreements in federal district court. The district court litigation focused on whether § 14501(c) preempts the conces-sion agreements or whether, instead, that section does not apply to governmental market participa-tion. Additionally, the parties disputed whether the Motor Carrier Act prevents the Port from denying drayage companies access to Port facilities for violating their agreements. The parties similarly con-tested the application of § 14506(a) to the placard requirement.

The Port essentially prevailed before both the district court and the Ninth Circuit. The Ninth Circuit concluded that provisions of the concession agreements relate to a price, route, or service of a motor carrier and therefore falls under § 14501(c) and also that the placard requirement falls under § 14506(a). The Ninth Circuit, however, held that a market participant exception applies because the concession agreements advance the Port’s proprietary interest in quelling opposition to its expansion. The court further held Castle inapplicable because the Port comprises only a small portion of Califor-nia’s transportation infrastructure and, therefore, denial of access did not constitute a revocation of a federal right to operate. Am. Trucking Ass’ns v. City of Los Angeles, 660 F.3d 384 (9th Cir. 2011), cert. granted, No. 11-798 (2013).


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The Supreme Court proceedings On January 11, 2013, the Supreme Court granted ATA’s petition for certiorari on the questions of (1) whether a market participant exception shields the concession agreements from preemption under § 14501(c) and § 14506(a); and (2) whether the MCA, as interpreted by the Court in Castle, prevents the Port from denying drayage companies access to port facilities. The Natural Resources Defense Council, which intervened below on behalf of the Port, participated as a respondent. The Court invited the United States to express its views.

ATA argued that under express preemption analysis, a market participation exception exists only if specified by statutory language. Because the FAAAA identifies no such exception, the concession agreements were preempted. ATA further argued that denying access to Port facilities constitutes an impermissible suspension of a federally issued right to operate.

The United States filed a brief supporting reversal but advancing arguments narrower than those of ATA. It explained that a market participant exception to the FAAAA might exist. But, it argued, the concession agreements have a regulatory character and are preempted because they are backed by criminal penalties, govern public infrastructure, and are generally applicable and insufficiently com-mercial. The Solicitor General further noted that the Port does not directly contract for transportation services. The United States further argued the Motor Carrier Act allows the Port to exclude drayage companies currently violating their concession agreement but does not allow exclusion based on wholly past violations.

The Port asserted that a market participation exception presumptively applies in all preemption cases. Because the concession agreements advanced commercial interests, rather than addressing regulatory concerns, the Port contended § 14501(c) and § 14506(a) do not apply. The Port also contended Castle has no relevance to the concession agreements because a federal right to operate does not guarantee access to “private” government property like port facilities.

The Court heard oral argument on April 16, 2013. The tenor of the argument suggests the Justices may have little interest in deciding whether express preemption provisions are generally limited by a mar-ket participant exception. But the Justices appeared deeply skeptical of the concession agreements for at least three reasons: First, § 14501(c) only preempts activity with the “force and effect of law,” and that limitation should functionally allow much proprietary government activity. Second, the FAAAA specifically exempts certain activity from preemption but not market participation, suggesting that § 14501(c) applies to such activity. And third, Congress included a market participation exception in the preemption provisions of other statutes regulating interstate transportation. Various Justices appeared more sympathetic to the placard requirement, suggesting the Port must have some authority to require identification for trucks operating at its facility. If these signals prove accurate, the Court may be poised to issue a narrow decision along the lines proposed by the United States, holding that the FAAAA preempts most quasi-regulatory activities like many of the provisions of the concession agree-ment.


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With respect to the Motor Carrier Act, members of the Court appeared to seriously entertain the United States’ position that the Port could deny access to its facilities for ongoing violations, but not for wholly past violations.

Potential implications for environmental law The questions posed by the Justices at oral argument suggest a somewhat bleak future for the conces-sion agreements, thus potentially derailing the Port’s current efforts to improve air quality. The Court may, however, rule narrowly, and such a decision may have few broad implications for environmental law. The United States’ position supports the possibility of a narrow ruling.

But, the Court might resolve this case on at least two broad grounds that could have significant ramifi-cations. First, the Court could broadly rule that in the absence of specific statutory text, express pre-emption provisions apply to governmental market participation. In Engine Manufactures Association v. South Coast Air Quality Management District, 541 U.S. 246, 259 (2004), the Court declined to decide whether preemption under Title II of the Clean Air Act applies to market participation. On remand, the Ninth Circuit concluded that such government activity was not preempted. Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031 (9th Cir. 2007). If the Court holds express preemption pro-visions generally apply to government market participation, such a holding could jeopardize local and state government programs to purchase low emission cars and trucks.

Second, a broad ruling on implied or conflict preemption could have unpredictable implications for state and local environmental programs. Federal environmental statutes typically contain clauses allowing states to impose more stringent requirements. But some appellate courts have suggested such state laws might be void under principles of conflict or implied preemption. See North Carolina v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010); Clean Air Mkts. Group v. Pataki, 338 F.3d 82 (2d Cir. 2003). If the Court issued a broad opinion in American Trucking Associations, then future courts could rely on such broad language to aggressively limit state and local regulatory authority. For example, a court could conceivably hold that state law addressing climate change is conflict preempted by the Clean Air Act merely because the act vests the U.S. Environmental Protection Agency with authority to regulate greenhouse gases.

The Court should release a decision in American Trucking Associations by the end of June 2013. The opinion will shape the Port’s efforts to reduce its impact to air quality and may further elucidate the approach of the Robert’s Court to express preemption.


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The growing importance of sustainability to lawyers and the ABA

John C. Dernbach, Lee A. DeHihns, and Ira R. Feldman

John C. Dernbach is distinguished professor of law at Widener University in Harrisburg, Pennsylvania, and principal author of Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (2012). Lee A. DeHihns is a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia, a former chair of the Section of Environment, Energy, and Resources, and a SEER Delegate to the ABA House of Delegates. Ira R. Feldman is president and senior counsel for greentrack strategies in Bethesda, Maryland, and a former chair of the Section’s Climate Change, Sustainable Development, and Ecosystems Committee.

Sustainable development has its origins in the conservation and environmental movements in the United States and other countries, and in the laws that were adopted because of those movements. Lawyers in the public and private sectors drafted these laws and worked with clients to implement them. Sustainable development is becoming increasingly important to lawyers and their clients in a world with a growing economy and population in some places, widespread poverty in others, and grow-ing environmental degradation and greenhouse gas emissions. And the ABA, including the Section of Environment, Energy, and Resources (SEER), is keeping step.

Sustainable development in context Long before the U.N. Conference on Environment and Development (better known as the Earth Sum-mit) in Rio de Janeiro in 1992 brought the term into more common usage, the National Environmental Policy Act of 1969 (NEPA) declared sustainable development to be national policy. NEPA specifically states the national policy “to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans” (42 U.S.C. § 4331(a)).

Sustainability is best understood as a framework (or a perspective, lens, or approach) for the integra-tion or balancing of environmental protection, economic development, and social justice. While these are the three pillars at the core of every sustainability discussion, the term is used in slightly different ways in different contexts. At the international level, where environmental protection and poverty reduction are twin goals, “sustainable development” provides a strong emphasis on the needs of less developed countries. In the business world, the term is usually “sustainable business practices” or the “triple bottom line”—implying that the traditional single economic bottom line must now be recon-ciled with social and environmental considerations. At the community level, sustainability is used to


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describe local approaches that focus on quality of life, including “smart growth” in land use planning. In the financial sector, sustainability thinking and activity is organized around the label “ES&G” (Envi-ronment, Social, and Governance), a combination that equates to the three pillars of sustainability. To date, the legal community has effectively participated in the “rule of law” and “good governance” con-versations that are fundamental to advancing sustainability. However, given the scope summarized here, it is clear that a broader range of opportunities exists for ABA members in various practice areas to engage in the sustainability dialogue.

ABA resolutions and SEER activities The American Bar Association House of Delegates has enacted and approved 11 resolutions dating back to 1991 that have continuously reaffirmed the commitment of the ABA to sustainable develop-ment. These include, perhaps most prominently, a 2003 resolution (A108) that was prompted by the ABA’s participation in the World Summit on Sustainable Development (WSSD), in Johannesburg, South Africa, in 2002. The 2003 resolution recognized “that good governance and rule of law are essen-tial to achieving sustainable development.” It also encouraged “governments, including U.S. federal, state, local, tribal, and territorial bodies, as well as businesses, nongovernmental organizations, and other entities, to promote sustainable development, including by adopting and implementing appro-priate measures with respect to their own facilities and activities.” The concluding sentence in the report accompanying the 2003 resolution captures the ABA’s current position very well: “This resolu-tion is important to the ABA because it positions the ABA to play a significant role in the United States and internationally in supporting efforts to achieve sustainable development, including through part-nerships with governments and other entities.”

The ABA participation in WSSD in 2002 and the House of Delegates resolution in 2003 triggered a decade of ABA sustainability activities, especially within SEER. Upon return from Johannesburg, SEER leadership saw the need to reinvigorate and restructure the committee responsible for climate change and sustainable development issues. Now known as the Climate Change, Sustainable Development, and Ecosystems Committee (Committee), it has effectively raised sustainability awareness and literacy in the practicing environmental bar through a wide range of SEER activities, including webinars and Quick Teleconferences, panels at major SEER conferences, a special issue of Natural Resources & Envi-ronment, and dedicated sustainability roundtables. The Committee has also coordinated a Section-wide sustainability initiative and it has forged alliances with other ABA entities (including the Section of International Law, the Asia Law Initiative, and the former Standing Committee) to present ABA per-spectives to external organizations, including the U.S. Department of State. In November 2005, at American University Law School in Washington, D.C., the Committee held the first national conference for lawyers on climate change.

More recent resolutions have built on the foundation of the 2003 resolution, elaborating on the ABA’s commitment to sustainability. For example, in 2008, the ABA House of Delegates urged “the United States government to take a leadership role in addressing the issue of climate change through legal, policy, financial, and educational mechanisms. . . .” The report for the climate change resolution explained that climate change presents not only environmental risks but economic, security, and social risks. The report stated: “To foster sustainable development, the United States should play a leadership


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role in addressing climate change.” The most recent resolution was adopted by the House of Delegates at its 2012 Mid-Year meeting. That resolution endorsed the Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises. The OECD guidelines call on com-panies to “[c]ontribute to economic, social and environmental progress with a view to achieving sus-tainable development.”

The ABA approved a delegation to participate in the United Nations Conference on Sustainable Devel-opment in Rio de Janeiro in June 2012, which was held 20 years after the original Earth Summit. Among other things, the ABA delegates blogged from the conference to provide updates and insight into developments.

Expanding sustainability activities SEER continues and is expanding a variety of sustainability activities that it initiated after the 2003 resolution was adopted. The ABA, in partnership with U.S. Environmental Protection Agency (EPA), created the ABA-EPA Law Office Climate Challenge, a program to encourage law offices to conserve energy and resources, as well as to reduce emissions of greenhouse gases and other pollutants. The ABA-EPA Law Office Climate Challenge was endorsed by the ABA House of Delegates in 2009. The Sec-tion also developed the ABA SEER Sustainability Framework for Law Organizations, in which a law organization commits to take steps over time toward sustainability.

SEER now offers conference participants the option of purchasing carbon offsets to account for the carbon impact of their travel. Carbon offsets help pay for methane recovery, wind energy, or other pro-jects through Native Energy, a carbon offset provider. The additional conference fee for carbon offsets also helps fund the One Million Trees Project. Since the One Million Trees project began in 2009, SEER has sponsored plantings at each of its major events, and more than 40,000 trees have been planted. Many of SEER’s award programs include sustainability as a specific criterion in the judging of award applications. SEER is increasing the number of books, other publications, Quick Teleconferences, online resources, and other educational materials that it provides concerning sustainability. In addi-tion, committee newsletters, Trends, and The Year in Review are now exclusively available electroni-cally.

To be sure, SEER is not the only ABA voice on sustainability. The Section of International Law’s sustainability-related activities include partnership in the Global Forum for Law, Justice, and Develop-ment, a new initiative intended to support the legal and institutional foundation for sustainable devel-opment. The ABA’s Law Practice Management Section provides online resources for “the sustainable law firm.” Other ABA sections, including the Section of State and Local Government Law and the Sec-tion of Real Property, Trust and Estate Law, are producing books, teleconferences, and other informa-tion on a variety of sustainability topics. Although not widely known, operations in ABA headquarters in Chicago are based on a commitment to environmental stewardship. Bar associations in California, Pennsylvania, and Massachusetts have adopted model sustainability programs for law organizations. Oregon Lawyers for a Sustainable Future has published its own model sustainability policy for law offices.


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Looking ahead Current ABA efforts promise to take sustainability activities to a new level. A pending 2013 House of Delegates resolution and report will facilitate a broader range of activities, both internal to the ABA and in collaboration with other key domestic and international players in the sustainability dialogue.

Going forward, lawyers will need to become involved in an even broader range of sustainability issues. Clients in business, industry, government, and nongovernmental organizations are increasingly com-mitted to sustainability and increasingly expect their lawyers to have the same commitment and understanding. These clients are driven by many motives, including reputation, cost saving, anticipa-tion of future regulation, profitability, new market opportunities, and moral or ethical concerns about the impact of their actions on present or future generations. Younger lawyers, who represent the future of the legal profession, often understand these issues better than the partners who would hire them. The transition to sustainability in both governmental and private sector decision making is inevitable, and will profoundly affect the legal profession.

Indeed, the report accompanying the ABA House of Delegate’s 2003 resolution made clear that sus-tainability is important not only to environmental lawyers but all lawyers:

Applying sustainable development from a legal perspective means understanding, developing, and applying legal mechanisms that are relevant to the complex relationships among economic, social, and environmental priorities. This suggests a cross-functional approach…that integrates a variety of legal specialties, including environmental, labor, property, tax, corporate, finance, international trade, and risk management.

It is important for lawyers to raise sustainability issues with clients at appropriate times, and to be able to give them useful advice not only on legal compliance but also on options that sustainability and sus-tainability tools can provide for them. A major challenge is to create and develop tools that lawyers can use to assist clients. These include financing instruments for renewable energy and energy efficiency, third-party certification agreements, and the like. In addition, a new generation of laws is needed to achieve sustainability on new and broader issues, including but not limited to climate change, biodi-versity, and environmentally sustainable economic development. With growing vigor, SEER and the ABA are addressing both the challenges and the opportunities of sustainability.

In Brief

Theodore L. Garrett


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Theodore L. Garrett is a partner of the law firm Covington & Burling LLP in Washington, D.C. He is a past chair of the Section and is a contributing editor of Trends.

Editor’s Note: This issue marks another ABA anniversary of “In Brief,” Ted Garrett’s invaluable sum-mary of key cases for SEER members. Ted has served as editor of “In Brief” since 1991 and was a con-tributor to the column’s predecessor, “Briefly Stated,” between 1986 and 1991. Ted’s service as a contributing editor to Trends is impressive in its continuity over these many years. More importantly, however, Ted’s contribution is quality at its highest level; “In Brief” delivers timely case updates with readable succinct summaries useful to all Section members. “In Brief” was one of the reasons I started reading Trends on a regular basis, and it is one of the reasons that keep many of us reading it today. The Section leadership, other board members of Trends, and the ABA publications staff, thank Ted for his superb work and hope that he will continue for many more years to come.

CERCLA The Fourth Circuit upheld a district court decision that a company was not exempt from Superfund lia-bility as a bona fide prospective purchaser (BFPP). PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F. 3d 161 (4th Cir. 2013). The company’s failure to clean out and fill in sumps demonstrated that the company did not take reasonable steps to prevent a future release. The court was not persuaded by the argument that holding companies liable for minor mistakes would be contrary to the intent of Con-gress to promote brownfields development, stating: “Logic seems to suggest that the standard of ‘appropriate care’ required of a BFPP, who by definition knew of the presence of hazardous substances at a facility, should be higher than the standard of ‘due care’ required of an innocent landowner, who by definition ‘did not know and had no reason to know’ of the presence of hazardous substances when it acquired a facility.” The Fourth Circuit also affirmed the district court’s denial of apportionment.

Air quality EPA may sue a company for unlawfully commencing construction even though the source had not yet commenced operations and had submitted a preconstruction projection that the project would not sig-nificantly increase emissions. United States v. DTE Energy, 711 F.3d 643 (6th Cir. 2013). The divided panel reversed a district court ruling that EPA must wait until there is post-construction data to prove or disprove the source’s projected emissions. The majority stated that a “project-and-report scheme is entirely compatible” with the intent of the statute. The new source review regulations “take a middle road,” the majority stated, neither requiring operators to “defend every projection to the agency’s sat-isfaction” in a “prior approval scheme,” nor barring EPA “from challenging preconstruction projections that fail to follow the regulations.” The Chief Judge dissented, stating that allowing EPA to challenge preconstruction projections in court could not be squared with the prior approval scheme that the majority purports to reject.

Water quality The D.C. Circuit reversed a district court decision that EPA lacked statutory authority under section 404 of the Clean Water Act to withdraw, four years after the permit had been issued, specification of two streams as disposal sites. Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013). The D.C. Cir-


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cuit concluded that section 404 imposes no temporal limit on EPA’s authority and instead allows EPA to withdraw an Army Corp of Engineers’ specification “whenever” it makes a finding that an unaccept-able adverse effect will result. The court rejected Mingo Logan’s argument that EPA’s interpretation tramples on other provisions of the statute intended to provide permit certainty and finality, stating that the language of section 404 is plain and unambiguous.

A court of appeals vacated an EPA rule, announced in letters to Congress, that the secondary treatment regulations applicable to publicly owned treatment works (POTWs) are to be applied internally, within the secondary treatment process, rather than at the point of discharge into navigable waters. Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). EPA’s anti-blending policy was designed to prevent a POTW from meeting effluent limitations by channeling a portion of peak wet weather flow around secondary treatment units and then discharging the combined stream. EPA announced its position without notice and comment and thus violated the Administrative Procedure Act. The court also found that applying the secondary treatment limitations to individual internal streams is unlawful because EPA is only authorized to regulate discharges to navigable waters of the United States.

A district court granted summary judgment to defendant railroad companies who were sued by envi-ronmental groups alleging that airborne dust from coal stockpiles and coal spillage during ship loading was deposited into a bay without a National Pollutant Discharge Elimination System (NPDES) permit. Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC No. 3:09-cv-00255-TMB, 2013 WL 1614436 (D. Alaska, Mar. 28, 2013). The court held that the airborne dust was not a discharge from a point source and is thus exempt from NPDES permit requirements. The court also concluded that the dis-charges during ship loading were protected by defendant’s general permit because they were ade-quately disclosed to EPA in the company’s prevention plan submitted during the permitting process and were reasonably anticipated by EPA.

RCRA The Ninth Circuit affirmed dismissal of a citizen suit alleging that utility poles discharged wood preser-vative to the environment in violation of the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013). The complaint fails under the Clean Water Act because storm water runoff from the poles does not consti-tute a point source discharge or storm water associated with industrial activity. The court also held that wood preservative that escapes from utility poles through normal wear and tear is not a RCRA solid waste. The court noted that EPA approved the use of the wood preservative under the Federal Insecticide, Fungicide, and Rodenticide Act, and that it “defies reason” to suggest that every utility pole must be replaced under RCRA.

NEPA The Ninth Circuit affirmed the district court’s judgment rejecting a challenge to the government’s decision to allow Denison Mines Corp. to restart mining operations in Arizona under a plan of opera-tions approved in 1988. Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013). The court rejected appellants’ argument that temporary closure of the mine in the 1990s rendered the plan of operations ineffective. Review of the original plan of operations under the National Environmental


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Policy Act (NEPA) was appropriate, and therefore requiring Denison to update its reclamation bond before recommencing mining operations was not “major Federal action” that triggered a new NEPA analysis.

Resources/administrative law A district court improperly approved a consent decree settling a lawsuit between environmental groups and the U.S. Forest Service concerning the Survey and Manage Standard of the Northwest Forest Plan. Conservation Northwest v. Sherman, No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013). An inter-venor logging company objected to a consent decree, and the Ninth Circuit ruled that the district court abused its discretion in approving the decree because the changes to the Survey and Manage Standard could only be adopted through notice and comment rulemaking procedures.

Water, wind, waste, and more: 21st Fall Conference

Amy L. Edwards

Amy L. Edwards is a partner with Holland & Knight LLP, Washington, D.C. She is the program chair of the 21st Fall Conference.

Whether you can join us for the entire conference, or just one day, you will not want to miss the Sec-tion’s 21st Fall Conference in Baltimore, October 9–12, 2013, at the Hilton Baltimore. The conference features several senior level U.S. Environmental Protection Agency (EPA) officials, including the (Act-ing) Assistant Administrators for Air, Waste, and Water and the Acting EPA General Counsel, as well as senior-level representatives from the Hill and the administration.

The conference kicks off with a public service project on Wednesday morning. That afternoon, pro-graming begins with a panel of in-house counsel sharing tips on how to be selected as outside counsel. A highlight will be two teams of lawyers from hypothetical firms making their pitches to counsel from a hypothetical corporation. Kenneth R. Feinberg, the nationally known mediator for the BP oil spill claims, will follow with a keynote address on using the law to deal with catastrophes.

Thursday’s and Friday’s plenary sessions will focus on administration and congressional priorities for the next few years and second-term priorities at EPA. Two days of breakout sessions will bring you up-to-date on developments under the primary environmental statutes, including Clean Air, Clean Water, CERCLA, and RCRA, as well as on renewable energy and fracking. Additional breakout sessions will focus on legal issues associated with responding to natural disasters, and on enforcement and compli-ance, environmental litigation, and environmental markets. Given our location in Baltimore, a session


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will examine EPA’s efforts to regulate nutrients and stormwater going into the Chesapeake Bay. Other highlights include a live litigation demonstration, transactions “Jeopardy,” and an interactive presen-tation about using technology while on the road. And the conference would not be complete without a session on today’s ethics: managing conflicts and virtual reality in today’s law practice.

On Thursday night, the conference social event will be held at the American Visionary Art Museum, a unique venue overlooking the Inner Harbor. This evening provides opportunities for fun and informal networking. We hope that you will also join your colleagues at receptions on Wednesday, Friday, and Saturday evenings and for “interest area” dinners at local restaurants on Friday night. There will again be our popular Speed Networking session and informal social events planned for law students and young lawyers.

The Fall Conference is the premier forum for learning about recent legal developments in the environ-mental, energy, and resource fields, networking with your colleagues, and meeting prominent govern-ment, industry, and private practice leaders. You won’t want to miss this unique opportunity! We look forward to seeing you in Charm City in October.

Views from the Chair: The intersection of cybersecurity and environment, energy, and resources practice

Alexandra Dapolito Dunn

Alexandra Dapolito Dunn is the executive director and general counsel of the Association of Clean Water Administrators.

…as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know.

—Donald Rumsfeld

Among ABA President Laurel L. Bellows’ key initiatives is raising the profile of the impact on the legal profession of cyber threats, and the need to enhance our cybersecurity infrastructure, processes, and procedures, as well as to increase the legal community’s knowledge and understanding of the omnipresence of cyber threats. Formed around the fact that “[w]e live in a world where our national security is threatened by cyber terrorists, and where private enterprise is forced to respond to cyber


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theft of intellectual property on a daily basis,” the ABA Cybersecurity Legal Task Force has gathered experts from across globe to examine the impacts on lawyers and their practice posed by criminals, ter-rorists, and nations seeking to compromise personal and financial information, disrupt critical infra-structure, and to incite cyber war.

Without question, environment, energy, and resources (EER) practice involves working with facilities, industrial sectors, and state, federal, and local agencies that are recognized as vulnerable to, and as prime targets of, cyber attack and disruption. The February 2013 Presidential Policy Directive 21 on Critical Infrastructure Security and Resilience (PPD-21) identifies 16 critical infrastructure sec-tors—many familiar to EER work—such as water and wastewater systems; chemicals; commercial facil-ities; critical manufacturing; dams; energy; food and agriculture; nuclear reactors, materials, and waste; and transportation systems. Subparts of major industry sectors that are reported to be on the front lines of being the focus of cyber attack include new energy, bio-tech, new materials and minerals, high-end equipment manufacturing, and clean energy vehicles.

It takes little imagination to start an inventory of the many ways cyber attacks can adversely impact law offices, client business, and our nation’s infrastructure overall. Malicious cyber actions include cre-ating, modifying, deleting, and executing programs; uploading and downloading files; starting and stopping processes, systems, or mechanics; capturing keystrokes and screenshots; and obtaining pass-words. At least one western U.S. state reports its computer system receives approximately 90 million attacks daily from potential hackers, a dramatic increase from past years. Experts note no breach is harmless, as cyber attackers frequently repeat patterns and other attackers attempt to follow and vary pathways previously tried. Press accounts have already been filed regarding plans by external groups to disrupt U.S. infrastructure this very summer, focusing on water and power control systems, with omi-nous names such as “Operation Black Summer.”

Federal environmental, energy, and resource agencies are making numerous resources available to increase public awareness of the presence of cyber threats and to shore up their systems. In February 2013, President Obama signed Executive Order (EO) 13636, Improving Critical Infrastructure Cyberse-curity, to further focus on “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on secu-rity, national economic security, national public health or safety, or any combination of those mat-ters.” A visit to any of the following sites reveals the serious work underway to protect critical infrastructure from cyber threats—EPA’s Homeland Security Portal; the Nuclear Regulatory Commis-sion’s cybersecurity webpage; the Department of Interior’s Information Assurance Division site; the Department of Energy’s Office of Electricity Delivery and Energy Reliability (OE) page; or the Federal Energy Regulatory Commission’s Office of Energy Infrastructure Security web page.

The Section is fortunate to have past Chair Claudia Rast of Butzel Long as our liaison to the ABA Cybersecurity Legal Task Force. Claudia is following developments and reporting regularly to the Sec-tion Council on implications for EER work. The Council has signed on to the cybersecurity resolution, which will be considered by the ABA House of Delegates at the Annual Meeting, August 8–13, 2013 in San Francisco. The resolution and its accompanying report thoughtfully discuss cybersecurity issues as


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they specifically apply to the legal profession, and note that existing state, local, territorial, and tribal governmental laws and regulations may be inadequate to deter, prevent, and punish unauthorized, illegal intrusions into the computer networks utilized by lawyers and law firms. As drafted, the resolu-tion supports governmental actions, policies, practices, and procedures to combat unauthorized, illegal intrusions into the computer networks utilized by lawyers and law firms that respect and preserve client confidentiality, but opposes measures that would have the effect of eroding the attorney-client privilege, the work product doctrine, the confidential lawyer-client relationship, or traditional state court and bar regulation and oversight of lawyers and the legal profession. Critical too, is the lawyer’s duty of competency under Model Rule 1.1, which includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. . . .” We look forward to reporting to the membership soon on the disposition of this resolution and on future cybersecurity activities by the ABA and our Section.

This is my final “Views from the Chair” column. Drafting this article on cybersecurity provided a per-fect opportunity to reflect on how my ABA and Section membership gives me the opportunity to hear from global leaders on truly cutting-edge issues and to grow as a legal professional. Through my mem-bership, I meet experts working at the heart of issues that matter to our profession; I am challenged to think about issues that enhance my work and abilities. An issue like cybersecurity is testament to what the ABA is all about— advancing the rule of law, professionalism, knowledge, and justice. It has been a privilege to serve all of you this year as your chair. I welcome Bill Penny of Stites & Harbison, as the new chair—he will serve the Section well! I close with the fine words of Garrison Keillor—“Be well, do good work, and keep in touch.”

People on the Move

Steven T. Miano

Steven T. Miano is a shareholder at Hangley Aronchick Segal Pudlin & Schiller in Philadelphia. He is a contributing editor to Trends.

Editor’s Note: After many years of service as contributing editor for this column, Steve Miano will assume the position of Section chair-elect in August. Jim Arnold, a long-time Section member and attorney practicing in San Francisco, will become the contributing editor for People on the Move beginning with the September/October 2013 issue. We thank Steve and congratulate him on his new position, and welcome Jim.


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Firm moves Sara Marquis Burgin recently joined Katten Muchin Rosenman LLP as a partner in its Austin, Texas office. Burgin provides counsel on a breadth of water-quality issues for clients in industry, business, and government. She was previously with Baker Botts LLP. Burgin is a former Section Council member.

Jerry George has joined Davis Wright Tremaine LLP in the firm’s San Francisco office. George’s prac-tice focuses on litigating complex environmental cases under CERCLA and the Clean Water Act. He was previously with Pillsbury Winthrop Shaw Pittman LLP. Before entering private practice, George was a senior lawyer in the Environmental Enforcement Section of the Environment and Natural Resources Division of the U.S. Department of Justice. He is a vice chair of the Section’s Mining and Mineral Extraction Committee.

Matt Low has established a new firm, Matt Low & Associates, LLC, through which he is offering arbi-tration, mediation, settlement counseling, and other alternative dispute resolution services in matters involving environmental claims, CERCLA cost allocation, NCP compliance, RCRA, and contract dis-putes.

Kathryn B. Rossmell has joined Lewis, Longman & Walker, P.A. in the firm’s West Palm Beach, Florida office as an associate. Rossmell’s practice includes land use, environmental, and natural resources law. She represents public and private clients on natural resources permitting issues and National Environmental Policy Act (NEPA) compliance issues, and practices civil litigation for public and private clients.

Academic moves Robin Craig, a professor at the S.J. Quinney College of Law at the University of Utah in Salt Lake City, has been named the William H. Leary Professor of Law and also an affiliate of the University of Utah’s Global Climate and Sustainability Center. Craig’s areas of professional expertise include environmental law, ocean and coastal law, administrative law, water law, and toxic torts. She has served on three National Research Council committees on the Clean Water Act and the Mississippi River. Craig is a member of the Section’s Council and the planning committee for the 31st Annual Water Law Confer-ence.

Government moves James McDonald has been appointed the new Assistant Regional Administrator for Management and Director, Management Division, at EPA Region 6 in Dallas. Prior to this appointment, McDonald has served EPA for over a decade across multiple programs. For the past two years, he has served as the Director of the Office of Environmental Information’s Planning, Resources and Outreach (OPRO). McDonald is a vice chair of the Section’s Special Committee on Section, Division, and Forum Coordina-tion and a mentor in the Leadership Development Program. He is a former Section Council member.


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This and that William Penny, a partner in the Environmental, Natural Resources & Energy Service Group at Stites & Harbison PPLC in Nashville, was recently honored by the Tennessee General Assembly with a Senate Joint Resolution congratulating him as he assumes his responsibilities as incoming chair of the Section in August 2013. The Resolution recognizes Penny for his skills as an environmental lawyer, including his service to the Tennessee as the first chief counsel to the Department of Environment and Conser-vation in 1990.


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Trends July/August 2013 Table of · PDF fileABA Section of Environment, Energy, and Resources...

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Transcript of Trends July/August 2013 Table of · PDF fileABA Section of Environment, Energy, and Resources...