Category: Environmental Law

California Commercial Building Owners Required to Submit Energy Use Disclosures by June 1, 2018

AB 802, California’s energy use disclosure law, requires owners of commercial buildings containing more than 50,000 square feet to report their energy performance by June 1, 2018. Building owners who have missed the June 1, 2018, reporting deadline are urged to report as soon as possible. The California Energy Commission (CEC) has the authority to issue fines for noncompliance, after allowing a period of 30 days to correct a violation.

Assembly Bill 802 (AB 802)

AB 802 replaced the State’s prior energy use disclosure law, AB 1103, which had required building owners to make disclosures regarding a building’s energy use at the time of a sale, lease, or finance. (View our previous alert.)

Unlike AB 1103, energy use disclosures are no longer tied to transactions under AB 802. Instead, AB 802 directs the CEC to create an annual, statewide building energy use benchmarking and public disclosure program for (1) all commercial buildings containing over 50,000 square feet gross building area, and (2) all multifamily complexes with 17 or more tenant units that are direct billed for energy.

AB 802 requires annual energy consumption reports from each building. Building owners must authorize their utility provider to record and upload their building’s energy data to EPA’s Portfolio Manager, a free reporting tool provided by the United States EPA that allows building owners to compare their building’s energy efficiency with similar buildings.

Compliance Requirements

Owners of buildings in California that have a gross floor area of 50,000 square feet or greater are required to benchmark their energy performance annually, and report the results to the CEC per the following schedule:

  • For disclosable buildings with no residential utility accounts, reporting is due by June 1, 2018, and annually thereafter.

  • For disclosable buildings with 17 or more residential utility accounts, reporting is due by June 1, 2019, and annually thereafter.

AB 802 also requires that energy utilities provide building-level energy use data to building owners, owners’ agents, and operators upon request for buildings with no residential utility accounts and for buildings with five or more utility accounts. The CEC will publicly disclose some of the reported information beginning in 2019 for buildings with no residential utility accounts, and 2020 for buildings with residential utility accounts.

Implications for Owners of Buildings in Cities with Existing Programs

The cities of San Francisco, Berkeley, and Los Angeles already have local benchmarking and public disclosure programs whose requirements exceed those of the state program. Per the state regulations, a local jurisdiction may request that the CEC provide an exemption from the state reporting requirement for buildings located in the local jurisdiction. If the exemption is approved, the owners of buildings in that jurisdiction may report to the local jurisdiction only, and will not be required to report to the CEC.

 

© 2010-2018 Allen Matkins Leck Gamble Mallory & Natsis LLP

Water, Water, Everywhere: The Clean Water Act

If it isn’t already, water should be on your mind this year.  The excitement of Scituate storm surge and coastal flooding aside, the region – and the U.S. as a whole – is facing a slew of legal developments that may change how citizens, businesses, and governments operate under the federal Clean Water Act and similar state programs.  In particular, the scope of Clean Water Act jurisdiction is in play following a pair of Supreme Court decisions, as is the potential delegation of permitting authority to Massachusetts and New Hampshire, two of only four states in which the EPA administers permitting under the National Pollutant Discharge Elimination System (NPDES).

Clean Water Act Jurisdiction

Since well before Samuel Taylor Coleridge penned those famous lines in the Rime of the Ancient Mariner – “Water, water, every where, / Nor any drop to drink” – people have worried about access to clean water.  It makes sense, then, that the Clean Water Act is one of our oldest environmental laws, with its origins in the Rivers and Harbors Act of 1899.  The Rivers and Harbors Act – the nation’s very first environmental law – imposed the first “dredge and fill” requirements, made it illegal to dam rivers without federal approval, and prohibited the discharge of “any refuse  matter  of  any  kind  or  description” into “any  navigable  water  of  the  United  States, or  into  any  tributary  of  any  navigable  water.”

The Federal Water Pollution Control Act of 1948, with major amendments in 1961, 1966, 1970, 1972, 1977, and 1987, largely superseded the Rivers and Harbors Act and resulted in what we know today as the federal Clean Water Act (CWA).  And although today’s statute is very different from its 1899 precursor, one thing has remained constant: an intense and lasting fight over the scope and jurisdiction of federal regulation.  Federal CWA jurisdiction is premised on the Commerce Clause of the U.S. Constitution, and prohibits (without a permit) “dredge and fill” activities and the discharge of pollutants into “navigable waters,” which the CWA defines as “the waters of the United States.”  But what, exactly, are “waters of the United States”?

The 1870 Supreme Court decision in The Daniel Ball held that waterways were subject to federal jurisdiction if they were “navigable in fact.”  But what has never been clear is the extent to which non-navigable waters, like certain tributaries to navigable waters or wetlands, constitute “waters of the United States” such that they are subject to federal regulation.

The Supreme Court Punts (Again)

The 2006 Supreme Court decision in Rapanos v. United States represented a key turning point in CWA jurisdiction, holding that certain remote wetlands are not subject to CWA jurisdiction.  But the decision was badly fractured, with no majority of justices agreeing on a single standard for determining what, exactly, constitute “waters of the United States” such that the CWA applies.  Minor chaos ensued, as regulators and courts applied varying interpretations of Rapanos in permitting decisions and enforcement actions.

In 2015, the Obama administration attempted to clarify the scope of CWA jurisdiction by promulgating a rule known as the “Waters of the United States” (or “WOTUS”) rule that attempted to define exactly which waters were regulated by the CWA.  That rule, which was based on Justice Anthony Kennedy’s “significant nexus” test in the Rapanos decision, was quickly challenged by 31 states, numerous industries, and landowner groups.  At bottom, challengers argued that the WOTUS rule represented significant federal overreach and extended CWA jurisdiction well beyond what the Commerce Clause allows. The numerous appeals were consolidated into a single Sixth Circuit case, National Association of Manufacturers v. Department of Defense (NAM), and in late 2015 the Sixth Circuit stayed the WOTUS rule pending resolution of legal challenges.

But on January 22, 2018, the Supreme Court unanimously held that federal District Courts – not appellate courts – have jurisdiction over challenges to the WOTUS rule.  While the CWA generally requires challenges to CWA rules to be brought in district courts, there are seven situations where courts of appeal have jurisdiction.  In this case, the government argued that the challenge should be heard in the courts of appeal, under CWA Sections 1369(b)(1)(E)-(F) which allow appellate courts to hear cases related to the approval of certain effluent limits or permits, respectively.  Petitioners, on the other hand, maintained that the case should be heard in federal district court in the first instance.  In a procedural victory for the petitioners, the Supreme Court held that the WOTUS rule does not qualify for direct appellate review under CWA Sections 1369(b)(1)(E)-(F).  Following this decision, future challenges to the WOTUS rule will be brought in federal district courts, potentially with divergent outcomes around the country.  Appeals of those decisions will move to the courts of appeals, where there is yet again the possibility for inconsistency.  The upshot is a longer litigation timeline – and continued jurisdictional uncertainty – before the Supreme Court will have another chance to address the appropriate scope of CWA jurisdiction.

In the meantime, the Trump administration is working on a replacement rule for the WOTUS rule that is likely to apply the less expansive jurisdictional test described by Justice Antonin Scalia in Rapanos.  Under that interpretation, only tributaries that are “relatively permanent, standing or flowing bodies of water,” and only wetlands with a continuous surface connection to a “water of the United States” are themselves “waters of the United States” subject to CWA jurisdiction.  And on February 6, 2018, EPA and the Army Corps of Engineers promulgated a rule delaying implementation of the WOTUS rule until February, 2020.  That action preserves the Rapanos status quo (such as it is) until EPA can craft a new rule.  Ultimately, it is likely that any WOTUS replacement rule will be challenged, and the Supreme Court will then have a chance to revisit its decision in Rapanos and redefine federal jurisdiction under the CWA, a process that could easily extend past 2020.

Defer much?

On February 26, 2018, the Supreme Court weighed in again on the Clean Water Act, this time by refusing to take up a challenge to a 2017 decision by the Second Circuit that upheld a 2008 EPA rule exempting water transfers from CWA permitting requirements.  Water transfers happen when water from one waterbody is diverted into another waterbody, such as diverting a stream into a nearby lake or reservoir. Drinking water systems have conducted water transfers for decades, and EPA has never required NPDES permitting for such transfers.  But in 2008, in response to pressure by environmental groups to require NPDES permits for water transfers, EPA adopted the Water Transfers Rule expressly exempting such transfers from NPDES permitting.

Environmentalists and states challenged the Water Transfers Rule, arguing that moving water from one waterbody to another requires a permit if the “donor” water contains pollutants that would have the effect of degrading the receiving water.  Both the Obama and Trump administrations defended the rule, arguing that it preserved long-standing practice and was justified by EPA’s ability to interpret CWA requirements.  Ultimately, the Second Circuit deferred to EPA and allowed the rule to stand.  In turn, the February 26 decision by the Supreme Court allows the Second Circuit decision to stand, thereby affirming the validity of the Water Transfers Rule.  The case was widely seen as a test for Justice Neil Gorsuch, who has expressed hostility to the deference doctrine and EPA regulations alike.  By declining to hear the case, the Court has deferred that test for another day.

Who’s in Charge?

Under a process known as “delegation,” states may assume permitting and other authority under the CWA.  To-date, 46 states have received such delegation from EPA, and all but Massachusetts, New Hampshire, Idaho, and New Mexico now administer their own NPDES permitting programs.  In the absence of delegation, EPA manages the Clean Water Act and NPDES program in those four states, which often overlap and may duplicate separate state law requirements.

New Hampshire is currently evaluating whether to seek CWA delegation from EPA, and has established a legislative commission to explore its options.  And as we have previously reported, Massachusetts has explored CWA delegation in the past, but those efforts largely fizzled out.  But both of these efforts may have new life: the EPA, under Administrator Pruitt, is very focused on “cooperative federalism” and with EPA seeking to slash its budgets, CWA delegation is likely on EPA’s radar as an action item over the next several years.  And, in late 2017, MassDEP Commissioner Martin Suuberg expressed strong support for CWA delegation, as has Governor Baker.  Whether delegation will become a reality for Massachusetts or New Hampshire is anyone’s guess, but regardless of the outcome 2018 is shaping up to be an interesting year for water law.

 

© 2018 Beveridge & Diamond PC
This post was written by Brook J. Detterman of Beveridge & Diamond PC.

EPA Issued Proposed Rule to Add Hazardous Waste Aerosol Cans to Universal Wastes Regulated under RCRA

On March 6, 2018, the U.S. Environmental Protection Agency (EPA) issued a proposed rule (pre-publication version available here) to add hazardous waste aerosol cans to the category of universal wastes regulated under the federal Resource Conservation and Recovery Act (RCRA) regulations (Title 40 of the C.F.R., Part 273), entitled Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations.  EPA cites as authority for this change Sections 2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act, as amended by RCRA, as amended by the Hazardous and Solid Waste Amendments Act (HSWA).  EPA states the streamlined Universal Waste regulations are expected to:

  • Ease regulatory burdens on retail stores and other establishments that discard aerosol cans by providing a clean, protective system for managing discarded aerosol cans;
  • Promote the collection and recycling of aerosol cans;
  • Encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors; and
  • Result in an annual cost savings of $3.0 million to $63.3 million.

As aerosol cans are “widely used for dispensing a broad range of products” including pesticides, the proposed rule may have implications for chemical companies that create and distribute pesticide products marketed in aerosol cans.  Hazardous waste aerosol cans that contain pesticides are also subject to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirements, including compliance with the instructions on the product label.  Under 40 C.F.R. Section 156.78, a flammability label statement is required for pressurized pesticide product products that states “Do not puncture or incinerate container,” but EPA’s 2004 determination (that will be posted to Docket No. EPA-HQ-OLEM-2017-0463 on www.regulations.gov for this proposed rule) allows for the puncturing of cans.  The proposed rule states:

  • EPA issued a determination that puncturing aerosol pesticide containers is consistent with the purposes of FIFRA and is therefore lawful pursuant to FIFRA section 2(ee)(6) provided that the following conditions are met:
    • The puncturing of the container is performed by a person who, as a general part of his or her profession, performs recycling and/or disposal activities;
    • The puncturing is conducted using a device specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions thereof; and
    • The puncturing, waste collection, and disposal, are conducted in compliance with all applicable federal, state and local waste (solid and hazardous waste) and occupational safety and health laws and regulations.
  • EPA anticipates that this 2004 FIFRA determination would not be affected by the proposed addition of hazardous waste aerosol cans to the universal waste rules.

Comments will be due 60 days after the proposed rule’s publication in the Federal Register.

 

©2018 Bergeson & Campbell, P.C.
Read more news on the National Law Review Biotech Type of Law page.

Army Corps of Engineers Issues Draft Guidance on Section 408 Permission Requests, Solicits Comments

On January 23,  2018, the United States Army Corps of Engineers (Corps) issued Draft Engineering Circular (EC) 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. § 408 (Draft EC).  Comments on the draft circular are due March 7th, but there are reports that the comment deadline may be extended to April 6th.

The Draft EC,  once finalized, will replace existing guidance on the permission process required by Section 14 of the Rivers and Harbors Act of 1899, as amended and codified in 33 U.S.C. § 408 (Section 408).  The Draft EC consolidates existing guidance on Section 408 permissions and makes numerous changes to the existing guidance, including revising the test for when a Section 408 permission will be required, announcing general terms and standards that will be applied to all Section 408 permissions, and prescribing new timeframes for the Section 408 review process.  The comment period provides an opportunity for entities that need Section 408 permissions to address specific concerns with the Section 408 process and to advise the Corps on how to better streamline the Section 408 process.

Background

Section 408 requires that any proposed occupation or use of an existing Corps civil works project be authorized by the Secretary of the Army.  Examples of civil works projects include levees, dams, sea walls, bulkheads, jetties, dikes, wharfs, piers, and wetland restoration projects funded by or built by the Corps.  The Corps may grant such permission if it determines the alteration proposed will not be “injurious to the public interest” and “will not impair the usefulness” of the civil works project.  Under Corps policy, a Section 408 permission will not be issued before decisions on Clean Water Act Section 404 permits and Rivers and Harbors Act Section 10 permits are made.

Section 408 review may be required in a wide variety of situations.  For example, a Section 408 permission was required for the Dakota Access Pipeline, a crude oil pipeline, to cross 2.83 miles of federal flowage easements and approximately 0.21 miles of federally-owned property.  In addition, Section 408 review may be required where the Corps’ only connection to the project is funding, such as a wetland restoration project.

Section 408 permissions have become a significant issue in recent years because they have the potential to significantly delay projects.  The Corps has limited capacity to review Section 408 permission requests because such requests are not handled by the Corps’ regulatory program.  In the event that a Section 408 permission is required, the Corps may not have the staff resources to review the request unless the applicant pays for such a review.  Under the authority of Section 214 of the Water Resources and Development Act (WRDA) of 2000, the Corps may accept funds from non-Federal public entities to expedite the review and evaluation of a Section 408 request.  Under the 2016 WRDA, funding privileges were extended to certain private entities.  It should be noted that the recent Presidential “infrastructure legislative outline” that was released on January 12, 2018 along with the President’s budget would allow any non-federal entity to pay for expedited review and evaluation of a Section 408 request.

The Corps previously issued EC 1165-2-216 in 2014 on Section 408 permissions and since that time has issued a number of interim memoranda to improve the Section 408 permission process.  The Draft EC, once finalized, will replace EC 1165-2-216 as well as all interim memoranda, and will be effective for two years.

Proposed Changes to Section 408 Permission Process

Key changes proposed under the Draft EC include the following:

Program Governance Changes.  The Draft EC updates the Section 408 program governance.  It commits the Corps to conduct an internal audit of its decisions to examine whether Section 408 is being implemented consistently.  It provides for the creation of a database, which will be partially available to the public, as a tool for requestors to be informed about the status of their requests.

Section 408 Applicability Changes.  The Draft EC clarifies the geographical limitations on the applicability of the Section 408 permission process.  The Section 408 process applies to the lands and real property interests identified and acquired for a Corps project.  The Draft EC clarifies that, within navigable waters, the Section 408 process applies to alterations proposed to submerged lands and waters occupied or used by a Corps project.  The Draft EC process may be applied to alterations proposed in the vicinity of a Corps project that occur on or in submerged lands and waters that are subject to the navigation servitude.

The Draft EC clarifies how emergency situations should be addressed under Section 408.  Emergency alterations performed on a Corps project pursuant to Public Law (PL) 84-99 do not require a Section 408 permission, but urgent alterations that do not fit within the definition of emergency under PL 84-99 may require a Section 408 permission.  PL 84-99 authorizes the Corps to undertake activities, including disaster preparedness, “advance measures” to prevent or reduce flood damage from imminent threat of unusual flooding, emergency operations, rehabilitation of flood control works threatened or destroyed by flood, protection or repair of federally authorized shore protective works threatened or damaged by coastal storm, and provisions of emergency water due to drought or contaminated source.  The Draft EC indicates that when an alteration cannot be performed pursuant to PL 84-99, Corps districts can reprioritize and expedite reviews as appropriate given the urgency required for each specific situation.

The Draft EC identifies certain activities that will not require a Section 408 permission.  As under the existing guidance, non-federal sponsor activities that are included in an operation and maintenance (O&M) manual for the project do not require Section 408 permission.  The Draft EC also provides that a Section 408 permission is not required if a non-federal sponsor is performing activities on a Corps project that restores such project to the physical dimensions and design of the constructed project.  Although a Section 408 permission will not be required, the project sponsor may still need to coordinate with the Corps.  In addition, under the Draft EC, a Section 408 permission is not required for geotechnical explorations that comply with the Corps’ drilling requirements.

The Draft EC recognizes that the requirements of Section 408 may be fulfilled by another process.  For example, where a project requires a real estate outgrant—an authorization of the use of real property managed by the Corps—or a Rivers and Harbors Act of 1899 Section 10 permit that covers the same scope and jurisdiction as a Section 408 permission, a separate Section 408 permission is not required.  What is not addressed in the Draft EC is whether a Section 408 permission will be required to conduct O&M on a non-Corps project for which a Section 10 was previously issued.

Procedural Changes.  The Draft EC identifies new procedures for seeking a Section 408 permission.  Under the existing guidance, there are two options for review under Section 408—a single-phase review and a categorical review.  In a single-phase review, all information for a Section 408 permission is submitted at the same time.  In a categorical review, the Corps performs an analysis of impacts and environmental compliance in advance for a common category of activities.  When a Section 408 permission request meets the criteria of the categorical permission, the Section 408 permission may be granted under a simplified validation process.  To add flexibility, particularly for projects that involve multiple stages of engineering or construction, the new guidance allows for a multi-phased review.  The Draft EC also removes the requirement that plans and specifications be, at a minimum, 60% complete to initiate the Section 408 review process.

The Draft EC incorporates new timelines for a Section 408 review that are provided in the 2016 WRDA.  When a Corps district receives a Section 408 request, the district must respond within 30 days, informing the requestor that the submission was complete or specifying what additional information is required.  The Draft EC does not speak to the Corps’ failure to respond within 30 days.  If a completeness determination is made, the Corps district has 90 days to render a decision.  If the district cannot meet the 90 day timeline, it can provide an estimated date of a final decision.  If that estimate extends beyond 120 days, the Corps must provide congressional reporting.

Click here for a side-by-side chart comparing the Draft EC to the legislative provision on Section 408 developed by our firm’s Corps Reform Working Group and the legislative provisions on Section 408 that are contained in the President’s “infrastructure legislative outline”.

 

© 2018 Van Ness Feldman LLP
This post was written by Jenna R. Mandell-Rice and Brent Carson of Van Ness Feldman LLP.

EPA Sees New Challenges Ahead for Superfund

EPA released a four-year “strategic plan” on February 12 that continues to emphasize the EPA Superfund environmental clean-up program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

 

© 2018 Beveridge & Diamond PC
This post was written by Loren Dunn of Beveridge & Diamond PC.

Ninth Circuit Issues Decision in Novel Clean Water Act Case

The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them.

We have previously blogged regarding existing regulatory uncertainty under the Clean Water Act (CWA). In this case, the Ninth Circuit’s decision focuses on whether a CWA “point source” that indirectly transfers material to relevant waterways falls within the statute. The Ninth Circuit essentially rejected the connection that the wells were “indirect,” instead holding that they were analogous to stormwater collection systems, which had previously been found to be regulated by the CWA.

The court supported this conclusion based on the evidence that the County of Maui knew from the time the wells were constructed “that effluent from the wells would eventually reach the ocean some distance from shore.” The court also noted that the fact that “groundwater plays a role in delivering the pollutants from the wells to navigable water does not preclude liability under the statute.”

 

© 2018 Schiff Hardin LLP
This post was written by J. Michael Showalter of Schiff Hardin LLP.
Read more Environmental News on the National Law Review Environment News page.

Bye, Bye Birdie: Summary and Analysis of the Trump Administration’s Recent Policy Change of the Migratory Bird Treaty Act

I. Background

Just over a month ago, on December 27, 2017, the United States Solicitor’s office issued a Memorandum Opinion reversing the Obama-era policy of interpreting the Migratory Bird Treaty Act (“MBTA”) to include “unintentional” or “incidental” takings of migratory birds. Under the new interpretation, the federal agencies under the Department of the Interior (or the “Department”) will no longer be able to threaten or impose criminal liability with respect to the MBTA for any activity which unintentionally or incidentally impacts migratory birds.

For nearly 20 years, federal agencies1 have used the threat of criminal prosecution under the MBTA as leverage to impose costly mitigation on any activities requiring NEPA compliance or some sort of permit from a federal agency. At the same time, because MBTA does have a meaningful “take permit” regime, refusing to commit that even with such costly mitigation such projects were protected from criminal liability. As a practical matter, these mitigation requirements have increased the costs of infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

With this policy change, the Trump Administration has removed the threat of federal prosecution. However, it stops short of alleviating the costly mitigation obligations because of the outstanding requirements of a 2001 Executive Order and the protections required with respect to companion federal statutes, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act. As outlined herein, the Memorandum Opinion relieves some pressure but leaves federal agencies with tools to continue to impose costly mitigation requirements aimed at preventing “incidental” or “unintentional” takes of migratory birds. In other words, absent revocation of the 2001 Executive Order, the Memorandum Opinion is merely lip service with respect to reducing cost impediments to infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

II. What is an “M-Opinion” and What Does the December 27, 2017, M-Opinion Actually Accomplish?

Many environmental organizations have expressed dismay at the December 27, 2017, M-Opinion, claiming that it will lead to a “parade of horribles” with respect to migratory birds.2  

Ostensibly, some of the hyperbole is aimed at drumming up “rage donations.3 However, to understand the impact of the M-Opinion, one must first take the time to understand exactly what an M-Opinion can and does do and what it cannot and does not accomplish. Notably, the M-Opinion in question did not, and cannot, repeal and replace the 2001 Executive Order directing agencies to impose mitigation to impacts associated with intentional and unintentional takings of migratory birds. This simple, indisputable, fact obviates the fear mongering.

The Department of the Interior can communicate using many different methods, each of which requires different formalities before issuance and results in a different amount of influence and authority (e.g., regulations, policies, guidance, memoranda, directives, and opinions). Some agency publications are advisory, some are specifically tailored to a particular case, and others are intended to reach everyone affected by a federal statute overseen by the Department or the agencies thereunder. The “M-Opinion” is one of the latter.

An M-Opinion (a “Memorandum Opinion”) is a written opinion issued by the Solicitor for the Department of the Interior on a particular topic that constitutes the Department’s official legal interpretation on a matter within its jurisdiction. M-Opinions are binding on all other offices and divisions within the Department of the Interior. Once issued, an M-Opinion can only be withdrawn, overruled, or modified by the Solicitor, the Secretary of the Interior, or the Deputy Secretary.

The MBTA was enacted in 1916 to respond to the overwhelming amounts of hunting that were devastating migratory bird populations. It is codified at 16 U.S.C. § 703. Section (a) of the MBTA makes it a crime to, “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill,” or attempt to do so to “any migratory bird, any part, nest, or egg of any such bird….” The U.S. Fish and Wildlife Service has defined “take” to mean “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or attempt to do so.

Violations of the MBTA are criminal offenses:  some misdemeanors, some felonies. Misdemeanor violations of the MBTA are “strict liability” offenses, which means that it does not matter whether the offender intended to violate the statute. So, if a hunter shoots a bird believing it to be nonmigratory, but it turns out to actually be migratory, his intent or belief is irrelevant. By taking a migratory bird, he committed a federal crime.

On its face, the MBTA might seem easy enough to follow: don’t hunt or kill migratory birds out of season. But look at the language again—the MBTA forbids killing a migratory bird “by any means or in any manner.” Does that language extend to migratory birds that die after landing in retention ponds meant to contain toxic waste? Or to the birds that run into windmills (killing approx. 174,000 birds/year) or buildings (303.5 million)? What if you hit a bird with your car (causing an estimated 200 million bird deaths/year)? If your cat kills a pigeon (which is migratory and, thus, falls under the MBTA), have you committed a federal crime? (Cats kill an estimated 2.4 billion birds/year). These sorts of activities which aren’t meant to kill birds, but do anyway, are referred to commonly as “incidental take” or “unintentional take.”

Prosecutors began filing criminal charges under the MBTA based on incidental take more than 40 years ago. The MBTA has been amended a few times since then, but incidental take was not directly addressed by the statute4. Interpretations differ. On the one hand, it seems extreme to impose criminal charges against the owner of an energy project, but on the other, the MBTA seems written to protect migratory birds and power lines kill an estimated 30 million birds each year. The text of the statute seems like it is aimed at hunting and poaching, but it also expands the scope to killing birds “by any means. Courts across the country have split as to whether incidental take can trigger strict liability.

In an effort to resolve the discrepancy, the Solicitor issued M-Opinion 37041 in January 2017, which affirmed that incidental take wasprohibited under the MBTA. That M-Opinion was suspended by the new Acting Secretary of the Interior in February 2017. Then on December 22, 2017, the Deputy Solicitor issued a new M-Opinion, M-37050, which withdraws and replaces the old opinion and decrees that the MBTA does not extend to incidental take.

When boiled down, the analysis in the new M-Opinion (hereinafter referred to simply at the “M-Opinion”) interprets the statute differently in four significant ways:

  • First, the M-Opinion affirms that a violative action must have some intent behind it to take or kill a bird, i.e. “purposeful and voluntary affirmative acts directed at reducing an animal to human control.” [p. 22]. Driving a car, erecting a windmill, or owning a cat are not actions designed to kill birds, even if it is likely or foreseeable that some birds will die. But shooting a gun, setting a trap, knocking down a nest, those are all acts with some intent behind them to kill or capture. The latter actions will have strict liability applied against them, but the former actions will not. The old opinion applied strict liability to all actions.
  • Second, the M-Opinion gives a different interpretation of the statutory language.5  The old opinion interpreted the relevant language to prohibit any activity that kills a bird “by any means, in any manner.” But the new M-Opinion declares that such a broad reading cannot have been what Congress intended. Instead, the “any means, any manner” language should be more narrowly applied only to intentional acts aimed at the bird. In other words, any means or manner of an intentional act aimed at a bird (e.g. guns, bows, air rifles, nets, lasers, or any other creative ways to take the bird) will violate the statute.
  • Third, the M-Opinion looked at the legislative history of the MBTA and concluded that the MBTA was only ever intended to regulate overhunting, not to protect bird habitats or control any action that might have an incidental impact on migratory birds.
  • Finally, the M-Opinion disagreed as to the effect of subsequent legislation on the MBTA. For example, the old opinion relied on the 2003 legislation that authorized any incidental take by the military. Why, it reasoned, would that manner of incidental take need an explicit authorization unless every other form of incidental take was not authorized under the MBTA? But the new M-Opinion says that the 2003 legislation was at best a precautionary measure that did not change the scope or language of the MBTA itself. The M-Opinion reasons that if Congress wanted to incorporate incidental take into the MBTA, it would do so directly and not by such a vague reverse inference.
    • Similarly, the M-Opinion explains that a 2001 Executive Order from President Clinton, which expanded the definition of “take” to include incidental take, was only part of a direction as to how agencies should focus their energies, not an attempt to expand the scope of the MBTA itself (nor could an executive order change the text of a Congressional law). [p. 32]

Ultimately, the M-Opinion comes back to the Constitution and a common sense rationale. Due process under the Constitution requires that we be able to reasonably understand whether an action we take would constitute a crime. But the Opinion reasons that if incidental take constituted a criminal act, no one could know whether or not they would commit a crime from day to day.  The scope of liability “is virtually unlimited.” [p. 33]. Even if they drove a car while obeying all traffic laws or built a building or power line in compliance with all of the relevant regulations, if doing so killed a bird they would have committed a crime punishable by imprisonment. Only the prosecutor’s discretion would keep that person from jail. The M-Opinion warns that such a broad interpretation of the MBTA would not be constitutional.

The M-Opinion concludes that including incidental take within the scope of the MBTA makes the statute vague to the point of absurdity. It points out that even if a developer completely complies with the Fish and Wildlife Service’s MBTA Guidelines, compliance with those guidelines does “not provide enforceable legal protections” based on that compliance and the developer may still be prosecuted should bird death occur. [p. 38-39]. It “is literally impossible” to know what is required under the law if the MBTA includes incidental take, and that does not comply with the Constitution’s guarantee of due process. Id.

III. “Bird is [still] the Word” ”—the M-Opinion Falls Short of Relieving Developers Required to Traverse Federal Lands or Secure a Permit or Approval from a Federal Agency from Mitigating Impacts Associated with “Unintentional” or “Incidental” Impact to Migratory Birds

Just because incidental take is not a criminal violation of the MBTA doesn’t mean that federal agencies will suddenly allow an incidental “open season” to occur. Those agencies will still work to minimize unintentional impacts to migratory birds. And those agencies will also still be required to analyze and approve the environmental impact of projects before they can be approved. Put simply, if the agency doesn’t believe that enough is being done to prevent incidental take, it can and will require the developer to employ mitigation measures even without the threat of criminal prosecution. If developers don’t comply, the agencies won’t issue the relevant permits or decisions needed for a particular project to proceed.

This reality is somewhat acknowledged by the M-Opinion’s discussion of the 2001 Executive Order. The Opinion distinguished the 2001 Clinton Executive Order (“EO-13186” or the “2001 Executive Order” or “Executive Order 13186”)6 as only providing internal guidance to federal agencies, not interpreting the MBTA. But that Executive Order remains in effect, thereby reducing the overall efficacy of the M-Opinion.

The scope of Executive Order 13186 includes “unintentional take,” and defines it as “take that results from, but is not the purpose of, the activity in question.” Section 2(c). The 2001 Executive Order required each federal agency to enter into a Memorandum of Understanding to define the term “action” with respect to each agencies responsibilities under the 2001 Executive Order and that “that shall promote the conservation of migratory bird populations.” 2001 Executive Order at Section 3.

Pursuant to EO-13186, in April 2010, the Bureau of Land Management and Fish and Wildlife Service entered into the MEMORANDUM OF UNDERSTANDING between the U.S. Department of the Interior Bureau of Land Management and the U. S. Fish and Wildlife Service To Promote the Conservation of Migratory Birds (the “BLM-FWS MOU”). The BLM-FWS MOU provides that BLM will, “[i]n coordination with the FWS, develop conservation measures and ensure monitoring of the effectiveness of conservation measures to minimize, reduce or avoid unintentional take.” Paragraph G. Paragraph I provides that the BLM will “[i]ntegrate migratory bird conservation measures, as applicable, into . . . renewable (wind, solar, and geothermal) energy development NEPA mitigation. This will address habitat loss and minimize negative impacts.” Additionally, the BLM-FWS MOU defines “Action” as “any action, permit, authorization, collaborative effort, program, activity, project, official policy, rule, regulation or formal plan directly carried out by the agency.” Paragraph IX. Finally, the BLM-FWS MOU defines “take” as “to pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to pursue, hunt, wound, kill, trap, capture or collect (50 CFR Section 10.12).” Paragraph IX. It goes on to note that the “Executive Order further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional take, meaning take that results from, but is not the purpose of, the activity in question.” Id. Finally, it states that “[b]oth intentional and unintentional take constitute take as defined by the regulation.” Id. Consequently, the BLM-FWS MOU makes clear that anybody seeking a federal permit or right-of-way from the BLM will be required to continue to integrate mitigation measures to address impacts to migratory birds, both intentional and unintentional/incidental impacts.7

Summarily, the M-Opinion clarifies that criminal liability for “taking” a migratory bird under the MBTA will not extend to the unintentional or incidental impacts to migratory birds. However, the M-Opinion fails to address the seemingly inconsistent definitions of “take” contained in the agency MOUs with FWS executed pursuant to the 2001 Executive Order. Ultimately, because of the 2001 Executive Order and the MOUs executed as a result therefrom, all the M-Opinion did was remove the threat of criminal prosecution from the quiver of arrows used by federal agencies to impose mitigation requirements. Removal of the threat of criminal prosecution may allow project proponents to have more candid discussions regarding mitigation without the fear and threat of federal criminal prosecution. But federal agencies can (and likely will) still condition approvals and permits on the inclusion of the same panoply of mitigation requirements it always has, at the same cost.

The M-Opinion should be further amended to reconcile the inconsistency between its interpretation of the MBTA and the definition of “take” under the MBTA contained in the 2001 Executive Order and the agency MOU executed pursuant thereto. Absent such a clarification, there will continue to be confusion as to the scope of the MBTA with respect to whether a federal agency can require costly mitigation of incidental or unintentional impacts associated with infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

References:

1 As used herein, “federal agency” or “federal agencies” shall only include those federal agencies under the Department of the Interior.
2 See e.g. http://www.audubon.org/news/the-white-house-turns-its-back-americas-birds (last visited January 26, 2018).
3 https://www.npr.org/2017/03/26/520854771/the-resistance-faces-a-new-question-what-to-do-with-all-that-money (last visited January 26, 2018); https://www.gq.com/story/the-rise-of-the-rage-donation (last visited January 26, 2018)
4 Congress did, however, adopt a regulation in 2003 that authorizes the incidental take of migratory birds during military training exercises.  50 C.F.R. § 21.15.
5 Bear in mind that section (a) of the statute is a single sentence containing 230 words. The question of whether and how a single clause should apply to another clause within that sentence can make a significant difference in statutory interpretation.
6 Executive Order 13186 is available online at https://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13186migratorybirds.pdf (last visited January 29, 2018)
7 The M-Opinion applies to all agencies under the Department of the Interior, which can be found online at: https://www.usa.gov/federal-agencies/u-s-department-of-the-interior (last visited January 29, 2018).  The other agencies have MOUs that likewise define “take” under the MBTA to include incidental or unintentional impacts to migratory birds.  See e.g. Bureau of Reclamation and FWS MOU, https://energy.gov/sites/prod/files/2013/10/f3/Final%20signed%20MOU%20-%20Migratory%20Birds_0.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question.  Both intentional and unintentional take constitute take as defined by the MBTA.”); National Park Service and FWS MOU, https://www.nature.nps.gov/biology/migratoryspecies/documents/MBMOUNPSSigned041210.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question. Both intentional and unintentional take constitute take as defined by the MBTA.”); Office of Surface Mining, Reclamation and Enforcement and FWS MOU, https://www.osmre.gov/lrg/docs/2016_MOU_Migratory_Bird_Conservation.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question. Both intentional and unintentional take constitute take as defined by the MBTA.”).

Copyright © 2018 Ryley Carlock & Applewhite. A Professional Association. All Rights Reserved.
This post was written by Jason Cassidy and Samuel Lee Lofland of Ryley Carlock & Applewhite.
More environmental news is available on the National Law Review’s Environmental Law page.

CDC expands use of Whole Genome Sequencing in Foodborne Illness

Whole genome sequencing (WGS) provides insight into the genetic fingerprint of a pathogen by sequencing the chemical building blocks that make up its DNA and is increasingly being employed in food safety efforts. Since 2012, the U.S. Food and Drug Administration (FDA) has regularly turned to WGS to better understand foodborne pathogens, including identifying the nature and source of microbes that contaminate food and cause outbreaks of foodborne illness.

This week, the Centers for Disease Control and Prevention (CDC) announced that the use of whole genome sequencing to monitor for outbreaks of Listeria, Salmonella, Campylobacter and coli that are commonly transmitted through food and animal contact has expanded to 38 states and two cities. This data is reported in the CDC’s Antibiotic Resistance (AR) Investment Map, which shows early progress by states to combat antibiotic resistance. This year’s Antibiotic Resistance Investment Map features more than 170 state-reported successes, including rapidly identifying and containing rare and concerning resistant germs to protect communities. Each state reported multiple successes.

You can learn more about CDC’s AR Solutions Initiative and ongoing work to combat antibiotic resistance at cdc.gov/DrugResistance.

 

© 2018 Keller and Heckman LLP.

Baker-Polito Administration Awards $3.7 Million in Grants for Clean Energy Technology

On November 1, the Baker-Polito Administration awarded $3.7 million in grants to increase the adoption of cost-saving clean energy technologies by Massachusetts low-income residents as part of the Commonwealth’s Affordable Clean Residential Energy Program (ACRE).

Launched in April of this year, the ACRE program evolved out of the Administration’s $15 million Affordable Access to Clean and Efficient Energy (AACEE) Initiative, which focuses on coordinating the agencies that serve the energy and housing needs of Massachusetts’ low- and moderate-income residents. The Initiative’s goal is to increase the number of renewable technologies employed by low-income, single-family homes throughout the Commonwealth. To that end, an AACEE working group published a report last year highlighting recommendations to address barriers to clean energy investment by the state’s low-income residents. These recommendations, which included maximizing clean energy market growth in the low-income housing community and structuring clean energy incentives to better serve low-income residents, have served as a guidepost for the Initiative and its suite of programs.

Through ACRE, the Massachusetts Clean Energy Center (MassCEC) is awarding $2 million to Action for Boston Community Development (ABCD), a non-profit human services organization helping low-income residents in the greater Boston region transition from poverty to stability. ABCD will assist in the installation of air-source heat pumps and solar photovoltaic systems, weatherization, and energy efficient lighting as well as appliance replacement for qualifying single-family homes with reported incomes below 60 percent of the State Median Income.

Energy Futures Group, an expert consulting services organization focused on the design and evaluation of energy efficiency and renewable energy programs, will receive the remaining $1.7 million of the Administration’s funding and will focus their efforts on Western Massachusetts residents living below 80 percent of the State Median Income.

The ACRE program will give low-income homeowners access to renewable technologies, allowing these households to reduce energy costs without out-of-pocket investment. In addition to helping mitigate greenhouse gas emissions, the expanded use of energy efficient appliances benefits all Massachusetts’ ratepayers. By increasing the affordability and accessibility of these technologies, Massachusetts continues to affirm its role as a leader in clean energy generation and the fight against climate change.

This post was written by Sahir Surmeli of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.,©1994-2017
For more Environmental & Energy legal analysis, go to The National Law Review 

Tesla Bringing Supercharger Stations to Boston and Chicago

On September 11th, Tesla announced the opening of Supercharger stations in downtown Boston and Chicago, representing the first step in the company’s effort to expand its Supercharger network into urban areas. The company currently operates 951 Supercharger stations worldwide, primarily along major highways to provide quick recharging on long trips. By bringing the network of charging stations into city centers, Tesla hopes to service growing demand among urban dwellers without immediate access to home or workplace charging.

Unlike the Destination Charging connectors at hotels and restaurants meant to replicate the longer home-charging process, Superchargers quickly deliver 72 kilowatts of power to each car for short-term boosts, resulting in charging times around 45-50 minutes. The new stations will be installed near supermarkets, shopping centers, and downtown districts, making it easy for drivers to charge their car while running errands. The Boston Supercharger station will be located at 800 Boylston Street and include 8 charging stalls.

Tesla announced plans to double its national charging network to 10,000 stations by the end of 2017. The company is bringing urban Superchargers to New York, Philadelphia, Washington, Los Angeles, and Austin by the end of this year. The expansion accompanies Tesla’s release of the Model 3 this summer, which boasts a lower starting price of $35,000 that is expected to bring more buyers to the brand.

A spike in Tesla sales would fall in line with the trend of increased demand for electric vehicles (EV) across the country. The year 2016 saw EV sales in the United States increase by 37% over 2015. Total EV sales topped out at roughly 160,000, with five different models (Tesla Model S, Tesla Model X, Chevrolet Volt, Nissan Leaf, and Ford Fusion Energi) selling at least 10,000 units. These sales, coupled with the expanding ease of access to charging station’s like Tesla’s, bode well for continued innovation and growth in the electric auto sector.

This post was written by Thomas R. Burton, III of  Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. ©1994-2017
For more legal analysis go to The National Law Review