Tag: EPA

PFAS — What’s all the Fuss?

Recently, per- and polyfluoroalkyl substances (PFAS) have been the subject of much publicity, major ongoing litigation over alleged personal injury and property damage, and statutory and regulatory action. In Massachusetts and New Hampshire, contamination incidents, lawsuits, and concerns over drinking water impacts have led to proposals for adoption of extremely low (parts per trillion) drinking water guidelines or enforceable standards. Nationally, although there are drinking water “advisories,” the U.S. Environmental Protection Agency (EPA) is considering whether to start rulemaking to identify PFAS as “hazardous substances” under the federal Superfund law, and whether to adopt enforceable maximum contaminant levels as national drinking water standards.

What’s all the fuss? Although manufacturers stopped making two of the most well-known PFAS (PFOA and PFOS) over a decade ago, PFAS are a category of substances that includes hundreds of compounds, and a number of them appear to have toxic effects. PFAS had – and continue to have – a variety of uses in a multitude of products, and therefore have been manufactured or used (and sometimes released) at a large number of facilities. Commercial products have included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets. Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics. As a result, PFAS are present in the environment, and have been detected in certain drinking water systems. Further, PFAS are still being manufactured and used, but discharge of PFAS in air and water typically have not been regulated. PFAS also are highly mobile and highly persistent in the environment, and, therefore, will be present for scores of years.

Although the toxicological risks for many PFAS have not yet been determined with confidence, PFOA and PFOS have been tested fairly extensively. Manufacturers point out that not all PFAS have the same chemical structures and toxicity. Nevertheless, the Conservation Law Foundation and other environmental advocates are petitioning for regulation of the entire class.

Because PFAS haven’t yet fallen under most federal regulatory schemes, many states have been “filling the gap” with guidance and regulatory action. In Maine, PFAS are already the subject of guidance and regulations by the Maine Department of Environmental Protection (DEP). The most recent DEP Remedial Action Guidelines (RAGs, 2018) for PFOA, PFOS, and PFBS issued by Maine include:

  • Soil RAGs as low as 0.0095 ppm
  • Groundwater residential use RAG as low as 0.40 ppb
  • Fish tissue guidelines for recreational anglers as low as 0.052 ppm

And under DEP Chapter 418, Screening Levels for Beneficial Use have been set for certain PFAS as low as 0.0025 ppm.

It is clear there will be more regulation and legislation at federal and state levels. Further, litigation has commenced in a number of states (including Maine) for perceived or real damages from PFAS contamination under negligence and other tort theories.

What to do? Depending on where you sit, here are a few actions to consider.

  • If you are unsure whether you use PFAS, a limited review of safety data sheets may identify PFAS chemicals.
  • Determine if you stored, used, or currently use PFAS, and consider the potential toxicity of the specific compounds and potential impact of potential regulations.
  • If you stored or used PFAS in the past, consider whether there were potential releases or residuals that could pose health risks or liability risks.
  • If you are considering purchasing a business or real property, consider whether PFAS may have been used or released on site, and the potential risk and liability issues. Note that because PFAS are not federal “hazardous substances” they are not within the scope of the standard Phase I Environmental Site Assessment.
  • If you generate or ship wastes that may contain PFAS, consider voluntary testing and the possibility that testing may soon be requested or required.
  • If you use groundwater as drinking water or for production use, consider whether PFAS may be present from historic or recent uses.
  • Keep posted on national and state regulatory and legislative developments.
©2019 Pierce Atwood LLP. All rights reserved.
This post was written by Kenneth F. Gray and Thomas R. Doyle of Pierce Atwood LLP.

EPA Sued to Issue Pending Methylene Chloride Prohibition Rule in Final

On January 14, 2019, in the U.S. District Court for the District of Vermont, the Vermont Public Interest Group; Safer Chemicals, Health Families; and two individuals (plaintiffs) followed up on their earlier notice of intent to sue and filed a complaint against Andrew Wheeler and the U.S. Environmental Protection Agency (EPA) to compel EPA to perform its “mandatory duty” to “address the serious and imminent threat to human health presented by paint removal products containing methylene chloride.”  Plaintiffs bring the action under Toxic Substances Control Act (TSCA) Section 20(a) which states that “any person may commence a civil action … against the Administrator to compel the Administrator to perform any act or duty under this Act which is not discretionary.”  Plaintiffs allege that EPA has not performed its mandatory duty under TSCA Sections 6(a) and 7.  TSCA Section 6(a) gives EPA the authority to regulate substances that present “an unreasonable risk of injury to health or the environment” and TSCA Section 7 gives EPA the authority to commence civil actions for seizure and/or relief of “imminent hazards.”  Plaintiffs’ argument to direct EPA to ban methylene chloride is centered on the issue of risk to human health only, however, stating that it presents “an unreasonable risk to human health” as confirmed by EPA.  Under TSCA Section 20(b)(2), plaintiffs are required to submit a notice of intent to sue 60 days prior to filing a complaint which they did on October 31, 2018.

Background

On January 19, 2017, EPA issued a proposed rule under TSCA Section 6 to prohibit the manufacture (including import), processing, and distribution in commerce of methylene chloride for consumer and most types of commercial paint and coating removal (82 Fed. Reg. 7464).  EPA also proposed to prohibit the use of methylene chloride in these commercial uses; to require manufacturers (including importers), processors, and distributors, except for retailers, of methylene chloride for any use to provide downstream notification of these prohibitions throughout the supply chain; and to require recordkeeping.  EPA relied on a risk assessment of methylene chloride published in 2014, the scope of which EPA stated included “consumer and commercial paint and coating removal.”  The proposed rule stated that in the risk assessment, EPA identified risks from inhalation exposure including “neurological effects such as cognitive impairment, sensory impairment, dizziness, incapacitation, and loss of consciousness (leading to risks of falls, concussion, and other injuries)” and, based on EPA’s analysis of worker and consumer populations’ exposures to methylene chloride in paint and coating removal, EPA proposed “a determination that methylene chloride and NMP in paint and coating removal present an unreasonable risk to human health.”  The comment period on the proposed rule was extended several times, ending in May 2017, and in September 2017 EPA held a workshop to help inform EPA’s understanding of methylene chloride use in furniture refinishing.

No further action was taken to issue the rule in final, however, until December 21, 2018, when EPA sent the final rule to the Office of Management and Budget (OMB) for review.  On the same day, EPA also sent another rule to OMB for review titled “Methylene Chloride; Commercial Paint and Coating Removal Training, Certification and Limited Access Program,” which has not previously been included in EPA’s Regulatory Agenda; very little is known about this rule.  Plaintiffs do not refer to it in the complaint but there is speculation, based on its title, that this second rule may allow for some commercial uses of methylene chloride.

Commentary

We recall the lawsuit filed by the Natural Resources Defense Counsel (NRDC) in 2018 challenging EPA’s draft New Chemicals Decision-Making Framework document as a final rule.  The current action further reflects the commitment of detractors of EPA to use the courts and every other means available to oppose the Administration’s TSCA implementation efforts.  Whether and when this court will respond is unclear.  What is clear is that the case will be closely watched, as the outcome will be an important signal to the TSCA stakeholder community regarding the utility of TSCA Section 20(a)(2) to force non-discretionary EPA actions that the Administration may be disinclined to take.

 

©2019 Bergeson & Campbell, P.C.

Senate Approves Nominations of Three Key Environmental Posts

In the last hours of the 115th Congress, the Senate on January 2, 2019, approved the nominations of three individuals to serve in key environmental posts:

Alexandra Dapolito Dunn — EPA Toxics Office:  The Senate approved the nomination of Alexandra Dunn to serve as the Assistant Administrator of the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP).  Ms. Dunn had been serving as the administrator for EPA Region 1.  She previously was executive director and general counsel for the Environmental Council of the States (ECOS).  Prior to joining ECOS, Ms. Dunn served as executive director and general counsel for the Association of Clean Water Administrators.  Ms. Dunn also has extensive experience in environmental education, having served as dean of Environmental Law Programs at the Elisabeth Haub School of Law at Pace University.  In addition, she has taught at the Columbus School of Law, Catholic University of America, and, most recently, as an adjunct associate professor of law at the American University’s Washington College of Law.  Ms. Dunn received a B.A. in political science from James Madison University and a J.D. from the Columbus School of Law.  More information on Ms. Dunn’s confirmation hearing is available in our blog item Senate EPW Committee Holds Hearing on Nomination of Alexandra Dunn to Lead OCSPP.

Mary Neumayr — CEQ: The Senate also approved the nomination of Mary Neumayr to head the White House’s Council on Environmental Quality (CEQ).  Ms. Neumayr currently serves as chief of staff for the CEQ.  Prior to joining CEQ in March of 2017, she served in a variety of positions with the Committee on Energy and Commerce in the U.S. House of Representatives, including Deputy Chief Counsel, energy and environment in 2017; Senior Energy Counsel from 2011 to 2017; and Counsel from 2009 to 2010.  Ms. Neumayr also served as Deputy Counsel for environment and nuclear programs at the U.S. Department of Energy from 2006 to 2009, and Counsel to the Assistant Attorney General for the environment and natural resources division at the U.S. Department of Justice from 2003 to 2006.  Prior to her government service, Ms. Neumayr was in private legal practice from 1989 to 2003.  She received her B.A. from Thomas Aquinas College and her J.D. from the University of California, Hastings College of the Law.

Kelvin Droegemeier — OSTP:  Finally, the Senate also approved Kelvin Droegemeier to serve as the director of the White House Office of Science and Technology Policy (OSTP).  A meteorologist from the University of Oklahoma, Mr. Droegemeier previously served as Oklahoma Governor Mary Fallin’s secretary of science and technology.  He was also previously on the National Science Board for 12 years during the George W. Bush and Barack Obama administrations.

©2018 Bergeson & Campbell, P.C.

EPA Proposes to Clarify Areas Excluded from Clean Air Act’s Definition of “Ambient Air”

The U.S. Environmental Protection Agency (EPA) recently proposed a revised policy to clarify what constitutes “ambient air” under the Clean Air Act, which will directly affect what areas stationary sources of air emissions must model to determine the effect of their facilities on air quality. The revised policy will most notably affect sources that have to model air quality around their facilities to demonstrate compliance with National Ambient Air Quality Standards (NAAQS), as well as sources applying for air construction permits under the EPA’s Prevention of Significant Deterioration (PSD) permitting program.

Under current EPA regulations, ambient air is broadly defined as the portion of the atmosphere (external to buildings), that the general public has access. Areas where access is not available are not “ambient.” Sources are often required under the NAAQS and the EPA’s PSD program to model facility impacts on ambient air. Thus, excluding areas from “ambient air” eliminates the need to model emissions impacts on those areas.

Through various guidance documents and letters, the EPA’s historic policy has been to only exclude those areas from the definition of ambient air that are (1) owned or under the control of the source and (2) not accessible by the public due to some physical barrier (like a fence). This policy was rooted in the EPA’s interpretation of the definition of ambient air under 40 CFR §50.1(e), rather than explicit regulatory language.

The EPA now believes that its prior characterization that “physical barriers” must exist to exclude an area as ambient air is unnecessarily limiting. Under the EPA’s revised draft policy, a source may use various “measures,” not limited to mere “physical barriers,” to preclude public access. As a result, non-ambient air can include areas subject to video surveillance, signage, security patrols, or other measures provided that the measures “provide reasonable assurance that the general public will not have access.”

What does the EPA’s revised policy mean for stationary sources if implemented as proposed?

  1. Sources will have additional flexibility to determine what areas must be modeled for air quality analyses;
  2. The EPA’s proposed interpretation is a change in policy rather than a change in regulation, meaning that sources should still consider how their respective state or local permitting authorities interpret the meaning of ambient air;
  3. The draft policy appears to address only measures that a source can implement to preclude public access (e.g. install signs or physically patrol the area), as opposed to other physical conditions beyond fences that might already exist to preclude public access, such as roadways – this may be addressed in the final version of the EPA’s policy.

The EPA is accepting comments on its “Draft Revised Policy on Exclusions from ‘Ambient Air’” through December 21, 2018.

 

© 2018 Schiff Hardin LLP
This post was written by David M. Loring of Schiff Hardin LLP.

EPA Proposes Affordable Clean Energy Rule

On August 21, 2018, the Environmental Protection Agency (EPA) issued a proposed rule pursuant to section 111(d) of the Clean Air Act (CAA) that would establish emission guidelines for states to develop plans to limit carbon dioxide (CO2) emissions from existing fossil-fired power plants.  The proposed Affordable Clean Energy (ACE) rule would replace the 2015 Clean Power Plan (CPP), which EPA is proposing to repeal (in a separate rulemaking) on the grounds that the CPP exceeded the agency’s authority under the CAA.

Core elements of the proposed ACE rule include: (1) a determination of the best system of emission reduction (BSER) for CO2 emissions from coal-fired power plants; (2) a list of “candidate technologies” states can use when setting CO2 performance standards for affected plants; (3) a new preliminary applicability test for determining whether a physical or operational change made to a power plant may be a “major modification” triggering New Source Review (NSR); and (4) new implementing regulations for establishing emission guidelines under CAA section 111(d).

Section 111(d)

EPA is proposing the ACE rule pursuant to section 111(d) of the CAA.  This section directs EPA to promulgate regulations establishing a federal-state process for setting standards of performance limiting emissions from existing sources for pollutants not otherwise regulated in other specified sections of the CAA.  Implementing section 111(d) is a three-step process.  First, EPA issues a “guideline” for states to use in developing compliance plans that include standards of performance for stationary sources within a particular source category.  The guideline identifies what EPA determines is the BSER for the relevant sources within the source category.  Second, each state submits a plan to EPA that includes standards of performance for the covered sources in the state.  Third, EPA approves or disapproves of the state plans.  If a state fails to submit an approvable plan, the CAA requires EPA to impose a federal plan.

Proposed BSER Determination

EPA is proposing to define BSER for CO2 emissions from existing coal-fired power plants as heat-rate efficiency improvements based on a range of “candidate technologies.”  This “inside the fence” BSER determination reflects a different approach than what was used in the CPP.  The CPP determined the BSER for power plants based on reductions achievable not only through inside-the-fence measures such as heat rate improvements but also through shifting of generation from higher-emitting to lower-emitting or zero-emitting plants.  As noted above, EPA has proposed to find that such an “outside-the-fence” approach to determining BSER exceeds the agency’s authority under the CAA.

EPA has identified a list of the “most impactful” heat rate improvement measures.  EPA is proposing that this list serve as the “candidate technologies” or “checklist” of BSER technologies, equipment upgrades, and best operating and maintenance practices for coal-fired power plants.  These candidate technologies are:

  • Neural Network/Intelligent Sootblowers

  • Boiler Feed Pumps

  • Air Heater and Duct Leakage Control

  • Variable Frequency Drives

  • Blade Path Upgrade (Steam Turbine)

  • Redesign/Replace Economizer

  • Improved Operating and Maintenance Practices

States would consider the above technologies in establishing standards of performance for existing coal-fired power plants.  EPA is proposing that performance standards will set a specific allowable emission rate expressed on a pound CO2 per MWH-gross rate for each affected unit based on the application of the appropriate candidate BSER technologies to each unit.

EPA explains in the proposed rule that it does not have sufficient information to make a BSER determination with respect to heat rate improvements at natural gas-fired simple‑cycle turbines or combined cycle turbines.  The agency is soliciting comment on this issue.  Previously, EPA determined that heat rate improvement measures at natural gas‑fired combustion turbines would not be considered BSER because such measures cannot provide meaningful reductions at reasonable cost.

State Compliance Plans

The proposed rule would provide each state with broad discretion in establishing specific performance standards for particular plants.  The proposal also allows state plans to rely on emission averaging and trading among affected coal‑fired units at a particular plant.  However, EPA has proposed that state plans should not be allowed to incorporate averaging and trading among different plants, such as a state-wide or interstate cap-and-trade program.  Nor will any credit be given for CO2 emissions reductions achieved through increased generation of renewable energy or gas-fired generation not covered under the section 111(d) regulatory program.  The proposed rule explains that such an approach would be inconsistent with EPA’s proposed “inside-the-fence” interpretation of BSER under section 111.

Permitting Under NSR Program

EPA is proposing revisions to the NSR permitting program to make it easier for power plants to adopt heat rate improvements without triggering NSR obligations.  The NSR program is a preconstruction permitting program.  An NSR permit is required not only before construction of a new major stationary source; it is also required before modifying an existing major source if the modification will result in a significant emissions increase of any NSR-regulated pollutant.  Projects that cause a significant increase in annual emissions may trigger onerous NSR permitting requirements, which include installation of state-of-art emission control technologies, prescriptive air quality modeling, and extensive public notice and comment procedures.

To avoid widespread triggering of NSR permitting requirements from heat rate improvement projects undertaken by affected coal‑fired plants, EPA is proposing to amend the NSR regulations to include an hourly emissions increase test.  Under the proposed revisions, a non-excluded physical or operational change to an electricity generating unit would only trigger NSR if the change resulted in an increase in the unit’s maximum hourly emissions rate under procedures proposed in the ACE rule, as well as a significant emission increase in annual emissions under the current NSR regulations.

As drafted, the proposed maximum hourly emission increase test would be available to any electricity generating unit, including natural gas-fired units that would not be subject to regulation under section 111(d).

States with approved NSR programs would have the option but would not be required to adopt the hourly emission increase test ultimately promulgated as part of the NSR provisions in their SIPs.  For those states with delegated NSR programs that are acting on behalf of EPA, the NSR permitting process would have to include any changes that are ultimately made to the federal NSR provisions as they would be administering the federal program.

EPA is proposing that the potential revisions to the NSR permitting program are severable from the rest of the ACE rule.

Implementing Regulations for Emission Guidelines under Section 111(d)

The proposal revises the general implementing regulations for section 111(d) that govern how EPA issues emission guidelines, and how and when states develop and submit their plans.  These changes would apply for all future section 111(d) rules.  Proposed changes include the following:

  • Timing:  The proposal updates timing requirements regarding submission of state plans and EPA action on those state plans.

    • State submissions:  EPA is proposing to provide states three years to develop state plans.  The existing implementing regulations provide nine months.

    • EPA action:  The proposal would allow EPA 12 months to act on a complete state plan submittal.  The existing implementing regulations provide four months.

    • Federal plan:  The proposal would allow EPA two years to issue a federal plan after a finding of a state’s failure to submit an approvable plan.  The existing implementing regulations provide six months.

  • Criteria for state plans:  The proposal has completeness criteria for state plans that include administrative materials and technical support for state implementation of the plan.  EPA would have six months to determine completeness and would make that determination by comparing the state’s submission against the completeness criteria.

  • Variance provisions:  The proposal provides greater flexibility to states to adopt plans that include variances from the EPA guidelines that will allow, among other things, states to take into account the remaining useful life of the unit and other relevant factors in establishing a performance standard for a particular affected unit.

Next Steps

EPA will take comment on the proposal for 60 days after publication in the Federal Register and will hold at least one public hearing.  Depending on the exact date of Federal Register publication, this means comments will be due to EPA sometime in late October 2018.

Impacts of EPA Proposal

According to EPA, the proposed ACE rule would reduce the compliance burden by up to $400 million per year when compared to the CPP.  EPA estimates that the ACE rule could reduce overall 2030 CO2 emissions by up to 1.5% from projected levels without the CPP.

 

© 2018 Van Ness Feldman LLP
This post was written by Kyle W. Danish and Stephen C. Fotis  of Van Ness Feldman 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.

D.C. Circuit Amends Opinion on EPA’s Definition of Solid Waste Rule

On March 6, 2018, the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued a ruling amending its July 7, 2017 opinion on challenges to the U.S. Environmental Protection Agency’s (EPA or Agency) 2015 rule on the Definition of Solid Waste (DSW) (the 2015 Rule). See American Petroleum Institute v. EPA, No. 09-1038 (D.C. Cir. 2018) (API Opinion). The 2015 Rule revised a DSW Rule promulgated by EPA in 2008 (the 2008 Rule). See KEAG Bulletin No. 2014-98, dated December 17, 2014. Both industry and environmental groups challenged the 2015 Rule. SeeKEAG Bulletin No. 2017-12, dated July 13, 2017. In the D.C. Circuit’s 2017 opinion, the court upheld some aspects of the 2015 Rule and vacated others. Id.

Following the issuance of the court’s 2017 opinion, petitions for rehearing were filed by the American Petroleum Institute, EPA, environmentalists, and other industry groups. API Opinion at 2. After reviewing the petitions, the court amended its decision in three ways: (1) it severed and affirmed EPA’s removal of the spent catalyst bar from the vacated portions of the Verified Recycler Exclusion (VRE), (2) it vacated “Legitimacy” Factor 4 in its entirety, and (3) it clarified the regulatory regime that replaces the now-vacated Factor 4. Id.

With respect to spent petroleum catalysts, the court granted industry’s request to exclude these catalysts from strict hazardous waste regulation for third‑party recyclers. In its original opinion, the court vacated the VRE from the 2015 Rule, and reinstated the Transfer-Based Exclusion (TBE) from the 2008 Rule. See KEAG Bulletin No. 2017-12, dated July 13, 2017. Spent catalysts were excluded from RCRA under the VRE, but not in the TBE. Id. In the court’s reconsideration of whether spent catalysts should be granted an exclusion, the court cited EPA’s various statements on catalysts and found that EPA’s revised containment standard, which the court upheld despite eliminating other aspects of the VRE, is sufficient for spent catalysts to be included in the TBE. Id. at 6-8.

Legitimacy Factor 4 is one of the four criteria the EPA applies to determine if recycling of hazardous secondary materials is legitimate and not sham recycling. Factor 4 requires that a recycled product be comparable to or lower in contaminant levels than a legitimate product or intermediate, and if the former contains higher levels of contaminants, it requires additional procedures and tests (a.k.a., the “toxics along for the ride” test). Id. at 8; see also KEAG Bulletin No. 2017-12, dated July 13, 2017. In its original opinion, the court found those additional procedures to be unauthorized under RCRA and vacated Factor 4 “insofar as it applies to all hazardous secondary materials via § 261.2(g),” which is the section of the RCRA rules that defines sham recycling. See KEAG Bulletin No. 2017-12, dated July 13, 2017. Nevertheless, Factor 4 still applied to those specific exclusions in which it was specifically included. Id. In its amended opinion, the court vacated Legitimacy Factor 4 under all circumstances, even those written into specific exclusions. API Opinion at 9.

Finally, the court clarified the effect of its vacating Factor 4. Id. at 9-10. The net result is that (1) the 2015 version of Factor 4 is vacated (in its entirety); (2) the 2015 change making the legitimacy factors applicable to all exclusions remains; (3) Factor 3 remains mandatory per the 2015 changes; and (4) the 2008 version of Factor 4, which requires only that the factor be “considered,” replaces the now-vacated 2015 version. Id. at 10.

 

©2018 Katten Muchin Rosenman LLP
This post was written by Danny G. Worrell of Katten Muchin Rosenman LLP.

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.

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.

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.