Environmental update

April 10, 2018 | By Andrew Skroback in Washington, DC

New data released by the US Environmental Protection Agency in February shows the power sector is three quarters of the way to meeting the greenhouse gas targets set in the Obama-era Clean Power Plan.

These data suggest that the goals established in the plan may be achieved more than a decade ahead of the 2030 deadline set in the Obama plan and just three years after that plan was issued.

The Clean Power Plan would have set limits on greenhouse gas emissions by existing power plants, but implementation was blocked by the US Supreme Court, and the plan never took effect. EPA moved formally to withdraw it in October 2017.

Nevertheless, greenhouse gas emissions by the US power sector are now 25% below 2005 levels.

The Obama EPA projected that full implementation of the Clean Power Plan would reduce power-sector emissions by 32% by 2030 from the same baseline.

Greenhouse gas emissions by the power sector are expected to continue to fall. The reason for these declines has much less to do with the blocked regulation than the fact that natural gas remains cheap, the cost of renewable energy continues to fall year on year, and there has been no significant spike in electricity demand.

The data appear to validate claims that market shifts toward lower carbon power would make Clean Power Plan compliance much easier and cheaper than anticipated.

EPA is now contemplating replacing the Obama-era Clean Power Plan with a different Trump plan.

The power sector and other major business groups have called for a replacement that will provide them with legal and regulatory certainty regarding greenhouse gas standards, in part because they realize that greenhouse gas regulation is inevitable. However, public comments received ahead of the February deadline for comments about EPA’s withdrawal of the Obama plan show significant disagreement about what a replacement should look like, even among groups that have urged repeal and replace.

Migratory birds

The US Department of the Interior has reversed a long-standing agency legal position that the Migratory Bird Treaty Act criminalizes the unintentional killing of migratory birds incidental to otherwise lawful activities like wind farms.

The MBTA prohibits the “taking” or killing of migratory birds and their eggs and nests, except when specifically authorized by the Department of Interior. The MBTA, which is a criminal statute, does not explicitly allow an unauthorized “take” and can be read to impose strict liability without regard to intent. In recent years, a split among courts interpreting the act has been developing over whether persons conducting activities that inadvertently cause the death of migratory birds can be subject to prosecution.

In late 2017, Interior issued a solicitor’s opinion (number M-37050) withdrawing and replacing an earlier opinion that the MBTA imposes liability for the incidental taking of protected birds. The prior solicitor’s opinion had interpreted the MBTA to prohibit “incidental takes” on grounds that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental take and killing.”

The new legal position means that the Trump administration will not pursue criminal prosecution of the unintended killing of birds by wind farms and other businesses in the course of their otherwise lawful activities.

The opinion concludes that “the MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only . . . to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.”

It emphasizes the uncertainty that previous interpretations of the MBTA and the exercise of prosecutorial discretion created for wind farms and industry generally. “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions.”

The opinion notes that the MBTA protects nearly every bird species in North America and specifically lists wind turbines, electrical lines, communications towers, buildings and vehicles as among the many “human-caused threats” to over 1,000 species of birds covered by the act.

It acknowledges its narrow interpretation of the act, suggesting that this is necessary to avoid what it considers the “constitutional doubt” related to a law that would criminalize such a broad range of otherwise lawful activity where no harm is intended.

The opinion may provide practical comfort with respect to federal prosecution, but such opinions are technically not binding on a court. The policy could change in a future administration.

Wetlands

EPA Administrator Scott Pruitt has withdrawn power from regional EPA offices to make final jurisdictional determinations under the Clean Water Act and centralized it at EPA headquarters in Washington.

The Clean Water Act protects wetlands and “waters of the United States” and can limit development where such waters or wetlands are found.

Pruitt has specifically restricted regional authority to implement section 404 of the act, which governs dredge-and-fill permitting and broadly covers the filling of wetlands.

A leaked memo establishes a new process that will involve headquarters “early on” in decisions over the law’s scope.

Also leaked was the amendment to the standing delegation of Clean Water Act authority from the administrator to regional heads. The memo said the change is required “to ensure consistency and certainty in how the EPA makes certain jurisdictional determinations.”

While the final determinations will now be made in Washington, it is uncertain what roles headquarters and regional offices will each play leading up to the final determination stage. The memo directs staff to take all necessary steps to “adjust associated consultations, reviews and other practices in a manner consistent with the revised delegation” and “involve the Administrator’s Office early on in the process of developing geographic determinations.”

Previously, EPA regional offices used delegated authority to decide when particular water bodies are jurisdictional and to threaten to veto section 404 permits issued by the US Army Corps of Engineers that regional offices found too lenient to protect the environment. Often this power was used to demand changes in permits to mitigate impacts.

The memo formalizes what had already long been rumored to be going on unofficially. Staff at the EPA office of enforcement & compliance assurance were directed in early 2017 to compile a list of ongoing enforcement cases.

The memo appears to focus on agency decisions being made under the section 404 “dredge-and-fill” permit process and not to “NPDES” discharge permits issued under section 402.

The most common use of a section 404 permit is to fill in wetlands.

US Waters

Staff at EPA reportedly expect new guidelines redefining the scope of what qualifies as “waters of the United States” as early as this month.

The new guidelines are expected to narrow the existing definition significantly. They would replace an Obama-era definition adopted in 2015.

EPA suspended enforcement of the Obama-era rule until 2020. The delay in enforcement is being challenged in court.

Narrowing what qualifies as “waters of the United States” will allow more filling activity to avoid regulation.

Pending lawsuits on the legality of the Obama definition could become moot if that definition is formally replaced, but then the litigation will shift to challenges against the Trump definition.

Meanwhile, Pruitt is being battered in the press by almost daily revelations about perceived ethical lapses. A number of the charges are the subject of inquiries by the Government Accountability Office and the EPA inspector general, and there are calls by a small number of Republican House members for his ouster.