Environment

A Tax on the EPA’s Power: The Supreme Court and the Future of Carbon Pricing

April 27, 2023
Climate Change, Energy Law, Environment, EPA, Tax

Quinn Milligan, MJLST Staffer

As climate change becomes a topic of increasing popularity worldwide, policy makers and the legal community alike have turned their attention to fashioning appropriate mechanisms to address carbon emissions. Of the myriad proposals made in recent years, carbon pricing has come to the forefront of climate policy regimes worldwide. Although carbon pricing has been implemented in various parts of the world, the legal system of the United States presents various legal challenges.

Carbon pricing, at a simple level, is an economic tool designed to reduce carbon emissions by forcing individuals and companies to internalize the externality price of the carbon they emit.[1] Caron pricing is implemented predominantly in one of two methods: cap-and-trade systems or a carbon taxation system. A cap-and-trade system is the process of placing a “cap” on the amount of carbon (measured in tons) that can be emitted by those under the regulatory purview of the given cap-and-trade; typically companies are the target of these systems. Once the emissions cap has been set, the regulators allocate “allowances” for all or part of the total cap. Companies that emit less than their allocated cap can sell or trade their remaining allowances to other companies under the cap-and-trade regulation. In essence, the cap-and-trade system creates a monetary incentive for companies to reduce their carbon emissions.[2] In contrast, a carbon tax is much more straightforward. Carbon taxes are imposed on the emission of carbon dioxide that arises through production or consumption of fossil fuels based on the amount of carbon dioxide those activities produce.[3] The tax will be assessed per unit of emissions, typically per ton of carbon dioxide.

Both carbon taxes and cap-and-trade systems are designed to create an economic incentive for companies to reduce their carbon emissions in order to combat climate change at a large scale. While there are various economic arguments for and against the efficiency of both carbon taxes and cap-and-trade systems, there is evidence that both can be effective when well designed and administrated. Importantly, the goal of both main forms of carbon pricing is to take advantage of the financial rationality of actors in the economy and incentivize them to reduce their carbon emissions. Ultimately the policy goal behind incentivizing reduction in carbon emissions is to combat climate change by shifting the burden onto the polluters.[4]

While carbon pricing systems have proven to be an effective method of reducing carbon emissions, the legal system presents important challenges to their implementation. The most recent challenge to the ability of regulators and policy makers came from the Supreme Court’s recent decision to curtail the power of the Environmental Protection Agency (EPA) to limit carbon emissions in West Virginia v. Environmental Protection Agency.[5] The Supreme Court’s decision in late June of 2022 dictated that the EPA cannot put state-level caps on carbon emissions under the Clean Air Act of 1970. The Supreme Court went on to clarify that the power to decide how the U.S. would power itself lies with Congress, and decisions on emissions must come from Congress.[6] The decision represents a signal from the Supreme Court to regulatory agencies generally, not just the EPA, that regulations must arise from the powers specifically delegated by Congress to those agencies.

Previously, the EPA had been using the Clean Air Act to regulate climate change in various manners, particularly through regulation of carbon emissions. In specific, the Court found that the Clean Power Plan established under the Obama administration exceeded the regulatory power granted to the EPA by Congress under the Clean Air Act.[7] The Supreme Court further decided that the power to promulgate rules which would have transformational impacts on the economy must be specifically granted by Congress to regulatory agencies.[8] In this specific context, the Court ruled that the regulation of carbon emissions sought by the EPA would have such transformational impacts on the economy. The Court specified that any time a regulatory agency in the U.S. attempts to promulgate any rule which may have a transformational impact on the economy – which was to regulate carbon emissions and address climate change in this instance – the rule would be presumptively invalid unless Congress had already specifically authorized the agency to promulgate rules and regulations in the area.

This ruling significantly reduces the EPA’s ability to regulate carbon emissions and climate change.[9] The importance of this decision is not so much that the EPA will never be able to regulate carbon emissions or attempt to address climate change, but instead that the accomplishment of the policy goals underlying EPA regulation will certainly be delayed. Because the majority decision emphasized that regulatory decisions of economic and political significance must be supported by clear Congressional authorization, the EPA has been thrown into a sort of stalemate. The direct finding in West Virginia v. EPA that the Clean Power Plan was not adequately supported by Section 111(d) of the Clean Air Act set the EPA’s timetable for accomplishing its policy goals back years.

As many have noticed in recent years, extreme weather events have become more frequent and more severe; our climate is changing before our very eyes. One of the most ironic features of this Supreme Court decision is that the growth of the administrative state maligned by the majority opinion has directly accompanied extreme increases in atmospheric carbon dioxide levels the Clean Power Plan aimed to combat.

Although carbon pricing systems have shown promise in incentivizing participants in the global economy to decrease their carbon emissions, the Supreme Court’s decision in West Virginia v. EPA certainly made it difficult for the EPA to enact any sort of carbon pricing scheme in the near future.[10] At a time when climate change is only becoming a more important issue, the Court’s decision has made the primary environmental agency in the U.S. less able to achieve policy goals that would combat it. While other countries have found success implementing carbon pricing systems, at least for the time being, that option appears unavailable in the U.S.

Notes

[1]https://seors.unfccc.int/applications/seors/attachments/get_attachment?code=TJQGYTI096K3J33ANM1HDWYEU51VRXNC

[2] https://www.edf.org/climate/how-cap-and-trade-works

[3] https://www.c2es.org/content/carbon-tax-basics/

[4] https://www.worldbank.org/en/programs/pricing-carbon

[5] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

[6] https://www.cfr.org/in-brief/supreme-court-epa-west-virginia-ruling-delay-us-climate-change-action

[7]https://www.cnbc.com/2022/06/30/-supreme-court-says-epa-lacks-authority-on-climate-standards-for-power-plants.html

[8] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

[9] https://www.npr.org/2022/06/30/1103595898/supreme-court-epa-climate-change

[10]https://www.hsph.harvard.edu/news/features/the-supreme-court-curbed-epas-power-to-regulate-carbon-emissions-from-power-plants-what-comes-next/

 

A New Iron Age: New Developments in Battery Technology

April 14, 2023
Climate Change, Energy Law, Environment, Infrastructure, New Technology

Poojan Thakrar, MJLST Staffer

Introduction

In coming years, both Great River Energy and Xcel Energy are installing pilot projects of a new iron-air battery technology.[1] Both utilities are working with Boston-based company Form Energy. Great River Energy, which is Minnesota’s second-largest energy provider, plans to install a 1.5-megawatt battery next to its natural gas plant in Cambridge, MN. Xcel Energy, the state’s largest energy provider, will deploy a 10-megawatt battery in Becker, MN and Pueblo, CO. The batteries can store energy for up to 100 hours, which the utilities emphasize as crucial due to their ability to provide power during multi-day blizzards. The projects may be online as early as 2025, Form Energy says.[2]

The greater backdrop for these battery projects is Minnesota’s new carbon-free targets. Earlier this year, with new control of both chambers, Minnesota Democrats passed a bill mandating 100 percent carbon-free energy by 2040.[3] Large utility-scale batteries such as the ones proposed by Great River Energy and Xcel can play an important role in that transition by mitigating intermittency concerns often associated with renewables.

Technology

This technology may be uniquely suited for a future in which utilities rely more heavily on batteries. While this technology is less energy-dense than traditional lithium-ion batteries, the iron used at the heart of the battery is more abundant than lithium. [4] This allows utilities to sidestep many of the concerns associated with lithium and other minerals required in traditional batteries.[5] Iron-air batteries also tend to be heavier and larger than lithium-ion batteries that store equivalent energy. For batteries in phones, laptops, and cars, weight and volume are important features to keep in mind. However, this new technology could help accelerate uptake of large utility-scale batteries, where weight and volume are of less concern.

If your high school chemistry is rust-y, take a look at this graphic by Form Energy. When discharging electricity, the battery ‘inhales’ oxygen from the air and converts pure iron into rust. This allows electrons to flow, as seen on the right side of the graphic. As the battery is charged, the rust ‘exhales’ oxygen and converts back to iron. The battery relies on this reversible rust cycle to ultimately store its electricity. Form Energy claims that its battery can store energy at one-tenth the cost of lithium-ion batteries.[6]

Administrative Procedures

Xcel has recently filed a petition with the Minnesota Public Utilities Commission (MPUC), which has jurisdiction over investor-owned utilities such as Xcel.[7] The March 6th petition seeks to recover the cost of the pilot battery project. This request was made pursuant to Minnesota statute 216B.16, subd. 7e, which allows a utility to recover costs associated with energy storage system pilot projects.

In addition, the pilot project qualifies for a standard 30 percent investment tax credit (ITC) as well as a 10 percent bonus under the federal Inflation Reduction Act because Becker, MN is an “energy community.”  An “energy community” is an area that formerly had a coal mine or coal-fired power plant that has since closed. Becker is home to the Sherco coal-fired power plant, which has been an important part of that city’s economy for decades. The pilot may also receive an additional 10 percent bonus through the IRA because of the battery’s domestic materials. Any cost recovery through a rider would only be for costs beyond applicable tax grants and potential future grant awards. The MPUC has opened a comment period until April 21st, 2023. The issue at hand is: should the Commission approve the Long Duration Energy Storage System Pilot proposed by Xcel Energy in its March 6, 2023 petition? [8]

As a member-owned cooperative, Great River Energy does not need approval from the MPUC to recover the price of the battery project through its rates.

Conclusion

Ultimately, this is a bet on an innovative technology by two of the largest electricity providers in the state. If approved by the MPUC, ratepayers will foot the bill for this new technology. However, new technology and large investment projects are crucial for a cleaner and more resilient energy future.

Notes

[1] See Kirsti Marohn, ‘Rusty’ batteries could hold key to Minnesota’s carbon-free power future, MPR News (Feb. 10, 2023), https://www.mprnews.org/story/2023/02/10/rusty-batteries-could-hold-key-to-carbonfree-power-future. See alsoRyan Kennedy, Retired coal sites to host multi-day iron-air batteries, PV Magazine (Jan. 26, 2023) https://pv-magazine-usa.com/2023/01/26/retired-coal-sites-to-host-multi-day-iron-air-batteries/.

[2] Andy Colthorpe, US utility Xcel to put Form Energy’s 100-hour iron-air battery at retiring coal power plant sites, Energy Storage News (Jan. 27, 2023), https://www.energy-storage.news/us-utility-xcel-to-put-form-energys-100-hour-iron-air-battery-at-retiring-coal-power-plant-sites/.

[3] Dana Ferguson, Walz signs carbon-free energy bill, prompting threat of lawsuit, MPR News (Feb. 7, 2023), https://www.mprnews.org/story/2023/02/07/walz-signs-carbonfree-energy-bill-prompting-threat-of-lawsuit.

[4] Form Energy Partners with Xcel Energy on Two Multi-day Energy Storage Projects, BusinessWire (Jan. 26, 2023), https://www.businesswire.com/news/home/20230126005202/en/Form-Energy-Partners-with-Xcel-Energy-on-Two-Multi-day-Energy-Storage-Projects

[5]See Amit Katwala, The Spiralling Environmental Cost of Our Lithium Battery Addiction, Wired UK (May 8, 2018), https://www.wired.co.uk/article/lithium-batteries-environment-impact/. See also The Daily, The Global Race to Mine the Metal of the Future, New York Times (Mar. 18, 2022), https://www.nytimes.com/2022/03/18/podcasts/the-daily/cobalt-climate-change.html

[6] https://formenergy.com/technology/battery-technology/ (last visited Apr. 6, 2023)

[7] Petition Long-Duration Energy Storage System Pilot Project at Sherco, page 4, Minnesota PUC (Mar 6, 2023),

https://www.edockets.state.mn.us/edockets/searchDocuments.do?method=showPoup&documentId={8043C886-0000-CC18-A0DF-1A2C7EA08FA1}&documentTitle=20233-193670-01

[8] Notice of Comment Period, Minnesota PUC (Mar 21, 2023),

https://www.edockets.state.mn.us/edockets/searchDocuments.do?method=showPoup&documentId={90760487-0000-C415-89F7-FDE36D038B2C}&documentTitle=20233-194113-01

EJScreen: The Environmental Justice Tool That You Didn’t Know You Needed

March 4, 2023
Discrimination, Environment, Environmental Justice, Environmental Law, EPA, Industry, Public Health, Public Safety

Emma Ehrlich, Carlisle Ghirardini, MJLST Staffer

What is EJScreen?

EJScreen was developed by the Environmental Protection Agency (“EPA”) in 2010, 16 years after President Clinton’s Executive Order 12898 required federal agencies to begin keeping data regarding “environmental and human health risks borne by populations identified by race, national origin or income.” The program has been available to the public through the EPA’s website since 2015 and is a mapping tool that allows users to look at specific geographic locations and set overlays that show national percentiles for categories such as income, people of color, pollution, health disparities, etc. Though the EPA warns that EJScreen is simply a screening tool and has its limits, the EPA uses the program in “[i]nforming outreach and engagement practices, [i]mplementing aspects of …permitting, enforcement, [and] compliance, [d]eveloping retrospective reports of EPA work, [and] [e]nhancing geographically based initiatives.”

As the EPA warns on its website, EJScreen does not contain all pertinent information regarding environmental justice and other data should be collected when studying specific areas. However, EJScreen is still being improved and was updated to EJScreen 2.0 in 2022 to account for more data sets, including data on which areas lack access to food, broadband, and medical services, as well as health disparities such as asthma and life expectancy.

Current Uses

EJScreen software is now being used to evaluate the allocation of federal funding. In February of this year, the EPA announced that it will be allocating $1 billion of funding from President Biden’s Bipartisan Infrastructure Law to Superfund cleanup projects such as cleanups of sites containing retired mines, landfills, and processing and manufacturing plants. The EPA said that 60% of new projects are in locations that EJScreen indicated were subject to environmental justice concerns.

EJScreen is also used to evaluate permits. The EPA published its own guidance in August of 2022 to address environmental justice permitting procedures. The guidance encourages states and other recipients of financial assistance from the EPA to use EJScreen as a “starting point” when looking to see if a project whose permit is being considered may conflict with environmental justice goals. The EPA believes this will “make early discussions more meaningful and productive and add predictability and efficiency to the permitting process.” If an early EJScreen brings a project into question, the EPA instructs permitters to consider additional data before making a permitting decision.

Another use of EJScreen is in the review of Title VI Civil Rights Act Complaints. Using the authority provided by Title VI, the EPA has promulgated rules that prohibit any agency or group that is receiving federal funding from the EPA from functioning in a discriminatory way based on race, color, or national origin. The rules also enable people to submit Title VI complaints directly to the EPA when they believe a funding recipient is acting in a discriminatory manner. If it is warranted by the complaint, the EPA will conduct an investigation. Attorneys that have reviewed EPA response letters expressing its decision to conduct an investigation based on a complaint have noted that the EPA often cites EJScreen when explaining why they decided to move forward with an investigation.

In October of 2022, the EPA sent a “Letter of Concern” to the Louisiana Department of Environmental Quality (“LDEQ”) and the Louisiana Department of Health stating that an initial investigation suggests that the two departments have acted in ways that had “disparate adverse impacts on Black residents” when issuing air permits or informing the public of health risks. When discussing a nearby facility’s harmful health effects on residents, the EPA cites data from EJScreen in concluding that the facility is much more likely to have effects on black residents of Louisiana compared to non-black residents. The letter also touches on incorrect uses of EJScreen in saying that LDEQ’s conclusion that a proposed facility would not affect surrounding communities was misleading because the LDEQ used EJScreen to show that there were no residents within a mile of the proposed facility but ignored a school located only 1.02 miles away from the proposed location.

Firms such as Beveridge & Diamond have recognized the usefulness of this technology. They urge industry decision makers to use this free tool, and others similar to it, to preemptively consider environmental justice issues that their permits and projects may face when being reviewed by the EPA or local agencies.

Conclusion

In conclusion, EJScreen has the potential to be a useful tool, especially as the EPA continues to update it with data for additional demographics. However, users of the software should heed EPA’s warning that this is simply a screening tool. It is likely best used to rule out locations for certain projects, rather than be solely relied on for approving projects in certain locations, which requires more recent data to be collected.

Lastly, EJScreen is just one of many environmental justice screening tools being used and developed. Multiple states have been developing their own screening programs, and there is research showing that using state screening software may be more beneficial than national software. An environmental justice screening tool was also developed by the White House Council on Environmental Quality in 2022. Its Climate and Economic Justice Screening Tool is meant to assist the government in assigning federal funding to disadvantaged communities. The consensus seems to be that all available screening tools are helpful in at least some way and should be consulted by funding recipients and permit applicants in the early rounds of their decision making processes.

Saving the Planet With Admin Law: Another Blow to Tax Exceptionalism

December 13, 2022
Administrative Law, Agencies, Environment, Tax, Tax Law

Caroline Moriarty, MJLST Staffer

Earlier this month, the U.S. Tax Court struck down an administrative notice issued by the IRS regarding conservation easements in Green Valley Investors, LLC v. Commissioner. While the ruling itself may be minor, the court may be signaling a shift away from tax exceptionalism to administrative law under the Administrative Procedures Act (“APA”), which could have major implications for the way the IRS operates. In this post, I will explain what conservation easements are, what the ruling was, and what the ruling may mean for IRS administrative actions going forward. 

Conservation Easements

Conservation easements are used by wealthy taxpayers to get tax deductions. Under Section 170(h) of the Internal Revenue Code (“IRC”), taxpayers who purchase development rights for land, then donate those rights to a charitable organization that pledges not to develop or use the land, get a deduction proportional to the value of the land donated. The public gets the benefit of preserved land, which could be used as a park or nature reserve, and the donor gets a tax break.

However, this deduction led to the creation of “syndicated conservation easements.” In this tax scheme, intermediaries purchase vacant land worth little, hire an appraiser to declare its value to be much higher, then sell stakes in the donation of the land to investors, who get a tax deduction that is four to five times higher than what they paid. In exchange, the intermediaries are paid large fees. 

Conservation easements can be used to protect the environment, and proponents of the deduction argue that the easements are a critical tool in keeping land safe from development pressures. However, the IRS and other critics argue that these deductions are abused and cost the government between $1.3 billion and $2.4 billion in lost tax revenue. Some appraisers in these schemes have been indicted for “fraudulent” and “grossly inflated” land appraisals. Both Congress and the IRS have published research about the potential for abuse. In 2022, the IRS declared the schemes one of their “Dirty Dozen” for the year, writing that “these abusive arrangements do nothing more than game the tax system with grossly inflated tax deductions and generate high fees for promoters.”

Notice 2017-10 and the Tax Court’s Green Valley Ruling

To combat the abuse of conservation easements, the IRS released an administrative notice (the “Notice”) that required taxpayers to disclose any syndicated conservation easements on their tax returns as a “listed transaction.” The notice didn’t go through notice-and-comment procedures from the APA. Then, in 2019, the IRS disallowed over $22 million in charitable deductions on Green Valley and the other petitioners’ taxes for 2014 and 2015 and assessed a variety of penalties.  

While the substantive tax law is complex, Green Valley and the other petitioners challenged the penalties, arguing that the Notice justifying the penalties didn’t go through notice and comment procedures. In response, the IRS argued that Congress had exempted the agency from notice-and-comment procedures. Specifically, the IRS argued that they issued a Treasury Regulation that defined a “listed transaction” as one “identified by notice, regulation, or other form of published guidance,” which should have indicated to Congress that the IRS would be operating outside of APA requirements when issuing notices. 

The Tax Court disagreed, writing “We remain unconvinced that Congress expressly authorized the IRS to identify a syndicated conservation easement transaction as a listed transaction without the APA’s notice-and-comment procedures, as it did in Notice 2017-10.” Essentially, the statutes that Congress wrote allowing for IRS penalties did not determine the criteria for how taxpayers would incur the penalties, so the IRS decided with non-APA reviewed rules. If Congress would have expressly authorized the IRS to determine the requirements for penalties without APA procedures in the penalty statutes, then the Notice would have been valid. 

In invalidating the notice, the Tax Court decided that Notice 2017-10 was a legislative rule requiring notice-and-comment procedures because it imposed substantive reporting obligations on taxpayers with the threat of penalties. Since the decision, the IRS has issued proposed regulations on the same topic that will go through notice and comment procedures, while continuing to defend the validity of the Notice in other circuits (the Tax Court adopted reasoning from a Sixth Circuit decision).

The Future of Administrative Law and the IRS 

The decision follows other recent cases where courts have pushed the IRS to follow APA rules. However, following the APA is a departure from the past understanding of administrative law’s role in tax law. In the past, “tax exceptionalism” described the misperception that tax law is so complex and different from other regulatory regimes that the rules of administrative law don’t apply. This understanding has allowed the IRS to make multiple levels of regulatory guidance, some binding and some not, all without effective oversight from the courts. Further, judicial review is limited for IRS actions by statute, and even if there’s review, it may be ineffective if the judges are not tax experts. 

This movement towards administrative law has implications for both taxpayers and the IRS. For taxpayers, administrative law principles could provide additional avenues to challenge IRS actions and allow for more remedies. For the IRS, the APA may be an additional barrier to their job of collecting tax revenue. At the end of the day, syndicated conservation easements can be used to defraud the government, and the IRS should do something to curtail their potential for abuse. Following notice-and-comment procedures could delay effective tax administration. However, the IRS is an administrative agency, and it doesn’t make sense to think they can make their own rules or act like they’re not subject to the APA. Either way, administrative law will likely continue to prevail in both federal courts and Tax Court, and it will continue to influence tax law as we know it.

Charged Up! the Inflation Reduction Act of 2022 and Its Impacts on Energy Storage Capacity in the U.S.

December 5, 2022
Climate Change, Energy Law, Environment, Solar Energy

Quinn Milligan, MJLST Staffer

The Inflation Reduction Act of 2022 (the IRA) is one of the most significant steps the U.S. government has ever taken towards fighting climate change. Over a decade, the IRA dedicates nearly $400 billion to clean energy tax incentives with the aim of reducing carbon emissions and aiding the U.S. energy economy in speeding up its transition away from fossil fuel based energy generation.[1] One of the most interesting features of the IRA’s emphasis on clean energy is the energy storage industry. The IRA extends the coverage of the 30% Investment Tax Credit (ITC) to standalone energy storage projects, and creates a system by which standalone battery projects can earn up to 70% in tax credits, with additional incentives linked to involvement in low-income housing and other projects.[2]

Why is that such a big deal? At a high level, one of the main obstacles to reliance on renewable energy sources, other than nuclear power, is the variability of their supply generation. Variability is easy to understand at a cursory level: You can’t rely on solar power when it’s not sunny out or wind energy when there’s no wind. So, variability of energy production from renewable sources has long been an obstacle to the increased dispatch of renewable sources.[3] Increased transmission capacity and energy storage capacity provide a solution to the variability in generation of renewable energy sources.[4]

The manner in which the Federal Energy Regulatory Committee (FERC) regulates the Independent System Operators (ISOs) and Regional Transmission Organizations (RTOs) accentuates the impact of generation variability on the ability of renewable resources to be widely utilized. These ISOs and RTOs operate independently of the federal government to ensure that U.S. citizens have reliable access to affordable energy.[5] In essence, for huge swaths of the country, ISOs and RTOs oversee the markets wherein energy is purchased from generators and resold to retail suppliers, which provide energy to end consumers.[6] The ISOs and RTOs both forecast and plan for the energy needs of their areas of oversight, and then coordinate the purchase and sale of those contracts to fulfill the energy needs. These purchases happen at multiple different time scales, ranging from forward contracts, to day-ahead markets, and even minutes before requirement.[7] Because planning and forecasting make up such an important part of how energy is purchased, the variability of generation from renewables has historically made it very hard for ISOs and RTOs to rely on renewably sourced energy to fulfill any sort of energy need other than minutes-ahead contracts. However, that is the very problem many of the incentives in the IRA may help to solve.

The huge tax incentives given out to standalone energy storage projects are critical policy achievements that will go very far in aiding the U.S. to accomplish its lofty goal of reducing carbon emissions up to 40% below 2005 levels by 2035, as the Biden Administration claims will be accomplished with help of the IRA.[8] One huge change the IRA made to climate policies enacted under the Obama Administration was to remove the solar charging of battery storage in order to receive tax credits. Under the IRA, as opposed to prior legislation, investment in projects to create better storage will receive the IRA’s ITC regardless of what source of energy is used to fill that battery capacity.[9] This ITC for energy storage capacity pairs hand-in-hand with the tax credits extended under the IRA to renewables; for example, the IRA extends the current tax breaks for solar and wind generation for another 10 years.

The emphasis on energy storage capacity increases means ISOs, RTOs and other energy utilities will have less need to rely on fossil fuel energy sources to power their grids, as cleanly produced energy can be stored and dispatched on a longer-term basis to store power and make up for variability in generation. The other important aspect of increases in electricity storage capacity is that ISOs and RTOs can more comfortably rely on renewable energy sources to respond to fluctuations in peak demand periods than ever before.[10] Responding to changes in demand during peak demand hours has long been one of the main challenges for utilities, and one of the reasons our grid has continued to rely on fossil-fuel-based energy for so long. Its generation is reliable, cheap, established and abundant.[11] The increase in energy storage capacity resulting from the IRA’s incentive structure will help ISOs and RTOs transition more fully toward reliance on renewable energy in short-term markets, as well as the long-term capacity markets, by minimizing reliability concerns previously raised by generation variability.

The real genius of the IRA’s focus on the energy storage capacity from a policy standpoint is that all battery projects put into service after December 31, 2022, receive the ITC, even if they are powered by fossil fuels.[12] Unlike many climate change policies before it, this approach means the entire U.S. energy grid, and not just the renewables sector, will be incentivized to address a critical constraint on the deployment of renewably generated electricity and subsequently ease the transition of the grid away from fossil-fuel-generated electricity.

As time goes forward, the price of renewable energy continues to go down as compared to fossil-fuel-generated energy; in fact, renewable energy today is generally cheaper than fossil fuel energy.[13] That begs the question of why most of our electricity is sourced from fossil fuels when FERC directs the ISOs and RTOs to power the grid affordably. The reliability of renewable energy generation has long been one of the obstacles standing in the way of a transition to renewable energy generation, and the IRA’s electricity storage incentives go far in setting up the U.S. to successfully build the storage capacity needed to finally make a transition away from carbon reliance.

Notes

[1] https://www.mossadams.com/articles/2022/08/inflation-reduction-act-clean-energy-credits

[2] https://www.utilitydive.com/spons/ira-sets-the-stage-for-us-energy-storage-to-thrive/635665/#:~:text=The%20Inflation%20Reduction%20Act%20(IRA,70%20percent%20with%20additional%20incentives.

[3] https://www.rff.org/publications/explainers/renewables-101-integrating-renewables/

[4] https://climatechangeresources.org/storage/

[5] https://www.ferc.gov/power-sales-and-markets/rtos-and-isos

[6] https://bestpracticeenergy.com/2020/05/21/energy101-electricity-iso/#:~:text=What%20exactly%20do%20ISOs%20and,actions%20are%20unbiased%20and%20neutral.

[7] https://www.iso-ne.com/markets-operations/markets/da-rt-energy-markets/

[8]https://crsreports.congress.gov/product/pdf/R/R47262#:~:text=The%20same%20analyses%20estimated%20that,prices%2C%20among%20other%20uncertain%20factors

[9] https://www.ny-engineers.com/blog/energy-storage-tax-credit-before-and-after-the-inflation-reduction-act

[10] https://www.ncsl.org/research/energy/energy-storage-for-a-modern-electric-grid-technology-trends-and-state-policy-options.aspx

[11] https://www.solarreviews.com/blog/fossil-fuels-pros-and-cons#fossil-fuel-pros-and-cons

[12]https://www.mossadams.com/articles/2022/08/inflation-reduction-act-clean-energy-credits “Standalone battery storage. “If placed in service after December 31, 2022, standalone battery storage qualifies for the ITC, regardless of whether it’s charged by a renewable source.”

[13] https://www.weforum.org/agenda/2021/07/renewables-cheapest-energy-source/

Beef (and Residual Hormones?). It’s What’s for Dinner.

November 6, 2022
Agencies, Agriculture, Animal Law, Environment, FDA, Food and Agriculture, Health, Industry, Public Safety

Kira Le, MJLST Staffer

The beef industry in the United States has been using hormones, both natural and synthetic, to increase the size of cattle prior to slaughter for more than a century.[1] Capsules are implanted under the skin behind a cow’s ear and release specific doses of hormones over a period of time with the goal of increasing the animal’s size more quickly. Because the use of these hormones in the beef industry involves both drug regulation and food safety regulations, both the U.S. Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) are responsible for ensuring the safety of the practice and regulating its use.[2] According to the FDA, “scientific data” is used to establish “acceptable” safe limits for hormones in meat by the time it is consumed.[3] Agricultural science experts support the fact that the naturally-occurring hormones used in beef production, such as estrogen, are used in amounts much smaller than those that can be found in other common foods, such as eggs and tofu.[4] However, the debate within the scientific community, and between jurisdictions that allow the sale of hormone-treated beef (such as the United States) and those that have banned its importation (such as the European Union), is still raging on in 2022 and has led to significant distrust in the beef industry by consumers.[5] With the release of research earlier this year presenting opposing conclusions regarding the safety of the use of synthetic hormones in the beef industry, the FDA has a responsibility to acknowledge evidence suggesting that such practices may be harmful to human health.

Some defend the use of hormones in the beef industry as perfectly safe and, at this point, necessary to sustainably feed a planet on which the demand for meat continues to increase with a growing population. Others, such as the European Union and China, both of which have restricted the importation of beef from cattle implanted with growth-promoting hormones, argue that the practice threatens human health.[6] For example, a report out of Food Research Collaboration found that a routinely-used hormone in United States beef production posed a significant risk of cancer.[7] Such a finding is reminiscent of when, in the not-too-distant past, known carcinogen diethylstilbestrol (DES) was used in U.S. cattle production and led to dangerous meat being stocked on grocery store shelves.[8]

This year, research published in the Journal of Applied Animal Research discussed the effects that residual hormones left in beef and the environment have on human health in the United States.[9] Approximately 63% of beef cattle in the United States are implanted with hormones, most of which are synthetic.[10] Despite organizations and agencies such as the FDA assuring consumers that the use of these synthetic hormones in cattle production is safe, the residues that can be left behind may be carcinogenic and/or lead to reproductive or developmental issues in humans.[11] Furthermore, the National Residue Program (NRP), housed in the USDA, is not only the “only federal effort that routinely examines food animal products for drug residues,” but also only examines tissues not commonly consumed, such as the liver and kidney.[12] Researchers Quaid and Abdoun offer the example of Zeranol, a genotoxic synthetic hormone used in beef production in the United States that activates estrogen receptors, causing dependent cell proliferation in the mammary glands that may result in breast cancer.[13] They also noted the problem of residual hormones found in the environment surrounding cattle production locations, which have been found to reduce human male reproductive health and increase the risk of some endocrine cancers.[14]

Also this year, researchers published an article in the Journal of Animal Science claiming that despite the “growing concern” of the effects of residual hormones on human health, including the earlier onset of puberty in girls and an increase in estrogen-related diseases attributed to the excessive consumption of beef, research shows that cattle treated with hormones, “when given at proper administration levels, do not lead to toxic or harmful levels of hormonal residues in their tissues.”[15] The researchers concluded that the hormones have no effect on human health and are not the cause of disease.[16]

Perhaps it is time for the FDA to acknowledge and address the scientific disagreements on the safety of the use of hormones – synthetic hormones, especially – in beef production, as well as reassure consumers that players in the agriculture industry are abiding by safety regulations. Better yet, considering the currentness of the research, the inconsistency of the conclusions, and the seriousness of the issue, formal hearings – held by either the FDA or Congress – may be necessary to rebuild the trust of consumers in the U.S. beef industry.

Notes

[1] Synthetic Hormone Use in Beef and the U.S. Regulatory Dilemma, DES Daughter (Nov. 20, 2016), https://diethylstilbestrol.co.uk/synthetic-hormone-use-in-beef-and-the-us-regulatory-dilemma/.

[2] Id.

[3] Steroid Hormone Implants Used for Growth in Food-Producing Animals, U.S. Food and Drug Admin (Apr. 13, 2022), https://www.fda.gov/animal-veterinary/product-safety-information/steroid-hormone-implants-used-growth-food-producing-animals.

[4] Amanda Blair, Hormones in Beef: Myths vs. Facts, S.D. State Univ. Extension (July 13, 2022), https://extension.sdstate.edu/hormones-beef-myths-vs-facts.

[5] See Julia Calderone, Here’s Why Farmers Inject Hormones Into Beef But Never Into Poultry, Insider (Mar. 31, 2016), https://www.businessinsider.com/no-hormones-chicken-poultry-usda-fda-2016-3 (discussing the debate within the scientific community over whether the use of hormones in animals raised for human consumption is a risk to human health).

[6] New Generation of Livestock Drugs Linked to Cancer, Rafter W. Ranch (June 8, 2022), https://rafterwranch.net/livestock-drugs-linked-to-cancer/.

[7] Id.

[8] Synthetic Hormone Use in Beef and the U.S. Regulatory Dilemma, DES Daughter (Nov. 20, 2016), https://diethylstilbestrol.co.uk/synthetic-hormone-use-in-beef-and-the-us-regulatory-dilemma/.

[9] Mohammed M. Quaid & Khalid A. Abdoun, Safety and Concerns of Hormonal Application in Farm Animal Production: A Review, 50 J. of Applied Animal Rsch. 426 (2022).

[10] Id. at 428.

[11] Id. at 429–30.

[12] Id. at 430.

[13] Id. at 432–33.

[14] Id. at 435.

[15] Holly C. Evans et al., Harnessing the Value of Reproductive Hormones in Cattle Production with Considerations to Animal Welfare and Human Health, 100 J. of Animal Sci. 1, 9 (2022).

[16] Id.

Whisky Is for Drinking, Water Is for Fighting

October 25, 2022
Administrative Law, Climate Change, Environment, Environmental Justice, Environmental Law, EPA, Public Health

Poojan Thakrar, MJLST Staffer

The American Southwest often lives in our imagination as an arid environment with tumbleweeds strewn about. This hasn’t been truer in centuries, as the Colorado River is facing its worst drought in 1200 years, in large part because of climate change.[1] The Colorado River is the region’s most important river, providing drinking water to about 40 million people.[2] In June, the federal government gave the seven states[3] that rely on the water two months to draft a water conservation agreement or risk federal intervention. The states blew past that deadline and the DOI’s Bureau of Reclamation imposed cuts to water usage as high as 21%.[4]

The History of the Modern Colorado River Allocation System

In 1922, the Colorado River Compact allocated an annual amount of 15 million acre-feet (maf) evenly between the Upper and Lower Basin states.[5] One acre-foot represents the volume of water that covers one acre in one foot of water and is about the amount of water that a family of four uses annually.[6] However, relying on 15 maf was already problematic; data from the past three centuries showed that the Colorado River has average flows of 13.5 maf, with some years as low as 4.4 maf.[7] 

Moreover, Arizona refused to sign this compact, arguing that water should be allocated amongst individual states instead of between river basins.[8] Tensions flared in 1935 as Arizona moved National Guard troops to the California border in protest of a new dam.[9] Arizona finally ratified the compact in 1944, but the disagreements were far from over.[10] 

Arizona also brought a case to the Supreme Court for a related dispute, asking the Supreme Court to allocate how each basin splits water according to the Boulder Canyon Project Act of 1928.[11] Originally filed in 1952, Arizona v. California was not resolved until a Supreme Court opinion in 1963.[12] In the end, the Supreme Court accepted the recommendations of a court-appointed Special Master, whose findings California disagreed with. Of the 7.5 maf allocated to the Lower River Basin, 4.4 maf was allocated to California, 2.8 maf to Arizona and 0.3 to Nevada.[13] The court affirmed each state’s use of their own tributary waters, which Arizona argued for.[14] The case also affirmed the Secretary of the Interior’s authority under the Boulder Canyon Project Act to allocate water amongst the states irrespective of their agreement to a compact.[15] Ultimately, this was a victory for Arizona. 

Colorado River water use has been less contentious since Arizona v. California. The Upper Basin states of Colorado, Utah, Wyoming, and New Mexico signed a contract to divide their 7.5 maf amongst themselves without the need for federal intervention.[16] However, because of comparatively less development in these Upper Basin states, they collectively only use 4.4 maf of their allocated 7.5 maf.[17] California has historically enjoyed the excess and has often historically surpassed its own allocation.[18]

Modern Water Allocation

Until this year, the seven Colorado River states have relied on voluntary agreements and cutbacks to manage water allocation. For example, in 2007, the states agreed to rules which decreased the amount of water that can be drawn from reservoirs when levels are low.[19] In 2019, they agreed to Drought Contingency Plans (DCPs) in the face of waning reservoir levels.[20] It was under this new DCP that the Bureau of Reclamation first announced a drought in August of 2021.[21] Later that December, the Lower Basin states were able to come to an agreement regarding the drought declaration to keep more water in Lake Mead, a reservoir on the Colorado.[22]

However, the December 2021 cutbacks were presumably not enough. In June of 2022, Bureau of Reclamation Commissioner Camille Calimlim Touton testified in front of the Senate Energy Committee about the dire situation on the Colorado.[23] She testified that Lake Powell and Lake Mead, both reservoirs on the Colorado, cannot sustain the current level of water deliveries.[24] Commissioner Tounton gave the seven states 60 days to agree how to conserve 2 to 4 maf.[25] 

Underlying this recent situation is the megadrought that the western United States has suffered since 2000.[26] The last 20 years have been the driest two decades in the past 1200 years.[27] The Colorado River states have become remarkably adept at conserving water in that time. For example, the Las Vegas basin’s population has grown by 750,000 in the past 20 years, but its water usage is down 26%.[28] Earlier this year, Los Angeles banned lawn watering to only one day a week, much to the chagrin of Southern California’s most famous residents.[29] 

Commissioner Tounton’s 60 day deadline came and went without an agreement.[30] During a speech on August 15th of this year, Commissioner Tounton mandated that the seven states have to cut their water usage by 1 maf, roughly the amount of water usage of four million people.[31] However, the cuts were not proportioned equally. Arizona was mandated to cut its water by 21% because of the old water agreements, while California was not required to make any.[32]

More recently on October 5th, several California water districts volunteered cuts of almost one-tenth of their total allocation.[33] California conditioned these cuts upon other states agreeing to similar reductions, as well as on incentives from the federal government.[34] California’s cuts are significant, representing roughly 0.4 maf of the 1 maf that Commissioner Tounton asked states to conserve in her August 15th statement.[35] This represents a bold, good-faith move considering California was not mandated to make any. However, there is no doubt that these ad hoc negotiations are unsustainable. As the drought continues, Colorado River water policy will have implications on how food is grown and where people live. The 40 million people that live in the American Southwest may see their day-to-day lives affected if a solution is not crafted. Ultimately, this situation is far from over as states are forced to come to grips with a new water and climate reality.

Notes

[1] The Journal, The Fight Over Water In The West, Wall Street Journal, at 00:50 (Aug. 23, 2022) (downloaded using Spotify).

[2] Luke Runyon, 7 states and federal government lack direction on cutbacks from the Colorado River, NPR (Aug. 27, 2022, 5:00 AM) https://www.npr.org/2022/08/27/1119550028/7-states-and-federal-government-lack-direction-on-cutbacks-from-the-colorado-riv.

[3] Wyoming, Colorado, Utah, and New Mexico are considered Upper Basin states and California, Arizona and Nevada are the Lower Basin states.

[4] The Journal, supra note 1, at 12:30.

[5] Joe Gelt, Sharing Colorado River Water: History, Public Policy and the Colorado River Compact, The University of Arizona (Aug. 1997), https://wrrc.arizona.edu/publications/arroyo-newsletter/sharing-colorado-river-water-history-public-policy-and-colorado-river.

[6] The Journal, supra note 1, at 8:08.

[7] Gelt, supra note 5.

[8] Id.

[9] Nancy Vogel, Legislation fixes borders wandering river created; Governors of Arizona, California sign bills to get back land the Colorado shifted to the wrong state, Contra Costa Times, Sept. 13, 2002.

[10] Gelt, supra note 5.

[11]  Arizona v. California, 373 U.S. 546 (1963).

[12] Supreme Court Clears the Way for the Central Arizona Project, Bureau of Reclamation https://www.usbr.gov/lc/phoenix/AZ100/1960/supreme_court_AZ_vs_CA.html.

[13] Arizona v. California, 373 U.S. 546, 565, 83 S. Ct. 1468, 1480 (1963).

[14] Id.

[15] Id.

[16] Gelt, supra note 5.

[17] Heather Sackett, Water managers set to talk about how to divide Colorado River, Colorado Times (Dec. 13, 2021) https://www.steamboatpilot.com/news/water-managers-set-to-talk-about-how-to-divide-colorado-river.

[18] Gelt, supra note 5.

[19] Lower Colorado River States Reach Agreement to Reduce Water Use, Renewable Natural Resources Foundation (Feb. 4, 2022) https://rnrf.org/2022/02/lower-colorado-river-states-reach-agreement-to-reduce-water-use/.

[20] Id.

[21] Id.

[22] Id.

[23] Marianne Goodland, Reclamation official tells Colorado River states to conserve up to 4 million acre-feet of water, Colorado Politics(June 15, 2020) https://www.coloradopolitics.com/energy-and-environment/reclamation-official-tells-colorado-river-states-to-conserve-up-to-4-million-acre-feet-of/article_376a907a-ece6-11ec-b0ba-6b2e72447497.html.

[24] Id.

[25] Id.

[26] Ben Adler, ‘Moment of reckoning:’ Federal official warns of Colorado River water supply cuts, Yahoo News (June 15, 2020) https://news.yahoo.com/moment-of-reckoning-federal-official-warns-of-colorado-river-water-supply-cuts-171955277.html.

[27] Id.

[28] The Journal, supra note 1, at 5:50.

[29] Id. at 6:10.

[30] Id. at 8:55.

[31] Id. at 10:05.

[32] Id.

[33] Marketplace, Why women have been left behind in the job recovery, American Public Media, at 11:35 (Oct. 6, 2022) (downloaded using Spotify).

[34] Id.

[35] Ian James, More water restrictions likely as California pledges to cut use of Colorado River supply, L.A. Times, (Oct. 6, 2022) https://www.latimes.com/california/story/2022-10-06/southern-california-faces-new-water-restrictions-next-year.

Hydrogen – The Fuel of the Future?

March 5, 2022
Climate Change, Energy Law, Environment, Regulatory

Max Meyer, MJLST Staffer

Hydrogen is viewed by many as being a key part of reducing global greenhouse gas emissions. Recently, a bipartisan group of lawmakers expressed interest in hydrogen and want to support its adoption in the United States. When used as a fuel source, hydrogen produces only water and heat. It could potentially be used to power cars, trucks, and airplanes and generate electricity. Hydrogen is used on a fairly minimal scale today, but entities ranging from industry to government are increasing investment in the technology. Currently, hydrogen is regulated by a variety of federal agencies, but no comprehensive regulatory scheme exists.

 

Hydrogen Production 

Hydrogen is one of the most abundant elements on earth, but it only exists in compound form with other elements. Hydrogen has the highest fuel content of any fuel by weight.

Hydrogen can be separated from compounds in a few different ways. It can be produced from steam-methane reforming which accounts for 95% of hydrogen production in the U.S. In this process, “natural gas (which is mostly methane) reacts with high pressure, high temperature steam in the presence of a catalyst to produce a mixture of mostly hydrogen and carbon monoxide.” The product stream is then processed further to produce a stream of mostly hydrogen. Water can be added to this mixture to convert the carbon monoxide into carbon dioxide. If the carbon dioxide is subsequently capture and stored underground, the hydrogen produced is referred to as blue hydrogen. If the carbon dioxide is not captured, the hydrogen is called grey hydrogen.

Hydrogen can also be produced from water by electrolysis which splits water molecules into pure hydrogen and oxygen using electricity. When renewable energy is used for electrolysis the resulting hydrogen is often referred to as green hydrogen.

 

Why Is It Important?

Using fuel cells, hydrogen can produce electricity. A fuel cell contains two electrodes, one negative and one positive, with an electrolyte in the middle. Hydrogen is fed into the negative electrode and air is fed into the positive end. At the negative end, a catalyst separates the hydrogen molecules into protons and electrons. To produce electricity, the electrons go through an external circuit before entering the positive electrode. Then, the protons, electrons, oxygen unite to produce water and heat. Fuel cells can be used in a number of applications ranging passenger and commercial vehicles to powering buildings.

 

Current Regulatory Framework

Hydrogen is regulated by several federal agencies. The Pipeline and Hazardous Materials Safety Administration (PHMSA) regulates hydrogen pipelines. PHMSA’s mission is to “protect people and the environment by advancing the safe transportation of energy and other hazardous materials[.]” Thus, PHMSA’s regulation of hydrogen pipelines is focused on safety. The Occupational Safety and Health Administration (OSHA) regulates hydrogen in workplaces OSHA’s regulation of hydrogen specifically covers the installation of hydrogen systems. The Environmental Protection Agency (EPA) also regulates hydrogen in several ways. Hydrogen is regulated under the EPA’s Mandator Greenhouse Gas Reporting Program, Effluent Standards under the Clean Water Act, and Chemical Accident Prevention program. However, the EPA’s regulation of hydrogen is primarily a result of hydrogen’s relationship to fossil fuels. The regulations are concerned with the production of hydrogen from fossil fuels such as the methane steam reform process outlined above.

The Department of Energy (DOE) has invested in research and development concerning hydrogen. In 2020, the DOE released its Hydrogen Program Plan. The DOE’s program is intended to “research, develop and validate transformational hydrogen and related technologies… and to address institutional and market barriers, to ultimately enable adoption across multiple applications and sectors.”

In 2021, Congress passed an infrastructure bill with $9.5 billion of funding for clean hydrogen initiatives. $8 billion of that funding is directed towards the creation of Regional Clean Hydrogen Hubs across the country to increase the use of hydrogen in the industrial sector. $1 billion is for clean hydrogen electrolysis research to lower costs from producing hydrogen using renewable energy. Finally, $500 million is for Clean Hydrogen Manufacturing and Recycling to “support equipment manufacturing and strong domestic supply chains.”

 

Regulation in the Future

The federal government currently does not regulate the construction of hydrogen pipelines. Presently, the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act “regulates the siting, construction, and operation of interstate natural gas pipelines.” If Congress were to give FERC this same power for hydrogen pipelines it would allow for national planning of the infrastructure and lead to a comprehensive pipeline network. Recently, members of Congress have considered the regulatory framework covering hydrogen pipelines and if additional authority over these pipelines should be given to FERC or other federal agencies. However, these discussions are still in the preliminary stages.

Hydrogen has the potential to play a large role in the United States’ effort to reduce greenhouse gas emissions. It can be used in a variety of industries including the transportation and industrial sectors. Congress has recognized hydrogen’s importance and must continue to invest in lowering the costs of hydrogen production and building hydrogen infrastructure.

Hunting the Hunters: The Recent Saga of Gray Wolf Hunting and Protection

March 5, 2022
Agriculture, Animal Law, Endangered Species Act, Environment, Environmental Law, Public Lands

Mason Medeiros, MJLST Staffer

Hunting is a common activity throughout the United States. Whether for sport or sustenance, it is commonly practiced in every state across the country. States, to protect animals from overhunting and extinction, have enacted laws detailing which animals can be hunted and the period of time in which the hunt can occur. Furthermore, the Endangered Species Act has made it illegal to hunt, harm, or damage the habitat of any species on the endangered species list. But what happens when the government removes a species from the endangered species list? And particularly, what happens when a state has a statutory hunting period for such species? This question was brought to light in Wisconsin, and across the nation, when the federal government the gray wolf from the endangered species list on January 4, 2021. The resulting hunts and legal disputes have created a thrilling saga about the future of the gray wolf and the protections available to them. This post will discuss (1) the Wisconsin wolf hunt litigation and aftermath, (2) what a recent Ninth Circuit opinion means for the future of the gray wolf, and (3) what this saga shows about the weakness of endangered species protections in the United States.

 

The Wisconsin Wolf Hunt Litigation

Soon after the gray wolf was delisted, the Wisconsin Department of Natural Resources (W-DNR) began receiving requests for a wolf hunt. The first of such requests came from Republican lawmakers on January 15—less than 20 days after the delisting. They based their argument based on two statutes: Wisconsin Statute 29.185(1m) and Wisconsin Statute 29.185(5)(a). Statute 29.185(1m) states that “[i]f the wolf is not listed on the federal endangered list and is not listed on the state endangered list, the [W-DNR] shall allow the hunting and trapping of wolves” as regulated by this section. This provision is further developed by Statute 29.185(5)(a), which requires the W-DNR to “establish a single annual open season for both hunting and trapping wolves that begins on the first Saturday in November of each year and ends on the last day of February of the following year.” The lawmakers argued that, when taken together, these statutes require the W-DNR to immediately allow a wolf hunt for the remainder of the 2021 season because the wolves were no longer under federal protection.

On January 22, in a 4-3 vote, the W-DNR Board voted against allowing a wolf hunt for the remainder of the 2021 season. Rather than starting a hunt right away, they claimed that they needed additional time “to develop a science-based harvest quota, gather input from tribes and update its wolf management plan.” This decision, however, was short-lived.

On February 3, Hunter Nation, Inc., a Kansas-based organization, filed a lawsuit challenging the W-DNR’s decision. The court ruled that, because of the state’s statutes mandating the hunting season, the W-DNR must allow it to occur during the remainder of the season. Complying, the W-DNR set a quota of 200 wolves, 81 of which were reserved for native Ojibwe tribes. In only three days, hunters unaffiliated with the tribes exceeded this quota by killing 218 wolves.

 

The Ninth Circuit Returns Protections for the Gray Wolf

Luckily, protections for the gray wolf are beginning to return. On February 10, 2022, a Federal District Court in the Ninth Circuit returned federal protections for wolves in Defenders of Wildlife v. U.S. Fish & Wildlife Services, 2022 U.S. Dist. LEXIS 30123 (N.D. Cal. 2022). The court found that, when the U.S. Fish and Wildlife Service delisted the gray wolves, they failed to consider threats to gray wolf populations outside of the Great Lakes and Northern Rocky Mountains and “didn’t rely on the best available science.”

This decision returned federal protections to gray wolves in the contiguous United States outside of Wyoming, Idaho, and Montana, which remain under state control. Many pro-hunting groups oppose the decision, claiming that the wolf populations have recovered enough and should be managed by the state. Conservation organizations, on the other hand, believe that the decision is a step in the right direction but that more government intervention is needed to protect wolf populations in the remaining states from overhunting. While this decision is a major step in wolf protection, it does not address the issue of what happened to the wolves when they were initially delisted.

 

Better Policies are Needed to Protect Animals Coming Off of the Endangered Species List

This saga has highlighted some of the weaknesses in the endangered species program. Even though the animals are protected while on the list, they can immediately be hunted once the government removes them. This is particularly the case in states with statutorily mandated hunting seasons for certain species. Once one of these species is removed from the endangered species list, the statutes act as a trigger, forcing the hunt to begin. These “trigger laws” have major impacts on the species and need to be addressed.

One of the major issues with the trigger laws is that they do not provide a chance for the state to ensure that the quotas they set are scientifically accurate. Rather, the hunt needs to start during a statutorily required period.

Additionally, the hunters may not follow the quotas set by the state. This situation occurred in the 2021 Wisconsin hunt when hunters unassociated with tribes killed over 200 wolves, nearly doubling their quota in only three days. This hunt had potentially devastating effects on the wolf population. Wisconsin’s Green Fire, a conservation group, estimates that the wolves’ reproduction rate will be depleted by 24–40% because of the loss of females and alpha males in the hunt. If these rates remained, it would lead to a rapid decrease in wolf populations.

To address this concern, the government need to implement further protections for animals that they delist. Even though the species’ population is reportedly stable at the time they are delisted, the sudden hunting can quickly return them to critical levels. One potential solution is to mandate a protection period between the delisting and when hunting can actually begin. This period will allow states to develop scientifically accurate quotas and ensure that their protocols for the hunt are up to date while negating the applicability of potential trigger laws hidden in a state’s statutes.

Zombie Deer: Slowing the Spread of CWD

February 18, 2022
Administrative Law, Agriculture, Animal Law, Environment, Environmental Law, Public Lands

Warren Sexson, MJLST Staffer

Minnesota is one of the premier states in the Union for chasing whitetails. In 2020, over 470,000 licenses were purchased to harvest deer. As a hunter myself, I understand the importance of protecting Minnesota’s deer herd and habitat. The most concerning threat to whitetail deer in the state is Chronic Wasting Disease (CWD). CWD alters the central nervous system, similar to “mad cow disease,” causing deer to lose weight, stumble, drool, and behave similarly to an extra on The Walking Dead. It was first discovered in 1967 in Colorado mule deer and is transmissible to other ungulates such as moose, elk, red deer, black-tail deer, Sitka deer, and reindeer. It is 100% fatal in animals it infects and there is no known treatment or vaccine. While it currently poses no threat to humans, Canadian researchers have shown eating the meat from infected animals can infect hungry macaques, prompting the CDC and the World Health Organization to recommend against consumption of CWD positive animals. Luckily, in Minnesota there were only a handful of cases last season. Challenges still remain, however, and the Minnesota Department of Natural Resources (DNR) and the state legislature have tools at their disposal to combat the spread.

The DNR currently has a comprehensive response plan. In order to get a deer hunting license, the hunter has to pick what “zone” he or she will be hunting in. Minnesota is divided up into zones based off of the deer population and geography. Each zone has different guidelines for how many licenses will sell to the public. Some are “limited draw,” meaning a lottery system where only a certain number of applicants are selected, others are “over-the-counter,” meaning anyone who wants a license in that unit may buy one. Within the zoning system, the DNR has three “CWD Zone” classifications that restrict harvesting deer depending on the risks of the disease—surveillance, control, and management zones. Surveillance zones are where CWD has been found in captive deer or in wild deer in an adjacent zone. Control zones border the management zones, and management zones take up most of the south-eastern portion of the state, where CWD is highly concentrated. The restrictions in each type of zone vary, with surveillance zones being the least restricted and management zones being the most. Hunters have a key role in slowing the spread of CWD. Reducing deer populations in CWD ridden areas helps to reduce contact among deer and lower infection rates. However, there are other ways to further Minnesota’s commitment to slowing the spread of CWD.

The DNR can use emergency actions; it has done so recently. In October of 2021, the DNR temporarily banned moving farmed deer into and within the state through emergency action. Farmed deer (deer raised in captivity for use in trophy hunting) are a main vector of transmission for CWD. The ban was lifted in December but could have lasted longer. The DNR has emergency authority under Minn. Stat. § 84.027 Subd. 13(b) and (g). By enacting emergency declarations, the DNR can continue to use proven measures to slow the spread: requiring testing in high risk areas, banning movement between deer farms, increasing legal limits, and requiring hunters who desire a big buck to first harvest does in so called “Earn-a-Buck” programs. But, such emergency authority can only be 18 months at the longest. While limited in time, emergency orders provide the DNR the flexibility it needs to combat the disease’s spread.

The agency could also attempt to regulate by standard rulemaking authority as laid out in Chapter 14 of Minnesota’s statutes. The agency likely has authority to regulate deer hunting rules relating to CWD and recently has gained concurrent authority over deer farms along with the Board of Animal Health. However, if the DNR attempted to ban deer farming or imposed severe regulatory requirements, industry and interest groups would likely respond with legal challenges to the rulemaking process. In previous attempts to severely restrict deer farms, the Minnesota Deer Farmers Association has filed lawsuits attempting to block restrictions.

While the DNR likely can regulate deer hunting to slow the spread, the legislature is the best option for stopping deer farming as a whole. It is not necessarily a one-sided issue; a bi-partisan coalition of hunters and environmentalistswish to see the practice banned. State Rep. Rick Hansen (DFL) who chairs the House Environment and Natural Resources Finances and Policy Committee has discussed ending the practice and buying out all existing operators. Craig Engwall, head of the Minnesota Deer Hunters Association has additionally called for such a ban. State legislation would be the most comprehensive way to slow the spread of CWD.

State legislators should also consider funding more research for potential vaccines and treatments for CWD. Funding is beginning to pick up; Canadian researchers have begun working on potential vaccines. Additionally, Rep. Ron Kind’s (D-WI) bill, the Chronic Wasting Disease Research and Management Act passed the House of Representatives with Bipartisan support and awaits a vote in the Senate. While this is encouraging, more can be done to support scientific research and protect deer herds. If Minnesota wants to lead the United States in solving such a global issue, the bipartisan support exists to help tackle the largest threat to deer hunting in the U.S. and the state.

CWD threatens the state’s large and historic deer hunting tradition. The DNR and the state legislature have the tools at their disposal to impose meaningful reform to combat the spread of “zombie-deer,” so the population can thrive for generations to come.

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