Environmental Law

DNR Regulations Could Help Ensure Availability of Walleye for Future Minnesotans

December 2, 2024
Environmental Law, Regulatory

Elizabeth Thilges, MJLST Staffer

 

The Minnesota Department of Natural Resources (“DNR”) recently announced that it plans to amend its fishing regulations to lower the number of walleye that can be taken and possessed per day from six to four walleye.[1] If the DNR does promulgate a rule lowering the daily taking and possession limits, it would be a step in the right direction towards ensuring that walleye are available for future generations of Minnesotans.

Lower Taking and Possession Limits Are Necessary Due to the Spread of Zebra Mussels.

Walleye are a North American species of freshwater fish sought after by both commercial and recreational fishers.[2] However, angling activity and the presence of invasive zebra mussels are both linked to decreases in walleye populations.[3] Zebra mussels cause increased water clarity because they are filter feeders.[4] Walleye retinal structures are adapted to lower light conditions, so an increase in water clarity decreases the availability of their preferred habitat.[5] A study of Mille Lacs, a popular lake for walleye fishing in Minnesota, found the introduction of zebra mussels, along with other sources of increased water clarity, to be connected to a decline in the walleye population.[6] While the DNR has made efforts to control zebra mussels, they have unfortunately continued to spread and harm ecosystems across Minnesota.[7] As complete eradication of zebra mussels is not yet achievable, the DNR’s plan to lower the daily bag limit would mitigate at least one strain on walleye populations.

The DNR Should Also Clarify Size Limits for Walleye in its Regulations.

The Minnesota Constitution provides that “fishing and the taking of … fish [is] a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.”[8] This provision has been interpreted by Minnesota courts as “recogniz[ing] the ‘need for effective regulation to protect the viability of our state’s fish and game resources.’”[9] The Minnesota Game and Fish Laws puts this provision of the Minnesota Constitution into effect by providing a general requirement that “[u]nless otherwise provided in this chapter, the commissioner [of natural resources] shall, by rule, prescribe the limits on the number of each species of fish that may be taken in one day and the number that may be possessed.”[10] In addition, Section 97C.401(2) provides a specific limit on the possession of walleye, requiring that “[a] person may have no more than one walleye larger than 20 inches in possession.”[11]

DNR fishing regulations set the “[d]aily and [p]ossession [l]imits” for walleye at “6 in aggregate” for inland waters, unless the waters  “are subject to experimental or special regulations or are closed for taking and possessing fish.”[12] Section 97C.401(2) leaves the DNR with the discretion to set these limits on the daily taking and possession of walleye, as it can be interpreted as not specifying a limit on possession of walleye smaller than 20 inches.[13] While Section 97C.401(2) could alternatively be read as only allowing possession of one walleye larger than 20 inches, and no walleye smaller than 20 inches, Minnesota courts would likely defer to the DNR’s interpretation if the statute is ambiguous and the DNR’s interpretation is reasonable.[14] Additionally, possessing and taking fish have different definitions. The Game and Fish Laws define “possession” as “both actual and constructive possession and control of the things referred to,” while “taking” is defined as “pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals.”[15] A person could take six walleye in a day but only possess one if that person releases the fish before taking another. However, while DNR regulations set size limits for other fish species, they do not set one for walleye.[16] If the DNR amends its regulations to lower the daily limit to four walleye, it also has the opportunity to amend its regulations to clarify that only one walleye in possession can be larger than 20 inches, as required by Section 97C.401(2). This amendment is necessitated both by existing statute and by the spread of zebra mussels in Minnesota waters.

 

Notes

[1] Tony Kennedy, DNR Says Minnesota’s Longtime 6-Walleye Limit is Headed for Extinction, Minn. Star Trib. (Nov. 7, 2024), https://www.startribune.com/dnr-says-minnesotas-sacred-6-walleye-limit-is-headed-for-extinction/601177553.

[2] Lee F. G. Gutowsky et al., Quantifying Multiple Pressure Interactions Affecting Populations of a Recreationally and Commercially Important Freshwater Fish, 25 Glob. Change Biology 1049, 1050 (2019).

[3] Id. at 1055-56.

[4] Gutowsky et al. at 1057; Gretchen J. A. Hansen et al., Water Clarity and Temperature Effects on Walleye Safe Harvest: An Empirical Test of the Safe Operating Space Concept, Ecosphere, March 2019, at 1, 9.

[5] Gutowsky et al. at 1057; Hansen et al. at 2.

[6] Hansen et al. at 9.

[7] See Experimental Control of Zebra Mussels in Minnesota, Minn. Dep’t of Nat. Res. (last visited Nov. 23, 2024), https://www.dnr.state.mn.us/invasives/aquaticanimals/zebramussel/zebra-mussel-pilot-project.html; Michael A. McCartney & Sophie Mallez, The Role of Waterway Connections and Downstream Drift of Veliger Larvae in the Expanding Invasion of Inland Lakes by Zebra Mussels in Minnesota, USA, 13 Aquatic Invasions 393, 394 (2018).

[8] Minn. Const., Art. XIII, § 12.

[9] Save Mille Lacs Sportsfishing, Inc. v. Minn. Dep’t of Nat. Res., 859 N.W.2d 845, 849 (Minn. Ct. App. 2015) (quoting State v. Colosimo, 669 N.W.2d 1, 6 (Minn. 2003)).

[10] Minn. Stat. § 97C.401(1).

[11] “This subdivision does not apply to boundary waters.” Minn. Stat. §  97C.401(2).

[12] Minn. R. § 6262.0200(1)(F) (2024).

[13] Minn. Stat. §  97C.401(2).

[14] In re Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 506 (Minn. 2015).

[15] Minn. Stat. § 97A.015(36), (47).

[16] See Minn. R. § 6262.0200 (2024).

NEPA and Climate Change: Are Environmental Protections Hindering Renewable Energy Development?

October 9, 2024
Climate Change, Energy Law, Environmental Law, Regulatory

Samuel Taylor, MJLST Staffer

The National Environmental Protection Act, or “NEPA”, has been essential in protecting America’s air and water, managing health hazards, and preserving environmental integrity. For decades, environmental activist groups, the government, and regular citizens relied on and benefitted from enforcing these NEPA against those looking to pollute, poison, or endanger Americans and their environment. NEPA, however, is proving to be less suitable for addressing the country’s  imminent environmental challenge: climate change. As proponents of green energy scramble to ditch fossil fuels, NEPA and its procedural requirements are accused of delaying or halting renewable energy projects. Environmental protection laws remain essential to stopping the dangers they were passed to stop, and many new green energy projects pose additional risks to the environment, but we also need to transition away from fossil fuels as fast as possible to avoid the worst consequences of climate change. The conflict between the need to address climate change and the need to maintain environmental protections has created a regulatory challenge that may not have a perfect solution.

Enacted in 1970, NEPA was the first major environmental protection measure taken in the US.[i] The “magna carta” of environmental laws applies to all “major federal actions significantly affecting the environment”.[ii] Major federal actions can include everything from infrastructure projects like proposed dams, bridges, highways, and pipelines, to housing developments, research projects, and wildlife management plans.[iii] Before a federal agency can act, there are a series of procedures they must follow which force them to consider the environmental impacts of the potential action. These procedures involve community outreach, the effects of past and future actions in the region, and providing the public with a detailed explanation of the agency’s findings, and often take years to fully complete.[iv] By requiring the government to follow these procedures “to the fullest extent possible,” NEPA aims to ensure that environmental concerns are given sufficient consideration before any harmful actions are taken.[v] Notably, NEPA is not a results-oriented statute, but a process-oriented one.[vi] No agency decision can be made until after its procedures are followed, but once they are, NEPA does not mandate a particular decision.[vii] NEPA does not even require that environmental concerns be given more weight than any other factors.[viii] Nevertheless, if an agency fails to properly follow NEPA procedures, all resulting decisions can be invalidated if challenged in the courts.[ix]

Though passing NEPA was the first step Congress took towards addressing environmental concerns, and decades of NEPA success stories have followed, there is growing concern about its  ability to adapt to the pressing challenges presented by global climate change.[x] NEPA, critics say, drastically slows the government’s ability to invest in green energy because each step of the procedure can be challenged in court.[xi] Corporate competitors in the renewable energy sector, environmental interest groups, concerned citizen groups, and Native American tribes have all challenged various projects’ compliance with NEPA requirements.[xii] Many of these groups have legitimate concerns about the projects, and NEPA allows them to stall or halt development while the government is forced to further consider their potential environmental impacts. This causes direct conflict between these valid concerns and efforts to reverse the country’s reliance on fossil fuels.[xiii] Collectively, the long procedures and potential legal challenges that accompany NEPA’s requirements present serious hurdles to the production of green energy.

Legal experts disagree, perhaps not surprisingly, over the extent to which NEPA hinders the production of green energy sources. Some groups believe the rhetoric surrounding NEPA’s deficiencies is an exaggeration, citing data that shows only a very small percentage of green energy projects actually require the production of EISs.[xiv] Others present NEPA and other environmental protection laws as serious hurdles preventing the production of renewable energy at the pace we need to avoid the worst effects of climate change.[xv] They argue that this data is not properly representative of all clean energy projects, ignores the delays caused by litigation, and does not properly account for the likelihood that delays will get worse in the future.[xvi] Because there is little consensus regarding the extent of the problem, there is likewise almost no agreement on a potential solution.

 Lawmakers and legal scholars have proposed a range of approaches to the NEPA problem. Most drastically, a bill introduced to the U.S. House Committee on Natural Resources by Representative Bruce Westerman would largely eradicate most NEPA provisions by limiting consideration of new scientific evidence, allowing some projects to go exempt from NEPA’s requirements, and drastically limiting community instigated judicial review.[xvii] Other proposals are more modest, including permitting reform to favor green energy projects, placing some limits on judicial review, and collecting more comprehensive data on NEPA issues.[xviii] Still others are staunchly against most reforms, arguing that weakening any NEPA provisions would open the door for greater environmental abuses.[xix] The differing opinions on the scope of the problem and the wide range of proposed solutions amount to a problem that will not be easy to solve.

The legal community is divided on the efficacy of existing NEPA regulations that have, for decades, promoted environmental protection. In the face of climate change and the accompanying need for renewable energy, it must be determined whether NEPA is truly hindering the switch to green energy. The United States must build more renewable energy infrastructure if we are to avoid the worst consequences of global climate change, but with concern growing that our own environmental protection laws are hindering progress, it will be challenging to move forward in a manner that balances the need for green energy production against the necessity of strong environmental protection laws.

 

Notes

[i] Sam Kalen, NEPA’s Trajectory: Our Waning Environmental Charter From Nixon to Trump, 50 Environmental Law Reporter 10398, 10398 (2020).

[ii] Id.; Mark A. Chertok, Overview of the National Environmental Policy Act: Environmental Impact Assessments and Alternatives (2021); 42 U.S.C. §§ 4321–70.

[iii] Elly Pepper, Never Eliminate Public Advice: NEPA Success Stories, Natural Resources Defense Council (Feb. 1, 2015), https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories#:~:text=The%20NEPA%20process%20has%20saved,participated%20in%20important%20federal%20decisions.

[iv] Chertok, supra note ii; 42 U.S.C. §§ 4321–70.

[v] Chertok, supra note ii; Catron County v. U.S.F.W.S., 75 F.3d 1429, 1437 (10th Cir. 1996).

[vi] Chertok, supra note ii; Catron County at 1434.

[vii] Chertok, supra note ii.

[viii] Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).

[ix] Chertok, supra note ii (citing Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005)).

[x] Pepper, supra note iii; Aidan Mackenzie & Santi Ruiz, No, NEPA Really Is a Problem for Clean Energy, Institute For Progress (Aug. 17, 2023), https://ifp.org/no-nepa-really-is-a-problem-for-clean-energy/#nepa-will-harm-clean-energy-projects-even-more-in-the-future; Darian Woods & Adrian Ma, Environmental Laws Can Be an Obstancel in Building Green Energy Infrastructure, NPR (Apr. 13, 2022), https://www.npr.org/2022/04/13/1092686675/environmental-laws-can-be-an-obstacle-in-building-green-energy-infrastructure.

[xi] Mackenzie & Ruiz, supra note x; See, e.g. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (where the agency finding of no significant impact was challenged by an environmental protection group); Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (where the agency’s EIS analysis was challenged by the Sierra Club).

[xii] Niina H. Farah, Tribes Sue Over NEPA Review for Oregon Offshore Wind Auction, Politico (Sep. 18, 2024), https://www.eenews.net/articles/tribes-sue-over-nepa-review-for-oregon-offshore-wind-auction/; Christine Billy, Update: Congestion Pricing: A Case Study on Interstate Air Pollution Disputes, New York State Bar Association (Sep. 23, 2024), https://nysba.org/update-congestion-pricing-a-case-study-on-interstate-air-pollution-disputes/; Jonathan D. Brightbill & Madalyn Brown Feiger, Environmental Challenges Seek to Block Renewable Projects, Winston & Strawn LLP (Sep. 1, 2021), https://www.winston.com/en/blogs-and-podcasts/winston-and-the-legal-environment/environmental-challenges-seek-to-block-renewable-projects.

[xiii] Farah, supra note xii; Brightbill & Feiger, supra note xiv.

[xiv] Ann Alexander, Renewable Energy and Environmental Protection Is Not an Either/Or, Natural Resources Defense Council (Jan. 18, 2024), https://www.nrdc.org/bio/ann-alexander/renewable-energy-and-environmental-protection-not-eitheror.

[xv] Mackenzie & Ruiz, supra note x.

[xvi] Alexander, supra note xiv; Mackenzie & Ruiz, supra note x.

[xvii] Defenders of Wildlife, Defenders Slams Bill Aiming to Rollback NEPA and Gut Environmental Protections, (Sep. 10, 2024), https://defenders.org/newsroom/defenders-slams-bill-aiming-rollback-nepa-and-gut-environmental-protections.

[xviii] Brian Potter, Arnab Datta & Alec Stapp, How to Stop Environmental Review from harming the Environment, Institute For Progress (Sep. 13, 2022), https://ifp.org/environmental-review/.

[xix] Alexander, supra note xiv; Sierra Club

 

 

 

 

Floating Fans in the Ocean: Recognizing the Significance of Maine’s Recent Bill Regarding Offshore Wind Development Projects

November 13, 2023
Energy Law, Environmental Law

Peter Lyon, MJLST Staffer

Recent efforts in Maine have continued the push for developing sustainable energy sources, specifically including offshore wind energy projects in the Gulf of Maine. Offshore wind projects have captured other coastal states’ and the federal government’s interest for quite some time, though the industry is not well developed due to several practical setbacks and pushback from different stakeholders. Maine has the potential to be a leader in this area, as a bill it passed in July lays more of the groundwork for developing offshore wind energy projects, calls attention to the development of innovative technology, and implements means to adequately address the interests of relevant stakeholders.

“An Act Regarding the Procurement of Energy from Offshore Wind Resources”

Maine Governor Janet Mills signed a bill in July to further the development of offshore wind energy projects in the Gulf of Maine, making several amendments to a previous bill and enacting six additional sections.[1] One of the major changes includes declaring a new wind energy goal of three gigawatts of installed capacity by December 2040. This could meet approximately fifty percent of Maine’s anticipated electricity needs at that time.[2] This goal is different from Maine’s unmet 2009 goal of two gigawatts of installed capacity by 2015 and is likely attributable to supply chain issues, higher interest rates, and the rising prices of materials.[3]

To facilitate its three gigawatts by 2040 goal, the bill establishes a process for competitive contracting by requiring the solicitation process and project proposals to be consistent with the Maine Offshore Wind Roadmap issued in 2023,[4] which emphasizes five key topics.[5] It also includes sections pertaining to offshore wind power transmission, supporting the development of port infrastructure and innovative technologies. This may include technologies such as floating or bobbing platforms because the Gulf of Maine is too deep for fixed-structure turbines[6] and storage capacity technology such as large batteries, which would maximize the amount of energy that can be used as it is needed.[7]

The bill also expands the minimum number of advisory board members of the Offshore Wind Research Consortium – a collaborative research initiative created by the bill – from seven to twelve members to reach a wider stakeholder audience. The new advisory board member requirements include adding the “Commissioner of Inland and Wildlife” (or the commissioner’s designee), “at least one individual who is a member of a federally recognized Indian tribe” in Maine, “two individuals with expertise in marine and wildlife habitats,” and “at least one individual with experience in commercial offshore wind power development.”[8] The bill also requires the opportunity for public comment during the project solicitation process.

Engaging with relevant stakeholders at this early stage allows the Consortium’s research to explore and mitigate risks in offshore wind development projects such as the potential negative impact on commercial fishing, species degradation, and harm to ecosystems. These kinds of concerns mirror much of the resistance to offshore wind projects, non-specific to the Gulf of Maine, and the bill emphasizes specific actions to answer them.

Addressing Stakeholder Concerns

Calls for offshore wind energy development have been met with pushback from multiple stakeholder groups, including Native American tribes, members of the commercial fishing industry, and local residents. These and other stakeholders voice concerns about environmental, economic, and social issues. For example, some people argue that installing offshore wind farms could disrupt key fishing and lobstering grounds, which generate more than $1.5 billion for Maine’s economy.[9] This disruption could happen by changing fish migration patterns, changing water temperatures by running large electrical cables onshore, and limiting fishers’ ability to access fishing grounds due to turbine structures being in the way.[10] Another concern is that animals, like the Eastern red bat and other bat species, are vulnerable to flying into wind farm structures.[11] Others simply worry that installing offshore wind farms will disrupt the environment’s natural beauty, as wind farms will be a sort of visual pollution.

In addition to seeking input from relevant stakeholders, the new bill anticipates these kinds of risks and includes specific actions to avoid or mitigate them. The Offshore Wind Research Consortium funds will now also be used to “support conservation that supports species and habitats impacted by offshore wind development,”[12] including research that aims to “avoid or minimize the impact of floating offshore wind power projects on ecosystems and existing uses of the Gulf of Maine.”[13]

Proposals for the development and construction of offshore wind projects must include a “fishing communities investment plan” which “supports innovation and adaptation in response to environmental change, shifting resource economics, and changes in fishing practices associated with offshore wind power development.”[14] Proposals given priority are those that are outside critical fishing and lobstering areas, provide employment and contracting opportunities to people from disadvantaged communities, provide financial or technical support for research regarding wildlife, fisheries, and habitats impacted by offshore wind development, or promote hiring Maine residents and affected community members.[15] Under the bill, proposals must seek to minimize an offshore wind project’s impact on the environment’s visual and scenic character.[16]

The Current State of Offshore Wind Development in the U.S.

Maine is not the only jurisdiction pursuing offshore wind development projects. Most of the locations for offshore wind projects are in federal waters, which means that they often require permits issued by the Bureau of Ocean Energy Management (BOEM), which is housed in the Department of the Interior.[17] The federal government has allocated floating wind leases and has a goal to meet fifteen gigawatts of installed capacity by 2035.[18] Projects are underway in Maine, California, and Oregon, with more in the pipeline.[19]

Maine has the potential to be a leader in offshore wind development projects as its bill passed in July demonstrates the importance of engaging relevant stakeholders, conducting research to avoid or mitigate negative environmental impacts, and prioritizing developments that show commitment to social values. It also emphasizes the role of innovative technology like floating turbines, which are especially relevant because about eighty percent of the world’s offshore wind resource capacity is in locations not well-suited for fixed structures.[20] Offshore wind projects can spur economic growth[21] and contribute to the procurement of sustainable energy while decreasing reliance on non-sustainable sources like fossil fuels. Other jurisdictions should look to Maine’s bill as a great start in the early development of an industry with enormous potential.

Notes

[1] 2023 Me. SP 766.

[2] Maria Gallucci, Maine to go all in on offshore wind, Canary Media (July 25, 2023), https://www.canarymedia.com/articles/wind/maine-to-go-all-in-on-offshore-wind.

[3] Id.

[4] Maine Offshore Wind Roadmap Advisory Committee, The Maine Offshore Wind Roadmap, State of Maine Governor’s Energy Office (February 2023), https://www.maine.gov/energy/sites/maine.gov.energy/files/inline-files/Maine_Offshore_Wind_Roadmap_February_2023.pdf.

[5] Maine’s Offshore Wind Roadmap, State of Maine Governor’s Energy Office, https://www.maine.gov/energy/initiatives/offshorewind/roadmap (last visited Nov. 6, 2023) (stating the Roadmap’s objectives include “supporting economic growth and resiliency, harnessing renewable energy, advancing Maine-based innovation, supporting Maine’s seafood industry, and protecting the Gulf of Maine’s ecosystem.”).

[6] Heather Richards, Gulf of Maine wind could power 100% of New England—Report, E&E News (Oct. 31, 2023), https://subscriber.politicopro.com/article/eenews/2023/10/31/gulf-of-maine-wind-could-give-new-england-a-power-jolt-report-00124295.

[7] Id. (“Offshore wind from the Gulf of Maine could satisfy 72% of New England’s power demand but battery storage is critical; without the right storage capacities, offshore wind could only meet approximately 37% of New England’s needs.”).

[8] 2023 Me. SP 766.

[9] Maria Gallucci, Maine to go all in on offshore wind, Canary Media (July 25, 2023), https://www.canarymedia.com/articles/wind/maine-to-go-all-in-on-offshore-wind.

[10] Bureau of Ocean Energy Management, Gulf of Maine Draft Wind Energy Area (WEA) Notice, Regulations.gov

(October 18, 2023), https://www.regulations.gov/document/BOEM-2023-0054-0001 (see public comments).

[11] Heather Richards, Gulf of Maine wind could power 100% of New England—Report, E&E News (Oct. 31, 2023), https://subscriber.politicopro.com/article/eenews/2023/10/31/gulf-of-maine-wind-could-give-new-england-a-power-jolt-report-00124295.

[12] 2023 Me. SP 766.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Nicholas P. Jansen, Reducing the Headwinds: the Need for a Federal Approach to Siting Offshore Wind Interconnection Infrastructure, Despite Protective State Laws, 26 Ocean & Coastal L.J. 123 (2021).

[18] Juliana Ennes, California’s floating wind lead threatened by fast-rising Maine, Reuters (September 14, 2023, 10:57 AM), https://www.reuters.com/business/energy/californias-floating-wind-lead-threatened-by-fast-rising-maine-2023-09-14/.

[19] Maria Gallucci, Maine to go all in on offshore wind, Canary Media (July 25, 2023), https://www.canarymedia.com/articles/wind/maine-to-go-all-in-on-offshore-wind.

[20] Id.

[21] Maine Offshore Wind Roadmap Advisory Committee, The Maine Offshore Wind Roadmap, State of Maine Governor’s Energy Office (February 2023), https://www.maine.gov/energy/sites/maine.gov.energy/files/inline-files/Maine_Offshore_Wind_Roadmap_February_2023.pdf.

Hello! My Name Is…Erie? Personhood for the Great Lakes

October 15, 2023
Climate Change, Environmental Law

Eric Gross, MJLST Staffer

As the climate change crisis worsens and environmental protection laws continue to fall short of their stated goals, the movement to give natural entities such as lakes, rivers, and forests legal rights associated with personhood has expanded. Legislation driven by the “environmental personhood” movement has recently begun to appear around the world and in the United States as communities make efforts to protect their natural areas from harmful activity.[1] The idea of entities that aren’t people having personhood status is not without precedent. Consider corporations, which have been defined as persons for limited legal purposes.[2] Given the judicial rights already possessed by non-human entities like corporations, legal personhood has become a more attractive tool for those seeking to protect natural entities such as the Great Lakes. However, broad attempts to give natural entities personhood have run into legal challenges.

Lake Erie Bill of Rights Struck Down

In August 2014, the City of Toledo issued a drinking water warning to citizens not to drink the water; agricultural runoff and pollution into Lake Erie had caused a toxic algal bloom.[3] The water remained undrinkable and even unusable for three days.[4] Frustration with years of state government inaction on pollution boiled over, and in February 2019, the City of Toledo voted to establish a bill of rights for Lake Erie.[5] Known as the Lake Erie Bill of Rights (“LEBOR”), the bill was the product of a multi-year effort by Toledo citizens to protect Lake Erie from pollution.[6]

LEBOR essentially gave personhood status to Lake Erie, including legal standing. It established “irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations.”[7] LEBOR declared that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve” and granted the people of Toledo “the right to a clean and healthy environment.”[8] Under the statute, the City of Toledo, or any of its residents, held the right to sue on behalf of Lake Erie.[9] The law also made governments and corporations strictly liable for violating the rights of Lake Erie “from any jurisdiction” and declared invalid any state laws or rules that conflicted with LEBOR.[10]

Drewes Farms Partnership, an agricultural company that grows crops in four counties near Toledo, brought a lawsuit against the City of Toledo the day after the initiative passed, with the state of Ohio joining as an intervenor soon after.[11] Drewes Farms and Ohio sought to have LEBOR declared invalid. The U.S. District Court for the Northern District of Ohio sided with the corporation and state, holding LEBOR to be unconstitutionally vague and exceeding the power of municipal authority in Ohio.[12] While recognizing the “well-intentioned goal” of the drafters, the court held that LEBOR was impermissibly vague in violation of the 14th Amendment.[13] “LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning.”[14] This language, according to the court, could “trap the innocent [agricultural companies] by not providing fair warning” and invited arbitrary enforcement by prosecutors, judges and juries.[15]

Additionally, the court held that LEBOR preempted state law and exceeded municipal authority. “LEBOR’s attempt to invalidate Ohio law in the name of environmental protection is a textbook example of what municipal government cannot do. Lake Erie is not a pond in Toledo. It is one of the five Great Lakes and one of the largest lakes on Earth, bordering dozens of cities, four states, and two countries…Consequently, municipal laws enacted to protect Lake Erie are generally void if they conflict with Ohio law.”[16] The court did note that “with careful drafting, Toledo probably could enact valid legislation to reduce water pollution,” citing a Wisconsin ordinance restricting the use of phosphorus-containing fertilizers in Madison city limits.[17]

Other Options Exist to Protect the Great Lakes

The striking down of LEBOR indicates that while a municipality may enact ordinances to limit water pollution, such ordinances will likely have to remain limited in nature to survive a court’s scrutiny. Broader legislation to protect ecosystems like the Great Lakes will likely have to come through a state’s legislature, at the bare minimum. However, there are other options available to help protect the Great Lakes as a whole.

The public trust doctrine is a legally established method for individuals to protect natural resources that otherwise wouldn’t be able to protect themselves. Cited most frequently with bodies of water, the public trust doctrine establishes that the government maintains certain natural and cultural resources that are “owned” by the public.[18] Recently, the Michigan Attorney General’s 2019 lawsuit to shut down an oil pipeline crossing the Straits of Mackinac cited the public trust doctrine, claiming the lease allowing the pipeline to operate violates the state’s obligation to “protect and preserve the waters of the Great Lakes and the lands beneath them for the public.”[19] Additionally, a 2021 resolution passed by the Metropolitan Water Reclamation District of Greater Chicago recognized that the water of the Great Lakes will remain in the public trust.[20] This resolution from the water district of the largest metropolitan area in the Great Lakes region is another example of a step in the right direction for protecting the Great Lakes and equal access to clean water.

Notably, New York state assemblyman Patrick Burke has introduced legislation to create a more expansive Great Lakes Bill of Rights.[21] Burke’s proposal would create a Great Lakes bill of rights that declares the right of the Great Lakes to exist, flourish and naturally evolve, giving the state and affected localities to sue on the Lakes’ behalf.[22] The proposed legislation is remarkably similar to the struck-down Toledo law, and, if it becomes law, is likely to face similar legal challenges. While such a law would easily overcome the municipal overreach issue from Toledo, a proposed Great Lakes bill of rights statute is still likely to face the same vagueness issue that helped bring down LEBOR. However, in the face of continued pollution and disregard for our environment, laws like this represent the next logical step for protecting our lakes, rivers, and forests, and could finally give the Great Lakes the protection they deserve.

Notes

[1] Nicole Pallotta, Federal Judge Strikes Down ‘Lake Erie Bill of Rights,’ Animal Legal Defense Fund (May 4, 2020), https://aldf.org/article/federal-judge-strikes-down-lake-erie-bill-of-rights/#:~:text=The%20bill%20of%20rights%20established,powers%20claimed%20by%20certain%20corporations.

[2] Nina Totenberg, When Did Companies Become People? Excavating the Legal Evolution, NPR (July 28, 2014), https://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution.

[3] Michael Wines, Behind Toledo’s Water Crisis, a Long-Troubled Lake Erie, N.Y. Times (Aug. 4, 2014), https://www.nytimes.com/2014/08/04/us/toledo-faces-second-day-of-water-ban.html.

[4] Id.

[5] Claire Brown, How Ohio’s Chamber of Commerce Killed an Anti-Pollution Bill of Rights, The Intercept (Aug. 29, 2019), https://theintercept.com/2019/08/29/lake-erie-bill-of-rights-ohio/.

[6] Id.

[7] Lake Erie Bill of Rights, Beyond Pesticides (last visited Oct. 7, 2023), https://www.beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf.

[8] Id.

[9] Id.

[10] Id.

[11] Drewes Farms P’ship v. City of Toledo, 441 F.Supp.3d 551 (N.D. Ohio 2020).

[12] Id. at 558.

[13] Id. at 557.

[14] Id. at 556.

[15] Id.

[16] Id. at 557.

[17] Id.

[18] Public trust doctrine, Cornell Law School (last visited Oct. 8, 2023), https://www.law.cornell.edu/wex/public_trust_doctrine#:~:text=Public%20trust%20doctrine%20is%20a,waters%2C%20wildlife%2C%20or%20land.

[19] Jim Malewitz, Michigan AG Dana Nessel files lawsuit to shut down Line 5 in Mackinac Straits, Bridge MI (June 27, 2019), https://www.bridgemi.com/michigan-environment-watch/michigan-ag-dana-nessel-files-lawsuit-shut-down-line-5-mackinac-straits.

[20] Allison Fore, MWRD Board of Commissioners passes resolution that affirms water is a basic human right, Metropolitan Water Reclamation District of Greater Chi. (June 3, 2021), https://mwrd.org/sites/default/files/2021-06/Water%20Equity.pdf.

[21] NYS Assemblyman Patrick Burke Introduces Great Lakes Bill of Rights, N.Y. State Assembly (Mar. 2, 2022), https://nyassembly.gov/mem/Patrick-Burke/story/100976#:~:text=The%20Great%20Lakes%20Bill%20of,and%20the%20Great%20Lakes%20ecosystem.%E2%80%9D.

[22] Id.

Victory in the Big Sky Country: The Ramifications of Held v. Montana

October 1, 2023
Climate Change, Constitutional Law, Environmental Law

Joshua Fuller, MJLST Staffer

Introduction

The battle about climate change rages on. But one group of young students has dealt a significant blow to the state of Montana, claiming that under the Montana Constitution they have a right to a clean environment. This victory, while small in its effect, has reverberated across the nation. This case, Held v. Montana, is the first of its kind. Never before has there been a ruling that a clean environment was a right of a state’s citizens. And while the case will certainly be taken up by the Montana Supreme Court, the door has been opened for climate change activists to consider potential litigation across the country.

Background About the Case:

The Montana Constitution includes the following provision: “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.”[1] The phrase “right to a clean and healthful environment” is the basis on which the sixteen Montana youth (“the plaintiffs”) filed suit. They sued the state of Montana arguing that the passage of the State Energy Policy Act (the “Act”), which prohibited the state from considering the impacts of greenhouse gas emission when performing an environmental review, violates the clean environment provision in the Montana Constitution.[2] Judge Kathy Seeley, the District Court Judge for the 1st District, agreed with the plaintiffs. In her order, Judge Seeley found that the Act was unconstitutional under the ruling of Park Cnty: “Pursuant to the Court’s decision in Park Cnty., Mont. Code Ann. § 75-1-201(6)(a)(ii) is facially unconstitutional because it eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest.”[3] Shortly after the decision was rendered, a spokesperson for Montana Attorney General, Austen Knudsen, stated, “This ruling is absurd, but not surprising from a judge who let the plaintiffs’ attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial”[4] and stated that the Attorney General would be seeking an appeal with the Montana Supreme Court. 

While the future of the case is less than certain, there is light at the end of the tunnel for the plaintiffs. The Montana Supreme Court has often taken the position that the text of the Montana Constitution governs. In their recent decision in Board of Regents of Higher Education v. State, the Court struck down House Bill 102, a firearms bill that would have allowed carrying on Montana public college campuses. A unanimous Court found that under the Montana Constitution,[5] the Board of Regents had controlling power when deciding gun regulations on college campuses.[6] Given the heavy firearms culture that exists in Montana, this decision was of great surprise to many. But the case gave important context to the priorities of the Court. Given the decision to faithfully follow the Montana Constitution, this does give a glimmer of where the Court may lean when the decision goes up for appeal, if the Court takes it up. Additionally, Montana has traditionally been a bulwark of conservation of the land. Two well known National Parks, Glacier and Yellowstone, exist within the boundaries of the state. Protecting the environment, despite the misgivings of the current state administration, has been an important part of the culture. In Montana, Fish, Wildlife & Parks offers conservation easements with landowners, where the landowners are paid by the department to conserve certain parts of their land and limit the use.[7] With several parts of the government for protecting the environment, and a long standing tradition of conservation, there is reason to believe that the Montana Supreme Court would rule in favor of the plaintiffs. 

Implications of the Case

Despite the spokeperson’s statements, the reaction to the decision nationally has been overwhelmingly supportive. Michael Burger, executive director of the Sabin Center for Climate Change Litigation at Columbia University, stated, “Emissions contribute to climate change, climate harms are real, people can experience climate harms individually, and every ton of greenhouse gas emissions matters. These are important factual findings, and other courts in the U.S. and around the world will look to this decision.”[8] Similar litigation has already begun to occur. In Oregon, a county sued major oil companies for exacerbating the current climate change crisis.[9] But Held is the first time that a state has been held accountable for actions that the state attempted to create to get around climate change measures. As of the writing of this article, only six states have provisions in their constitutions that citizens have the right to a clean environment: Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania.[10] While this may seem insignificant, the holding in Held is a first step for citizens to fight climate change. The court’s decision gives groundwork to other prospective plaintiffs on how to formulate litigation surrounding issues that deal with climate change. 

A New Type of Law?

Perhaps the most important impact of Held is the potential for a new body of law. Environmental law has existed for decades, harkening back to the era of Theodore Roosevelt and his decision to create the National Parks. However, its intersection with constitutional law has only been more recent, and it is far less defined. Despite agencies such as the Environmental Protection Agency and the National Parks Service, litigation surrounding climate change has only emerged in the past couple of decades. This vacuum of law is ripe for the filling. This new law springs forward from the enjoinment of environmental law and constitutional law. This new “Green Constitutional Law” surfaces from the idea that state constitutions have provisions in place that protect the environment and establish the right to a clean climate.[11] Held provides an outline for what green constitutional law may look like. The litigation emanating in other states, and the call for more action to curb global warming, speak to the necessity of such a new form of law. At its core, green constitutional law addresses the idea that all people have the right to “life, liberty, and the pursuit of happiness.”[12] Because the rise of climate change threatens the existence of countless species, including humans, it can be reasonably asked whether the United States Constitution, so quoted above, gives the right to an environment in which its citizens can survive and flourish. A new form of law is arising to help answer this question, to which Held is the foot in the door to begin this change. The battle may be won, but the war has just begun. 

Notes

[1] Mont. Const. Art. II, § 4.

[2] Id.

[3] Held v. Montana, No. CDV-2020-307 (Mont. Dist. Ct., 2023).

[4] David Gelles and Mike Baker, Judge Rules in Favor of Montana Youths in a Landmark Climate Case, The New York Times (Aug. 14, 2023) https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html.

[5] Mont. Const. art. X, § 9(2)(a).

[6] Bd. of Regents of Higher Educ. of Mont. v. State, 1, 12 (2022 MT 128).

[7] FWP, Habitat Montana, (Last visited Sept. 29, 2023) https://fwp.mt.gov/conservation/landowner-programs/habitat-montana.

[8] Id.

[9] Clark Mindock, US Climate Change Lawsuit Seeks $50 Billion, Citing 2021 Heat Wave, Reuters (June 22, 2023 8:08 PM CDT) https://www.reuters.com/world/us/us-climate-change-lawsuit-seeks-50-billion-citing-2021-heat-wave-2023-06-22/.

[10] John C. Dernbach, The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis, 1 Widener University – Commonwealth Law School (2023).

[11] Kate Burgess, Green Amendments in 2023: States Continue Efforts to Make a Healthy Environment a Legal Right,  National Caucus of Environmental Legislators, (Mar. 27, 2023) https://www.ncelenviro.org/articles/green-amendments-in-2023-states-continue-efforts-to-make-a-healthy-environment-a-legal-right/.

[12] The Declaration of Independence para.2 (U.S. 1776).

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

April 27, 2023
Climate Change, Energy Law, Environmental Law, Tax Law

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, Environmental Law, 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, Environmental Law, 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.

Hazardous Train Derailment: How a Poor Track Record for Private Railway Company May Impact Negligence Lawsuit Surrounding Major Incident

March 4, 2023
Environmental Law, Litigation, Public Health, Public Safety, Torts Law, Transportation

Annelise Couderc, MJLST Staffer

The Incident

On Friday, February 3rd a train with about 150 cars, many carting hazardous chemicals, derailed in East Palestine, Ohio. The derailment resulted in the leakage and combustion of an estimated 50 train cars containing chemicals hazardous to both humans and the environment. The mayor of East Palestine, Ohio initially evacuated the city, and neighboring towns were told to stay indoors with residents being told they could return five days following the explosion. According to a member of the National Transportation Safety Board, 14 cars containing multiple hazardous chemicals including vinyl chloride, a chemical in plastic products which is associated with increased risk of liver cancer and cancer generally, were “exposed to fire,” combusted into the air which could then be inhaled by residents or leach into the environment. There have been reports by residents of foul smells and headaches since the incident, and locals have reported seeing dead fish in waterways.

The train and railroad in question are owned and operated by Norfolk Southern, a private railway company. Norfolk Southern transports a variety of materials, but is known for its transportation of coal through the East and Midwest regions of the country. In order to prevent a large explosion with the chemicals remaining in the train cars, Norfolk Southern conducted a “controlled release” of the chemicals discharging “potentially deadly fumes into the air” on Monday, February 6th. While the controlled release was likely immediately necessary for safety purposes, exposure to vinyl chloride as a gas can be very dangerous, leading to headaches, nausea, liver cancer, and birth defects.

Government and Norfolk Southern Responds

Following the derailment and fires, a variety of governmental authorities have converged to tackle the issue, in addition to Norfolk Southern. The Environmental Protection Agency (EPA) and Norfolk Southern are monitoring air-quality, and giving guidance to determine when investigators and fire fighters may enter the scene safely. In a joint statement on February 8th, the Governors of Ohio and Pennsylvania, as well as East Palestine’s Fire Chief, announced that evacuated residents could return to their homes. As an act of good faith Norfolk Southern enlisted an independent contractor to work with local and federal officials to test air and water quality, and pledged $25,000 to the American Red Cross and its shelters to help residents. The Ohio National Guard has also been brought onto the scene.

As more information is released, things are heating up in the press as reporters try to learn more about what happened. In a press conference on February 8th with Ohio’s governor, Mike DeWine, the commander of the Ohio National Guard pushed a cable news reporter who refused to stop his live broadcast after asked by authorities and was subsequently arrested and held in jail for five hours. DeWine denies authorizing the arrest, and a Pentagon official has come out condemning the behavior as unacceptable. The Ohio attorney general will lead an investigation into the arrest.

Lawsuit Filed Alleges Negligence

Norfolk Southern’s history regarding brake safety as well as general operational changes in the railroad sector will perhaps play a factor in the lawsuit recently filed in response to the incident. In East Palestine, Ohio, residents and a local business owner are alleging negligence in a lawsuit against Norfolk Southern in federal court. Union organizers have expressed concerns that operating changes and cost-cutting measures like the elimination of 1/3 of workers in the last six years have resulted in less thorough inspection and less preventative maintenance. Although railroads are considered the safest form of transporting hazardous chemicals, Federal Railroad Administration (FRA) data shows that hazardous chemicals were released in 11 accidents in 2022, and 20 in both 2020 and 2018. Recently, there has been an uptick in derailments, and although most occur in remote locations, train car derailments have in fact killed people in the past.

The class-action lawsuit alleges negligence against Norfolk Southern for “failing to maintain and inspect its tracks; failing to maintain and inspect its rail cars; failing to provide appropriate instruction and training to its employees; failing to provide sufficient employees to safely and reasonably operate its trains; and failing to reasonably warn the general public.” The plaintiffs allege the company should have known of the dangers posed, and therefore breached their duty to the public.

Specifically relevant to this accident may be Norfolk Southern’s lobbying efforts against the mandatory use of Electronically Controlled Pneumatic (ECP) brakes. In 2014, likely in response to increased incidents, the Obama administration “proposed improving safety regulations for trains carrying petroleum and other hazardous materials,” which included brake improvement. The 2015 Fixing America’s Surface Transportation (FAST) Act required the Department of Transportation (DOT) to test ECP braking, and the Government Accountability Office to calculate the costs and benefits of ECP braking.[1] The U.S. Government Accountability Office (GAO) conducted a cost benefit test on the ECP braking, and found the costs outweighed the benefits.[2] The FRA, the Pipeline and Hazardous Materials Safety Administration (PHMSA), and DOT subsequently abandoned the ECP brake provision of the regulation in 2017. The move followed a change in administration and over $6 million in lobbying money towards GOP politicians and the Trump administration by the American Association of Railroads, a lobbying group of which Norfolk Southern is a dues-paying member.

Despite bragging about their use of ECP brakes in 2007 in their quarterly report, Norfolk Southern’s lobbying group opposed mandatory ECP brakes, stating “In particular, the proposals for significantly more stringent speed limits than in place today and electronically controlled pneumatic (ECP) brakes could dramatically affect the fluidity of the railroad network and impose tremendous costs without providing offsetting safety benefits.” Although the type of brakes on the train in East Palestine is unknown as of now, a former FRA senior official told a news organization that ECP brakes would have reduced the severity of the accident. Whether or not using ECP braking while hauling hazardous materials constitutes negligence, despite the federal government finding they are not beneficial enough to make it mandatory, the fact that Norfolk Southern opposed its implementation may still influence the litigation.

Although the current lawsuit filed alleges negligence against Norfolk Southern, the private company, it is perhaps possible to approach the legal debate from an agency perspective. Did the PMHSA and FRA permissibly interpret FAST in failing to include ECP braking requirements when they were explicitly mentioned in the FAST text? Did the agencies come to an acceptable conclusion about ECP braking based on the data? If a court were to find the agencies’ decisions were outside of the scope of the authority granted to them by FAST, or that the decision was arbitrary and capricious, the agencies could be forced to reevaluate the regulation regarding ECP braking. Congress could also pass more specific legislation in response, to increase safety measures to prevent something like this from happening again.

The events are still unfolding from the train derailment in Ohio, and there are still many unknown variables. It will be interesting to see how the facts unfold, and how/if residents are about to recoup their losses and recover from the emotional distress this event undoubtedly caused.

Notes

[1] Regulations.gov, regulations.gov (search in search bar for “phmsa-2017-0102”; then choose “Electronically Controlled Pneumatic Braking- Updated Regulatory Impact Analysis”; then click “download.”)

[2] Regulations.gov, regulations.gov (search in search bar for “phmsa-2017-0102”; then choose “Technical Corrections to the Electronically Controlled Pneumatic Braking Final Updated RIA December 2017”; then click “download.”)

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

December 13, 2022
Administrative Law, Environmental Law, 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.

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