Type: Development Article

Vol. No. 54-1 Utilities

Utilities

What’s in Your Water Law? Not Much.

How Did We Get Here?: What is Happening in Louisiana

The Mississippi River is one of the most important commercial waterways in the world, carrying 500 million tons of shipped goods per year ranging from petroleum products, iron, and steel to coffee and paper.[1] The river is often treated as just a commercial waterway rather than what it is—a vital part of a complex ecosystem and source of water to millions. To accommodate larger vessels that use the expanded Panama Canal, Louisiana Governor John Bel Edwards authorized the dredging of the river to deepen it from forty-five feet to fifty feet in 2020.[2] The Governor’s Office projected that every additional foot of depth will allow an additional $1 million in cargo transportation on the river.[3] The U.S. Army Corps of Engineers completed a supplemental environmental impact statement to assess the impact of the project pursuant to the National Environmental Policy Act (NEPA).[4] The study had significant findings on the potential risks for drinking water.

The Mississippi River spans over 2,000 miles, from Minnesota to the Gulf of Mexico, and supplies more than fifty municipalities—around twenty million people—with drinking water.[5] The bed of the river is lower than sea-level.[6] This, coupled with the fact that salt water is denser than freshwater, causes salt water to push upstream underneath the fresh water in the shape of a “wedge” or a doorstop when the flow of the river is weakened.[7] The water flow must be 300,000 cubic feet per second to keep the salt water from flowing upstream.[8] During times of drought, the flow rate of the river may drop below 300,000 cubic feet per second, allowing salt water to travel further and further upstream, increasing the salinity of the river and thus the drinking water.[9] By deepening the river, the difference between the bed of the river and sea-level increased, and so did the risk of saltwater intrusion: an outcome acknowledged by the Army Corps itself.[10] The environmental impact study found that deepening the river would “increase . . . the duration and extent of the [sic] saltwater intrusion that occurs during annual low water events.”[11] Another significant factor in the greater frequency of saltwater intrusion is the rising sea level as a result of the climate crisis.[12] Experts believe the threat of salt water reaching other major cities is growing, particularly in Louisiana, Florida, California, and the Northeast.[13] While engineering is not the only factor increasing the risk of saltwater intrusion, it is arguably the factor most easily changed.

After the river was deepened to forty-five feet in 1987, saltwater intrusion occurred approximately once a decade—in 1988, 1999, 2012, and 2022—until now.[14] For the first time, the river is experiencing a second year in a row of saltwater intrusion and it is taking longer to recover from consecutive years of low water events.[15] To mitigate the duration and extent of the saltwater intrusion, the Army Corps has built a “sill” to reduce saltwater flow during low water events.[16] A sill is essentially an underwater levee or wall of dirt that “kicks up” the front of the saltwater wedge, pushing the denser salt water up and into the flow of freshwater and increasing the likelihood that the salt water will be pushed back down the river.[17] The sill cannot stop the salt water from moving up the river indefinitely, but it can buy some time until there is more rain or the water flow increases.[18] While the sill is an effective temporary solution, it is not an easy feat. The U.S. Coast Guard and navigation industry must temporarily block river traffic to allow for the sill’s construction, and its construction is estimated to cost $1.2 million per year if constructed once every five years.[19] Because of the severity of this year’s saltwater intrusion, the sill was raised from -55 feet to -30 feet with a notch of -55 feet to allow vessels needing the depth to continue navigating the river with one-way traffic rules.[20] The sill is a bandage over a larger problem. Salt water may still move past the sill and many water treatment systems in Louisiana, including New Orleans, are not equipped with desalination units.[21] Worse yet, the salt water is capable of corroding the pipes of the current water treatment systems and allowing far more dangerous contaminants than salt to infiltrate the water supply.[22] This problem looks dangerously similar to what occurred in Flint, Michigan.[23] Another concern is the particularly toxic byproducts produced by the disinfectant process used for treating seawater.[24] Seawater produces more byproducts because it requires more disinfectant than fresh water, in part because of different contaminants found in seawater.[25] One such contaminant is bromoform, a primary contaminant created in the disinfecting process of bromide, which is found in seawater.[26] In a recent test of drinking water in the lower Plaquemines parish, bromoform levels were more than one hundred times that of typical drinking water and well above EPA’s limits.[27]

How the Law Protects Drinking Water

President Ford signed the Safe Drinking Water Act (SDWA) in 1974 with the goal of regulating the public drinking water supply.[28] The statute charges EPA with identifying and setting standards for drinking water to protect public health.[29] The responsibility for satisfying the SDWA standards is divided among EPA, tribes, states, water systems, and the public.[30] EPA grants “primacy” or delegates its authority to states and territories that enforce the regulations it sets.[31] All states except Wyoming and the District of Columbia have primacy, largely because most states prefer to exercise this power rather than allow the federal government to govern the treatment of the state’s water.[32] EPA has set limits for primary and secondary contaminants. Primary contaminant standards are health based and legally enforceable.[33] These standards address contaminants, such as lead and mercury, with significant health consequences.[34] Secondary contaminant standards address the appearance or taste of the water and are not legally enforceable.[35] Secondary contaminants include zinc, “odor,” and chloride (the negative ion of salt when it is placed in water).[36] EPA’s maximum contaminant level for chloride is 250 milligrams per liter.[37] There are no legal consequences for failing to keep chloride levels in drinking water below this amount, but it is harmful to some populations such as pregnant women, infants, and individuals on a low-sodium diet, such as those with kidney disease or heart conditions.[38] 

Despite the lack of legal ramifications for secondary contaminants like chloride, there is still a political interest in maintaining EPA standards for drinking water because of the potential effect on constituents and the potential for backlash from those constituents at the polls. The Governor of Louisiana and President Biden declared a state of emergency authorizing the Governor to use emergency powers and allowing Louisiana to receive Federal assistance to address the drought and saltwater intrusion.[39] The response to the saltwater intrusion has been extensive. As of October 20, 2023, the saltwater wedge was at River Mile 65.8, and the salinity of the water fifteen to twenty-five miles downstream of the wedge toe is not compliant with EPA standards for chloride.[40] Louisiana has built pipelines to bring in fresh water, barged fresh water further upriver, installed desalination equipment, and constructed the sill.[41] Prior to declaring a state of emergency, Plaquemines Parish, which has a population of approximately 22,500 people,[42] relied on bottled water for bathing, cooking, and drinking since June.[43] According to the parish, its drinking water has been within EPA standards since October 1, 2023 due to freshwater barging and blending techniques.[44]

What is Next for Our Water?

The saltwater wedge has begun to regress downriver as a result of increased water flow following rainfall and the construction of the sill.[45] Current predictions no longer foresee a worst-case scenario occurring, but the truth remains that it could occur at some point in the future—and we are aware of the threat.[46] 

The current response to water crises like the saltwater intrusion is reactive rather than proactive. The SDWA requires that, in return for primacy, states must have “adopted and can implement an adequate plan for the provision of safe drinking water under emergency circumstances including earthquakes, floods, hurricanes, and other natural disasters.”[47] Part of this requirement should include forward-looking planning, not only to ensure the provision of safe drinking water during predictable emergencies, but also to prevent or mitigate the impact of such emergencies. Authorities knew that the dredging of the Mississippi River would increase the likelihood of saltwater intrusion and that such emergencies occur with predictable frequency and are only becoming more frequent. Louisiana communities have a right to safe drinking water and should have the legal protection to ensure it. That requires more than standards set out by the EPA. It requires legal obligations of the government to make decisions in line with the health of the community and the environment that provides for them.

Paul Sarahan is a partner at Earth & Water Law. He focuses his practice on environmental, safety, and transportation issues. He has 28 years of experience in policy, regulation, and commercial use of the environment and has represented clients in the energy, chemical, manufacturing, transportation, and retail industry sectors before federal, state, and local agencies. Paul is a graduate of the University of Texas at Austin, The University of Texas School of Law, and the University of Houston Law Center’s Energy, Environmental and Natural Resources LL.M. program.

Nikiya Mellon is a 3L from Fort Worth, Texas. She attended the University of North Texas and joined TELJ during her second year of law school.

[1]         Mississippi River Facts, Nat’l Park Serv., https://www.nps.gov/miss/riverfacts.htm (last updated Feb. 10, 2022).

[2]         Mississippi River Deepening from 45 to 50 Feet Authorized, State of Louisiana Office of the Governor (July 31, 2020) https://gov.louisiana.gov/index.cfm/newsroom/detail/2618.

[3]         Id.

[4]         See U.S. Army Corps of Eng’rs, Integrated General Reevaluation Report & Supplement III to the Final Environmental Impact Statement, Mississippi River Ship Channel, Baton Rouge to the Gulf, Louisiana Project iii (2018).

[5]         Mississippi River Facts, supra note 1; Moira McDonald, River at Risk: The Mississippi, Walton Fam. Found. (Feb. 9, 2017), https://www.waltonfamilyfoundation.org/stories/k-12-education/river-at-risk-the-mississippi.

[6]         An Overview of the Mississippi River’s Saltwater Wedge, U.S. Army Corps of Eng’rs, https://www.mvn.usace.army.mil/Missions/Engineering/Stage-and-Hydrologic-Data/SaltwaterWedge/SaltwaterWedgeOverview/ (last visited Nov. 17, 2023).

[7]         Id.

[8]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, Tul. Univ.  Sch. of Pub. Health & Tropical Med., https://sph.tulane.edu/5-things-know-about-saltwater-intrusion-mississippi-river (last updated Sept. 28, 2023).

[9]         Lower Mississippi Saltwater Intrusion, City of New Orleans Office of Homeland Sec.  and Emergency Preparedness, https://ready.nola.gov/incident/saltwater-intrusion/about-saltwater-intrusion/ (last visited Nov. 17, 2023).

[10]         Integrated General Reevaluation Report & Supplement, supra note 5, at 2-23.

[11]         Id.

[12]         Delaney Nolan, Saltwater Threat to Louisiana Drinking Water to Grow Across US, Experts Warn, The Guardian (Oct. 10, 2023), https://www.theguardian.com/us-news/2023/oct/10/louisiana-drinking-water-saltwater-mississippi-river.

[13]         Id.

[14]         Roby Chavez, Why the Saltwater Wedge Climbing Up the Mississippi River is a Wake-Up Call to the Region, PBS, https://www.pbs.org/newshour/nation/why-salt-water-is-threatening-drinking-water-in-new-orleans-and-what-officials-are-doing-about-it; see also Integrated General Reevaluation Report & Supplement, supra note 5, at 2-24.

[15]         Chavez, supra note 15.

[16]         Integrated General Reevaluation Report & Supplement, supra note 5, at 3-6.

[17]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9.

[18]         Id.

[19]         Integrated General Reevaluation Report & Supplement, supra note 5, at 3–22.

[20]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9; Press Release, Ricky Boyett, Latest Saltwater Wedge Forecast Released by USACE, U.S. Army Corp of Eng’rs (Oct. 12, 2023), https://gohsep.la.gov/Portals/3/Docs/Intrusion/Latest%20saltwater%20wedge%20forecast%20released%20by%20USACE.pdf.

[21]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9.

[22]         Chavez, supra note 15.

[23]         Kristi Pullen Fedinick et al., Watered Down Justice 9 (2019), https://www.nrdc.org/sites/default/files/watered-down-justice-report.pdf.

[24]         Delaney Nolan, ‘These Levels Are Crazy’: Louisiana Tap Water Sees Huge Spike in Toxic Chemicals, The Guardian (Oct. 27, 2023), https://www.theguardian.com/us-news/2023/oct/27/louisiana-mississippi-river-tap-water-contamination-chemicals.

[25]         Id.

[26]         Id.

[27]         Id.

[28]         Env’t Prot. Agency, Understanding the Safe Drinking Water Act (2004), https://www.epa.gov/sites/default/files/2015-04/documents/epa816f04030.pdf.

[29]         Fedinick et al., supra note 24, at 10.

[30]         Understanding the Safe Drinking Water Act, supra note 29.

[31]         Fedinick et al., supra note 24, at 30.

[32]         Arthur Holst & Jennifer Stonecipher, Safe Drinking Water Act of 1974, Ctr. for the Study of Federalism, https://encyclopedia.federalism.org/index.php/Safe_Drinking_Water_Act_of_1974#:~:text=A%20state%20can%20apply%20for,stricter%2C%20standards%20than%20the%20EPA (last updated Aug. 2018).

[33]         National Primary Drinking Water Regulations, U.S. Env’t Prot. Agency, https://www.epa.gov/ground-water-and-drinking-water/national-primary-drinking-water-regulations (last updated Jan. 9, 2023).

[34]         Id.

[35]         Secondary Drinking Water Standards: Guidance for Nuisance Chemicals, U.S. Env’t Prot. Agency, https://www.epa.gov/sdwa/secondary-drinking-water-standards-guidance-nuisance-chemicals (last updated Feb. 14, 2023).

[36]         Id.; Water Sci. Sch., Water Molecules and Their Interaction with Salt, U.S. Geological Surv., https://www.usgs.gov/media/images/water-molecules-and-their-interaction-salt (last visited Nov. 17, 2023).

[37]         Secondary Drinking Water Standards, supra note 36.

[38]         Community Preparedness and Health Protection, La. Dep’t of Health, https://ldh.la.gov/page/4595#:~:text=Water%20that%20has%20exceeded%20250,to%20mix%20with%20baby%20formula (last visited Nov. 17, 2023).

[39]         President Joseph R. Biden, Jr. Approves Louisiana Emergency Declaration, The White House (Sept. 27, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/09/27/president-joseph-r-biden-jr-approves-louisiana-emergency-declaration-4/#:~:text=Today%2C%20President%20Joseph%20R.%20Biden,20%2C%202023%2C%20and%20continuing.; https://gov.louisiana.gov/assets/141JBE2023.pdf.

[40]         Where is the Saltwater Wedge Now?, U.S. Army Corps of Eng’rs (Oct. 22, 2023), https://www.mvn.usace.army.mil/Missions/Engineering/Stage-and-Hydrologic-Data/SaltwaterWedge/SaltwaterWedgeNow/.

[41]         Chavez, supra note 15.

[42]         QuickFacts: Plaquemines Parish, Louisiana, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/plaqueminesparishlouisiana/PST045222 (last updated July 1, 2022).

[43]         Chavez, supra note 15.

[44]         Saltwater Intrusion Updates, Plaquemines Parish, https://www.plaqueminesparish.com/CivicAlerts.aspx?AID=477 (last updated Nov. 2, 2023).

[45]         Press Release, supra note 21.

[46]         Chavez, supra note 15.

[47]         42 U.S.C. § 300g-2 (2018).

Vol. No. 54-1 Waste

Waste

Nuclear Fusion Waste Regulation

What is Nuclear Fusion?

Nuclear fusion is a process that generates power by combining two light atomic nuclei to form a heavier atomic nucleus.[1] Nuclear fusion naturally occurs in stars, where the high temperature and strong gravity allow atoms to fuse, releasing energy.[2] There are three main methods of fusion power generation: magnetic confinement, inertial confinement, and magnetized target fusion.[3]

 Magnetic confinement models achieve fusion by heating up plasma confined within a magnetic field.[4] In a state of plasma, electrons are stripped off of atoms, creating free electrons and ions.[5] Those ions are then stimulated to smash into each other and cause fusion reactions.[6] Because plasma is highly unstable, magnetic confinement fusion reactors use magnetic forces to contain the ions within the plasma.[7] The magnetic forces safely contain the unstable ions, cycling them in a container—one example of these containers is a tokamak, which has a donut-shape.[8] 

Inertial confinement fusion reactors use laser or ion beams to heat and compress the fuel, while magnetized target fusion reactors use both lasers and a magnetic field to achieve fusion.[9]

If nuclear fusion becomes feasible at large scales, it will be a “clean, safe, and affordable energy” option.[10] Fusion is more efficient than nuclear fission or burning oil and coal—it creates four times more power per kilogram of fuel than nuclear fission and four million times more power per kilogram of fuel than burning oil or coal.[11] Furthermore, unlike burning fossil fuels, fusion does not emit carbon dioxide.[12]

What Waste Does Nuclear Fusion Produce?

Fusion does not produce highly radioactive waste like fission does. Instead, it produces varying amounts of low-level waste depending on the structure surrounding the reactor.[13] Radioactive waste is commonly classified into low level waste (LLW), intermediate level waste, and high level waste.[14] There are also lower levels of radioactive waste, such as very low-level waste.[15] Although fusion produces radioactive waste, this waste is mostly structural LLW from the steel and concrete used in the system.[16] Tritium is involved in fusion power production, but it is produced and consumed in a closed loop within a fusion reactor, so it is not a waste product of fusion.[17] Additionally, tritium has a short half-life, which poses low risk.[18] The most dominant fusion waste is structural waste, including different types of steel that encase a system.[19] The radioactive waste classification of the steel depends on the alloying elements used in the steel, with different compositions having different decay times.[20] Because fusion produces varying levels of LLW, an effective recycling method for the fusion LLW and effective structural components around the reactor are important considerations in regulation.

What is the Current State of Fusion Waste Regulation in the U.S.?

Fusion regulation has developed significantly since the start of 2023. On January 3, 2023, the Nuclear Regulatory Commission (NRC) submitted SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems.”[21] This paper provided the NRC with three options for fusion regulation:

  1. Regulate fusion energy systems under a utilization facility framework,
  2. Regulate fusion energy systems under a byproduct material framework, or
  3. Regulate fusion energy systems under a hybrid framework using either a byproduct material or utilization facility approach based on potential hazards.[22]

Under option one, fusion energy systems would be regulated under the same scheme as nuclear fission reactors.[23] Under option two, the focus would be on regulating the radioactive materials used or produced by the fusion energy system.[24] For example, the concrete and steel structures become radioactive through the fusion process, so they would be regulated. The third option would provide a case-by-case hybrid framework, combining the first and second options.

On April 13, 2023, the NRC issued SRM-SECY-23-0001, “Staff Requirements – SECY-23-0001 – Options for Licensing and Regulating Fusion Energy Systems,” opting to follow option two, the byproduct material framework as laid out in 10 C.F.R. Part 30.[25] This decision is a positive outcome for the nascent nuclear fusion industry. Option one would have regulated fusion energy systems like fission reactors, and it was an overly conservative measure.[26] Fission reactors have significantly different risks, structures, and safety components compared to fusion systems. Current fusion energy systems are safe, as the system will automatically shut itself off if the reaction cannot be controlled.[27] The risks in fusion energy systems are focused on the waste materials, while the risks of fission reactors include the waste materials and a potential meltdown.[28] Option two, the material byproduct option, balances efficiency and risk better than the other two options. The NRC’s decision also notes that, in the event of the risks of fusion changing in the future, the staff should notify the NRC and make appropriate recommendations for new guidelines.[29] Barring any unforeseen future developments, fusion energy systems will be regulated under the 10 C.F.R. Part 30 byproduct material standard.

Unlike fission reactors that are solely regulated by the NRC, the NRC’s byproduct material standard can be enforced at the state level in all Agreement States, with an opt-out clause option for Agreement State responsibilities.[30] The Agreement State Program is in place to allow states to locally enforce the byproduct material standards.[31] Any non-federal entity that wishes to possess or use byproduct material in an Agreement State must go through the proper channels within that state. Following SRM-SECY-23-0001, the byproduct material standard will be required for nuclear fusion energy systems, and the utilization framework will not.[32] If any non-federal entities in an Agreement State wish to use or possess the byproduct material coming from a fusion energy system, then that entity will likely need to apply to the Agreement State directly.[33] To clear up any ambiguity in the status of byproduct materials in fusion energy systems, the NRC recommends that the staff develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” that would cover fusion energy systems.[34] This would provide states with consistent guidance for dealing with nuclear fusion byproduct materials.[35]

Conclusion

As of the most recent updates from the NRC, nuclear fusion energy systems will be regulated under the byproduct materials standard in 10 C.F.R. Part 30. Fusion energy systems will not have the same level of strict regulations that nuclear fission reactors have due to the significantly lower risk involved in a nuclear fusion energy system. This regulation is a step in the right direction for the growth of the nuclear fusion industry. However, the byproduct materials standard could still pose financial barriers based on disposal cost and feasibility. It is also worth noting that the byproduct standard has gone through significant changes as technology has evolved; for example, the code was amended in 2008, adding radioactive particle-accelerator material to the byproduct materials definition.[36] Technology has changed drastically since the inception of the byproduct materials standard in 1965, and the regulation of byproduct materials must adapt to reflect those changes in technology. The exact level of fusion regulation depends on forthcoming guidance from the NRC regarding the specifics of the fusion byproduct material standard, but the general framework is in place. Additionally, any changes in nuclear fusion technology that could pose new risks will be met with new recommendations from the NRC.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Eric Trimble is a 2L from Laytonsville, Maryland. He attended Arizona State University for his B.S. in Mathematics and Economics. He joined TELJ during his first year of law school and has long been interested in the field of environmental law ever since he took environmental economics in his undergraduate.

[1]         Matteo Barbarino, What is Nuclear Fusion?, Int’l Atomic Energy Agency (IAEA) (Aug. 3, 2023), https://www.iaea.org/newscenter/news/what-is-nuclear-fusion.

[2]         Id.

[3]         Nuclear Fusion Power, World Nuclear Ass’n , https://world-nuclear.org/information-library/current-and-future-generation/nuclear-fusion-power.aspx (last updated Dec. 2022).

[4]         Id.

[5]         Wolfgang Picot, Magnetic Fusion Confinement with Tokamaks and Stellarators, IAEA (May 2021), https://www.iaea.org/bulletin/magnetic-fusion-confinement-with-tokamaks-and-stellarators.

[6]         Id.

[7]         Id.

[8]         Id.

[9]         Nuclear Fusion Power, supra note 3.

[10]         Barbarino, supra note 1.

[11]         Id.

[12]         Id.

[13]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?, IAEA, https://www.iaea.org/topics/energy/fusion/faqs#:~:text=Does%20Fusion%20produce%20radioactive%20nuclear,long%2Dlived%20radioactive%20nuclear%20waste.

[14]         IAEA, Classification of Radioactive Waste 5 (2009).

[15]         Id.

[16]         Sehila M. Gonzalez de Vicente et al., Overview on the management of radioactive waste from fusion facilities: ITER, demonstration machines and power plants, 62 Nuclear Fusion 2022, at 2.

[17]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?, supra note 13.

[18]         Id.

[19]         Gonzalez de Vicente et al., supra note 16.

[20]         See id.

[21]         Fusion Systems, U.S. Nuclear Regul. Comm’n (Aug. 21, 2023), https://www.nrc.gov/materials/fusion-energy-systems.html.

[22]         Daniel H. Dorman, SECY-23-0001: Options for Licensing and Regulating Fusion Energy Systems 2 (2023).

[23]         Jeffrey Merrifield et al., The Nuclear Regulatory Commission Unanimously Votes to Separate Fusion Energy Regulation from Nuclear Fission, Pillsbury (April 19, 2023), https://www.pillsburylaw.com/en/news-and-insights/nrc-fusion-energy-nuclear-fission-regulation.html.

[24]         Id.

[25]         Fusion Systems, supra note 21.

[26]         Gonzalez de Vicente et al., supra note 16, at 1.

[27]         Carley Willis & Joanne Liou, Safety in Fusion, IAEA, https://www.iaea.org/bulletin/safety-in-fusion (last visited Nov. 17, 2023).

[28]         Id.

[29]         Fusion Systems, supra note 21.

[30]         Agreement States, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/agreement-states.html (last updated May 18, 2023).

[31]         Agreement State Program, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/about-nrc/state-tribal/agreement-states.html (last updated Oct. 9, 2023).

[32]         Fusion Systems, supra note 21.

[33]         Agreement States, supra note 30.

[34]         Fusion Systems, supra note 21.

[35]         Id.

[36]         10 C.F.R. § 30.4(2)(ii)(a) (2023).

Vol. No. 54-1 Water Quality

Water Quality

PFAS Risks and Litigation

PFAS is the term for a group of thousands of chemicals composed of perfluoroalkyls and polyfluoroalkyls.[1] Because of their long-lasting nature, the term “forever chemicals” is often used interchangeably with the term PFAS.[2] After their identification in the 1940s, PFAS quickly became commonplace in consumer products and manufacturing due to their unique hydrophobic and oleophobic properties (water- and oil-repellent properties).[3] PFAS are regularly used in cookware, food packaging, adhesives, firefighting foams, cosmetics, and textiles.[4] Additionally, PFAS play an integral role in many manufacturing processes, such as those used to produce lubricants, semiconductors, pesticides, and surfactants.[5] The textile industry is the largest single user of PFAS.[6] 

The same oleophobic and hydrophobic properties that make PFAS so useful also facilitate their spread through the environment and increase the difficulties surrounding the removal and cleanup of these chemicals.[7] Currently, PFAS are widely present in drinking water, soil, air particulates, and wild animals.[8] PFAS are not yet fully understood, but they are unequivocally an omnipresent and inescapable facet of the modern world.

Risks of PFAS Exposure for Human Health

The human health risks of PFAS are not fully known and require more study, but many alarming effects have already been linked to PFAS exposure.[9] Studies have repeatedly proven that PFAS can, and do, enter the human blood stream.[10] High concentrations of PFAS have been found in the blood of humans living near a locus of PFAS contamination and the long-term health effects are still undetermined.[11] Additionally, peer-reviewed studies have shown that human exposure to PFAS can cause adverse health effects, including decreased fertility, developmental interference in adolescents, increased cancer risk, immune system suppression, hormonal interference, and obesity.[12] More specifically, exposure to PFAS has been linked to the development of renal cancer[13] and the disruption of testosterone and other growth hormones after adolescent exposure.[14] However, studies of PFAS’ health effects so far have largely been limited to a select few compounds, and the effects of thousands of other PFAS compounds are almost completely unknown.[15] Due to the variety of the compounds under the label “PFAS” and the constant creation of new PFAS, much remains unknown about the class of chemicals. But with what has already been discovered, unstudied similar compounds probably also have adverse impacts on human health.

Impacts of PFAS on the Environment

The full effect of PFAS on the environment also requires more study, but some impacts have already occurred. Alarmingly, PFAS have been found in nearly every level of the ecological system, including water, soil, air, and wild animals.[16] PFAS contamination is also common in drinking water across the United States, with an estimated 45% of drinking water containing at least one PFAS compound when it comes out of the tap.[17] Additionally, PFAS pose a unique risk in aquatic ecosystems because their concentrations rapidly bioaccumulate inside and among organisms.[18] As a result of this bioaccumulation, detectable levels of PFAS are found in nearly every fish in America.[19] Despite this, only a handful of states have issued specific PFAS-related guidance regarding the consumption of fish, and the effect of consuming contaminated fish remains unclear.[20] Once again, the need for further research and increased awareness is apparent.

PFAS Litigation and Settlement

Within the last year, the manufacturing and chemical companies 3M, Chemours, DuPont, and Corteva all announced massive settlements stemming from their involvement with manufacturing PFAS.[21] Chemours, DuPont, and Corteva recently announced they would jointly pay $1.19 billion to settle certain claims against them.[22] However, the companies still face potential liability for thousands of other PFAS-related claims.[23] 3M alone is facing over 4,000 lawsuits for its actions leading to PFAS contamination.[24] Some financial firms predict that 3M’s total legal costs may exceed $140 billion by the time all claims are finally settled.[25] With 3M’s total market capitalization somewhere in the ballpark of $50 billion, bankruptcy is a real concern if the total costs of the litigation are anywhere near this estimate.[26] To avoid further liabilities, 3M has announced plans to end their use of all PFAS by 2025.[27] 

Past asbestos litigation and class action lawsuits may provide insight into what the future holds for PFAS manufacturers. Following the discovery that asbestos was carcinogenic, the manufacturers were inundated with lawsuits, and many declared bankruptcy.[28] One tactic used by the manufacturers was to spin off their asbestos production divisions and consequently have those new companies declare bankruptcy, thereby insulating the main company from liability.[29] This process is commonly referred to as the “Texas Two-Step” and often leaves the plaintiffs without a path to receiving monetary damages, because the new, smaller companies do not have enough assets to be divvied up during the bankruptcy process.[30] It is highly likely that PFAS manufacturers will attempt to use this same strategy to save some of their operations. Furthermore, 3M has already employed this legal tactic to try to avoid liability for another multibillion settlement over their sale of faulty earplugs.[31] 3M spun off its earplug manufacturing division, which subsequently declared bankruptcy.[32] Based on this precedent, 3M could attempt the same legal maneuver to avoid liability from the PFAS litigation. While arguably unethical, the Texas Two-Step is legal.[33] With companies facing massive liability from PFAS litigation, it seems unavoidable that companies will employ similar tactics across the board.

However, the 3M settlement for drinking water will likely not cover the entirety of remediation costs for the affected municipalities.[34] For example, Orange County, California, alone will likely require over $1 billion to fund the needed remedial infrastructure, with much of the cost likely to fall on taxpayers.[35] Even smaller cities may still require hundreds of millions of dollars to properly rid their drinking water of PFAS.[36] For instance, Stuart, Florida, a city with a population of approximately 18,000 residents, estimates it will require upwards of $100 million to remove the PFAS contamination from the water in its jurisdiction.[37] A spokesperson from the City of Stuart stated that the settlement would not make the City “whole,” as it does not provide enough money to cover estimated remediation costs.[38] Unfortunately, PFAS remediation and the implementation of new water treatment plants are incredibly expensive processes and will have to be paid for at least in part by the taxpayers harmed by the pollution.

3M, Chemours, Corteva, and DuPont are by no means the only companies responsible for the PFAS pollution. Twelve companies are responsible for the majority of PFAS production worldwide, but countless smaller companies may also be responsible.[39] These recent settlement agreements are simply the first legal moves in what is almost guaranteed to be a long and protracted fight involving millions of people and many entities. For example, these settlements do not release the companies from liability for any personal injury claims.[40] Further, the attorneys general of several states are still actively filing lawsuits, and the full extent of the legal battle is yet to be determined.[41]

Current Standards and What is to Come

Currently, there are no enforceable federal standards for PFAS.[42] However, the Environmental Protection Agency (EPA) recently adopted a final National Primary Drinking Water Regulation (NPDWR) that would set a legally binding maximum concentration of PFAS that can be in drinking water, effective by the end of 2026.[43][a] Additionally, EPA regulatory guidance would require PFAS testing and mandate that the concentration levels be made available to the public.[44] The regulation comes as PFAS are gaining public attention, largely because of the enormous lawsuits brought against their manufacturers.[45] 

More research is needed to fully understand the risks of PFAS, but recent testing shows that nearly every American has detectable levels of PFAS within their body.[46] Especially as scientists learn more about the health ramifications of PFAS exposure, the legal problems of these PFAS manufacturers will only intensify and may ultimately be the death knell for many companies.

Alisha Adams is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Kevin Sorstokke is a 2L from Boulder, Colorado. He attended the University of Michigan and joined TELJ during his first year of law school.  Kevin has always been an avid outdoorsman and has a strong interest in protecting the environment.

[1]         Per- and Polyfluorinated Substances (PFAS) Fact Sheet, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html (last updated May 2, 2022).

[2]          Robeco, The Big Book of Sustainable Investing 10 (2nd ed. 2023).

[3]          Sudarshan Kurwadkar et al., Per- and Polyfluoroalkyl Substances in Water and Wastewater: A Critical Review of Their Global Occurrence and Distribution, 809 Sci. of the Total Env’t 151003, 2 (2022).

[4]         Id.

[5]         Id.

[6]         Id.

[7]         See Env’t. Prot. Agency, EPA/600/R-20/345F, Human Health Toxicity Values for Perfluorobutane Sulfonic Acid (CASRN 29420-49-3) and Related Compounds Potassium Perfluorobutane Sulfonate (CASRN 29420-49-3) (Apr. 2021).

[8]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (last updated June 7, 2023).

[9]         Id.

[10]         Kurwadkar et al., supra note 3, at 2.

[11]         Id.

[12]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, supra note 8.

[13]         Joseph Shearer et al., Serum Concentrations of Per- and Polyfluoroalkyl Substances and Risk of Renal Cell Carcinoma, 113 J. of the Nat’l Cancer Inst. 580, 580 (2021).

[14]         Maria-Jose Lopez-Espinosa et al., Perfluoroalkyl Substances, Sex Hormones, and Insulin-Like Growth Factor-1 at 6–9 Years of Age: A Cross-sectional Analysis within the C8 Health Project, 124 Env’t Health Persps. 1269, 1269–70 (2016).

[15]         See Kurwadkar et al., supra note 3, at 2.

[16]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, supra note 8.

[17]         Kelly Smalling et al., Per- and Polyfluoroalkyl Substances (PFAS) in United States Tapwater: Comparison of Underserved Private-Well and Public-Supply Exposures and Associated Health Implications, 178 Env’t Int’l 1, 1–2 (2023).

[18]         See id.

[19]         Nadia Barbo et al., Locally Caught Freshwater Fish Across the United States are Likely a Significant Source of Exposure to PFOS and Other Perfluorinated Compounds, 220 Env’t Rsch., 1–4 (2023) (“Of the 349 samples analyzed in the 2013-2014 National Rivers and Streams Assessment, just one sample contained no detectable PFAS. All 152 fish samples tested within the 2015 Great Lakes Human Health Fish Fillet Tissue Study had detectable PFAS.”).

[20]         Id. at 9.

[21]         See Ben Casselman et al., Three ‘Forever Chemicals’ Makers Settle Public Water Lawsuits, N.Y. Times (June 22, 2023), https://www.nytimes.com/2023/06/02/business/pfas-pollution-settlement.html; see also Lisa Friedman & Vivian Giang, 3M Reaches $10.3 Billion Settlement in ‘Forever Chemicals’ Suits, N.Y. Times (June 22, 2023), https://www.nytimes.com/2023/06/22/business/3m-settlement-forever-chemicals-lawsuit.html?searchResultPosition=1.

[22]         Casselman et al., supra note 21.

[23]         Id.

[24]         Friedman & Giang, supra note 21.

[25]         Casselman et al., supra note 21.

[26]         Jef Feeley & Ryan Beene, 3M Heads to Trial in ‘Existential’ $143 Billion PFAS Litigation, Bloomberg L. (June 2, 2023), https://news.bloomberglaw.com/environment-and-energy/3m-heads-to-trial-in-existential-143-billion-pfas-litigation.

[27]         Casselman et al., supra note 21.

[28]         Alex Wolf & James Nani, Asbestos Bankruptcies Facing Fresh Challenges After J&J Ruling, Bloomberg L. (Mar. 8, 2023, 4:04 AM), https://news.bloomberglaw.com/bankruptcy-law/asbestos-bankruptcies-facing-fresh-challenges-after-j-j-ruling.

[29]         Id.

[30]         Id.

[31]         Brendan Pierson, 3M Agrees to Pay $6 Bln to Settle Lawsuits Over US Military Earplugs, REUTERS (Aug. 29, 2023, 12:14 AM), https://www.reuters.com/legal/3m-board-vote-multibillion-dollar-settlement-military-earplug-litigation-2023-08-28/#:~:text=Of%2016%20earplug%20cases%20that,stemming%20from%20the%20earplug%20lawsuits.

[32]         Id.

[33]         Akiko Matsuda, Texas Two-Step Bankruptcies Carry On Despite Setbacks, Wall St. J. (Sept. 20, 2023, 8:05 PM), https://www.wsj.com/articles/texas-two-step-bankruptcies-carry-on-despite-setbacks-80733a51.

[34]         Friedman & Giang, supra note 21.

[35]         Id.

[36]         Id.

[37] Id.; QuickFacts: Stuart City, Florida, U.S. Census Bureau (July 1, 2022), https://www.census.gov/quickfacts/stuartcityflorida.

[38]         Friedman & Giang, supra note 21.

[39]         The Top 12 PFAS Producers in the World and the Staggering Societal Costs of PFAS Pollution, Chemsec (May 25, 2023), https://chemsec.org/reports/the-top-12-pfas-producers-in-the-world-and-the-staggering-societal-costs-of-pfas-pollution/.

[40]         Casselman et al., supra note 21.

[41]         Id.

[42]         Id.

[43]         Per- and Polyfluoroalkyl Substances (PFAS) Proposed PFAS National Primary Drinking Water Regulation, Env’t Prot. Agency, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas (last updated Sept. 22, 2023).

[44]         Id.

[45]         See Casselman et al., supra note 21; see also Friedman & Giang, supra note 21.

[46]         See Kurwadkar et al., supra note 3, at 2.

[a]Update with the Fed Reg publication that came out today

Vol. No. 54-1 Water Rights

Water Rights

Texas Court of Appeals Puts Strict Limits on Groundwater Permit Challenges

Introduction

Water is a scarce resource in Texas. In fact, the Texas Water Development Board expects Texas’ water supply to fall by 11% between 2020 and 2070, while the state’s water needs are expected to rise by 87% in the same time.[1] This will create a water supply deficit of about 8.9 million acre-feet per year.[2] Every Texas resident has an interest in the distribution and availability of water resources. Often, those interests clash.

Water Regulation in Texas

Groundwater laws in Texas continue to evolve, and in many cases look quite similar to those that govern mineral rights such as oil and gas. The Rule of Capture, for example, grants ownership of groundwater to whoever acts to produce the resource.[3] In addition, the process by which a party obtains a permit to produce and export groundwater is a public process that requires public disclosure and allows interested parties to challenge the proposed permit.[4] Regional government organizations get their authority from the state to approve groundwater allocation and rights at a local level.[5] 

Groundwater Conservation Districts (GCDs) are a type of water-regulating government body. GCDs are districts with the authority to regulate various aspects of groundwater, including the spacing of and production from water wells.[6] The GCD in question in the cases below is a Middle Pecos Groundwater Conservation District, and it has rules regarding permitting for drilling, equipping, operating, or completing wells.[7] As part of its authority, the GCD issues two types of permits relevant to this case: (1) historic and existing use permits (H&E permits); and (2) production permits.

A party dissatisfied with the outcome of a water rights allocation decision can challenge the decision in court. However, as has been made clear in the Cockrell Investment Partners v. Middle Pecos Groundwater Conservation District cases, courts are reluctant to step in and make decisions in the place of government agencies. The Cockrell cases show the limits the courts have established concerning the kinds of water rights challenges they are willing to address, and the burden placed on any party who wants to proceed with a challenge.

Cockrell Investment Partners v. Middle Pecos Groundwater Conservation District

Background

In July 2017, Cockrell Investment Partners, L.P. (Cockrell) requested to obtain party status for two permits granted by the Middle Pecos Groundwater Conversation District (the District) to Fort Stockton Holdings, L.P. (FSH).[8] Cockrell owns a pecan orchard and has a permit from the District to use an annual production of approximately 15,000-acre feet of groundwater on its land for agricultural purposes.[9] Cockrell’s property is adjacent to the FSH property.[10]

In 2005, FSH obtained an H&E permit from the District for around 47,000-acre feet of annual water production for agricultural use.[11] In 2009, FSH sought to obtain a permit to produce and export approximately 47,000-acre feet for municipal and industrial use.[12] The District found this to be too much, and after much debate the District, FSH, and other relevant parties associated with FSH, reached a settlement. In April 2017, FSH modified its 2009 production permit application to ask for the production and exportation of approximately 28,000-acre feet of water.[13] FSH’s H&E permit was reduced by the amount granted in the production permit, to offset the demand for water. As such, the District approved two permits for FSH. The first permit reduced the amount in FSH’s historical and existing use permit, and the second permit granted FSH the ability to export and use around 28,000-acre feet of water per year.[14] 

Cockrell, which had not previously been involved in the proceedings, challenged the settlement during the hearing process and requested to be a party to the permit determination. The District rejected Cockrell’s challenge and request, reasoning that Cockrell had been given adequate notice of the proceedings and had requested party status too late.[15] Subsequently, the District granted both of FSH’s amended permits. Cockrell filed a Request for Reconsideration, to which the District had ninety-one days to respond.[16] Before the ninety-one days elapsed, Cockrell also sued in District Court challenging the District’s decision denying it party status—Cockrell also sought a remand of the permit applications for further proceedings.[17] 

Defendants filed pleas to the jurisdiction, alleging that “Cockrell lacked standing to participate in the permit hearings, to request a contested hearing, or to bring an appeal . . . [and that] Cockrell failed to show a waiver of governmental immunity as it failed to exhaust administrative remedies.”[18] The District Court granted the Defendants’ plea to the jurisdiction and dismissed the case. Cockrell appealed.

Cockrell I

The Court of Appeals affirmed the District Court’s decision.[19] The Court found that it lacked jurisdiction to hear the case because Cockrell had “fail[ed] to meet the prerequisite of having its motion for rehearing overruled at the district level whether by the district itself or by operation of law” since it had not exhausted all administrative remedies before filing suit.[20] The Court held that Cockrell was required to wait for the District’s ruling on the motion for rehearing, or wait for the statutory period of  ninety-one days to expire, before it could file suit.[21] Anything less did not amount to a full exhaustion of all administrative remedies.

Cockrell II

The Texas Court of Appeals withheld and superseded the holding in Cockrell II and  III. [22]

Cockrell III

FSH’s production and export permit for the approximately 28,000-acre feet of groundwater was set to expire in July 2020.[23] FSH sent a letter to the District as its application for the renewal of its permit, as the Texas Water Code allowed.[24] Almost as soon as FSH did this, Cockrell sent the District a written request for party status in any hearing related to FSH’s application for permit renewal.[25] The District denied Cockrell party status; subsequently Cockrell sued the District and FSH. The District Court granted FSH’s motion to dismiss Cockrell’s claims.[26] Cockrell appealed.

As in Cockrell I, the Court of Appeals affirmed the District Court. The Court held that Cockrell lacked standing to pursue a complaint on the District’s denial of party status, as it had in Cockrell I, because it had not exhausted all administrative remedies. Cockrell could challenge the District’s decision to grant a permit renewal in court, since it was required to show a waiver of governmental immunity prior to bringing a suit challenging a District decision, as the District was otherwise protected by governmental immunity.[27] The Court also dismissed Cockrell’s claim based on the Texas Uniform Declaratory Judgments Act (UDJA), finding that the UDJA does not waive the District’s government immunity on its own.[28]

Impact

The Court of Appeals’ rulings in the Cockrell cases show that Texas courts are reluctant to place themselves in a position to make or challenge a governmental body’s water rights decisions. The Court of Appeals emphasized the administrative processes already in place at the local level, and seemed to urge Cockrell, as well as any future plaintiffs, to focus their efforts on challenging water rights early in the process rather than in court. The Court seemed to take a strong position that it does not want to play the role of a water allocations expert for frustrated plaintiffs. Nevertheless, the burden placed on plaintiffs is high, and may put a greater burden on less politically able groups.

In addition, the Cockrell cases reveal the clashing interests of owners of adjacent lots, especially as the reality of water scarcity in Texas becomes a greater concern. The Cockrell cases show the tension and general debate surrounding an owner’s abilities to pump water and export or transport it out of a particular area for its use somewhere else. As more people move to Texas, and municipal need for water grows, this will place more pressure on property owners who have hitherto enjoyed a less restrained use of water, such as agricultural producers like the plaintiffs in Cockrell. Owners will have to think about the future of their water supply and prepare themselves to defend those interests before their local water authority early and robustly.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.

Tiph Kugener is a 3L. She attended the University of Chicago and joined TELJ in her second year of law school. Tiph is passionate about the intersection of environmental law, energy development, and social justice. She is currently taking a semester to clerk at the U.S. Department of Justice and will be working in energy law in Houston after graduation.

[1]         Spencer Grubbs et al., Texas Water: Planning for More, Comptroller.Texas.Gov (Apr. 2019), https://comptroller.texas.gov/economy/fiscal-notes/2019/apr/tx-water-planning.php.

[2]         Id.

[3]         Sipriano v. Great Spring Waters of America, Inc., 1 S.W.3d 75, 75 (Tex. 1999).

[4]         Tex. Water Code Ann. § 36.014.

[5]         See generally id § 36.

[6]         Id. § 36.001(1).

[7]         Id. §§ 36.113(a), .114, .401–.418.

[8]         Cockrell Inv. Partners, L.P. v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024, at *3 (Tex. App.—El Paso Feb. 16, 2023, no pet. h.) [hereinafter Cockrell I].

[9]         Id. at *1.

[10]         Id.

[11]         Id.

[12]         Id.

[13]         Id. at *2.

[14]         Cockrell Inv. Partners, L.P. v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00200-CV, 2023 WL 4424627, at *1 (Tex. App.—El Paso July 10, 2023, no pet. h.)

[15]         Id. at *3.

[16]         Id. at *7 (“A request for rehearing is deemed denied on the 91st day after the date the request is submitted. See TEX. WATER CODE ANN. § 36.412(e).”).

[17]         Cockrell I, 2023 WL 2050024, at *3.

[18]         Id. at *4.

[19]         See id.

[20]         Id. at *9.

[21]         Id.

[22]         Cockrell Inv. Partners, L.P., v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024 (Tex. App.—El Paso Mar. 8, 2023, withdrawn) [hereinafter Cockrell II].

[23]         Cockrell Inv. Partners, L.P., v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024 (Tex. App.—El Paso July 10, 2023, no. pet. h) [hereinafter Cockrell III].

[24]         Id. at *2.

[25]         Id.

[26]         Id. at *4.

[27]         Id.

[28]         Id. at *8.

Vol. No. 54-1 Natural Resources

Natural Resources

Held v. Montana, West Virginia v. EPA, and the Future of Climate Litigation

Introduction

In August 2023, a Montana state judge issued a landmark climate ruling in the case Held v. Montana. In a case brought by youth plaintiffs challenging the constitutionality of a provision of the Montana Environmental Policy Act (MEPA), District Court Judge Kathy Seeley held in a declaration of law that the state’s failure to take climate change and greenhouse gas emissions into account when approving state projects was unconstitutional.[1] The case represents years of effort by youth activists and environmental groups across the country, who have brought cases alleging state constitution violations to achieve environmental wins. While other youth activist cases challenging states and their dependence on fossil fuels were plagued by procedural setbacks[2] and skeptical judges,[3] the Montana case is not only the first to go to trial, but also the first to go to trial and win.  

Held is a landmark case because it gives insight into the future of climate litigation. Held occurred against a backdrop of a rapidly warming climate[4] and a federal judiciary that has placed greater barriers on the ability of federal agencies to address major issues such as climate change.[5] But, as Held signals, federal action is not the only way forward. Instead, plaintiffs, like the youth plaintiffs in Held, are increasingly willing to bring challenges under state law.[6] Reorienting climate litigation around state, rather than federal, law is a new front in the fight against climate change. And, as Held demonstrates, that new front could create important climate wins.

Montana v. Held

Held was filed in 2020 by sixteen young Montanans, then ranging in age from two to eighteen years old.[7] Their complaint challenged the constitutionality of a provision of MEPA. The challenged provision “forbids the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews” of state actions.[8] The plaintiffs challenged the provision based on a section of the Montana state constitution that provides residents with “the right to a clean and healthful environment,” and further places responsibility on the state to ensure a healthful environment “for present and future generations.”[9] 

The youth plaintiffs successfully argued that the existence of climate change was already causing harm to the natural resources of the state,[10] which was a direct result of emissions in the state, largely coming from the state’s fossil fuel industry.[11] Those emissions only increased as the state permitted and approved additional fossil fuel projects without first undertaking a full environmental review.[12] As Judge Seeley concluded, that caused direct harms to the plaintiffs.[13] Therefore, the challenged provision was “facially unconstitutional” because it directly contravened a provision of the state constitution by precluding the state from considering the effects of something known to diminish the healthful environment of the state.[14] The court then applied strict scrutiny because the MEPA provision implicated “Plaintiffs’ fundamental right to a clean and healthful environment.”[15] Judge Seeley ultimately concluded that the provision did not “serve a compelling government interest,” and even if there was such an interest, the provision was “not narrowly tailored to serve any interest.”[16] Thus, the provision was invalid, giving the youth plaintiffs one of the most important litigation wins of the decade and possibly signaling a path forward for future environmental claims.

Climate Litigation Post-Held

Held did not occur in a vacuum—it occurred against a backdrop of two competing forces. The first force is what motivated the Held plaintiffs to bring their case in the first place: climate change. Over the past summer, the world shattered heat records. June 2023 was the hottest June on record.[17] July was the hottest July on record.[18] And August was the hottest August on record.[19] The most recent summer of extreme heat followed eight of the hottest years on record.[20] These records have exacerbated extreme weather events across the country.[21] Further, in Montana specifically, Judge Seeley found that climate change is currently “degrading” Montana’s environment through “changing precipitation patterns, increasing droughts and aridification, increasing extreme weather events, increasing severity and intensity of wildfires, and increasing glacial melt and loss in like droughts and wildfires.”[22] That is the reality that the youth plaintiffs found themselves in, and it is what motivated them to bring their action against the state.

The Major Questions Doctrine and Increasing Limitations on Federal Action

The second force is the movement opposing large-scale agency actions that has overtaken the federal judiciary. This force culminated in the 2022 Supreme Court decision West Virginia v. EPA. West Virginia presented a challenge to the Obama Administration’s Clean Power Plan (CPP). The CPP was the Administration’s major climate action that attempted to curb greenhouse gas emissions from coal-burning power plants. The CPP used an infrequently utilized provision of the Clean Air Act to not only increase emission controls within power plants but to also force generation shifting away from coal power and towards renewable sources.[23] The Court ultimately invalidated the CPP using the newly minted major questions doctrine.[24] 

According to the Court, in cases of great political or economic importance, an agency, such as the Environmental Protection Agency (EPA), must point to clear congressional authorization to take valid administrative action.[25] In practice, the major questions doctrine is a limit on a federal agency’s ability to address regulatory issues through comprehensive and systematic rules. By their nature, few statutes are written with the level of precision required under the doctrine. Therefore, federal agency actions to address major problems like climate change are likely to be met with skepticism by the federal judiciary, thereby creating a void in the fight against climate change. However, as Held demonstrates, the void creates an opportunity for independent state actions, specifically to use state constitutions to undertake protective actions that are now more difficult on a federal level.

Green Amendments and the Growing Importance of State Constitutions

The amendment to the Montana Constitution at the center of Held was passed in the 1970s, at the beginning of the modern environmental movement.[26] That movement launched in response to growing public awareness of environmental harms from rampant pollution.[27] States responded to the movement by adding environmental provisions into their state constitutions. These so called “green amendments” varied in coverage, but at their core, they provide protections for the environments of their respective states.[28] For most of the intervening fifty years, these state provisions went largely unused.[29] However, as seen in Held, they have now reemerged with a newfound importance.

As of October 2023, Hawaii, Illinois, Montana, New York, Pennsylvania, Massachusetts, and Rhode Island all have green amendments within their state constitutions.[30] Additionally, fifteen other states have ongoing campaigns to codify similar amendments within their own constitutions.[31] These amendments work in two ways. They enable states to affirmatively enact legislation to more directly address issues posed by climate change,[32] and they also give litigants a means to enforce climate protections.[33] For climate activists, the cause of action created by such amendments is especially important in major fossil fuel producing states such as Montana and Pennsylvania, which might otherwise be hesitant to take aggressive steps to curb emissions.[34]

While the use of Montana’s green amendment presents a fair amount of promise for activist litigants, it is unlikely that the success of Held will be the silver-bullet solution long-sought by environmentalists.[35] First, the impact of Held may be limited, because it is unclear how much persuasive value the decision will have since other courts have yet to consider it. Second, outside of Pennsylvania, states with green amendments are not among the highest greenhouse gas-emitting states in the country.[36] The movement to adopt green amendments largely occurs outside of the states that most need to limit their greenhouse gas emissions.[37] Instead, the movement focuses on states with existing plans to address climate change and reduce emissions.[38] Lastly, it is unclear what tangible effects Held will have. The youth plaintiffs failed to secure an injunction to force the state to act; instead, Judge Seeley’s ruling was limited to a declaration of law.[39] Furthermore, the state has promised to appeal the decision to the Montana Supreme Court.[40] These actions may ultimately limit Held’s impact. Nevertheless, Held is an important first step toward addressing the issue of climate change by filling the void left in the aftermath of West Virginia.

Conclusion

The Supreme Court’s decision in West Virginia limited the ability of federal agencies to address complex problems. But there is still an opportunity for action at the state level. While the decision in Held may not be the key in the fight against climate change, it remains an important example of the kind of action that can occur within states. Specifically, it creates an important model for future litigants hoping to capitalize on the inclusion of green amendments in state constitutions. And it signals a wider willingness within state judiciaries to embrace the arguments raised by environmental litigants about the deleterious effects of climate change.

Francesca Eick is a Senior Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Julie Molina is a 3L from Houston, Texas. She attended New York University and joined TELJ during her second year of law school. Julie will be practicing in the field of environmental law at a firm upon her graduation.

[1]         Held v. Montana, 2023 MT Dist. Ct. CDV-2020-307, ¶ 60–67 at 100–02.

[2]         See Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

[3]         See Reynolds v. Florida, No. 2018-CA-819, 2020 WL 3410846, at *1 (Fla. Cir. Ct. June 10, 2020) (dismissing the complaint by youth plaintiffs because “[t]he claims are inherently political questions that must be resolved by the political branches of government.”).

[4]         Rebecca Lindsey & Luann Dahlman, Climate Change: Global Temperature, Nat’l Oceanic & Atmospheric Admin. (Jan. 18, 2023), https://www.climate.gov/news-features/understanding-climate/climate-change-global-temperature.

[5]         See Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1036 (2023) (discussing the Supreme Court’s development of the major questions doctrine and its impact on federal agency action: “[T]he new major questions doctrine functions as a kind of carve out to an agency’s authority broad, but generally worded authority. Congress must clearly and explicitly authorize the particular agency action at issue. If Congress has not done so, that is the end of the matter.”); see also West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).

[6]         See generally Held, No. CDV-2020-307; Juliana, 947 F.3d at 1159; Reynolds, 2020 WL 3410846.

[7]         Held, No. CDV-2020-307 ¶1 at 9.

[8]         Id. at 2.  

[9]         Mont. Const. art. IX, pt. IX, § 1.  

[10]         Held, No. CDV-2020-307 ¶140 at 35.

[11]         David Gelles & Mike Baker, Judge Rules in Favor of Montana Youths in a Landmark Climate Case, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html?smid=url-share (“Montana has 5,000 gas wells, 4,000 oil wells, four oil refineries and six coal mines.”).

[12]         Held, No. CDV-2020-307 ¶265k at 79.

[13]         Id. at ¶138 at 34.

[14]         Id. at 100.  

[15]         Id. at 94.

[16]         Id. at 100–01.

[17]         Julie Bosman, Why Summers May Never Be the Same, N.Y. Times (Oct. 5, 2023),

        https://www.nytimes.com/2023/10/05/us/summer-climate-change.html.  

[18]         Id.

[19]         Id.

[20]         Henry Fountain & Mira Rojanasakul, The Last 8 Years Were the Hottest on Record, N.Y. Times (Jan. 10, 2023), https://www.nytimes.com/interactive/2023/climate/earth-hottest-years.html.  

[21]         Bosman, supra note 17.

[22]         Held, No. CDV-2020-307, at 35.

[23]         West Virginia, 142 S. Ct. at 2596.

[24]         Id. at 2616.

[25]         Id.

[26]         Eric Dietrich, As It Turns 50, Is Montana’s ‘Progressive’ State Constitution Facing a Conservative Midlife Crisis?, Mont. Free Press (Mar. 21, 2022), https://montanafreepress.org/2022/03/21/montana-constitution-50th-birthday-midlife-crisis/.  

[27]         Id.

[28]         Green Amendment, Nat’l Caucus of Env’t Legislators, https://www.ncelenviro.org/issue/green-amendment/ (last visited Nov. 15, 2023).  

[29]         Amanda Eggert, How the Montana Constitution Shapes the State’s Environmental Landscape, Mont. Free Press (Mar. 24, 2022), https://montanafreepress.org/2022/03/24/montana-constitution-environment-stream-access/.  

[30]         Evan George, Will More States Add Green Amendments to Their Constitution?, LegalPlanet (Aug. 30, 2023), https://legal-planet.org/2023/08/30/will-more-states-add-green-amendments-to-their-constitution/.

[31]         Id.

[32]         See Green Amendment, supra note 28.

[33]         See Held, No. CDV-2020-307, at 102.

[34]         See How Much Energy Does Your State Produce, Dep’t of Energy (Nov. 10, 2014),  https://www.energy.gov/articles/how-much-energy-does-your-state-produce#:~:text=In%20fact%2C%20the%20top%20five,five%20fossil%20energy%2Dproducing%20states.

[35]         George, supra note 30.  

[36]         See Energy-Related Carbon Dioxide Emissions by State, 2005-2016, Energy Info. Admin. (Feb. 27, 2019),

        https://www.eia.gov/environment/emissions/state/analysis/.

[37]         See id.; Jennifer Hijazi & Drew Hutchison, Montana Climate Ruling Boosts Case for States’ Green Amendments, Bloomberg L. (Aug. 29, 2023), https://news.bloomberglaw.com/environment-and-energy/montana-climate-ruling-boosts-case-for-states-green-amendments.  

[38]         For example, New York, Hawaii, Rhode Island, Massachusetts, and Montana already have net zero goals in place. See Rona Cohen, States with Net-Zero Carbon Emissions Targets, CSG E. (Mar. 24, 2023), https://csg-erc.org/states-with-net-zero-carbon-emissions-targets/.  

[39]         George, supra note 30.

[40]         Gelles & Baker, supra note 11.

Vol. No. 53-2 Natural Resources

Natural Resources & Land Use

Carbon Sequestration and Class VI Well Primacy

Introduction

The public has become increasingly interested in carbon capture and storage (CCS) as the United States transitions to net-zero carbon emissions.[1] A form of CCS that American entities have recently focused on is geologic sequestration of carbon, where carbon dioxide (CO2)  is captured and stored underground in wells.[2] The underground injection of CO2 is subject to regulation under the Safe Drinking Water Act and requires entities to obtain a permit to inject the carbon.[3] In most states, the Environmental Protection Agency (EPA) is the primary entity for obtaining permits for Class VI wells, which are necessary for geologic sequestration.[4] Like other classes of wells, however, states may obtain primacy, or primary enforcement and permitting authority,[5] and some believe that state primacy will streamline the permitting process.[6]

Streamlining the process could alleviate industry hesitation in seeking permits, since the current process is subject to potential delays as the majority of applications are reviewed by the EPA.[7] Removing this hesitation could increase the implementation of CCS, as monetary incentives have made the technology much more appealing.[8] The Inflation Reduction Act, passed in August 2022, raised the 45Q tax credit for geologic CO2 storage from $50 to $85 per metric ton.[9] Encouragingly, incentives also exist to help states gain primacy. The Infrastructure and Investment Jobs Act provides for a $50 million grant program to support states seeking primacy over Class VI wells.[10]

These incentives will hopefully function together to achieve the desired goal of investment in geologic sequestration. Texas has shown interest in obtaining primacy over these wells with the hope of streamlining the permit process and encouraging business investment.[11] Texas is in the process of amending its rules governing Class VI wells to meet federal standards and applying for primacy.[12] On the heels of these moves, the largest carbon capture plant in the world restarted operations in Texas.[13] If the state’s application is approved, more industry will likely be attracted to the state and geologic sequestration business will continue to develop.

Geologic Sequestration and Class VI Well Primacy

Geologic sequestration stores CO2 underground in rock formations.[14] Natural gas companies have used underground injection of CO2 for both enhanced gas recovery and enhanced oil recovery.[15] Underground injection of CO2 for geologic sequestration, however, is a more recent interest, with EPA publishing its final rule establishing a new class of wells for geologic sequestration in 2010.[16] The regulations associated with Class VI wells were designed to protect underground drinking water sources and address “siting, construction, operation, financial responsibility, testing and monitoring, . . . and site closure.”[17]

To inject carbon dioxide into a Class VI well and sequester it, an entity must apply for a permit. EPA initially has primacy over all Class VI well applications, but states may apply for primacy.[18] Currently, only two states have applied for and received Class VI primacy—North Dakota and Wyoming.[19] To obtain primacy, states must make it through four steps: “(1) pre-application; (2) completeness review and determination; (3) application evaluation; and (4) final rulemaking and codification.”[20]

Texas’ Move Toward Primacy

Texas has initiated the process for gaining primacy over Class VI wells.[21] Currently, however, EPA retains primacy.[22] As such, interested entities must apply for permits through both EPA and the Railroad Commission, the state agency in charge of regulating Class VI wells.[23] If Texas’s application for primacy is approved, the Railroad Commission will be the sole agency that entities in Texas must submit permit applications to. Texas is hopeful that applications running solely through one agency, instead of two, will streamline the permitting process, encourage the CCS business, and complement the state’s oil and gas industry.[24] The state may also have been encouraged by the grant program supporting state primacy in the Infrastructure and Investment Jobs Act.[25]

Texas took its first big step toward primacy on May 3, 2022, when the Railroad Commission voted to (1) publish “proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO2 and incorporating federal requirements,” (2) submit a pre-application for primacy to EPA, and (3) “request[ed] that the [Texas] Governor formally ask EPA for Class VI UIC well program approval.”[26] After publishing its proposed amendments on May 3,[27] the Railroad Commission quickly made headway on the next action, submitting its pre-application on May 31, 2022.[28] The agency’s proposed amendments were approved on August 30, 2022.[29]  Finally, Texas submitted its application for primacy on December 19, 2022.[30]

Texas is not the only state seeking primacy for Class VI well permits; Louisiana has also applied and is waiting on a decision from EPA.[31] While there is currently only one Class VI Well application pending for Texas, there are 15 pending applications for Louisiana.[32] In response to a request by Louisiana’s governor asking for the status of Louisiana’s primacy application, an EPA spokesperson stated that EPA is still reviewing both Louisiana’s and Texas’ applications for primacy.[33] It is unclear how long the application process will take.[34] The EPA has not stated a timeline, and North Dakota’s and Wyoming’s applications are not consistent reference points—those applications took approximately five years and nine months, respectively.[35]

If Texas’ application for primacy is approved, the Railroad Commission’s rules, which would be at least as stringent as federal standards, will be the sole regulations that entities must abide by for Class VI wells. The rule revisions that were approved in August 2022 amend Part 1, Title 16, Chapter 5 of the Texas Administrative Code.[36] Significant modifications to the rules were made to meet the same stringency as federal standards and to meet the federal administration’s environmental justice goals, including to:

        1. Improve program and permit transparency.  For example, draft permits and draft permit fact sheets will be posted on the Railroad Commission’s website.  Each fact sheet will include, among other things, the type of facility, the source and quantity of carbon dioxide proposed to be injected and stored, and a description of the procedures for reaching a final permit decision.
        2. Define key terms so they are consistent with federal tax credits for these projects.
        3. Require additional data from the permit applicant. For example, applicants must identify the source(s) of carbon dioxide that will be captured by the project. This requirement was added to ensure the collection of more accurate carbon emission data and to help inform advancements in carbon sequestration strategies.
        4. Provide appropriate notice to environmental justice and limited English-speaking households. This new requirement is consistent with the Biden administration’s focus on environmental justice.[37]

Comments made by EPA on the August 2022 rules indicate that while most of the rules are sufficient, stringency concerns remain.[38]

Conclusion

Federal support for climate goals and state primacy have increased incentives for investment in geologic storage and for states to obtain primary jurisdiction over relevant programs. Texas has made significant progress toward being one of the few states with Class VI well primacy. If Texas gains primacy over Class VI wells, it could achieve its goal of attracting more CCS industry to the state.

Francesca Eick is a Senior Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Shelby Thompson is a 3L from Austin, Texas. She attended Texas A&M University before coming to The University of Texas School of Law. Shelby joined TELJ during her 2L year and plans on practicing environmental law.

[1]      See generally Int’l Energy Agency, Energy Technology Perspectives 2020: Special Report on Carbon Capture Utilisation and Storage (2020), https://iea.blob.core.windows.net/assets/ 181b48b4-323f-454d-96fb-0bb1889d96a9/CCUS_in_clean_energy_transitions.pdf. As the U.S. strives to achieve its climate goals, there has been much interest in and incentives for energy production to move toward net-zero carbon emissions. See Renewable Energy, Off. of Energy Efficiency & Renewable Energy, https://www.energy.gov/eere/renewable-energy (last visited Aug. 3, 2023).

[2]      See, e.g., Geologic Storage of Anthropogenic CO2, R.R. Comm’n of Tex., https://www.rrc.texas.gov/oil-and-gas/applications-and-permits/injection-storage-permits/co2-storage/ (last visited Apr. 16, 2023).

[3]      Angela C. Jones, Cong. Rsch. Serv., Summary R46192, Injection and Geologic Sequestration of Carbon Dioxide: Federal Role and Issues for Congress 1 (2022).

[4]      Id.

[5]      See id. at 10–12.

[6]      See Press Release, R.R. Comm’n of Tex., RRC Proposes Rule Changes to Help Implement Oversight of Injection and Storage of Carbon Dioxide (May 3, 2022), https://www.rrc.texas.gov/news/050322-class-vi-primacy/.

[7]      See Jones, supra note 3, at 11 (noting that the EPA has only granted primacy to two states).

[8]      See Incentives for Carbon Capture, Use and Storage: U.S., Bloomberg: NetZero Pathfinders, https://www.bloomberg.com/netzeropathfinders/best-practices/incentives-for-carbon-capture-use-and-storage/ (last visited Aug. 3, 2023).

[9]      Carlos Anchondo, Texas Wants Oversight of CO2 Wells. Other States May Follow., E&E NEWS: ENERGYWIRE (Oct. 3, 2022, 7:10 AM), https://www.eenews.net/articles/texas-wants-oversight-of-co2-wells-other-states-may-follow/.

[10]     Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 § 40306(c), 135 Stat. 429, (codified at 42 U.S.C. § 300h-9(c)).

[11]     See Anchondo, supra note 9.

[12]     47 Tex. Reg. 2,943, 2,944 (2022) (to be codified as amendments to 16 Tex. Admin. Code §§ 5.101–.102, 5.201–.207) (proposed May 20, 2022) (R.R. Comm’n of Tex., Carbon Dioxide (CO2)).

[13]     Kevin Crowley, World’s Biggest Carbon Capture Plant Gets Second Chance in Texas, Bloomberg L. (Feb. 8, 2023, 10:00 AM), https://www.bloomberglaw.com/bloomberglawnews/environment-and-energy/XD0APT1K000000?bna_news_filter=environment-and-energy#jcite.

[14]     What’s the Difference Between Geologic and Biologic Carbon Sequestration?, U.S. Geological Serv., https://www.usgs.gov/faqs/whats-difference-between-geologic-and-biologic-carbon-sequestration (last visited Aug. 3, 2023).

[15]     Class VI – Wells Used for Geologic Sequestration of Carbon Dioxide, Env’t Prot. Agency, https://www.epa.gov/uic/class-vi-wells-used-geologic-sequestration-carbon-dioxide (last updated Dec. 9, 2022); see CO2-Enhanced Oil Recovery, World Res. Inst., https://web.archive.org/web/201204280 82916/http://www.wri.org/publication/content/8355 (last visited Aug. 3, 2023) (stating that companies have used enhanced oil recovery in Texas’s Permian Basin for three decades). For more on enhanced oil recovery, see generally Enhanced Oil Recovery, Off. of Fossil Energy & Carbon Mgmt., https://www.energy.gov/fecm/enhanced-oil-recovery (last visited Aug. 3, 2023).

[16]     Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells, 75 Fed. Reg. 77,230 (Dec. 10, 2010) (to be codified at 40 C.F.R. pts. 124, 144–47).

[17]     Id. at 77,246.

[18]     See id. at 77,241.

[19]     See Primary Enforcement Authority for the Underground Injection Control Program, Env’t Prot. Agency, https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-control-program-0 (last updated Aug. 18, 2022).

[20]     John Arnold & Rachael Beavers, Seeking Primacy – the Railroad ‎Commission of Texas Seeks Primary Authority Over the ‎Class VI ‎Carbon Sequestration Program, JDSUPRA (Sept. 20, 2022), https://www.jdsupra.com/legalnews/seeking-primacy-the-railroad-commission-2457088/.

[21]     See Geologic Storage of Anthropogenic CO2, supra note 2.

[22]     States’ Tribes’ and Territories’ Responsibility for the UIC Program. Env’t Prot. Agency, https://www.epa.gov/system/files/documents/2021-11/states-tribes-and-territories-responsibility-for-the-uic-program-_revised18nov2021-.pdf (last visited Aug. 3, 2023).

[23]     Originally, at the state level, both the Texas Commission on Environmental Quality and the Railroad Commission of Texas had jurisdiction over these wells. In 2021, however, H.B. 1284 gave the Railroad Commission sole jurisdiction over Class VI wells at the state level. See Lauren A. Bachtel et al., CCUS: Texas Takes Steps Toward Class VI Primacy, Mayer Brown (Sept. 13, 2022), https://www.mayer brown.com/en/perspectives-events/publications/2022/09/ccus-texas-takes-steps-toward-class-vi-primacy.

[24]     See Geologic Storage of Anthropogenic CO2, supra note 2.

[25]     See 42 U.S.C. § 300h-9(c) (2021).

[26]     Lydia González Gromatzky & Frederick R. Eames, Texas Takes Much-Anticipated Steps to Streamline Permitting and Assume Regulatory Authority for Carbon Sequestration Wells, The Nat’l L. Rev. (May 26, 2022), https://www.natlawreview.com/article/texas-takes-much-anticipated-steps-to-streamline-permitting-and-assume-regulatory.

[27]     Bachtel et al., supra note 23.

[28]     Letter from Wei Wang, Exec. Dir., Tex. Comm’n on Env’t Quality, to Dr. Earthea Nance, Reg’l Adm’r, Reg. 6, Env’t Prot. Agency (May 31, 2022), https://subscriber.politicopro.com/eenews/f/eenews/?id= 00000183-57c1-dc64-abf7-77ff3b140000.

[29]     Bachtel et al., supra note 23.

[30]     Geologic Storage of Anthropogenic CO2, supra note 2.

[31]     Carlos Anchondo, La. Governor Asks EPA for Answer on CO2 Wells, E&E NEWS: ENERGYWIRE (Feb. 10, 2023, 6:56 AM), https://subscriber-politicopro-com.eu1.proxy.openathens.net/article/eenews/ 2023/02/10/la-governor-asks-epa-for-answer-on-co2-wells-00082142.

[32]     Class VI Wells Permitted by EPA, Env’t Prot. Agency, https://www.epa.gov/uic/class-vi-wells-permitted-epa#information (last updated Mar. 29, 2023).

[33]     Anchondo, supra note 32.

[34]     Id.

[35]     Samuel Pickerill et al., Texas Issues New Rules to Facilitate Greater State Control over Carbon Capture Project Permitting, Arnold & Porter (Sept. 23, 2022), https://www.arnoldporter.com/en/perspectives/ blogs/environmental-edge/2022/09/texas-issues-new-rules-to-facilitate-greater-state.

[36]     Geologic Storage of Anthropogenic CO2, supra note 2.

[37]     Bachtel et al., supra note 23 (emphasis added).

[38]     Env’t Prot. Agency, State Primacy Crosswalk: Texas tbl.1 (2022) (on file with Tex. Env’t L. J.).

Vol. No. 53-2 Utilities

Utilities

Retrofitting the Grid: How Senator Manchin’s Permit Reform Could Facilitate an Energy Transition in Texas

Introduction

Climate change will remain a prominent issue in the United States for decades. Attempting to decelerate global warming will require the country to undergo an energy transition and revolutionize its underlying electrical grid.[1] Partially with this end in mind, Senator Joe Manchin released the text for a bill that would accelerate the permitting process for energy projects across the U.S.[2] The initial ninety-one-page document was never formally introduced into the Senate, and Senator Manchin ultimately failed to tack a shorter version onto a defense spending package in December 2022.[3]

The proposal garnered an onslaught of criticism from all directions, including from Democrats, Republicans, and environmental groups.[4] Much of this criticism centered on the bill’s push for agencies to “take all necessary actions to permit the construction and operation” of a project in Appalachia and expedite the construction of other new fossil fuel pipelines.[5] Regardless of the proposal’s deficiencies, experts acknowledge that some kind of permitting reform is necessary for the large-scale renewable energy transition at hand.[6]

This Note explores the provisions proposed in Senator Manchin’s bill and how it might have impacted the construction of a hypothetical wind energy project in Texas’s High Plains region, which includes forty-one counties in the Texas Panhandle and West Texas.[7] Such a project would require permitting interactions with local governments, state agencies, and eventually the federal government.[8] This Note focuses on three key categories of federal permitting requirements—wildlife protection, air and water protection, and National Environmental Policy Act (NEPA) review—and how they would apply to a proposed turbine project. Then, it explores how these requirements would have interacted with Senator Manchin’s proposed legislation.

Federal Permitting Requirements

Wildlife Protection

Since turbine projects can potentially kill flying animals such as birds and bats, the U.S. Fish and Wildlife Service (FWS) has jurisdiction over any new wind installation in the High Plains of Texas.[9] The statutes that affect new wind turbines include the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Endangered Species Act (ESA).[10] The ESA provides a straightforward example. If a project were to incidentally “take” a species on the endangered species list,[11] FWS must authorize the take through a formal permitting process.[12]

Air and Water Protection

Section 404 of the Clean Water Act requires permitting for projects that discharge dredged or fill materials into protected waters and wetlands.[13] A new turbine project in the High Plains would likely fall under this statute’s jurisdiction due to the presence of playa lake wetlands throughout the region,[14] which are essential to the cyclical recharge of the Ogallala aquifer.[15] These jurisdictional waters would be affected by large amounts of waste product from project construction—both from the turbine facility itself and the miles of transmission lines required to bring the power to population centers like Dallas and Austin.[16]

National Environmental Policy Act (NEPA) Review

NEPA is unlike the above statutes in that it is a procedural requirement rather than a permitting mandate.[17] NEPA requires a two-stage evaluation of the environmental impacts of a proposed federal action and is overseen by the White House Council on Environmental Quality.[18] First, for a new wind project, an agency overseeing the permitting process—for example, FWS for projects affecting land species[19]—must prepare an “environmental assessment” to determine whether the project would have a significant impact on the environment.[20] If the agency determines there would be a significant impact, it must then prepare a longer and more detailed “environmental impact statement” (EIS).[21] This review allows local communities, industry groups, and environmental organizations to comment on the project. Our hypothetical wind installation in the High Plains of Texas would certainly require a full NEPA review.[22]

NEPA tends to be the target of criticism since the review process can be lengthy (a median of three and  a half years), although the cause of such delays are in dispute.[23] Even after an agency finishes its EIS, litigants frequently challenge projects on the basis of procedural deficiencies, causing further delays, increasing costs, and stalling momentum for new projects.[24] While NEPA has provided wins for environmental groups,[25] it also poses a hurdle to new renewable energy projects that must be planned for.

How Senator Manchin’s Bill Would Affect This Process

Senator Manchin’s bill would impact a proposed wind facility in the High Plains by accelerating NEPA review and setting a statute of limitations for court challenges.[26] First, the bill defines “major project” as one that requires “multiple authorizations, reviews, or studies” and one that requires an EIS.[27] Since our proposed facility would be a significant public utility, it would likely be classified as a “major project”; this analysis will proceed under this assumption.

As a first step in the accelerated process, the “lead agency”[28]—e.g., the Environmental Protection Agency—would coordinate with each “participating agency”[29]—e.g., FWS for ESA authorization—to create a single environmental document that covers all applicable environmental statutes.[30] Currently, projects may require multiple agencies to create separate documents, such as a “Biological Opinion” prepared by FWS.[31] Additionally, the bill sets a page limit for this singular environmental document of 150 pages, with extra space of up to 300 pages for a project “of unusual scope or complexity.”[32] For major projects, this entire environmental review process should be finished no later than two years after the lead agency provides notice that it will began preparing an EIS.[33] Thus, for our proposed wind facility, if the permitting process would begin now, environmental review would be statutorily required to conclude by 2025 rather than 2026 or later.[34] If an agency in this process fails to meet the deadline, the project sponsor may petition a court to issue an order to the agency to complete its task within ninety days.[35]

Should the involved federal agencies, state officials, or project sponsors reach an impasse, the bill sets forth prescribed dispute resolution schedules to keep the major project moving forward.[36] Regarding potential litigation for a project, the bill sets a statute of limitations of 150 days after an agency finalizes the permit application and requires the reviewing court to undergo “expedited consideration.”[37] If any aspect of the environmental document is remanded, the court must set a “reasonable schedule” to fix the deficiency, not to exceed 180 days from the initial court order.[38]

An additional aspect of Senator Manchin’s bill would assist with creating the expansive new transmission lines required for wind energy expansion in the High Plains. Should the transmission lines be trapped in the CWA state-certification phase, the bill would   empower the Federal Energy Regulatory Commission (FERC) to issue a construction permit for transmission siting.[39] Since any new transmission lines for a wind project in the High Plains would likely be attached to the interstate electrical grid, this reform would likely apply to the theoretical wind facility.[40] Thus, in this case, if the Public Utility Commission of Texas failed to act on a permit application within one year, FERC might intercede and issue one itself.[41]

Conclusion

Constructing new electrical facilities is an exceedingly complex process. Even One could easily get lost digging through the text of the permit reform legislation and its numerous exceptions, deadlines, and chokepoints which could kill a new project. This Note only touches the surface of the regulatory requirements that must be met before applicants can construct new facilities. There is no doubt that some reform is needed to expedite the energy transition. Senator Manchin’s bill provides a starting point for legislators and regulators to consider how to best balance environmental interests while facilitating the transformation of our energy grid.

Paul Sarahan is a member of Enoch Kever PLLC. He focuses his practice on environmental, safety, and transportation issues. He has 28 years of experience in policy, regulation, and commercial use of the environment and has represented clients in the energy, chemical, manufacturing, transportation, and retail industry sectors before federal, state, and local agencies. Paul is a graduate of the University of Texas at Austin, The University of Texas School of Law, and the University of Houston Law Center’s Energy, Environmental and Natural Resources LL.M. program.

 

Jesse Bennett is a dual JD/MPAff student in his second year from Rochester, New York. He attended Hamilton College where he majored in economics and minored in history. Jesse joined TELJ as a 1L.

 

 

[1]      Shannon Osaka, To Fight Climate Change, Environmentalists May Have to Give Up a Core Belief, The Wash. Post (Sep. 2, 2022, 7:00 AM), https://www.washingtonpost.com/climate-environment/2022/ 09/02/fight-climate-greens-have-embrace-big-energy-projects-fast/; see also Steve Cohen, Fossil Fuels Are Dying, but They’re Not Dead Yet, Colum. Climate Sch.: State of the Planet (Nov. 14, 2022), https://news.climate.columbia.edu/2022/11/14/fossil-fuels-are-dying-but-theyre-not-dead-yet/.

[2]      Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Comprehensive Permitting Reform Text to be Included in Continuing Resolution (Sep. 21, 2022), https://www.energy.senate. gov/2022/9/manchin-releases-comprehensive-permitting-reform-text-to-be-included-in-continuing-resolution (referencing the Energy Independence and Security Act of 2022).

[3]      See Maxine Joselow, Democrats Try to Salvage Manchin’s Side Deal on Energy Projects, The Wash. Post (Dec. 4, 2022, 10:32 PM), https://www.washingtonpost.com/climate-environment/2022/12/04/ manchin-permitting-reform-bill/; Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Permitting Text and Urges Colleagues to Support MVP and Permitting Amendment to NDAA (Dec. 7, 2022).

[4]      Maxine Joselow, Manchin’s Permitting Bill Sets up Dramatic Clash Over Government Funding, The Wash. Post (Sep. 22, 2022, 8:23 AM), https://www.washingtonpost.com/politics/2022/09/22/manchin-permitting-bill-sets-up-dramatic-clash-over-government-funding/ (noting opposition from Senators Bernie Sanders and Tim Kaine); Letter from Jeff Landry, La. Att’y General, et al. to Chuck Schumer, Majority Leader, Senate, and Mitch McConnell, Minority Leader, Senate (Sep. 26, 2022), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-37-letter.pdf (collecting signatures of Republican state attorneys general); Letter from ActionAid USA et al. to Chuck Schumer, Majority Leader, Senate, and Nancy Pelosi, Speaker, House of Representatives (Aug. 24, 2022), https://peoplevsfossilfuels.org/dirty-deal-letter/ (opposing fossil fuel projects and proposed permitting reform); Rachel Frazin, Senate Rejects Manchin’s Energy Permitting Amendment to Defense Bill, The Hill (Dec. 15, 2022, 6:37 PM), https://thehill.com/policy/energy-environment/3776418-senate-rejects-manchins-energy-permitting-amendment-to-defense-bill/.

[5]      Daniel Moore, Mountain Valley Pipeline Shield in Manchin Deal Raises Hackles, Bloomberg L. (Aug. 2, 2022, 12:59 PM), https://news.bloomberglaw.com/environment-and-energy/mountain-valley-pipeline-shield-in-manchin-deal-raises-hackles (quoting the Energy Independence and Security Act of 2022).

[6]      See Shannon Osaka, Why the Defeat of Manchin’s Energy Bill Could Be a Loss for the Climate, The Wash. Post (Sep. 28, 2022, 1:47 PM), https://www.washingtonpost.com/climate-environment/2022/ 09/28/manchin-permitting-reform-climate/.

[7]      See Jayme Lozano, Why the Texas Grid Causes the High Plains to Turn Off Its Wind Turbines, The Tex. Trib. (Aug. 2, 2022, 10:00 AM), https://www.texastribune.org/2022/08/02/texas-high-plains-wind-energy/ (exploring the potential for cheap power from the region and barriers to scaling-up wind facilities).

[8]      Id.; see also Rayan Sud & Sanjay Patnaik, How Does Permitting for Clean Energy Infrastructure Work?, Brookings (Sep. 28, 2022), https://www.brookings.edu/research/how-does-permitting-for-clean-energy-infrastructure-work/ (explaining the federalized process for permitting new projects).

[9]      See U.S. Fish & Wildlife Serv., Land-Based Wind Energy Guidelines 1–4 (2012), https://www.fws.gov/sites/default/files/documents/land-based-wind-energy-guidelines.pdf (introducing and explaining FWS’s statutory authority over wind energy projects).

[10]     Id.

[11]     See 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”).

[12]     See id. § 1536(a)(2) (requiring formal consultation when federal funding or permitting is involved); id. § 1539(a)(1)(B) (requiring an individual incidental take permit).

[13]     33 U.S.C. § 1344; Permit Program Under CWA Section 404, Env’t Prot. Agency, https://www.epa. gov/cwa-404/permit-program-under-cwa-section-404 (last updated Apr. 20, 2022).

[14]     Panhandle Playa Lakes, Tex. Parks & Wildlife, https://tpwd.texas.gov/landwater/land/habitats/high_ plains/wetlands/playa.phtml (last visited Aug. 1, 2023) (“Playas are shallow, circular-shaped wetlands that are primarily filled by rainfall, although some playas found in cropland settings may also receive water from irrigation runoff.”).

[15]     Rudolph A. Rosen, Texas Aquatic Science Textbook (2013).

[16]     See Sud & Patnaik, supra note 9 (“Wind . . . projects . . . likely [] need Clean Air Act and Clean Water Act permits during their construction phases as they entail regular construction pollution.”); Lozano, supra note 8 (noting the need for extensive transmission construction).

[17]     See Sud & Patnaik, supra note 9 (“NEPA does not mandate a separate permit like the other [environmental] laws . . . . Instead, it is a procedural law, requiring an assessment of the environmental impacts of any significant federal action, including any project that the federal government issues a permit for.”).

[18]     Id.; 42 U.S.C. § 4344 (denoting the duties and functions of the Commission on Environmental Quality (CEQ)); see also 40 C.F.R. § 1500.1 (2023) (explaining CEQ’s interpretation of the purpose and policy behind NEPA).

[19]     See 40 C.F.R. § 1501.7 (2023) (establishing that a lead agency will oversee NEPA review for each project); see, e.g., Draft Environmental Impact Statement and Habitat Conservation Plan for Commercial Wind Energy Developments Within Nine States, 76 Fed. Reg. 41,510, 41,511 (July 14, 2011) (“[W]e, the Fish and Wildlife Service, as lead agency, advise the public that we intend to prepare an [EIS] on a proposed application . . . .”).

[20]     See 40 C.F.R. § 1501.5 (2023).

[21]     See 42 U.S.C. § 4332(C) (primary authorizing statute); 40 C.F.R. §§ 1502.1–.24 (2023) (CEQ’s implementing regulations).

[22]     See Sud & Patnaik, supra note 9 (“Nearly every major renewable energy project requires a NEPA review.”).

[23]     Id.

[24]     Id.; see, e.g., Am. Rivers v. FERC, 895 F.3d 32, 55 (D.C. Cir. 2018) (vacating relicensing for a hydroelectric project on procedural grounds); Pub. Emps. for Env’t Resp. v. Hopper, 827 F.3d 1077, 1090 (D.C. Cir. 2016) (vacating and remanding the EIS prepared for a proposed offshore wind facility in Massachusetts).

[25]     See, e.g., WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1240 (10th Cir. 2017) (striking down an EIS for coal leases and further delaying the project).

[26]     U.S. Senate Comm. on Energy & Nat. Res., 117th Cong., Building American Energy Security Act of 2022 8–11, 38, https://www.energy.senate.gov/services/files/FAED4818-E382-4210-B452-5A3D0D8D58A8?utm_source=DCS+Congressional+E-mail&utm_medium=Email&utm_term=https% 3a%2f%2fwww.energy.senate.gov%2fservices%2ffiles%2fFAED4818-E382-4210-B452-5A3D0D8D 58A8&utm_campaign=Manchin+Releases+Permitting+Text+and+Urges+Colleagues+to+Support+MVP+and+Permitting+Amendment+to+NDA (last visited Aug. 1, 2023) (introduced by Senator Manchin).

[27]     Id. at 4.

[28]     Id. at 3.

[29]     Id. at 4.

[30]     Id. at 14–15.

[31]     See, e.g., Am. Rivers v. FERC, 895 F.3d 32, 44–45, 49–50 (D.C. Cir. 2018) (documenting that the project required both a proper Biological Opinion and EIS).

[32]     Building American Energy Security Act of 2022, supra note 29, at 16.

[33]     Id. at 21.

[34]     See id.; Sud & Patnaik, supra note 8 (noting the median review time for an EIS is 3.5 years).

[35]     Building American Energy Security Act of 2022, supra note 29, at 30–31.

[36]     Id. at 32–35.

[37]     Id. at 38.

[38]     Id. at 38–39.

[39]     Id. at 65.

[40]     See Regional Transmission Organization Map, Fed. Energy Regul. Comm’n, https://www.ferc.gov/ sites/default/files/2020-05/elec-ovr-rto-map.pdf (last visited Aug. 1, 2023) (demonstrating the High Plains region overlaps with an interstate electrical grid); see also NextEra Energy Capital Holdings, Inc. v. Lake, 48 F.4th 306, 310 (5th Cir. 2022) (noting the interstate nature of electricity grids and that Texas’s statute banning out-of-state entrants to its energy markets violates the dormant Commerce Clause).

[41]     Building American Energy Security Act of 2022, supra note 29, at 67–68.

Vol. No. 53-2 Washington Update

Washington Update

Revising the Definition of “Waters of the United States”

In December 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army announced a new rule revising the definition of “waters of the United States.”[1] The final rule was published in the federal register on December 30, 2022 and became effective on March 20, 2023.[2] EPA and the Army (the Agencies) used legislative authority granted under the Clean Water Act to update the definition of “waters of the United States” and seek to reestablish water protections that existed prior to 2015.[3]

The Navigable Waters Protection Rule

Between 2015 and 2020, the definition of “waters of the United States” was revised three times.[4] The third revision resulted in the 2020 Navigable Waters Protection Rule (NWPR), which was the product of an executive order signed on February 28, 2017, under the Trump administration.[5] The NWPR was a departure from the pre-2015 rule that the Agencies had used for decades to define “waters of the United States.”[6] The NWPR excluded, for the first time, interstate waters, all ephemeral streams, and traditional navigable waters; some territorial seas also fit within the NWPR’s exclusions.[7]

Federal district courts in both Arizona and New Mexico remanded the NWPR at trial and vacated the rule. In the Arizona case, Pascua Yaqui Tribe v. EPA, the court stated that “[t]he seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”[8]

The court in New Mexico agreed, stating that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”[9] After these and several other federal district courts vacated or remanded the NWPR, EPA ceased to use that rule’s definition and reverted to the pre-2015 definition of “waters of the United States.”[10] These court decisions and EPA’s response triggered the new rulemaking.

On January 20, 2021, President Biden signed Executive Order 13990.[11] Some of the stated goals of the executive order were to “listen to the science; to improve public health and protect our environment; [and] to ensure access to clean air and water.”[12] As part of the executive order, all agencies were directed to “immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”[13] Review of the NWPR resulted in the Agencies’ decision to replace it.[14]

The New Rule

The Agencies’ revisions to the definition of “waters of the United States” are based on the pre-2015 paradigm, commonly referred to as the “1986 regulations,”[15] with the goal of making the new definition match the older rule.

Scope of the New Rule

The new rule brings previously excluded waters back into the category of jurisdictional waters. Under the new rule, the Agencies define “waters of the United States” as:

. . . [(1)] traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters”); . . . [(2)] impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”); . . . [(3)] tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”); . . . [(4)] wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); . . . [and (5)] intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard (“paragraph (a)(5) waters”).[16]

The Agencies stated that they believe this definition fits the objectives of the Clean Water Act, respects the Act’s limits, and aligns the rule with decades of scientific expertise and implementation experience.[17]

Limitations, Exclusions, and Agency Judgment

While the new rule brings certain waters back under Agency jurisdiction, like traditional navigable waters and territorial seas that had fit within one of the NWPR’s exclusions, it also creates exclusions based on the 1986 regulations.[18] These exclusions are largely based on the “relatively permanent” or “significant nexus” standards.[19] Tributaries, adjacent wetlands, lakes and ponds, streams, and wetlands that are not identified in paragraphs (a)(1) through (4) must meet either the relatively permanent standard or the significant nexus standard.[20] Under the rule, waters that do not meet one of these standards are not “waters of the United States.”

The Agencies state that the relatively permanent or significant nexus standards fit the Clean Water Act’s best available science requirement because “the ‘significant nexus’ standard established in [the] rule is based on an assessment of the effects of waters in these categories on the water quality of paragraph (a)(1) waters.”[21] Similarly, the “relatively permanent” standard results in various protections of the integrity of jurisdictional waters.[22]

Additionally, waters that do not fall within established categories may still be covered under the new rule. In the past, waters not within an established category could be covered if they had effects on water quality and on interstate commerce.[23] However, the new rule replaces the “interstate commerce” test with the relatively permanent and significant nexus standards used elsewhere in the rule.[24] Thus, Agencies cannot assert jurisdiction over non-navigable, intrastate waters solely because of the impact their use has on interstate or foreign commerce.[25]

Certain categorized and non-categorized waters may require fact-intensive consideration by the Agencies to determine whether they fall under agency jurisdiction. The Agencies, as always, have authority to include or exclude waters from “waters of the United States” on a case-by-case basis.[26]

Response to and Current Status of the New Rule

While the new rule generally returns to the older definition of “waters of the United States,” its publication quickly faced pushback from numerous states. Twenty-five states formed a coalition to challenge the rule;[27] many are the same states that challenged the 2015 expansion of the rule under the Obama administration.[28] Those lawsuits led to the revisions from 2015 to 2020, ultimately resulting in the Trump administration’s NWPR.[29]

These states seek a preliminary injunction to prevent the rule from taking effect and argue that the new rule is an overreach.[30] However, the NWPR has been vacated or remanded by several federal district courts, and the Agencies are using the pre-2015 definition of “waters of the United States” pending implementation of the new rule.[31] One potential sticking point for the new rule is the Supreme Court’s decision in Sackett v. EPA, which may impact whether the Biden administration decides to propose a second new definition of “waters of the United States” at the end of 2023.[32]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Philadelphia, PA office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

 

Stephen DeVinney is a 3L from New Port Richey, Florida. He graduated from the University of Florida and joined TELJ during his second year of law school. Stephen discovered an interest in the legal issues surrounding water quality and environmental toxics in law school, and he will be working in litigation for the Office of the Texas Attorney General after graduation. 

 

[1]      See Press Release, Env’t Prot. Agency, EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections (Dec. 30, 2022), https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-establishing-definition-wotus-and-restoring-fundamental.

[2]      Revised Definition of “Waters of the United States”, 88 Fed. Reg. 3,004 (Jan. 18, 2023) (to be codified at 33 C.F.R. pt. 328, 40 C.F.R. pt. 120).

[3]      Revising the Definition of “Waters of the United States”: Final Revised Definition of “Waters of the United States”, Env’t Prot. Agency, https://www.epa.gov/wotus/revising-definition-waters-united-states (last updated Apr. 13, 2023); Revised Definition of “Waters of the United States”, 88 Fed. Reg at 3,105.

[4]      Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,053 (June 29, 2015); Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019); The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. 22,250 (Apr. 21, 2020).

[5]      The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,250; Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States’’ Rule, 82 Fed. Reg. 12,497 (Mar. 3, 2017).

[6]      The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,260.

[7]      Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016 (citing The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,251–52).

[8]      Pascua Yaqui Tribe v. U.S. Env’t Prot. Agency, 557 F. Supp. 3d 949, 956 (D. Ariz. 2021), appeal dismissed sub nom. Pasqua Yaqui Tribe v. U.S. Env’t Prot. Agency, No. 21-16791, 2022 WL 1259088 (9th Cir. Feb. 3, 2022).

[9]      Navajo Nation v. Regan, 563 F. Supp. 3d 1164, 1168 (D.N.M. 2021) (quoting Pascua Yaqui Tribe, 557 F. Supp. 3d at 955).

[10]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016 (citing, e.g., In re EPA & Dep’t of Def. Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015)) (“While the 2015 Clean Water Rule went into effect in some parts of the country in August 2015, it was never implemented nationwide due to multiple injunctions and later rulemakings.”).

[11]     Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, Exec. Order No. 13990, 86 Fed. Reg. 7,037 (Jan. 20, 2021).

[12]     Id.

[13]     Id.

[14]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,005.

[15]     Id. at 3,007.

[16]     Id. at 3,005–06.

[17]     Id. at 3,137.

[18]     Id. at 3,020.

[19]     Id.

[20]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,137.

[21]     Id. at 3,024.

[22]     Id.

[23]     Id. at 3,011–12.

[24]     Id. at 3,029.

[25]     Id.

[26]     See Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,129. (“The rule properly authorizes case-specific consideration of certain waters not covered by the categories established in the rule.”).

[27]     See Cindy Gonzalez, Nebraska Joins Other States to Fight New WOTUS Rule, Neb. Exam’r (Feb. 16, 2023, 7:26 PM), https://nebraskaexaminer.com/briefs/nebraska-joins-other-states-to-fight-new-wotus-rule/ (noting that Nebraska joined twenty-four other states).

[28]     Compare id., with Neena Satifja, Texas Sues EPA Over Provision of Federal Water Law, The Tex. Trib. (June 29, 2015, 4:00 PM), https://www.texastribune.org/2015/06/29/texas-sues-obama-administration-epa-water/.

[29]     See Gonzalez, supra note 27 (noting that the Trump Administration’s rule was made in response to the Obama-era rule).

[30]     See Bobby Magill & Samantha Hawkins, Water Lawsuits Will Roll on Even As High Court Weighs in, Bloomberg L. (Mar. 1, 2023, 4:30 AM), https://news.bloomberglaw.com/environment-and-energy/ waters-lawsuits-will-roll-on-even-as-high-court-weighs-in (“The lawsuits claim the EPA is exceeding its authority and that the rule is overly vague and premature because it was finalized in January ahead of the high court’s future ruling in Sackett v. EPA, expected by June.“).

[31]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016.

[32]     Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322 (2023).

Vol. No. 53-2 Waste

Waste

The State of Plastic

The Plastic Waste Landscape

Modern life depends on plastic. It seals our food, insulates our homes, and clothes our bodies.[1] However, as plastic degrades and becomes waste, the ubiquitous material is also creating one of the greatest pressing environmental challenges today. The life cycle of plastic is not as cyclical as some might think—from 1950 to 2015, 12% of plastic waste was incinerated, 79% discarded, and only 9% recycled.[2]   The plastic that is recycled is usually downcycled and transformed into lower value uses that are not suitable for further recycling.[3] As a result, about 8 million tons of plastic waste leaches into the oceans every year, sometimes taking over 400 years to break down.[4] Unfortunately, the plastic waste problem is only growing. Plastic production in the last fifteen years makes up half of all the plastic ever manufactured.[5] In fact, from 1950 to 2015, plastic production increased from 2.3 million tons to 448 million tons, and is expected to double by 2050.[6]

The United States Plastics Regulatory Regime

The United States plays a critical role in resolving the plastic waste problem. The U.S. generates more plastic waste than any other country, with forty-two million metric tons in 2016.[7] Some estimations also rank the U.S. as the third largest contributor of total mismanaged plastic waste to the coastal environment.[8] In 2016, the U.S. contributed up to 1.45 million metric tons of plastic waste, which may represent as much as a 400% increase from a 2010 estimate.[9] The U.S. recycling rate has also stayed relatively low (9%) as compared to other global leaders such as Europe (30%) and China 25%).[10]

RCRA and Federal Solid Waste Policies

The U.S. plastic regulatory scheme is largely focused on solid waste and waste management. The Resource Conservation and Recovery Act (RCRA) is the principal federal law regulating solid waste disposal, storage, and treatment.[11] While the statute establishes the framework for a national system of solid waste control, household waste and much of municipal solid waste are exempted from RCRA coverage.[12]

Nevertheless, numerous federal activities have attempted to change the U.S. plastic waste trajectory. The Protecting Communities from Plastics Act (PCPA) was introduced on December 1, 2022, by Democratic lawmakers to address “the plastic production crisis that is fueling climate change and perpetuating environmental injustice” and to prioritize a transition away from plastics.[13] The bill would reduce the U.S. economy’s reliance on certain single-use plastics, establish new national targets for plastic source reduction, and create federal incentives to expand reusable and refillable systems.[14] Specifically, PCPA authorizes the Environmental Protection Agency (EPA) to create federal targets for plastic source reduction and reuse for single-use plastic packaging and foodservice ware by the end of 2027.[15] It also sets a minimum 25% source reduction target and at least a 30% reuse and refill target by 2032.[16] However, industry opposition and strong partisan politics may prevent the bill’s passage into law. Indeed, a bill in 2021 backed by congressional Democrats that included similar source reduction goals failed to pass.[17]

At the executive level, the Biden Administration issued section 207 of Executive Order 14057 the same month PCPA was introduced.[18] The executive order directs federal agencies to reduce waste, support the recycled products market, and initiate a potential General Services Administration rulemaking to reduce single-use plastic packing in federal procurement.[19] Numerous federal agency actions are also working concurrently to reduce plastic pollution. The EPA released its National Recycling Strategy last fall and earmarked $275 million for solid waste recycling grant programs.[20] The Department of the Interior is also set to phase out all single-use plastics products from federally managed lands by 2032.[21] Last year, the National Oceanic and Atmospheric Administration released its draft Report on Microfiber Pollution which will outline a path for federal agencies to address microfiber pollution once finalized.[22]

State-Level Solid Waste Policies

There are few laws regulating plastic waste on a state level. The most prominent state regulations are plastic bag bans; however, only eight states have banned single-use plastic bags, and enforcement often occurs through civil actions and fines.[23] In the absence of statewide regulations, many municipalities have enacted bans on some kind of plastic, with over 350 U.S. cities adopting a plastic bag ban.[24] However, the growth of citywide plastic bans has triggered many “preemption battles” between cities and states.[25] Seventeen states have gone in the opposite direction, passing laws that prevent municipalities from enacting ordinances that ban plastic bags.[26] These preemption statutes reserve the power to regulate plastic bags to the state.[27]

The Texas Supreme Court has held that state law preempts local attempts at regulating plastic bags.[28] The city of Laredo adopted a ban on single-use bags in 2014 that was subsequently challenged by the Laredo Merchants Association for violating the Texas Solid Waste Disposal Act.[29] The Act says that local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”[30] The lawsuit reached the Texas Supreme Court, which struck down Laredo’s plastic bag ban, holding that state law on solid waste disposal pre-empted the local ordinance.[31]

A few states have begun adopting extended producer responsibility (EPR) legislation to combat plastic waste.[32] EPR is a concept where producers bear a greater degree of responsibility for the environmental impact of their goods throughout the products’ life cycle, including impacts from material sourcing, the production process, and subsequent use and disposal.[33] California is the fourth state to adopt an EPR bill into law that shifts much of the plastic-reducing burden from consumers to industry, but it may be the most significant.[34] The legislation not only requires an overall reduction in single-use plastic production, but it also obliges producers of certain single-use products to reduce production by 25% by weight and 25% by plastic component source by 2032.[35] Plastic producers must also contribute $5 billion over the next ten years to fund recycling and single-use plastic packaging reduction.[36]

United Nations Treaty

On March 2, 2022, United Nations representatives from 175 nations committed to crafting a legally binding global agreement to combat the exploding plastic pollution problem by 2024.[37] The first two of five planned negotiation meetings have since occurred, and stakeholders anticipate the treaty will include many detailed regulations that will affect plastics operations and management practices.[38] Future negotiations will continue to work out technical measures and rules.[39]

Nations are currently split as to whether to emphasize recycling and waste management or to prioritize reducing plastic production.[40] Fifty nations have formed the High Ambition Coalition to End Plastic Pollution, a union of countries that want a global agreement with plastic production limits and binding targets for every nation that adopts it.[41] This could include bans on certain types of plastics.[42] Other countries, including Saudi Arabia and the U.S., are pushing for a treaty that focuses on plastic recycling and voluntary commitments.[43] This kind of proposed treaty would be “bottom-up” like the Paris Agreement, in which nations are given latitude to develop their own plans and create their own targets.[44]

Conclusion

The U.S. is in a unique position to make a significant impact on plastic pollution as one of the largest global contributors to plastic waste. However, the current national plastic regulatory regime is largely disjointed. RCRA exempts hazardous household waste which has created pre-emption battles between municipalities and states over plastic bans. Pending bills aimed at plastic pollution reduction also seem unlikely to become law in the current partisan political environment. Nonetheless, several federal and state developments in plastic waste reduction have gained steam with President Biden’s Executive Order 14057, numerous federal agency actions, and several state EPR acts. Additionally, U.S. participation in the UN negotiations to create a legally binding global agreement by 2024 creates an opportunity for the U.S. to effectuate real change in the current plastic waste landscape.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

 

Yuyan Pu is a 2L from just outside of Philadelphia in Berwyn, Pennsylvania She studied economics and sociology at Johns Hopkins University. Yuyan joined TELJ her 1L year and will be at the San Francisco and Washington, D.C. offices of Baker Botts during the summer of 2023.

 

[1]      Plastics, Am. Chemistry Council, https://www.americanchemistry.com/chemistry-in-america/ chemistry-in-everyday-products/plastics (last visited Aug. 3, 2023).

[2]      Roland Geyer et al., Production, Use, and Fate of All Plastics Ever Made, 3 Sci. Advances, no. 7, 2017, at 1, https://www.science.org/doi/epdf/10.1126/sciadv.1700782.

[3]      Ruth Jebe, The U.S. Plastics Problem: The Road to Circularity, 52 Env’t L. Rep. 10018, 10024 (2022).

[4]      Laura Parker, The World’s Plastic Pollution Crisis Explained, Nat’l Geographic (June 7, 2019), https://www.nationalgeographic.com/environment/article/plastic-pollution.

[5]      Id.

[6]      Id.

[7]      Kara Lavender Law et al., The United States’ Contribution of Plastic Waste to Land and Ocean, 6 Sci. Advances, no. 44, 2020, at 1, https://www.science.org/doi/epdf/10.1126/sciadv.abd0288.

[8]      Id. at 3–4 (demonstrating that mismanaged waste consists of littered, illegally dumped, and exported waste to nations with inadequate waste management systems).

[9]      Id.

[10]     Geyer, supra note 2, at 3.

[11]     See Resource Conservation and Recovery Act (RCRA) Overview, Env’t Prot. Agency, https://www. epa.gov/rcra/resource-conservation-and-recovery-act-rcra-overview (last updated June 29, 2022).

[12]     Id.; 40 C.F.R. § 261.4(b)(1) (2022).

[13]     Press Release, Jeff Merkley, U.S. Sen., Or., Booker, Huffman, Merkley, Lowenthal Introduce Legislation to Address Plastic Production Crisis (Dec. 1, 2022), https://www.merkley.senate.gov/news/ press-releases/booker-huffman-merkley-lowenthal-introduce-legislation-to-address-plastic-production-crisis.

[14]     Id.

[15]     Megan Quinn, New Federal Bill Aims to Cut Plastics Production, Favoring Reuse and Refill Strategies, WasteDive (Dec. 5, 2022), https://www.wastedive.com/news/congress-protecting-communities-from-plastics-bill/637933/.

[16]     Id. (citing S. 5163, 117th Cong. § 5 (2022)).

[17]     Id. (citing S. 984, 117th Cong. (2021)). The Break Free from Plastic Pollution Act also stalled during the 116th Congress. Anne Idsal et al., Efforts to Regulate Plastic Pollution Likely to Increase in 2023, pillsbury (Jan. 17, 2023), https://www.pillsburylaw.com/en/news-and-insights/regulate-plastic-pollution-increase-2023.html (citing H.R. 5845, 116th Cong. (2020)).

[18]     See Exec. Order No. 14,057, 3 C.F.R. § 63.4480 (2022); S. 984.

[19]     Idsal et al., supra note 17; 3 C.F.R. § 63.4480.

[20]     Idsal et al., supra note 17.

[21]     Id.

[22]     Id.; Request for Public Comment on Report on Microfiber Pollution, 87 Fed. Reg. 56,633 (Sept. 15, 2022). Plastic microfibers—tiny plastic fragments shed from synthetic clothing materials like polyester and rayon—are the most prevalent type of microplastic found in the environment. What You Should Know About Microfiber Pollution, Env’t Prot. Agency (July 28, 2020), https://www.epa.gov/trash-free-waters/what-you-should-know-about-microfiber-pollution.

[23]     See State Plastic Bag Legislation, Nat’l Conf. of State Legislatures, https://www.ncsl.org/ environment-and-natural-resources/state-plastic-bag-legislation (last updated Feb. 8, 2021); Jebe, supra note 3, at 10026.

[24]     See Trevor Nace, Here’s a List of Every City in the U.S. to Ban Plastic Bags, Will Your City Be Next?, Forbes (Sept. 20, 2018, 1:20 PM), https://www.forbes.com/sites/trevornace/2018/09/20/heres-a-list-of-every-city-in-the-us-to-ban-plastic-bags-will-your-city-be-next/?sh=782d2d873243.

[25]     Jebe, supra note 3, at 10026.

[26]     See State Plastic Bag Legislation, supra note 23 (map demonstrating states with preemption laws).

[27]     See Samantha Maldonado et al., Plastic Bags Have Lobbyists. They’re Winning., POLITICO (Jan. 20, 2020, 8:11 AM), https://www.politico.com/news/2020/01/20/plastic-bags-have-lobbyists-winning-100587.

[28]     Emma Platoff, Texas Supreme Court Strikes Down Laredo’s Plastic Bag Ban, Likely Ending Others, Tex. Trib. (June 22, 2018, 10:00 AM), https://www.texastribune.org/2018/06/22/texas-supreme-court-rules-bag-bans/ (citing City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 598 (Tex. 2018)).

[29]     City of Laredo, 550 S.W.3d at 589 (citing Tex. Health & Safety Code § 361.0961(a)); Tex. Health & Safety Code § 361.0961. In 2014, the Texas Attorney General’s office issued a non-binding opinion that argued that bag bans are legal so long as they are not adopted for solid waste management. Platoff, supra note 28.

[30]     Tex. Health & Safety Code § 361.0961(a); City of Laredo, 550 S.W.3d at 589.

[31]     Jason Mack, City Council Revisits Plastic Bag Ordinance, Laredo Morning Times (Nov. 8, 2022), https://www.lmtonline.com/news/article/City-Council-revisits-plastic-bag-ordinance-17568740.php. In response to the Texas Supreme Court ruling, the city of Brownsville repealed its initial bag ordinance and adopted another one that had language specifying it does not pertain to any bag, container, or package that is used for solid waste management purposes. Brownsville has not received any challenges to this new ordinance in the four years since, and Laredo is considering a similarly adjusted bag ordinance. Id.; see also Platoff, supra note 28.

[32]     See Peggy Otum et al., Focus on Plastics Intensifies in California with New Legislation, WilmerHale (July 25, 2022), https://www.wilmerhale.com/en/insights/blogs/ESG-Epicenter/20220725-focus-on-plastics-intensifies-in-california-with-new-legislation.

[33]     Fact Sheet: Extended Producer Responsibility, Org. for Econ. Co-Operation and Development, https://www.oecd.org/env/waste/factsheetextendedproducerresponsibility.htm (last visited Aug. 3, 2023).

[34]     Otum et al., supra note 32 (explaining that Maine, Oregon, and Colorado passed similar EPR legislation in the past few years).

[35]     Id.

[36]     Id.

[37]     Hiroko Tabuchi, The World Is Awash in Plastic. Nations Plan a Treaty To Fix That., The N.Y. Times (Mar. 2, 2022), https://www.nytimes.com/2022/03/02/climate/global-plastics-recycling-treaty.html; Megan Quinn, UN Plastics Treaty Negotiations Show Initial Stances of Activists, Industry and Governments, WasteDive (Dec. 7, 2022), https://www.wastedive.com/news/un-plastics-treaty-reduction-wwf-ciel-gaia/638083/.

[38]     Quinn, supra note 37.

[39]     Id.

[40]     Id.; Joe Lo, Battle Lines Drawn in Talks on New Plastics Treaty, Climate Home News (Feb. 12, 2022), https://www.climatechangenews.com/2022/12/02/battle-lines-drawn-in-talks-on-new-plastics-treaty/.

[41]     Manuela Andreoni, The Plastic Problem, The N.Y. Times (Jan. 6, 2023), https://www.nytimes.com/ 2023/01/06/climate/plastics-climate-pollution.html; see End Plastic Pollution by 2040, High Ambition Coal. to End Plastic Pollution, https://hactoendplasticpollution.org/ (last visited Aug. 3, 2023).

[42]     Lo, supra note 40.

[43]     Andreoni, supra note 41.

[44]     Lo, supra note 40.

 

Vol. 53-2 Federal Casenote

Federal Casenote

West Virginia—Emissions Controls and the Major Questions Doctrine

In West Virginia v. EPA, the United States Supreme Court struck down the Environmental Protection Agency’s (EPA) “Clean Power Plan” (CPP) regulations using the “major questions doctrine.”[1] This decision will significantly impact environmental and executive-power law in the coming years.

The Clean Power Plan and the Affordable Clean Energy Rule

Normal The CPP was promulgated in 2015 by the Obama-era EPA with the goal of reducing greenhouse gases.[2] However, the CPP was never implemented because of court challenges and changing administrations.[3] EPA’s claimed authority for the CPP was § 111(d) of the Clean Air Act (CAA), which regulates emissions from existing pollution sources.[4] The Court asserted that EPA had only promulgated regulations under 111(d) “a handful of times since the enactment of the [CAA] in 1970.”[5] The CPP would have power plant owners limit greenhouse gas emissions from existing plants using three possible “best systems of emissions reductions” (BSERs): (1) “‘heat rate improvements’ at coal-fired plants—essentially practices such plants could undertake to burn coal more cleanly”; (2) “generation shifting” from coal-fired generation to lower-emitting sources like natural gas; or (3) “generation shifting” from natural gas and coal to renewables, including through a cap-and-trade system where utilities could buy greenhouse gas allowances.[6] Unlike traditional BSERs—which require that producers change production technology on a plant-by-plant basis—generation-shifting BSERs require that producers change the fuel source itself or make utility-wide emissions reductions.[7]

Various parties immediately challenged the CPP, seeking a stay in the U.S. Court of Appeals for the D.C. Circuit.[8] The D.C. Circuit denied the petitioners’ request for a stay pending resolution of the case, but the Supreme Court granted the stay.[9] The D.C. Circuit later agreed to hold the matter in abeyance while the new Trump administration worked on a replacement for the CPP.[10]

The Trump Administration in 2019 then replaced the CPP and enacted the “Affordable Clean Energy” (ACE) Rule.[11] The Trump EPA justified its replacement of the CPP by asserting that the Obama Administration had lacked a “clear statement” of authority from Congress to implement generation shifting.[12] The EPA further explained that the CPP implicated the major questions doctrine, under which courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”[13] The ACE Rule accordingly removed generation-shifting expectations for operational and technological BSERs.[14]

Numerous parties then challenged the ACE Rule in the D.C. Circuit, while other parties, the state of West Virginia among them, intervened to defend it.[15] The D.C. Circuit ruled in favor of the ACE Rule challengers in January 2021, holding that § 111(d) “could reasonably be read to encompass generation shifting[,]” and that the EPA had misinterpreted its authority under the CAA.[16] The petitioners appealed this decision to the U.S. Supreme Court, and the Court granted certiorari.

Majority Opinion

Chief Justice Roberts, writing for a majority that included Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, reversed the D.C. Circuit’s opinion and ruled in favor of West Virginia and the other petitioners.[17] The majority addressed the issues of standing, the merits of the claims, and the major questions doctrine.

The Court first held that states such as West Virginia had Article III standing to sue. The Court concluded that the D.C. Circuit’s repeal of the ACE Rule purportedly brought the CPP “back into legal effect,” and the state was an object of the CPP’s “requirement that they more stringently regulate power plant emissions within their borders.”[18] Thus, they had a redressable injury caused by the EPA.

The Biden Administration contended that the Court lacked jurisdiction because no case or controversy existed.[19] Roberts rejected the claim that the case was moot because EPA did not intend to enforce the ACE Rule.[20] Roberts invoked the principle that “voluntary cessation does not moot a case unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”[21] The Biden Administration’s vigorous defense of the legality of generation shifting inferred a reasonable expectation that the behavior would recur, and thus, the Court concluded, the case was not moot.[22]

The majority then turned to the merits of the challengers’ claims. The Court agreed that EPA had overstepped its authority in adopting the CPP.[23] The majority questioned “whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the BSER within the meaning of Section 111.”[24] Roberts concluded that, in pursuing generation-shifting methods of emissions reductions, the EPA had “‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority.’”[25] The majority took issue with EPA’s interpretation of § 111(a)(1)’s “best system of emission reduction [. . .] adequately demonstrated”[26] and rejected the notion that it was a clear authorization by Congress to the EPA to make systemic changes to power generation.[27]

The Court thus reversed and remanded the D.C. Circuit’s opinion, explicitly relying on the major questions doctrine.[28] The Court relied on a number of recent Supreme Court cases, including the 2021 Alabama Association of Realtors decision prohibiting the Centers for Disease Control and Prevention from ordering a nationwide eviction moratorium during the COVID-19 crisis, as well as the 2014 Utility Air decision that had also limited the EPA’s authority under the CAA.[29] The Court held in Utility Air that EPA could not regulate greenhouse gases as “air pollutants” under permitting provisions of the CAA; doing so could have allowed the agency to regulate millions of small sources that had not previously been regulated under the provisions at issue.[30] While the EPA’s interpretation of the CAA “had a colorable textual basis,” the Court refused to give the EPA “‘unheralded’ authority over ‘a significant portion of the economy.’”[31] The majority summed up its analysis by noting that—however sensible generation shifting might be—the power to mandate it must come from Congress itself or an agency with a “clear delegation” from Congress.[32]

Dissent

Justice Kagan, joined by Justices Breyer and Sotomayor, authored a lengthy dissent challenging the majority’s use of the major questions doctrine and the extent to which Congress granted clear authority to the EPA to prescribe systems of emissions reductions like generation-shifting.[33] Kagan argued that the CAA intentionally granted broad—not vague—powers to the EPA in § 111 so that the agency could meet new or complex challenges over the years.[34] The dissent framed the majority’s use of the major questions doctrine as unprecedented because the decisions referenced were instances in which “the agency had strayed out of its lane, to an area where it had neither expertise nor experience.”[35] In the dissent’s view, the CPP was plainly within EPA’s delegated authority.[36]

Lastly, Kagan invoked a long-standing tradition of delegation by Congress to agencies with the institutional knowledge and expertise to regulate issues about which Congress has comparatively little.[37] To Kagan, the major questions doctrine substituted the will of Congress and the expertise of agencies for the limited subject-matter expertise of the judiciary to ostensibly maintain the balance of power between the legislative and executive branches.[38] In effect, this use of the major questions doctrine aggrandized the power of the judiciary without providing the functional benefit that arises out of a delegation from the legislative branch to the executive.

Impact of the Decision

Since West Virginia, commentary has primarily focused on the (grim) future of emissions reductions through administrative action. However, the Court’s invocation of the major questions doctrine may be the most lasting takeaway.

Both Supreme Court precedent[39] and the Inflation Reduction Act of 2022[40] recognize the EPA’s authority to regulate greenhouse gases under the CAA—but neither authorizes the “generation shifting” proposed as part of the CPP. As Justice Kagan noted, reducing the nation’s fossil fuel consumption through generation shifting is “a necessary part of any effective approach for addressing climate change.”[41] Without a clear direction from Congress on generation shifting, the EPA may be forced to mandate less-effective measures of greenhouse gas control, such as efficiency improvements for existing technology. This constraint could make it more difficult for the Biden Administration to achieve its goal of reducing greenhouse gas emissions from a 2005 baseline by 50% by 2030.[42]

The West Virginia holding, however, is not limited to the EPA’s regulation of greenhouse gases. The major questions doctrine will have broad implications for new regulations across various industries. For example, litigants and commentators are citing West Virginia to challenge or question the Securities and Exchange Commission’s authority to require climate disclosures,[43] the Nuclear Regulatory Commission’s ability to license the storage of nuclear waste,[44] and the Department of Energy’s right to forgive student loans.[45] It is not yet clear exactly how these cases will be decided. The courts must develop a coherent analytical framework for construing the “power claimed” in an administrative rule. Right now, West Virginia is an invitation for lower courts to test the boundaries of administrative law. Going forward, advocates should be wary of broad pronouncements of the effects of a given rule or practice. Until the Court has an opportunity to revisit West Virginia, a vigorous examination of this new rule will occur at all levels of the court system.

 

Amy Rodriguez is an attorney at Montage Legal. She primarily handles civil litigation and her previous work centered on advancing environmental goals through negotiation and administrative hearings. She is a 2017 graduate of the University of Texas School of Law.

Evan Morsch is a 3L from Chicago, Illinois. He will be working as commercial litigator after graduation. He has long had an interest in environmental law and policy, and he hopes that his practice will involve some environmental litigation.

 

[1]      West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).

[2]      Id. at 2592.

[3]      Id. at 2593 (citing 42 U.S.C. § 7411 (1990)).

[4]      Id. at 2592.

[5]      Id. at 2602.

[6]      Id. at 2603 (quoting Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Unites, 80 Fed. Reg. 64,662, 64,667 (Oct. 23, 2015)).

[7]      West Virginia, 142 S. Ct. at 2602–04.

[8]      Id. at 2604.

[9]      Id.

[10]     Id.

[11]     Id. at 2605.

[12]     Id.

[13]     West Virginia, 142 S. Ct. at 2605 (quoting Util. Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S. 302, 324 (2014)).

[14]     Id. at 2605.

[15]     Id.

[16]     Id.

[17]     Id. at 2596, 2616.

[18]     Id. at 2606 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

[19]     West Virginia, 142 S. Ct. at 2605.

[20]     Id. at 2607.

[21]     Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007).

[22]     West Virginia, 142 S. Ct. at 2607.

[23]     Id. at 2616.

[24]     Id. at 2607.

[25]     Id. at 2610.

[26]     42 U. S. C. § 7411(a)(1) (1990).

[27]     West Virginia, 142 S. Ct. at 2609.

[28]     Id. at 2610.

[29]     Ala. Ass’n of Realtors v. Dep’t of Health and Hum. Servs., 141 S. Ct. 2485 (2021); Util. Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S. 302 (2014).

[30]     Util. Air Regul. Grp., 573 U.S. at 310.

[31]     West Virginia, 142 S. Ct. at 2608 (quoting Util. Air Regul. Grp., 573 U.S. at 324).

[32]     Id. at 2616.

[33]     Id. at 2626 (Kagan, J., dissenting).

[34]     Id. at 2630 (Kagan, J., dissenting).

[35]     Id. at 2633 (Kagan, J., dissenting).

[36]     Id. at 2630 (Kagan, J., dissenting).

[37]     West Virginia, 142 S. Ct. at 2636–44 (Kagan, J., dissenting).

[38]     Id. at 2636 (Kagan, J., dissenting).

[39]     Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 505 (2007).

[40]     The Inflation Reduction Act Includes Historic Modernization of the Clean Air Act for the American People, Env’t Def. Fund (Aug. 15, 2022), https://blogs.edf.org/climate411/files/2022/08/IRA-Includes-Historic-Modernization-of-Clean-Air-Act-EDF-white-paper-.pdf.

[41]     West Virginia, 142 S. Ct. at 2627 (Kagan, J., dissenting).

[42]     Press Release, The White House, FACT SHEET: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/.

[43]     Taryn Tucker et. al, West Virginia v. EPA Casts a Shadow over SEC’s Proposed Climate-Related Disclosure Rule, Harv. L. Sch. F. on Corp. Governance (Aug. 3, 2022), https://corpgov.law.harvard.edu/2022/08/03/west-virginia-v-epa-casts-a-shadow-over-secs-proposed-climate-related-disclosure-rule/.

[44]     Niina Farah, Supreme Court Ruling Shakes Up 5th Circuit Nuclear Case, E&E News: ENERGYWIRE (July 8, 2022, 6:54 AM), https://www.eenews.net/articles/supreme-court-ruling-shakes-up-5th-circuit-nuclear-case/.

[45]     Amy Howe, In a Pair of Challenges to Student-Debt Relief, Big Questions About Agency Authority and the Right to Sue, SCOTUSblog (Feb. 13, 2022, 6:50 PM), https://www.scotusblog.com/2023/02/in-a-pair-of-challenges-to-student-debt-relief-big-questions-about-agency-authority-and-the-right-to-sue/.

Vol. 53-2 Recent Publication

Recent Publication

Robert “Bo” Abrams & Alexis Clark, Weather Modification Past and Prologue, 37 Nat. Res. & Env’t 21 (2022)

Who owns the clouds? Although the United States began experimenting with weather modification techniques to enhance precipitation as early as the 1940s,[1] the topic has received limited attention from regulatory bodies.[2] “Weather modification” is “the deliberate and mindful effort” to control the weather for societal purposes.[3] For example, the U.S. uses weather modification techniques to “enhance precipitation, protect crops from hail damage, clear fog at airports, . . . reduce air pollution[,]” and even potentially alter the trajectory of major hurricanes.[4]

As climate change continues to strain water supplies and increase the severity of drought and fire seasons,[5] precipitation enhancement may prove to be a vital part of water management and habitat rehabilitation.[6] In the recent article, Weather Modification Past and Prologue, Robert “Bo” Abrams and Alexis Clark analyze the history of weather modification in the U.S. and summarize scientific and legal barriers to the widespread use of this tool to combat climate change.[7] Abrams and Clark ultimately call for federal support of weather modification activities, particularly a precipitation enhancement technique called “cloud seeding.”[8]

The Science Behind Cloud Seeding & Historic Use of Precipitation Enhancement

“Cloud seeding” is a technique used to “promot[e] the condensation of water vapor in clouds around a nucleating agent—or seed—into either ice crystals” or water droplets, “which then become heavy enough to fall to the ground as precipitation.”[9] The most common “seed” is silver iodine, which is released into clouds using drones, special aircraft, or ground generators.[10] This method of weather modification was discovered in the 1940s by researchers for General Electric and the Office of Naval Research while attempting to deice aircraft wings.[11]

Water-stressed states—including Texas—have used cloud seeding since the 1950s.[12] Atmospheric modeling was then in its infancy, which limited scientists’ ability to prove the technique’s effectiveness.[13] This resulted in a “lack of a coordinated national effort to link understanding of atmospheric science to the processes behind weather modification.”[14] Abrams and Clark admitted that—even today—the scientific community is divided in its support for cloud-seeding technology, with some questioning its efficacy.[15] One major concern is that drought conditions can be so severe that “no amount of seeding can force water from the sky.”[16]

Still, some seeding programs have shown potential.[17] For example, studies show that existing seeding programs in the Colorado River Basin could be expanded to produce a 10–15% increase in snowpack.[18] For context, this would generate an additional 1 million acre-feet of water per year, or “enough water to supply between 1 and 3.5 million households each year.”[19] Cloud seeding is also more cost-effective than other methods of developing water.[20] For example, at $5–$30 per acre-foot, seeding is up to 100 times cheaper than desalination, which can cost as much as $3,000 per acre-foot.[21] Given its cost-efficiency and potential for success, Abrams and Clark argue that “[t]he addition of a cloud-seeding program to a water management portfolio seems like a no-brainer.”[22]

Early Legal Framework

Although federal agencies have been assigned to research and evaluate weather modification activities since the 1950s, the federal government’s approach has been relatively hands-off.[23] It was not until several decades later that Congress pursued “concrete federal action on weather modification” through the Weather Modification Policy Act of 1976 (WMPA).[24] The WMPA mandated that the Secretary of Commerce create a national policy on weather modification and assess the “economic, social, environmental, and legal impact . . . of a national program for managing weather modification.”[25] The WMPA also sought to: (1) “develop model codes and agreements to ensure peaceful regulation of domestic and international weather modification activities”; (2) “set minimum reporting standards for weather modifiers”; (3) provide additional funding for research and development; and (4) “creat[e] a congressionally appointed advisory board to provide further recommendations.”[26]

In 1978, the advisory board recommended that the federal government strengthen regulation of weather modification activities beyond mandatory requirements under the National Environmental Policy Act and dedicate funding to assess the long-term effects of weather modification.[27] The board recommended mandatory reporting and evaluation of silver iodide concentrations over time, changes in streamflow, migration of ecosystems due to changed annual precipitation patterns, changes in water quality, and invasive species.[28] Finally, the report encouraged Congress to immediately promulgate a federal licensing program, operating standards for weather modifiers, and an “express affirmation of liability for weather modifications under the Federal Tort Claims Act.”[29]

Current Legal Status of Weather Modification & Use of Cloud Seeding

Unfortunately, the federal government has not passed new legislation on weather modification since the 1970s, and the WMPA has largely laid dormant.[30] Abrams and Clark theorize that “the overselling of the potential impact and scope of weather modification in the 1950s and 1960s undercut interest in continued federal funding for research and development.”[31] They also note that the “militarization” of weather by the U.S. during the Vietnam War negatively affected public perception of weather modification and stagnated research and policy.[32]

Even so, a handful of states and private parties have consistently funded small-scale precipitation enhancement projects.[33] While eighteen states have current weather modification laws, half of these states only allow weather modification activities during emergencies or in a limited capacity.[34] All state laws on weather modification include mandatory reporting requirements, and most also include licensing, permitting, and public notice requirements.[35] The “teeth” behind weather modification laws vary from state to state, resulting in “an inconsistent patchwork of regulations for activities that have potential transboundary effects.”[36]

Abrams and Clark note that cloud-seeding activities also trigger lawsuits over liability damages and water rights—essentially litigating who owns the clouds.[37] Plaintiffs seeking injunctions against weather modifiers typically do not prevail in court, either because damages would adequately compensate them for any injuries, or “[t]he current lack of replicable and predictable scientific results for activities leaves the plaintiff without an essential element to their cause of action,” especially in states where strict liability claims are prohibited.[38]

In seven states, water from cloud-seeding activities is treated like natural precipitation allocated by the state’s prior appropriation laws.[39] Only four cases have addressed who owns the clouds.[40] The New York Supreme Court held that country club owners could not enjoin nearby weather modification activities that had the potential to flood the country club.[41] The country club owners’ claim had no factual basis to prove an injury, and there was no evidence that the potential injury would outweigh the possible public benefits of weather modification.[42] However, in Texas, ranchers successfully obtained an injunction against a weather modification organization’s performance of hail suppression activities, which affected the plaintiff’s land.[43] In another Texas case, the Texas Court of Civil Appeals affirmed that a landowner was entitled to protection from the impact of hail suppression activities.[44] A Pennsylvania district court similarly held that precipitation is “common property held by all,” but the right to precipitation that falls on your land is “not unqualified” and “can be regulated by the state.”[45]

The Future of Weather Modification

Abrams and Clark ultimately conclude that weather modification activities such as cloud seeding are a “vital part of the toolbox for navigating climate change and avoiding past mistakes.”[46] Echoing the recommendation of the advisory board in the late 1970s, Abrams and Clark call for a more hands-on approach from the federal government, including: “(1) recordkeeping requirements, reporting, and public transparency; (2) establishment of federal minima, such as environmental assessment and adoption of industry standards; and (3) adequate funding for research and development.”[47]

This article provides a helpful analysis of the potential of weather modification to combat the effects of climate change. In light of southwest Texas’ worst drought in at least 1,200 years,[48] the topic is particularly timely. Although the article doesn’t suggest a particular blueprint for a new regulatory framework, it re-sparks the conversation over who owns the clouds.

 

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Lauren Alexander is a 3L from Emory, Texas. Lauren joined TELJ during her 2L year and currently serves on the TELJ Board as an Article and Notes Editor. Lauren is excited to start a post-graduate position at Perales, Allmon & Ice, PC in Austin, where she will represent landowners, nonprofits, and other protestants in environmental matters.

 

[1]      Robert “Bo” Abrams & Alexis Clark, Weather Modification Past and Prologue, 37 Nat. Res. & Env’t. 21, 21 (2022).

[2]      Id. at 24–25.

[3]      Weather Modification Advisory Bd., Dep’t of Com., The Management of Weather Resources Volume I: Proposals for a National Policy and Program 17 (1978).

[4]      Abrams & Clark, supra note 1, at 21, 23.

[5]      Id. at 24–25. “Ongoing drought conditions in the western U.S. make the beginning of this century the worst period since 800 C.E., with at least 19% of this period attributable to anthropogenically induced climate change from 2000-2021, turning what is already a severe drought into a megadrought predicted to continue for several more years.” Id. at 23.

[6]      See generally Abrams & Clark, supra note 1.

[7]      See id. at 23.

[8]      Id.

[9]      Id. at 21.

[10]     Id.

[11]     Id.

[12]     Abrams & Clark, supra note 1, at 22.

[13]     Id. at 23.

[14]     Id. at 21.

[15]     Id.

[16]     Id. at 22.

[17]     See id. at 23.

[18]     Abrams & Clark, supra note 1, at 22.

[19]     Id.

[20]     Id. at 22–23.

[21]     Id. at 23.

[22]     Id.

[23]     Id. at 21.

[24]     Abrams & Clark, supra note 1, at 22.; Weather Modification Policy Act of 1976, Pub. L. No. 94-490.

[25]     Abrams & Clark, supra note 1, at 22; Weather Modification Policy Act § 2(b)(5).

[26]     Abrams & Clark, supra note 1, at 22.

[27]     Id. (citing Thomas F. Malone & Harlan Cleveland, The Management of Weather Resources—Proposals for a National Policy and Program, 59 Bull. Am. Meteorological Soc’y 1266, 1271 (1978)).

[28]     Id.

[29]     Id. (citing Malone & Cleveland, supra note 27, at 1271–72).

[30]     Id. at 23.

[31]     Id.

[32]     Abrams & Clark, supra note 1, at 23.

[33]     Id.

[34]     Id. at 23–24.

[35]     Id.

[36]     Id.

[37]     Id. at 24.

[38]     Abrams & Clark, supra note 1, at 24.

[39]     Id. at 25.

[40]     Id. at 24–25.

[41]     Id. at 25 (citing Slutsky v. New York, 197 Misc. 730 (N.Y. Sup. Ct. 1950)).

[42]     Id.

[43]     Id. (citing Sw. Weather Rsch., Inc. v. Jones, 160 Tex. 104 (1959)).

[44]     Abrams & Clark, supra note 1, at 25 (citing Sw. Weather Rsch., Inc. v. Duncan, 319 S.W.2d 940 (Tex. Civ. App. 1958)).

[45]     Id. (citing Pa. Nat. Weather Ass’n v. Blue Ridge Weather Modification Ass’n, 44 Pa. D. & C.2d 749, 759–60 (C.P. Fulton County, Pa. 1968)).

[46]     Id.

[47]     Id.

[48]     Megadrought In Parts Of Texas, American West Worsens To Driest In 1,200 Years, CBS DFW (Feb. 15, 2022, 5:41 AM), https://www.cbsnews.com/dfw/news/megadrought-texas-american-west-driest-1200-years/.

Vol. 53-2 Water Quality

Water Quality

Plans for Seawater Desalination Plants Take a Salty Turn

Near the end of 2022, Texas was poised to move forward with plans for the first seawater desalination plant in the state. The Texas Commission on Environmental Quality (TCEQ) issued an environmental permit to the Port of Corpus Christi to build its plant on Harbor Island—a culmination of what the Texas Tribune called “years of business strategy, political maneuvering and lawyering effort” from the Port.[1]

But the Port—and others interested in building future marine desalination plants in Texas—may not be so lucky. The Environmental Protection Agency (EPA) can refuse to recognize a permit if it does not comply with the Clean Water Act,[2] and the agency expressed concerns that this permit as it stands may be insufficient to protect both water quality and aquatic life.[3] In a September 2022 letter to the TCEQ, the EPA wrote that there are outstanding concerns that could halt development of the plants.[4] This legal battle highlights the debate over whether Texas can build marine desalination plants in time to alleviate the state’s strain on current water supplies.

Desalination in Texas

Texas’ desalination efforts spread far and wide. Currently, Texas has 53 municipal desalination facilities, which provide a combined desalination capacity of 157 million gallons per day.[5] Two major desalination plants—the Kay Bailey Hutchinson plant in El Paso and the Southmost Regional Water Authority Desalination plant in south Texas—produce a combined 35 million gallons of fresh water per day.[6]

All of Texas’ current municipal desalination plants use brackish surface water or groundwater as their sources.[7] By 2070, the Texas Water Development Board recommends incorporating seawater into desalination practices to help meet demand: The Board suggests generating 192,000 acre-feet of water from brackish groundwater; 63,000 from brackish surface water; and 157,000 from seawater.[8] Combined, these outputs would represent 5.3% of new water supplies.[9]

Though current desalination all involves brackish water, there are five proposed marine desalination plants in Corpus Christi alone.[10] Two proposed plants are from the city of Corpus Christi, two are from the Port, and one is from Corpus Christi Polymers, which has taken over the partially completed industrial seawater desalination plant begun by M&G Resins USA, LLC before it filed for bankruptcy.[11]

Marine Desalination—And Its Potential Problems

Developers must solve several problems before marine desalination can become a viable source of fresh water for industry or drinking purposes. First, it is much more expensive to produce desalinated marine water than desalinated brackish groundwater. According to the Texas Water Development Board, producing desalinated water from brackish groundwater costs $357–$782 per acre-foot.[12] On the other hand, producing desalinated water from the sea may cost twice as much, at $800–$1,400 per acre-foot.[13]

Second, marine desalination produces toxic brine, which may contaminate nearby bodies of water.[14] In Corpus Christi, scientists worry that large quantities of brine dumped into the bay could harm aquatic species’ reproductive cycles, which rely on less-salty waters for larvae to mature.[15] More generally, scientists have also expressed concern that brine discharge combined with shipping pollution and ocean freighter traffic may constitute “a near-fatal blow for life in the bay.”[16] Developers’ studies, however, have modeled that brine discharge in Harbor Island will not lead to a “continual” increase in ambient salinity and that discharge will not create a “high-saline layer of water along the channel bottom.”[17] Other experts disagree. One argues that the brine should be pumped into the open Gulf instead of the shallow bay—a concept supported by scientists but deemed too expensive by developers.[18] But the issue also has a potential solution: a growing body of science that shows this brine can be transformed into useful chemicals, metal recovery, and commercial salt.[19]

Third, like many environmental technologies, desalination can exacerbate existing inequalities.[20] As explained below, the EPA has raised concerns that current desalination proposals can disproportionately impact underserved communities, often because plants and their potential problems are located near those communities.[21] The use of desalination plants also implicates more radical discussions of the human right to water and who should have access to water and for what reasons.[22] Experts in California are already grappling with these questions—and have no easy answer.[23]

EPA’s Concerns

EPA’s concerns about Texas desalination are not new—in 2021, the agency revoked the state’s authority to independently review desalination wastewater permits without the agency’s input.[24] The bulk of the EPA’s current concerns, outlined in its September 2022 letter, stemmed from its inability to review the permit issued by the TCEQ. The EPA disagreed with the TCEQ’s determination that the desalination permit is “minor,” thus not requiring EPA approval; instead, the EPA noted, the permit is “major,” and its issuance could be denied by the EPA if it does not have a chance to review the permit.[25] TCEQ had notice since 2021 that the EPA disagreed with the agency’s classification of this permit as “minor,” and that since the facility seeks to discharge process wastewater, it should be classified as a major facility.[26] “Process wastewater” is any water that “comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.”[27]

The EPA’s procedural concerns are accompanied by substantive concerns. For example, in 2021, the EPA requested information about the reporting and monitoring requirements for sulfates, chlorides, and total dissolved solids.[28] While the EPA acknowledged that the facility in question is unconstructed, and thus had no actual measurements, it reiterated that best professional judgment could be used to determine appropriate limits.[29]

Second, the EPA struggled to see how the permit’s revision to include a Whole Effluent Toxicity testing requirement by itself would protect water quality. Whole Effluent Toxicity testing helps permit holders measure and stay within the limits for the aggregate toxic effect of an aquatic sample, and helps replicate aquatic species’ environmental exposure to toxic pollutants without identifying specific pollutants.[30] “Whole Effluent Toxicity testing,” the agency wrote, “is not intended to take the place of other biological assessments that may be appropriate for the assessment of water quality in this receiving water body.”[31] Instead, the EPA acknowledged the possible need for a water-quality-based effluent limitation, which is reserved for situations where normal measures do not meet water quality standards.[32]

Third, Section 316(b) of the Clean Water Act establishes requirements and conditions for cooling water intake structures. While the TCEQ concluded that the facility does not intend to use water for cooling purposes, the EPA wanted to address any current and/or future use of water withdrawals from the intake structure.[33]

Finally, the EPA addressed community concerns, namely that the proposed facility could disproportionately impact underserved portions of the community.[34] In October 2022, residents filed a civil rights complaint to stop the city’s seawater desalination plant, which is planned in the predominantly Black Hillcrest neighborhood—an area historically disproportionately impacted by industrial plants and projects.[35] At a public hearing for the Corpus Christi Polymers desalination plant in February 2023, more than thirty people voiced their opinions on marine desalination in Corpus Christi; according to a news report, the meeting room was almost entirely full.[36] The TCEQ is considering renewing the permit for this proposed plant because it had issued permits to M&G Resins, who originally planned to build the plant, prior to the company’s bankruptcy.[37] At the hearing—focusing on the proposed desalination plant—residents brought up everything from plastics pollution in the water to further deterioration of the bay for recreational use.[38]

Fixing Problems

The TCEQ in early 2023 said that it had largely resolved its issues with the EPA over the polymer plant’s permit.[39] TCEQ noted that it had changed the facility’s measures to protect fish from entering the discharge system and increased monitoring for sulfates, chlorides, and dissolved solids.[40] Discussions with the EPA continue as issues around the salinity limit remain unresolved.[41] But the TCEQ’s moves are not enough—the EPA is now informally investigating the state agency.[42] Advocates argue that the state’s permits allow industries to contaminate water, and that the state’s waters are so polluted they are considered impaired under the Clean Water Act.[43] Should the EPA find merit in these allegations, it can launch a formal investigation and could ultimately revoke TCEQ’s authority to regulate water quality.[44]

Race Against the Clock

Despite these regulatory battles, Corpus Christi faces a problem all too familiar to many cities across the south and southwest: The city needs water. According to the Texas Tribune, the city is on pace to run out of water by the end of the decade, if new water sources are not established.[45] And, as time runs out to either adapt demand or increase supply, desalination plants, potentially costing cost almost one billion dollars to construct, increasingly appear to be a promising option.[46]

Stakeholder opinions on marine desalination also complicate the situation. Environmentalists want to stymie desalination to prevent the growth of industry in the city.[47] Scientists are concerned that the brine issue has not been properly addressed.[48] City leaders want to begin construction on the plants they’ve promised their residents.[49] And developers want to capitalize on the city’s, and state’s, growing need for water.[50] The agencies’ showdown will help determine which stakeholders get what they want, and which are left in the salt.

 

Alisha Adams is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

 

Emma Edmund is a 2L from Tampa, Florida. She attended Northwestern University and joined TELJ her 1L fall. Emma has long been interested in environmental law, especially water quality and ownership issues. In addition to TELJ, she also worked at UT’s environmental law clinic.

 

[1]      Erin Douglas, EPA May Try to Block What Could Be the First Seawater Desalination Plant Built in Texas, Tex. Trib. (Sept. 22, 2022, 2:00 PM), https://www.texastribune.org/2022/09/22/texas-desalination-plant-corpus-christi-tceq-epa/.

[2]      Id.; 33 U.S.C. § 1344(c) (1987).

[3]      Douglas, supra note 1.

[4]      Letter from Earthea Nance, Reg’l Adm’r, Region 6, Env’t Prot. Agency, to Jon Niermann, Chairman, Off. of Comm’rs, Tex. Comm’n on Env’t Quality (Sept. 2, 2022), https:// static.texastribune.org/media/files/7798efedf9a001d1b6054bb2abeda86c/9_2_22-EPA-Letter.pdf?_ga=2.189492331.1127814289.1677717792-137252328.1667314026.

[5]      Desalination Facts, Tex. Water Dev. Bd., https://www.twdb.texas.gov/innovativewater/desal/ facts.asp (last visited Aug. 2, 2023).

[6]      Desal FAQs: Common Questions About Water Desalination, Tex. Desalination Ass’n, https://www. texasdesal.com/desal-faqs/#:~:text=Most%20are%20small%20or%20intermittent,a%20day%20for% 20south%20Texas (last visited Aug. 2, 2023).

[7]      Desalination Facts, supra note 5.

[8]      Id.

[9]      Id.

[10]     Douglas, supra note 1.

[11]     Id.; Desalination Facts, supra note 5; see also Press Release, Corpus Christi Polymers, (July 18, 2022) https://www.ccpolymersllc.com/about/corpus-christi-polymers-press-release-2022/ (noting that the company plans to use marine desalination for industrial, not drinking water, purposes).

[12]     Desalination Facts, supra note 5.

[13]     Id.

[14]     Towards Sustainable Desalination, U.N. Env’t Programme (May 2, 2019), https://www.unep.org/ news-and-stories/story/towards-sustainable-desalination#:~:text=Brine%20production%20and%20high %2Denergy,associated%20with%20negative%20environmental%20impacts.

[15]     See, e.g., Dylan Baddour, Corpus Christi Sold Its Water to Exxon, Gambling on Desalination. So Far, It Is Losing the Bet., Tex. Trib. (Nov. 4, 2022, 5:00 AM), https://www.texastribune.org/2022/11/ 04/texas-corpus-christi-water-desalination/.

[16]     Id.

[17]     Letter from Jordan Furnans, LREWater, LLC, to Sarah L. Garza, Dir. of Env’t Plan. and Compliance, Port of Corpus Christi (Oct. 21, 2019) https://portofcc.com/wp-content/uploads/DesalinationBrine DischargeModelingReport_10212019_Final.pdf.

[18]     Baddour, supra note 15.

[19]     See id.; David L. Chandler, Turing Desalination Waste into a Useful Resource, MIT News (Feb. 13, 2019), https://news.mit.edu/2019/brine-desalianation-waste-sodium-hydroxide-0213.

[20]     See Brian F. O’Neill, Desalination As a New Frontier of Environmental Justice Struggle: A Dialogue with Oscar Rodriguez and Andrea León-Grossman, 34 Capitalism Nature Socialism 107 (2023).

[21]     Letter from Earthea Nance, supra note 4.

[22]     O’Neill, supra note 20, at 118–120.

[23]     Id.

[24]     Letter from Charles Maguire, Dir., Water Div., Env’t Prot. Agency, to Earl Lott, Dir., Off. of Water, Tex. Comm’n on Env’t Quality (Sept. 20, 2021), https://static.texastribune. org/media/files/aabea6460e4a6f171cdcdf5af0fc4ad7/epacorrespondancetceq2021.pdf?_ga=2.221275608.1127814289.1677717792-137252328.1667314026.

[25]     Letter from Earthea Nance, supra note 4.

[26]     Id. (noting that going forward, the EPA believes all desalination facilities should be classified as major facilities, given that they discharge process wastewater).

[27]     40 C.F.R. § 122.2 (2023).

[28]     Letter from Earthea Nance, supra note 4.

[29]     Id.

[30]     Permit Limits – Whole Effluent Toxicity (WET), Env’t Prot. Agency, https://www.epa.gov/npdes/ permit-limits-whole-effluent-toxicity-wet (last updated Oct. 3, 2022).

[31]     Letter from Earthea Nance, supra note 4.

[32]     Permit Limits – TBELS and WQBELs, Env’t Prot. Agency, https://www.epa.gov/npdes/permit-limits-tbels-and-wqbels (last updated Oct. 3, 2022).

[33]     Letter from Earthea Nance, supra note 4.

[34]     Id.

[35]     Dylan Baddour, Black Residents in Corpus Christi File a Civil Rights Complaint to Stop Texas’ First Desalination Plant, Tex. Trib. (Oct. 29, 2022, 12:00 PM), https://www.texastribune.org/2022/10/ 29/texas-corpus-christi-hillcrest-desalination-plant/.

[36]     Chase Rogers, Public Raises Concerns on Corpus Christi Plastic Plant’s Marine Desalination Plans, Caller Times (Feb. 24, 2023, 11:33 AM), https://www.caller.com/story/news/local/2023/02/ 24/public-raises-concerns-on-corpus-christi-plastic-plants-desalination-plans/69925201007/.

[37]     Id.

[38]     Id.

[39]     Id.

[40]     Id.

[41]     Id.

[42]     Alejandra Martinez, Environmental Advocates Push Feds to Investigate Texas’ Enforcement of Water Quality, Tex. Trib. (Feb. 1, 2023, 4:00 PM), https://www.texastribune.org/2023/02/01/tceq-investigation-epa-water-quality/.

[43]     Id.

[44]     Id.

[45]     Douglas, supra note 1.

[46]     Id.

[47]     Id.

[48]     Id.

[49]     Id.

[50]     Id.

Vol. 53-2 Water Rights

Water Rights

Pape Partners and Texas’ New Water Rights Jurisdiction

Pape Partners Overview

In May 2022, the Texas Supreme Court handed down an important jurisdictional clarification in Pape Partners v. DDR Family Properties, involving a dispute between two private parties over the ownership of surface water rights in McLennan County.[1] The court found that the Texas Commission on Environmental Quality (TCEQ or Commission) does not have jurisdiction over disputes involving conflicting claims to the ownership of surface water rights.[2] Rather, state district courts properly have jurisdiction over cases involving water rights ownership.[3]

In arriving at this holding, the court began with the fundamental constitutional rule that a “district court has subject-matter jurisdiction to resolve disputes unless the Legislature divests it of that jurisdiction.”[4] In particular, the court noted that “historically, ‘the power to determine controverted rights to property’ has been ‘vested in the judicial branch.’”[5] Conversely, the court followed the presumption that administrative agencies can only exercise jurisdictional powers that the legislature has conferred on them in “clear and express statutory language.”[6] Therefore, because DRR argued that TCEQ had exclusive jurisdiction over water rights adjudication, the court utilized a two-pronged test of statutory interpretation to determine whether TCEQ has exclusive jurisdiction: there must be either (1) “an express grant of exclusive original jurisdiction to the agency,” or (2) a “pervasive regulatory scheme” that indicates a legislative intent to grant the agency “the exclusive means of remedying the problem.”[7]

In applying this test, the court looked at the language of TCEQ’s enabling statute in chapter 5 of the Texas Water Code, first analyzing the plain text of the statute.[8] Section 5.013 of the enabling statute grants TCEQ jurisdiction over “water rights adjudication,” which is not defined or ever mentioned again after this section.[9] The court then looked to the Water Rights Adjudication Act, noting that the legislature used “water rights adjudication” as a term of art to describe the Commission’s process of issuing water rights permits.[10] The Commission’s process has some elements of judicial process—gathering facts and data, holding hearings in contested cases, making final determinations, and considering applications for rehearing.[11] However, the Commission “files with the [district] court its final determination and all the evidence presented” and the statute mandates that the court “determine all issues of law and fact independently of the commission’s determination.”[12]

Hence, the court found that nothing in the TCEQ enabling act or the Water Rights Adjudication Act grants exclusive jurisdiction to TCEQ.[13] Indeed, TCEQ itself argued in an amicus brief that “water rights adjudication” was a term of art relating to the “‘Commission’s issuances of certificates of adjudication’ that entail the [C]ommission’s ‘determining the amount of use, place of use, purpose of use, point of diversion, rate of diversion, and where appropriate, the acreage to be irrigated.’”[14] The notion of “water rights adjudication” was simply an “administrative record-keeping function.”[15]

Conclusion

The Supreme Court in Pape Partners found that TCEQ has no jurisdiction over surface water rights and confirmed that the Texas judiciary has such authority. Future surface water rights disputes will only be adjudicated through the state judiciary.

Emily Rogers is the Managing Partner of Bickerstaff Heath Delgado Acosta LLP and represents public and private clients in water rights, water quality, utility, and environmental law matters.

 

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.

 

Adam LaFleche is a 2L from Newton, Massachusetts. He attended George Washington University and joined TELJ in his spring semester of 1L. Adam is interested in environmental law and especially ESG and hopes to transition into sustainable energy financing after he graduates in 2024. 

 

[1]      Pape Partners, Ltd., v. DRR Fam. Props. LP, 645 S.W.3d 267, 269 (Tex. 2022).

[2]      Id. at 275.

[3]      Id. at 274.

[4]      Id. at 271 (quoting In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. 2021)).

[5]      Id. (quoting Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 635 (Tex. 1996)).

[6]      Id. at 272.

[7]      Pape Partners, Ltd., v. DRR Fam. Props. LP, 645 S.W.3d 267, 272 (Tex. 2022).

[8]      Id.

[9]      Id. at 273; Tex. Water Code Ann. § 5.013.

[10]     Pape Partners, 645 S.W.3d at 274; Tex. Water Code Ann. § 11.301.

[11]     Pape Partners, 645 S.W.3d at 274.

[12]     Id. (quoting Tex. Water Code Ann. §11.320(a)).

[13]     Id. at 275.

[14]     Id. (quoting Brief for Texas Commission on Environmental Quality as Amicus Curiae Supporting Petitioner at 1, Pape Partners, Ltd., v. DRR Fam. Props. LP, 645 S.W.3d 267, 272 (Tex. 2022)).

[15]     Id. (quoting Brief for Texas Commission on Environmental Quality as Amicus Curiae Supporting Petitioner at 1, Pape Partners, Ltd., v. DRR Fam. Props. LP, 645 S.W.3d 267, 272 (Tex. 2022)).

Vol. 53-1 Federal Update

Federal Update

Deep-Sea Mining and the Two-Year Rule

The seabed of the Pacific Ocean is one of the richest remaining sources of untapped raw minerals used to make batteries for electric vehicles, including cobalt, copper, and nickel.[1] The minerals are scattered 15,000 feet below sea level on the ocean floor in the form of polymetallic nodules, which are fist-sized rocks that have formed over millions of years.[2] The nodules are collected through deep-sea mining by using a vehicle that vacuums up the top four inches of sediment and separates out the nodules for harvesting.[3]

Although the collection technology needed for deep-sea mining is relatively new, the existence of mineral deposits on the seabed has been known for decades.[4] The first nodule was discovered in 1873 by a British naval ship, but it took another hundred years for developed nations to seriously begin exploring the seabed of the Pacific Ocean as a possible resource.[5] Those early explorations identified the Clarion-Clipperton Zone, which is a section of ocean located between Hawaii and Mexico that has an “especially large volume of nodules.”[6] The area is estimated to have “six times more cobalt and three times more nickel than all known land-based stores, as well as vast deposits of manganese and a substantial amount of copper.”[7]

The United Nations established the International Seabed Authority (ISA) on November 16, 1994 under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Agreement).[8] Ratified by 167 countries and the European Union, the ISA controls activities relating to mineral resources in around 54% of the total area of the world’s oceans for “the benefit of mankind as a whole.”[9]  The ISA’s duty is to adopt appropriate regulations that “ensure the effective protection of the marine environment from harmful effects that may arise from mineral exploration and exploitation.”[10]

As of mid-2019, the ISA has granted fifteen-year exploration contracts to thirty governmental and private entities.[11] However, the ISA has never granted an exploitation contract.[12] The reason for this discrepancy is that exploitation contracts cannot be granted until the ISA develops comprehensive exploitation regulations, which it has yet to do—despite working on the regulations for over twenty years.[13] This state of affairs might change in the very near future: Nauru, a Pacific island nation with a population of around 10,0000 people[14] invoked the “two-year rule” in June 2021.[15]

The two-year rule is a provision in the 1994 Agreement that allows member states to request that the ISA “‘elaborate and adopt’ the exploitation regulations” within two years of the request.[16] If the ISA fails to meet this deadline, it must provisionally approve the exploitation request in accordance with other sections of UNCLOS and the 1994 Agreement.[17] The ISA has until July 2023 to finalize exploitation regulations.[18]

If the finalized regulations allow industrial deep-sea mining to begin in earnest, the environmental consequences could be far-reaching. The major environmental concern with deep-sea mining is that it “poses unknown risks to the ocean, the climate, valuable fisheries, biodiversity, and the people that depend on the ocean.”[19] At the moment, very little is known about the short- and long-term environmental effects of deep-sea mining, although researchers are working to uncover the potential consequences.[20] One of the key concerns is that sediment accumulates on the ocean floor “at a glacial pace. . . of 1 millimeter every millennium.”[21] This slow growth rate means that mined areas of the seabed will be unlikely to recover within any reasonable timeframe.[22] As a result, both organisms and geographic features like water columns that exist on the seabed today could be irreparably damaged.[23]

In light of such significant environmental concerns, it would be a serious problem if the two-year rule forces the ISA to rush its exploitation regulations and consequently causes it to produce sub-standard regulations that inadequately protect the marine environment. One researcher, Pradeep Singh, has suggested that the two-year deadline “could largely prove inconsequential” because the ISA could choose to take “a measured, calculated risk” by advancing creative legal arguments to delay or frustrate the elaboration and adoption of exploitation regulations.[24] Yet other environmental lawyers, like Duncan Currie, who advises the Deep Sea Conservation Coalition, are convinced that the ISA will be forced to provide a decision by July 2023 as to “whether to go down what is a very one-way street toward deep-sea mining at the enormous expense of the marine environment, or whether…to continue to take a cautious view.”[25]

Critics of deep-sea mining are also concerned about Nauru’s motivations for triggering the two-year rule in the first place.[26] Nauru triggered the rule on the basis that it is sponsoring a company called Nauru Ocean Resources, Inc. (NORI), that wants to apply for a contract to begin exploiting the seabed.[27] But while NORI is incorporated and registered in Nauru, it is a wholly owned subsidiary of a private Canadian company, the Metals Company.[28] Both Nauru and the Metals Company portray deep-sea mining as essential to cutting carbon emissions because it can provide metals that are necessary to facilitate the switch from gas to electric vehicles.[29] While this potential environmental benefit is real, it is arguably offset or canceled out by the environmental costs of disrupting the seabed.[30] It is also true that deep-sea mining could be incredibly lucrative; the Metals Company estimates that it will earn at least $31 billion over the course of its 25-year mining project.[31] As a small island nation without a lot of resources, Nauru has “no ability of its own to pursue such an undertaking” like deep-sea mining, but still wants to benefit from it.[32] The solution is to partner with a foreign firm, potentially for as little as “half of one percent of the firm’s total estimated value of the mined mineral.”[33]

While it is understandable that Nauru would seek to boost its own economic situation given the circumstances, the fact remains that it has unilaterally put the ISA in an uncomfortable position. For almost twenty years the ISA has been maintaining a delicate balance between promoting industry and protecting the environment by allowing the exploration of the seabed while delaying the exploitation of it. It remains to be seen next summer whether that balance could be permanently upset if exploitation regulations are formalized.

Amy Rodriguez is an attorney at Montage Legal. She primarily handles civil litigation and her previous work centered on advancing environmental goals through negotiation and administrative hearings. She is a 2017 graduate of the University of Texas School of Law.

Camille Richieri is a J.D. Candidate, Class of 2024, at The University of Texas School of Law. Camille joined TELJ in Fall 2022. She was born in New York and studied public policy and economics at Duke University.

 

[1]      Eric Lipton, Secret Data, Tiny Islands and a Quest for Treasure on the Ocean Floor, N.Y. Times (updated Aug. 30, 2022), https://www.nytimes.com/2022/08/29/world/deep-sea-mining.html#:~:text= to%20the%20Future,Secret%20Data%2C%20Tiny%20Islands%20and%20a%20Quest%20for%20Treasure%20on,to%20the%20green%20energy%20revolution.

[2]      Mary Beth Gallagher, Understanding the Impact of Deep-Sea Mining, MIT News (Dec. 5, 2019), https://news.mit.edu/2019/understanding-impact-deep-sea-mining-1206.

[3]      Id.

[4]      Christina Ochoa, Contracts on the Seabed, 46 Yale J. Int’l L. 103, 106 (2021).

[5]      Id. at 114.

[6]      Lipton, supra note 1.

[7]      Gallagher, supra note 2.

[8]      About ISA, Int’l Seabed Auth., https://www.isa.org.jm/index.php/about-isa (last visited Jan. 2, 2022).

[9]      Id.

[10]     Frequently Asked Questions, Int’l Seabed Auth., https://www.isa.org.jm/frequently-asked-questions-faqs (last visited Nov. 29, 2022).

[11]     Ochoa, supra note 4, at 109.

[12]     Elizabeth Kolbert, Mining the Bottom of The Sea, The New Yorker (Dec. 26, 2021), https://www. newyorker.com/magazine/2022/01/03/mining-the-bottom-of-the-sea.

[13]     Id.; About ISA, supra note 8.

[14]     Kolbert, supra note 12.

[15]     Pradeep A. Singh, The Invocation of the ‘Two-Year Rule’ at the International Seabed Authority: Legal Consequences and Implications, 37 The Int’l J. of Marine & Coastal L. 375, 385 (2022).

[16]     Id. at 379 (quoting Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, Annex, sec. 1, ¶ 15, July 28, 1994, 1836 U.N.T.S. 3, 54 [hereinafter 1994 Agreement]).

[17]     Id. at 398–99 (citing 1994 Agreement, supra note 16, at 54).

[18]     Id. at 385.

[19]     Laura Berglan et al., The Clean Energy Dilemma: How the Push for Clean Energy Could Threaten Indigenous Communities and an Exploration of Potential Alternatives, 33 Colo. Env’t. L. J. 285, 296 (2022).

[20]     See Gallagher, supra note 2.

[21]     Id.

[22]     See id.

[23]     Id.

[24]     Singh, supra note 15, at 412.

[25]     Kolbert, supra note 12.

[26]     Lipton, supra note 1; Kolbert, supra note 12.

[27]     Singh, supra note 15, at 385.

[28]     Id.; Kolbert, supra note 12.

[29]     Kolbert, supra note 12.

[30]     Lipton, supra note 1.

[31]     Id.

[32]     Id.

[33]     Id.

Vol. 53-1 Recent Publications

Recent Publications

Kelsey Peden’s “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws”

Introduction

Shark and ray populations—known together with skates as “elasmobranchs”—have been on the decline over the past fifty years, subject both to high levels of intentional fishing and high levels of accidental catch.[1] In January 2021, scientists from around the globe noted that some shark and ray populations were in danger of extinction, and therefore deserved strong legal protection from the international community.[2] In her article “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws,” Kelsey Peden attempts to answer the question of how to achieve the necessary protection.[3] While noting the benefits of current international conservation and trade laws, she ultimately finds the existing international framework lacking.[4] Instead, Peden argues that the most promising avenue is for countries that she considers conservation-friendly, like the United States, to design their domestic trade laws in a manner that promotes sustainable seafood harvesting.[5]

International and Regional Conservation Law

Peden paints a disappointing picture of the international conservation scheme for oceanic wildlife. While acknowledging that the United Nations Convention on the Law of the Seas (UNCLOS) and subordinate agreements include language that protects “highly migratory species,” which includes many elasmobranchs,  this language is broad and lacks specific goals or terms.[6] Additionally, these agreements are largely voluntary and without specific enforcement provisions.[7] Universal conservation agreements are ultimately the wrong avenue for shark and ray preservation, as continued unsustainable fishing practices have demonstrated.[8]

Regional agreements and conventions like the Regional Fish Management Organizations (RFMOs) may be a more promising path forward. Promoted by UNCLOS and related agreements,[9] these arrangements allow for intergovernmental cooperation on a more local level.[10] However, much like the broader UNCLOS, these agreements face problems from nations that value profit over conservation.[11] The inadequate measures taken to protect bluefin tuna at the regional level, for example, demonstrate that RFMOs are susceptible to recalcitrant member states that wish to maximize the profitability of marine life at the expense of sustainability efforts.[12]

International Trade Law

Peden next turns to international trade law as a more productive avenue for shark and ray preservation.[13] At the center of these sustainable international trade regulations is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).[14] CITES works largely by classifying species into appendix groups, adapting the convention into national laws, and providing for enforcement.[15] The level of protection afforded to species varies depending on which appendix they are placed in. Appendix I offers the most protection, with trade being generally prohibited outside of exceptional circumstances.[16] Appendix II, the most populous appendix with 34,419 species listed, maintains less strict but still tight regulations on trade.[17] Finally, Appendix III requires sellers to obtain a certification of origin to be eligible for trade.[18] In addition to these specific guidelines, CITES also has enforcement provisions, including sanctions and the suspension of trade.[19] Peden specifically looks at language in Article XIV of CITES, which allows nations to develop “stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and II, or the complete prohibition thereof.”[20] Through this language, Peden sees in CITES a way for party nations to engage in unilateral enforcement of the convention, providing the enforcement mechanism that is critically lacking in other conservation agreements such as UNCLOS and the RFMOs.[21]

Unfortunately for sharks and rays, the author does not see CITES as a cure-all for elasmobranch protection. She notes that the first shark was not introduced to a CITES Appendix until 2003.[22] While there are now forty-six shark and ray species listed in the CITES Appendices, the author notes the comparative paucity next to the nearly 1000 shark and ray species currently alive.[23] Ultimately, she notes that this comes down to the same profit-motivation driving countries to block and obstruct other conservation efforts.[24] While the author finds that “CITES’ emphasis on trade and preventing profit-based interests from harming endangered species is the most direct and effective approach to international ocean management,”[25] she ultimately looks to other sources of law to supplement that regime and hopefully improve elasmobranch conservation.[26]

Domestic Conservation Law

Lastly, turning to domestic law, the author sees significant promise for shark and ray conservation.  She notes that the U.S. has its own suite of fishing sustainability laws.[27] For example, under the Federal Shark Conservation Act, shark finning has been largely banned within U.S. jurisdictions.[28] The use of driftnets—the type of net most associated with the accidental catch of elasmobranchs—is similarly banned throughout most of the U.S.[29] While these stricter laws are beneficial, the author notes that U.S. international trade law still has gaps that allow for the import of elasmobranchs with fewer protections than those provided by domestic law.[30] Peden believes that filling these gaps in import restrictions can support shark and ray sustainability.[31]

Peden finds the use of domestic import restrictions particularly worthwhile since it leverages the U.S.’ outsized market power.[32] As the author notes, the U.S. imported more than $20 million worth of seafood in 2016;[33] by using domestic import controls, Peden believes that the U.S. can promote shark and ray preservation on a global scale. The author notes that the U.S. has already enacted promising import controls for some species under several pieces of legislation, including the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA).[34] She finds the MMPA’s framework, which requires countries exporting fish to America to have equally strong marine mammal protections as the U.S., particularly interesting.[35] Promisingly, some states have contributed to the conservation effort, with several including Texas, California, and New York having outright bans on the sale and possession of shark fins.[36] Peden concludes that these import restrictions should be expanded to cover elasmobranchs and suggests several options: banning the import of elasmobranchs,[37] improving by-catch import regulations and labeling requirements,[38] and increased supply chain monitoring.[39]

The first path the author explores is banning the import of elasmobranchs, which she calls the “most simple and direct method of promoting elasmobranch population growth.”[40] Peden notes that the U.S. was the unintentional middleman to between 650 and 772 tons of shark fin exports from 2010–2017, “accounting for as many as 1.29 million sharks.”[41] The Shark Fin Sales Elimination Act, which would ban shark fin imports on a national level, represents a positive first step but has yet to be passed.[42] Recognizing the existing double standard that shark finning is illegal domestically but importing those same fins is legal, the author promotes a dual-track solution: First, to pass a federal ban on elasmobranch import; second, to adopt a federal reciprocity requirement for elasmobranch imports similar to the protection marine mammals receive under the MMPA.[43]

Next, the author explores improving by-catch regulations and labeling requirements. Identifying by-catch as one of the main sources of elasmobranch population decline, Peden examines several techniques that could be used to reduce by-catch.[44] Calling for U.S. import laws to prioritize existing practices and technologies, the author recommends establishing an MMPA-like regime that mimics its mandate to ban seafood “caught with commercial fishing technology which results in the incidental kill or incidental serious injury” of protected animals in excess of U.S. standards.[45] Additionally, the author recommends establishing a labeling regime similar to the one Congress enacted for dolphins in the Dolphin Consumer Protection Act.[46]  While acknowledging that these kinds of labeling acts are unlikely to prevent the by-catch problem entirely, Peden contends that these efforts would be a worthwhile first step towards reducing the accidental death of sharks and rays.[47]

Lastly, the author recommends imposing traceability requirements on imports to promote elasmobranch population growth.[48] Currently, there is no way to know where most shark and ray imports are coming from or what methods were used to catch them.[49] While some sharks and rays covered by CITES and the ESA do have traceability requirements, this covers only a minor portion of shark and ray species.[50] Peden notes that setting up such a traceability system is critical to the success of any other import regulation.[51] While the author does not offer any specifics as to what such a traceability system would look like, she notes that traceability systems exist for several other species, including those covered by the MMPA, and that there is no reason they could not also be implemented for more elasmobranch species.[52]

Going Forward

The author’s proposed solutions offer a hopeful path for improving elasmobranch protection. We live in an era of rising international tensions, where international cooperation seems increasingly difficult.[53] In this context, taking advantage of the market power of the U.S. seafood industry to target both intentional and unintentional killings of elasmobranchs is sensible.[54] However, the rise in global international deadlock has been mirrored by similar partisan tensions in the United States.[55] It can be a tall order to ask both houses of Congress and the President to agree on legislation.[56] Even regulatory action runs the risk of changing with administrations.[57] For all of its strengths, Peden’s article does not grapple with these questions.

Regardless, Peden offers a worthwhile path toward preserving sharks and rays. As she notes, international agreements have not stopped their population decline. Domestic law, and particularly import restrictions, presents a worthwhile avenue for the U.S. to promote shark and ray preservation abroad. By highlighting this, Peden’s article is a valuable addition to conservation efforts.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Trevor Mathes is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Trevor joined TELJ in the Fall of 2020 and serves as a Staff Editor. He was born in Abilene, Texas and studied History at William & Mary.

 

[1]      Kelsey Peden, Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws, 46 William & Mary Env’t L. & Pol’y Rev. 781, 782–84 (2022).

[2]      Id. at 782.

[3]      See generally Peden, supra note 1.

[4]      Id. at 785.

[5]      Id. at 785–86.

[6]      Id. at 788; United Nations Convention on the Law of the Sea art. 64, Dec. 10, 1982, 1833 U.N.T.S. 397.

[7]      Peden, supra note 1, at 786.

[8]      Id.

[9]      Id. at 786, 788.

[10]     Id. at 789.

[11]     Id.

[12]     Id. at 789–90.

[13]     Id. at 792.

[14]     Id.

[15]     Id. at 792–93.

[16]     Id. at 793.

[17]     Id. at 794.

[18]     Id.

[19]     Id. at 794–95.

[20]     Id. at 795; Convention on International Trade in Endangered Species of Wild Fauna and Flora art. XIV, para. 1(a), Mar. 3, 1973, 993 U.N.T.S 243.

[21]     Peden, supra note 1, at 795.

[22]     Id.

[23]     Id. at 797.

[24]     Id at 797–98.

[25]     Id. at 798.

[26]     Id.

[27]     Id. at 799.

[28]     Id. at 801.

[29]     Id. at 802. The only U.S. jurisdiction where the use of driftnets is still allowed is in California Federal Waters. Id. A bill to expand the driftnet ban to California Federal Waters passed Congress in 2020 but was vetoed by former President Donald Trump. Id.

[30]     Id.

[31]     Id.

[32]     Id.

[33]     Id. at 799.

[34]     Id. at 799–801.

[35]     Id. at 800–01.

[36]     Id. at 801.

[37]    Id. at 802.

[38]     Id. at 804.

[39]     Id. at 808.

[40]     Id. at 802.

[41]     Id. at 803 (quoting Jason Bittel, The Surprise Middleman in the Illegal Shark Fin Trade: The United States, Nat’l Res. Defense Council (Nov. 20, 2019), https://www.nrdc.org/onearth/surprise-middleman-illegal-shark-fin-trade-united-states).

[42]     Id. While the Act passed the House of Representatives, it never passed the Senate. Id. at 804.

[43]     Id. at 804.

[44]     Id. at 805–07.

[45]     Id. at 807 (quoting 16 U.S.C. § 1371(a)(2)).

[46]     Id. at 808.

[47]     Id.

[48]     Id.

[49]     Id. at 808–09.

[50]     Id.

[51]     Id. at 809.

[52]     Id. at 809–10.

[53]     See Tiziana Stella & Campbell Craig, Is International Cooperation Possible?, Wash. Post (Apr. 18, 2022 6:00 AM), https://www.washingtonpost.com/outlook/2022/04/18/is-international-cooperation-possible/ (noting rising tensions globally).

[54]     See supra notes 24–25, 32–33 and accompanying text.

[55]     Michael Dimock & Richard Wike, America is Exceptional in the Nature of Its Political Divide, Pew Rsch. Ctr. (Nov. 13, 2020), https://www.pewresearch.org/fact-tank/2020/11/13/america-is-exceptional-in-the-nature-of-its-political-divide/.

[56]     See supra notes 29, 42.

[57]     See Ankur K. Tohan et al., Three Steps Forward, Two Steps Back: The Biden Administration’s Revised NEPA Rules, K&L Gates (Apr. 29, 2022), https://www.klgates.com/Three-steps-forward-Two-Steps-Back-the-Biden-Administrations-Revised-NEPA-Rules-4-29-2022 (showing the regulatory back and forth that can happen as a result of a different party winning the White House).